VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
human rights DIVISION
GUARDIANSHIP LIST	
vcat reference No. g89778	
CATCHWORDS	
Guardianship List – reassessment of guardianship order – order first made when an intervention order prohibited contact by excluded persons except if permitted by VCAT – intervention order now at an end – represented person able to express her wishes – whether a guardian needed to make decisions about access to persons – no need for a guardian – VCAT not satisfied  a guardianship order would promote the personal and social wellbeing of the represented person – Guardianship and Administration Act 2019 (Vic) sections 30, 31	

Represented person	ZFN	
WHERE HELD	Melbourne via teleconference 	
BEFORE	Senior Member B. Steele 	
HEARING TYPE	Hearing 	
DATE OF HEARING	6 December 2021	
DATE OF ORDER	6 December 2021	
date of written reasons	10 March 2022	
citation	ZFN (Guardianship) [2022] VCAT 262	

Order
At the hearing [BDL] and [PBZ] withdrew the material they had filed in the hours before the hearing today and the principal registrar is directed to remove it from the file. There is no need to retain copies.
The guardianship order is revoked (ended).
The administration order still applies.

B. Steele
Senior Member			
APPEARANCES:		
The delegate of the Public Advocate, as guardian
Ms A Bartfeld of counsel for JTA and BQK
BDL, son of ZFN
PBZ, son of ZFN
JTA, son of ZFN 
BQK, son of ZFN

Reasons
The Victorian Civil and Administrative Tribunal (VCAT) is providing these reasons on a confidential basis. Clause 37(1) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 provides that unless VCAT orders otherwise, a person must not publish or broadcast any report of a proceeding under the Guardianship and Administration Act 2019 that identifies or could lead to the identification of a party to the proceeding.
1	In these written reasons for decision, I refer to the person who is the subject of the application as ZFN. The Victorian Civil and Administrative Tribunal (VCAT) has given the person that anonymised name to protect their identity and the confidentiality of their personal information. I refer to four of ZFN’s sons, BQK, JTA, PBZ and BDL also by anonymised names. For ease of reading, I have given each of them a one-letter name. I refer to JTA and BQK as A and B and to PBZ and BDL as C and D. 
2	On 6 December 2021, I revoked an order appointing the Public Advocate as guardian for ZFN to make decisions about her access to persons, including access to her by her sons C and D. One of those sons has sought written reasons for my decision and I set them out here. I gave oral reasons at the hearing and those were brief. The issues were few. Here I set out the situation (which was known to those at the hearing), an account of the evidence given at the hearing, and the relevant legislation before setting out my brief reasons for decision. 
Background
3	The hearing on 6 December 2021 was a reassessment of a guardianship order I had made on 10 December 2020, when I appointed the Public Advocate as guardian for the represented person, ZFN, with the sole function of making decisions about the ZFN’s access to persons.
4	The reasons for my earlier decision are set out in my written reasons dated 19 February 2021. 
5	To describe the situation briefly, ZFN has five sons. Until not long before the hearing at which I made the guardianship order in December 2020, ZFN had been living with one of her sons A or B. Before that, she was living alone. Not long before the hearing in December 2020, ZFN returned to living at her own home with professional supports in place and with the support still of A and B and their families. ZFN’s sons C and D and their families were excluded from contact with ZFN under this arrangement. 
6	In February 2020, an interim intervention order had been obtained preventing C and D from seeing or contacting their mother. This followed a dispute about powers of attorney which I do not need to describe here. It is sufficient to say that A and B considered C and D had coerced their mother to sign such a power and applied to VCAT about it. VCAT made orders in March 2020 appointing an independent administrator for ZFN and such orders remain in place to the present time. The question of who (if anyone) should be appointed as guardian to make personal decisions for ZFN, such as about access to persons, was referred to the Public Advocate for investigation. 
7	In November 2020, the intervention order was varied by the Magistrates Court, inserting exceptions so that C and D were able to see their mother. The order said they ‘could do anything that is permitted by a VCAT order’.
8	In line with that intervention order, my order of 10 December 2020 permitted C and D to see their mother if the appointed guardian (the Public Advocate) decided they could. My order also continued the suspension of the enduring powers of attorney for personal and financial matters which had been signed by ZFN on 7 March 2019 and on 1 November 2019. They were suspended ‘until further order’.
9	In giving reasons for making the guardianship order of 10 December 2020, I said: 
48.	I noted that ZFN is uncertain about access to her sons BDL and PBZ but that in the long term wants to be reconciled with them.
49.	Given the long-running dispute, I was not persuaded that leaving the March 2019 EPA to operate at present in relation to personal decisions would accord with her wishes or encourage a return to normal interactions with all her family.
50.	Similarly, I was satisfied that informal means of making decisions about access to all her family were not reasonably available.
51.	Appointing a guardian to make decisions about access to ZFN will not interfere with the relationships that are important to her. The appointment is made so that those relationships can continue.
10	During the course of the guardianship order made on 10 December 2020, in fact in March 2021, the intervention orders against C and D were withdrawn. 
11	At the reassessment hearing in December 2021, where the guardianship order was revoked, A and B contended that there should continue to be a guardianship order in place about ZFN’s access to persons. C and D were inclined to think the guardianship order had not helped in them gaining access to their mother, although (as I recall the hearing) they were not firmly of the view that it should be revoked. 

Relevant Law
12	A person (including VCAT) exercising powers functions and duties under the Act must have regard to the principles set out in section 8 of the Guardianship and Administration Act 2019 (Vic) (the Act). In summary, they are:
a	a person with a disability should be given practicable and appropriate support to make and participate in decisions, express their will and preferences, and develop their decision-making capacity;
b	the will and preferences of a person with a disability should direct decisions made for the person, as far as practicable; and
c	powers, functions and duties must be used in the way which is the least restrictive of the ability of the person with a disability to decide and act as is possible in the circumstances 
13	When appointing a guardian, VCAT must apply the principles in section 8, including that ZFN’s will and preferences should direct the decision ‘as far as practicable’.
14	ZFN’s will and preferences are relevant also when VCAT decides whether a person needs a guardian (section 31) and whether a proposed guardian is a suitable person to be appointed (section 32(3)(a)).  
15	Section 30(2)(b) of the Act says VCAT may only appoint a guardian for a person if satisfied that the person needs a guardian.
16	Section 31 of the Act sets out several matters VCAT must consider in determining whether a person needs a guardian. VCAT must consider the person’s will and preferences (as far as they can be ascertained) and whether decisions about the relevant personal matters could be more suitably made informally or could reasonably be made by mediation, negotiation or some similar method. VCAT must also consider the wishes of any primary carer, relative or other person with a direct interest in the application and must also consider the desirability of preserving existing relationships important to the person with a disability. 
17	Section 30(2)(c) of the Act says VCAT may only appoint a guardian for a person if satisfied that the guardianship order will promote the person’s personal and social wellbeing
Evidence at the hearing
18	In the hours before the hearing, C and D had filed a great deal of written material, allowing little or no time for me or the other parties to read and assess it. They agreed to withdraw the material rather than have the matter adjourned. Other written evidence before me included the written report (dated 23 November 2021) of the appointed guardian (a delegate of the Public Advocate). The delegate spoke to her report at the hearing, and I refer to her evidence further below.
19	The wife of one of the sons A or B (I am not sure which one of them she is married to) had provided a document apparently signed by the represented person, expressing the wish, amongst other matters, that the represented person did not want to see her sons C and D. This document was apparently (in that it followed the same form) based on a worksheet which is usually sent by VCAT to a represented person or proposed represented person before a hearing so they can record their wishes. I do not know whether the worksheet had been sent to the represented person for the purpose of the hearing on 6 December 2021. Because the worksheet came from one ‘camp’ of the family, I did not give it a great deal of weight. Ultimately it was unnecessary to consider it because my task was not to decide whether or how to give effect to the will and preferences of the represented person, including whether and how she should see her sons C and D and their families. My task was to decide whether ZFN needed a guardian to make decisions about those matters for her.  
20	On this occasion I was told that ZFN was available although not actually connected to the telephone conference. I had spoken to her on previous occasions. 
21	The guardian’s evidence was that since her appointment, she had spoken to the represented person once on video and visited her twice. The guardian reported that after meeting with ZFN and identifying only that ZFN did not want to see C and D (and the wife of one of them), she permitted the wife of the other excluded son to visit ZFN. The guardian said the visitor when she arrived to see ZFN was surprised to find that A and B and their wives and a child of one of them were all present at the visit, making it uncomfortable for the previously excluded visitor to speak freely to ZFN.
22	Subsequently, the guardian visited ZFN again (having experienced delays working through one of A and B) and explored whether ZFN was willing to see C and D. She reported that ZFN seemed willing to start contact with one of them.
23	After that, the guardian spoke in May 2021 with Dr Deborah Freiberg-Golvan, ZFN’s psychologist who agreed to assist ZFN in written communications with the son I refer to as C and the guardian decided that contact was allowed with him for that purpose.
24	The next meeting was via Zoom and took place in October 2021. In the intervening time, COVID-19 restrictions had prevented contact and A or B had complained about the guardian’s behaviour in the May 2021 interview. The complaint was not upheld.  I mention this as it may account for some of the delay.
25	Of the October 2021 meeting, the guardian reported that ZFN was still apprehensive about speaking to the son I refer to as C on the phone but said she would be ‘happy to have some exchange of thought’. ZFN also told her at that meeting it was a shame not to see the children of C and D and said some contact would be good, but ‘not a deluge’. The guardian recorded that when Dr Freiberg-Golvan asked ZFN what her apprehension regarding C and D was about, ZFN became distressed and did not want to continue the conversation.
26	On 8 November 2021, Dr Frieberg-Golvan sent the guardian an email advising that ZFN did not want to see the guardian again and would like to continue using Dr Frieberg-Golvan to facilitate contact.
27	The guardian also reported about her various meetings and exchanges with A and B and with C and D. Of A and B, she said: 
Both [A] and [B] have advised me [ZFN] refers to them as her “memory on legs” and appears to feel it is their role to remind her of events that have happened in the past. I hold concerns around their understanding on this issue, along with the risk that their own negative views of their brothers might add to the feelings of apprehension [ZFN] has towards [C] and [D]. 
28	The guardian also said: 
It is my experience that there are challenges in getting responses from [A] and [B], often around requests for meetings with [ZFN], with lengthy delays the norm. I assess there is an apparent level of protection they consider necessary for [ZFN] and that they are the best people to administer this. 
29	Of her exchanges with C and D, the guardian described their wish to have unrestricted access to ZFN for themselves and their families. She reported they believe ZFN is coerced by A and B to express her unwillingness for contact. They also believe, she reported, that Dr Frieberg-Golvan is not a neutral party but is rather there to support the narrative put forward by A and B, that they are a problem. Among other remarks the guardian observed that the son I refer to as C has a communication style which is:  
abrasive at times and … while he appears to want to mend the rift with his brothers, likely to assist with contact with [ZFN], it ends up sounding threatening rather than forgiving.
30	The guardian reported that ZFN is willing to use Dr Frieberg-Golvan to facilitate contact and that Dr Frieberg-Golvan is willing to continue in this role. This offers an informal way forward, without the need for appointment of a guardian. 
31	The guardian reported that in February 2021, she met with a police officer who told her the police would not seek to continue the intervention order excluding C and D from contact with ZFN. The police officer said they had no evidence of ongoing harm to ZFN. The guardian added that following withdrawal of the intervention orders on 3 March 2021, a costs order was made in favour of C and D, that they be compensated by police on the basis there was no evidence to have the intervention order in place. The guardian reported that C and D were of the view that they should therefore be able to have unregulated access to their mother. 
32	The guardian offered three suggestions for a way forward – that ZFN live in a neutral setting where she will not be influenced by one ‘camp’ or the other about her choices; that ZFN be supported at home by neutral parties to achieve the same result, rather than by A and B; or that gradual contact with C and D and their families occur with Dr Frieberg-Golvan facilitating in accord with ZFN’s wishes. The guardian suggested that taking into account ZFN’s wish to live in her own home and apparent dependence on A and B the only workable solution for C and D to have access to her was the third option.
Findings and Conclusion
33	While either A and B on the one hand or C and D on the other may contest particular elements of the guardian’s report, overall I accepted that her observations were correct and that her suggestions about solutions for access to ZFN were the only workable solutions.
34	I ordered that the guardianship order be revoked.  I note that the ending of the intervention order excluding C and D means there is no legal reason for C and D to be prevented from seeing ZFN. There is no reason why ZFN herself should not be the one to decide who she has contact with. 
35	I noted that while it may be that A and B have in the past influenced ZFN’s choices about whether she sees C and D, there is now an avenue by which ZFN can make her choices known independently of A and B. She is content to continue seeing Dr Frieberg-Golvan and work through her. 
36	I was not satisfied that ZFN needs a guardian to make decisions about who has access to her. ZFN can express her own wishes about that. Decisions about who she sees can be made informally or through her chosen mediator, Dr Frieberg-Golvan. Applying sections 30(2)(b) and 31 of the Act, there is no need for a guardian.
37	Further, considering 30(2)(c) of the Act, I could not be satisfied that a guardianship order would promote ZFN’s personal and social wellbeing. There remained no evidence of that. She had been uncertain of whether she wanted to see C and D. The purpose of the original order was to facilitate some contact with C and D, as permitted by the intervention order made in November 2020. That is no longer necessary and ZFN can express her own preferences as described by the guardian.
38	It was clear to me from the guardian’s evidence that the appointment of a guardian had done nothing to resolve the dispute between A and B on the one hand and C and D on the other about whether ZFN is willing and able to resume contact with C and D and their families. On the contrary, A and B had failed to cooperate with the guardian in arranging gradual resumption of contact and after the ending of the intervention order had continued to use the guardianship order as an excuse for excluding C and D. 

39	I noted to the parties at the hearing that the revocation of the guardianship order means that no person except ZFN herself has power to prevent anyone having access to her. The powers of attorney remain suspended and there is now no guardianship order. 

B. Steele
Senior Member