LP v P & Ors

HIS HONOUR: At the outset, having regard to the legal status of the first Defendant as a protected person, an order prohibiting the publication, or disclosure of the name of the parties, or any details from within the court file, or from the evidence in the proceedings, that either identifies, or tends to identify, him, has been made.

Somewhat impersonally, I have assigned an initial to the first Defendant, and initials to the other parties, who are all members of his family, in place of the names of each. Hereafter, I shall refer to each of them by the initial, or initials, throughout these reasons: Court Suppression and Non-publication Orders Act 2010 (NSW), s 7(a).

The proceedings, which are in the Protective List of this Court, concern a 37 year old man, L, who, as the parties all agree, lacks capacity by virtue of catastrophic brain injuries that he suffered in a motor vehicle accident in January 2004. He is a “managed person” within the meaning of that term in the NSW Trustee and Guardian Act 2009 (NSW), that is to say, “a protected person … whose estate is subject to management under this Act”: s 38.

L requires round the clock care, 7 days a week, and is wheelchair bound. He is PEG (percutaneous endoscopic gastrostomy) fed, that is through a tube which is passed into his stomach through the abdominal wall. He has the great misfortune, also, to be “completely dependent for all activities of daily living, instrumental activities of daily living, communication, and participation in social and leisure tasks”: Ex. 2D1/3.

In short summary, these reasons deal, principally, with the determination of an application by L’s mother for the removal of L’s financial manager, Perpetual Trustee Company Limited (“Perpetual”) and the appointment, in its place, of Australian Executor Trustees (“AET”) as L’s financial manager “to act in relation thereto under the order and direction of the NSW Trustee and Guardian until further order”. (In an Amended Summons, the reference to an order removing Perpetual and the appointment of AET was changed to use the terminology of financial management.)

The parties to the proceedings are LP, the Plaintiff, who is L’s mother; L, himself (by his tutor, Perpetual), who is the first Defendant; KP, the second Defendant, who is L’s father; WP, the third Defendant, who is L’s step-mother and KP’s second wife; MP, the fourth Defendant, who is L’s older sister and a child of LP and KP; AP, the fifth Defendant, who is L’s half-brother and a child of KP and WP; and MiP, the sixth Defendant, who is also L’s half-brother, and a child of KP and WP.

Pursuant to orders made on 19 June 2017, by Lindsay J, the Protective List Judge, the second to sixth Defendants inclusive, were joined as parties to the proceedings. LP filed an Amended Summons on or about, 23 June 2017, adding those Defendants.

Despite the number of parties, there were, essentially, three camps, the first, comprising the Plaintiff, who was represented, at the hearing, by Mr R Wilson SC; the second, comprising the first Defendant, by his tutor, who was represented, at the hearing, by Mr M K Meek SC; and the second to sixth Defendants, who were represented, at the hearing, by Mr C A Lambert of counsel. All of the Defendants, however, were united in opposing the relief sought by the Plaintiff.

At the hearing Ms J Brouwer, solicitor, attended “in the interests of the NSW Trustee and Guardian”, principally as an observer. She informed the Court that Lindsay J had “invited us to come along”: T1.35. Every appointment of a manager of a protected estate under the NSW Trustee and Guardian Act (or the Guardianship Act 1987 (NSW)) is accompanied by an order that the estate be subject to management under the NSW Trustee and Guardian Act: Ability One Financial Management Pty Limited v JB by his Tutor AB [2014] NSWSC 245, Lindsay J, at [9]. Importantly, the NSW Trustee and Guardian appeared to have considered it neither necessary, nor appropriate, for it to intervene in the proceedings.

Ms Brouwer’s attendance was noted, but she did not participate, other than when asked questions by the Court. She did not suggest that the NSW Trustee and Guardian supported the order for the removal of Perpetual as L’s financial manager. As the public authority entrusted with monitoring the work of all private managers of protected estates in New South Wales, the Court would have expected that if the NSW Trustee and Guardian had reasons to support LP’s claim for relief, because, for example, there were problems of which it had notice in relation to past, present, or prospective, management of L’s estate, it would have formally supported her application, or, at least, that it would have been invited by LP to do so.

Furthermore, there was no suggestion, in either of the two written reports of the NSW Trustee and Guardian, which appear to have been prepared prior to the matter being set down before me, and a copy of each of which was in evidence, or otherwise, that accounts for L’s estate had not been passed for each year since the appointment of Perpetual; or that Perpetual had not been compliant with its obligations as L’s financial manager; or that there was any other information known to the NSW Trustee and Guardian that would warrant a review of the continuation of the appointment of Perpetual as manager.

It is unfortunate that the proceedings have been made far more complex than they ought to have been. Many collateral disputes of fact, particularly as between LP, on the one hand, and KP and WP on the other, have been raised. The intensity of the family division, and the tension between the family members, is demonstrated, for example, in Paragraph 17 of LP’s first affidavit and in many of the emails sent to Perpetual; in Paragraphs 10 to 13 of KP’s affidavit; and in Paragraphs 145, 173, 175, 207 and 209 of WP’s affidavit. I shall not burden these reasons by setting out the contents of these affidavits as they do not assist, other than to found the basis of my comment.

There also appears to be some hostility between MP and LP. MP described their relationship as “tumultuous” prior to 2007, and it appears to have been virtually non-existent since that time. Paragraphs 38 and 49 of her affidavit reveal a similar hostility.

By way of further example, the details of which, also, do not bear repetition, one need only consider the response by each of LP and KP to the application made by the other for compensation in respect of care provided to L: Ex. 1D1/106 – Ex. 1D1/128.

Perhaps, the intensity of their history of personal disputes and acrimony is demonstrated by the nature of some of the submissions made on behalf of the second to sixth Defendants (despite the suggestion to the contrary):

Without referring to each of them verbatim, I also refer to Paragraphs 9 to 19 of the second to sixth Defendants’ written Outline of Submissions. All of these matters do no more than follow a long line of disagreements between the family members. They do not assist.

As I did at the hearing, I make clear that I do not propose, and have not attempted, in these reasons, to resolve all of the factual disputes, except to the extent necessary for the proper determination of the real issues in the case. In any event, it would be virtually impossible to do so.

Yet, despite the conflict, it appears that there is some truth in the statement, made by WP, that all members of L’s family are united in terms of seeking what is for L’s benefit in respect of his care, and in acting in his best interests. However, they are, and have been, at odds about what she (LP) and they (KP, WP, MP, AP and MiP) see as being for his benefit and in his best interests.

As earlier written, the current financial manager of L’s estate is Perpetual, which was appointed the financial manager of his estate, pursuant to orders of this Court, entered on 29 June 2012. Order 3 provided that Perpetual be appointed as manager of the estate of L “subject to the order and direction of the NSW Trustee and Guardian”.

Perpetual is a licenced trustee company under Chapter 5D of the Corporations Act 2001 (Cth) and is the holder of an Australian Financial Services Licence. It has its principal place of business in Sydney. It acts as a trustee of trusts and accepts appointment as a financial manager. It provides “investment and tax advice in connection with its appointment as a trustee and manager”. It also provides “investment administration and accounting services, a taxation service, and a full care service, and has access to a range and depth of financial expertise, including its own legal and tax departments and qualified financial advisers and investment consultants”. It has a range of other services.

By written Consent dated 7 December 2016 (Ex. A), AET consented to being appointed as L’s financial manager. It is said to be “one of Australia’s biggest and most experienced non-government providers of professional trustee services in Australia” and is “a licensed trustee company under Chapter 5D of the Corporations Act”. It is incorporated in South Australia, with its headquarters in Adelaide.

For over a decade, AET “has obtained specialist financial advice for its personal injury clients”. In 2015, AET “partnered with” Aeran Pty Limited (“Aeran”) “so that AET clients would have the benefit of fully independent financial advice by a firm which wholly specialises in personal injury financial advice”.

Aeran is licenced by ASIC and it has an Australian Financial Services licence number. There is said to be no “financial relationship” and “no conflicts of interest” between AET and Aeran.

There was no dispute that each of Perpetual and AET is an experienced financial manager which, routinely, manages large estates for catastrophically injured clients, including those who live overseas and/or who have complex family dynamics. Each is able to manage the affairs of L from Australia, even if he resides in Spain (where L currently resides).

Prior to the commencement of the hearing, the parties had agreed that the issues that lie at the heart of their dispute, and which the Court was to be asked to determine, were:

However, at the hearing, these issues were narrowed.

In relation to the first issue, which, as has been stated, was the principal issue to be determined at the hearing, it should be noted that Perpetual is not a party and is not named, other than as the tutor for L. The Court was informed that Perpetual, in the interests of L, neither consented to, nor opposed, an order that it be removed as L’s financial manager. However, submissions made by senior counsel, on behalf of L, to which reference will be made, make it clear that the replacement of L’s financial manager by AET is not supported.

It should also be noted, in relation to the first issue, that senior counsel for LP, did not disagree when it was pointed out that no submissions had been made, on behalf of LP, suggesting “that the management of the financial aspects of [L’s estate] have been handled badly…”: T118.05 – T118.14. I am satisfied that it is not part of LP’s case that Perpetual has behaved, or is behaving, in a way that contravenes the authority conferred on it. In other words, the management of the financial aspects of L’s estate is not a ground for seeking the removal of Perpetual.

In relation to the second issue, the parties were given an opportunity to agree upon the nature of the orders that they wished the Court to consider. On the second day of the hearing, a copy of the plan was tendered, and marked as Ex. D, with the agreement of the parties, and without opposition from Ms Brouwer, it was noted, at T122.09 – T122.33, that:

Hopefully, the parties will take the steps that they wish to be adopted, to have the agreed plan brought to the attention of the NSW Trustee and Guardian. If there is a problem about this aspect, any party may apply for additional orders.

In relation to the third issue, none of the parties made any specific oral submissions. The general inclination expressed seemed to be to leave the issue of costs until after the determination of the first issue. In the circumstances, I shall follow this course and, again, allow the parties to give consideration to how costs of the proceedings should be borne following these reasons being published.

An issue that had been raised by LP concerned fees charged by Perpetual. However, in a Case Outline, dated 9 October 2017, a submission was made on LP’s behalf that the more appropriate way to deal with the question of fees was for an analysis to be carried out by a new manager, if appointed.

At the hearing, LP’s stated position was that she no longer challenged the fees of Perpetual as a matter that required the determination of the Court at this time.

L submitted that LP’s claim for relief should be regarded as now being finally abandoned and dismissed. As the Amended Summons, filed on 23 June 2017, does not seek any such relief, this issue, if it exists, cannot be determined in these proceedings.

A further issue that had been raised prior to the hearing also evaporated. It was common ground, at the hearing, that the current Orders made under the regime set out in the NSW Trustee and Guardian Act should continue, and be maintained, albeit that they may need to be amended if Perpetual is replaced.

The issue, initially, arose because L, now, lives in Spain and because the NSW Trustee and Guardian Act does not, in terms, cater for a situation where the protected person lives in a foreign jurisdiction: see, PB v BB [2013] NSWSC 1223. The parties appeared to accept that a “guiding star is the need for a prudential management regime that can be administered, without strife in the simplest and least expensive way, in the interests of” the protected person, and that the inherent jurisdiction of the Court “extends at least as far as making orders respecting the estate of a person in need of protection where either the person, or his, or her, property, is within the territorial jurisdiction of the Court”: PB v BB, at [16], [29] – [30].

As none of the parties have sought any order altering the regime set out in the NSW Trustee and Guardian Act, that regime will continue whether or not there is a change of financial manager, and the issue is no longer one that needs to be considered.

Apart from family members other than AP and MiP, the following witnesses gave evidence, by affidavit(s), read in LP’s case:

Although she did not provide an affidavit, a letter dated 8 May 2017 and one dated 15 August 2017, of Ms Jane Campbell, who is the Principal and a director of Aeran, was read, without objection, as part of LP’s case. Ms Campbell is a Certified Financial Planner and a lawyer with a current NSW Practicing Certificate (although she is not currently practicing as a lawyer). She is listed in the ASIC Register of financial advisers. Ms Campbell is said to have met LP on 16 November 2016 to discuss Aeran’s services.

On behalf of L, the affidavits of the following deponents were read:

No deponent was cross-examined, and after the affidavits were read into evidence, and the objections (particularly to the use to which certain parts of the affidavits could be put) were dealt with, the parties commenced oral submissions. (It is clear, particularly in relation to the main protagonists that some of the matters raised in the affidavits and the correspondence annexed to the affidavits is based on conversations with other persons. Other aspects were relied upon as submissions, rather than as proof of the facts asserted.)

As I have earlier written, the proceedings were made far more complex than they ought to have been. That this is not an unwarranted, or unjustified, comment is demonstrated by the extent of the evidence filed in support of the case advanced by the parties.

For LP, senior counsel read 15 affidavits, in chief, or in reply, being four affidavits of LP, two affidavits of Mr Worth, four affidavits of Ms Brookes, one affidavit of Ms O’Brien and four affidavits of Mr McDonagh. In addition, there was tendered a folder of documents (Ex. B), comprising about 130 pages.

For L, senior counsel read 5 affidavits in chief, and in reply, being three affidavits of Mr Bernstein, with voluminous exhibits to some of them; and an affidavit of Ms Mastrogianni and an exhibit to that affidavit. In addition, a folder of documents (Ex. 1D1), comprising 457 pages was tendered.

For the second to sixth Defendants, counsel read three affidavits, being one from each of KP, WP (comprising, with annexures, 279 pages) and MP. In addition, there was tendered a folder of documents (Ex. 2D1), comprising 247 pages.

Relatively few of the documents forming annexures, or exhibits, were actually referred to, by counsel. Regrettably, much of the evidence given was diffuse, and it was only in the written final outline of submissions, that the case being made for the removal of Perpetual became clearer.

Mercifully, the hearing was completed within its allotted time of two days.

It is necessary to trace the history of the matter leading to the commencement of the proceedings. However, it is not necessary to burden these reasons with anything greater than a summary of the background history.

The following facts were either not in dispute or should be regarded as the factual findings of the Court. (In relation to the litigation that gave rise to the award of damages in favour of L, I have referred to the unreported decisions identified in the evidence, each of which decisions bears a medium neutral citation that should not be referred to in these reasons as they identify some of the parties, including L.)

LP was born in August 1952 and is almost 65 years old.

KP was born in June 1945 and is 73 years old.

KP and LP married in the United Kingdom in 1978. There were two children of their marriage, namely MP, who was born in July 1979, and L, who was born in April 1981.

LP instituted divorce proceedings in 1990. WP was named as the co-respondent in those proceedings. Those proceedings were hard fought and lasted a number of years. The proceedings were the subject of a reported case, to the citation of which I shall not specifically refer for the same reason.

(There is clearly a long history of acrimony between LP, KP and WP, the reasons for which are not relevant to these proceedings. Regrettably, one has the strong suspicion that it is this acrimony that has fuelled the approach adopted by them in the proceedings.)

KP and WP had two children, together, namely AP who was born in February 1988, and MiP, who was born in February 1994.

L and MP lived with LP, initially, after the separation and divorce of their parents, other than for a period of time when, at the age of 13 years, MP lived with KP.

In 1996, KP and WP left the United Kingdom to live in Australia, initially, for a few years, but, subsequently, they decided to settle here permanently. KP is an Australian citizen and all of the other family members have dual citizenship.

At about the same time, LP left the United Kingdom and moved to Spain, initially for 6 months. L and MP did not go with her. Subsequently, LP decided to remain living in Spain, but she continued to be in regular contact with her children.

MP moved to Australia to live with KP and WP in 1999. L moved here, permanently, in 2000. He commenced a degree at the University of New South Wales.

LP travelled to Australia to see her children in July 2000. In addition, she saw L, in the UK, at Christmas 2001 and in Portugal in 2002.

LP had booked a trip to take MP and L to Byron Bay in 2004. Regrettably, L’s motor vehicle accident intervened on 24 January 2004. He suffered catastrophic injuries including severe head injuries, with irreversible brain damage, and became, essentially, a tetraplegic (another term for quadriplegia).

The circumstances of the accident were that he was attempting to get into a taxi when it drove away. He either held on to its roof rack, or otherwise became attached to it, as it commenced to move. He remained attached to it whilst it travelled approximately 300 metres along the roadway when he was dislodged from it as it negotiated a speed hump.

At the date of the accident, L was working as a data processor for General Electric, having finished his university studies in 2003. He was living with KP and WP, in Paddington, but had planned to move in with a friend in a nearby suburb.

All of the family were at his bedside in the days, and weeks, immediately following L’s accident. He remained hospitalised for over three months, during which time he had inpatient rehabilitation. He was then a patient at Royal Rehabilitation Centre, Sydney, between April 2004 and the end of February 2005, before moving to the Crest Nursing Home, an aged care facility at Annandale.

Approximately four months after the accident, LP returned to Spain for a short period to pack up to return to Australia. Subsequently, she applied for, and in February 2006, was granted, permanent residency in Australia.

Proceedings in this Court, in which damages were claimed, were commenced by L, by his tutor KP, in 2005. The proceedings were instituted, initially, against the Nominal Defendant pursuant to s 34 of the Motor Accidents Compensation Act 1999 (NSW), as enquiries made on behalf of L to identify the owner and driver of the taxi, had not proved successful.

Sometime later, enquiries by the Nominal Defendant produced some evidence of the identity of the owner and driver of the taxi, and KP, on behalf of L, filed an Amended Statement of Claim on 13 November 2008.

The matter was heard, and it was determined, in late 2009. An appeal was successful by the owner/driver, as was a cross-appeal by L, in late 2010, with the result that there was a verdict for L, against the Nominal Defendant, with damages to be assessed.

By order dated 23 October 2007, after a hearing on the same day, the Guardianship Tribunal ordered the appointment of the Public Guardian in respect of the decision making functions of "services to which L should have access and health issues".

The Tribunal noted that KP and LP had been able to agree as to L’s accommodation and about medical and dental treatment. The order was made for a period of 12 months in the hope that within that time they would "again be able to reach ongoing co-operation and compromise in relation to the services [L] should receive."

The appointment of the Public Guardian was renewed, continuously, since the initial 2007 order until, in 2015, a variation was made appointing LP as L’s guardian for 12 months. The order appointing LP was not renewed thereafter.

In about November 2009, LP purchased a home in Quakers Hill, a suburb of Sydney, to enable L to come home between Friday and Sunday, every second week.

In June 2011, L moved to a new Aged Care Facility, being “Windward Manor”, Opal Aged Care Facility.

It is not necessary, so many years later, to regurgitate the issues that arose, between family members, regarding L’s care, in the intervening period. In broad summary, there have been continued disputes, principally between LP and KP. In the Review of the Decision completed in April 2015, by the Public Guardian, it was, aptly, recorded:

LP herself confirmed that there had been “considerable disagreement between me and [L’s] father and [WP]”. (She admitted that she had not discussed the application to remove Perpetual and to have AET appointed with KP, WP or MP.)

In about mid-2012, in the common law proceedings in this Court, judgment was entered by consent, awarding $12 million plus costs to L.

The orders made in mid-2012 included a direction to the Registrar to pay to Perpetual “all funds held on behalf of [L], being the net proceeds of judgment in the Supreme Court proceedings 2005/xxxx, including any interest accrued”.

At, or about, the time of the appointment of Perpetual, slightly more than $10,075,734.97 was held for L.

Perpetual seems to have been recommended for appointment, principally after KP carried out “an exercise of comparison with similar companies”. Indeed, one of the companies with whom L’s solicitors met was Australian Executors Trustees (“AET”), which is the trustee company that LP seeks to have appointed in place of Perpetual.

In December 2011, Mr McDonough and Ms Campbell had met with KP and with his solicitor to “let us know how much the fees of IPAC [Ms Campbell’s company] and [AET] would be should the Court appoint [AET] as trustee.”

Subsequently, the NSW Trustee and Guardian approved the financial plan made by Perpetual to invest the bulk of the funds in its “SuperWrap” investment product, which consisted of a range of investments including cash, real property, as well as Australian and international shares. The balance of the judgment sum was to be placed in cash management funds and short term deposits, which were to be utilized to meet L’s expenditure needs, which, at that time, were estimated to be about $453,000 per year.

As at 28 June 2015, the value of the investments held by Perpetual, on behalf of L, was a little over $11.1 million. As at 28 June 2016, the value of L’s estate was slightly under $10.7 million. As at November 2017, the value of the investments and property held by Perpetual, on behalf of L, was approximately, $10.8 million.

LP returned to live in Spain in February 2012. She returned to visit L in July 2012, and again in January 2013 (at a cost to L of $8,000). Thereafter, Perpetual was authorized to pay LP $10,000 per year, to enable her to visit L, twice per year. In 2013, LP visited him a second time; in 2014, she visited, again, on two occasions, for a total of three months; in 2015, she visited once, for a five month period; and in 2016, she visited, on two occasions, for a total of six months.

In 2012, following the resolution of L’s damages claim, LP filed an application with the Public Guardian to move L to Spain to reside with her there. KP put forward an alternative proposal which involved L’s move to Beresford Hall Aged Care Facility, situated at Rose Bay, which was closer to KP’s home in Vaucluse.

The Guardianship Division of NCAT appointed the Public Guardian on 4 October 2013 to make decisions on behalf of L in the areas of accommodation, health care and services.

On 29 January 2015, under the accommodation function, the Public Guardian published its decision that L reside in domestic style accommodation in Spain, with the support of personal carers and therapy services co-ordinated by LP.

In its Reasons, dated 2 March 2015, the Public Guardian set out the extensive list of interviews it had conducted, and that had informed its decision. It provided the factual context, as well as detailed reasons for, its decision.

On 27 March 2015, WP lodged a request for an internal review with the Public Guardian. On 23 April 2015, the Public Guardian set aside its initial decision for a period of three months in order to obtain further information about access to health care and therapy services. Further interviews were conducted by, or on behalf of, the Public Guardian.

By decision dated 25 September 2015, the original decision of the Public Guardian was upheld.

On 14 October 2015, the Public Guardian made a one year limited guardianship order appointing LP in respect of the functions of accommodation, health care, medical and dental consent, services, travel and passport.

In March 2016, the NSW Trustee and Guardian approved the request, made by Perpetual, to purchase a property in Spain for L. The estimated cost of the purchase, together with modifications to accommodate L’s needs, was estimated, at that time, to be approximately, AUD$1,400,000.

In April 2016, the NSW Trustee and Guardian approved a further AUD$151,000 to be spent to cover taxes and related costs of the purchase of that property.

In August 2016, the NSW Trustee and Guardian approved the request by Perpetual to pay LP the amount of $221,583.05 for past gratuitous care provided to L.

On 12 September 2016, the NSW Trustee and Guardian approved the request by Perpetual to release the amount of $80,000 to cover L’s relocation costs to live in Spain. The amount included carer’s costs of travelling with L to Spain and the carer’s return to Australia.

Perpetual has submitted 4 accounts in all, covering the period from 29 June 2012 to 28 June 2016, each of which has been examined, and passed, by the NSW Trustee and Guardian.

On 8 February 2017, LP returned to Australia to take L to Spain. L has lived there since 25 April 2017. LP’s evidence is that in Spain, L is now happy, in good health (but for a bout of sinusitis) and settled. In addition, there now appears to be stability and certainty of living arrangements. There is no suggestion that L is not well cared for in Spain.

LP has given evidence, which I accept, that L is doing well in Spain; that he has been granted disability status, which means he is eligible for a Disability Parking Permit and exemption from certain road and car taxes; that he now has a Spanish National Health Card, which means that certain medications and consumables will be cheaper for him; that she was “awaiting an appointment with the Spanish equivalent of Social Security to see whether he is eligible for certain entitlements such as savings on VAT/IVA taxes on aids and equipment”; and that L “has a good team of carers looking after him. He is out and about regularly enjoying Spanish life”.

On 1 March 2017, an application by KP, to NCAT, for a guardianship order to be made for L was dismissed.

L remains single and has no children.

It is impossible, bearing in mind the form of the complaints (some of which are identified in correspondence between LP and Perpetual) to address the litany of complaints made by LP. I take what follows as the major complaints made by her about the conduct, whether action or inaction, of Perpetual in acting as L’s financial manager.

In summary, LP submitted:

In relation to her complaints, LP gave evidence, principally by reference to correspondence, of what were said to be delays in the decision-making by Perpetual, and in communicating with her. She stated that she had a “feeling” of mistrust and ill-ease in communications, and referred to the regular staff turn-over, saying that she “found it stressful dealing with ‘fill-in’ staff”, following one particular staff-member (Mr Matt Pearson) leaving in early 2016. However, she did admit, in her affidavit of 17 August 2017, that “this has settled down somewhat over recent months”.

LP sent what she described as “letters of dissatisfaction” to Perpetual, one in late August 2013 and another in June 2016. Although the first letter was written well before the commencement of the proceedings, a copy of the letter is in evidence and it was referred to. The letter relates, primarily, to the plan that LP had to move L to Spain and what was said by her to be opposition to that plan and the concern of Perpetual to ensure that other members of L’s family were consulted (although it was put as a concern about litigation if Perpetual went against KP’s wishes). Complaint was also made in the letter that, even after 17 weeks, Perpetual “still has not submitted its considerations as to the affordability of my Proposal to the Office of the Public Guardian”.

LP also expressed her disappointment that Perpetual did not “appear to hold my son’s best interests close to its corporate heart” (whatever that might mean).

Perpetual responded to LP’s first letter of complaint by letter dated 12 September 2013. In that letter, Perpetual stated that it was “sorry for the timeliness, inconsistency and transparency of the correspondence that has been provided in response to your queries” and that “[w]hile we neither condone nor excuse this, we think it worthwhile to confirm the process required in order to move [L] to Spain”. The letter then went on to set out the steps taken by it, including the submission of written advice to the Public Guardian, and confirmed that it was awaiting a response. The letter ended with a sincere apology for the “obvious distress this has caused you” and advised of the Financial Ombudsman Service (with address, telephone number and website provided), which was identified as “an external dispute resolution scheme that provides assistance to consumers and investors to help them in resolving complaints relating to members of the financial services industry…”.

LP, apparently dissatisfied by the apology, responded by email dated 15 September 2013, which was addressed to Mr Mark Smith (Group Executive Perpetual Private). She complained that there was an issue with the lack of communication from “those who have been placed in charge of [L’s] financial matters”. Also in her response, LP raised “the apparent bias placed towards the views of [L’s] father whenever I queried matters…”. This issue related to LP’s request to be paid “for putting in time as L’s carer”. Finally, she complained of the delay in expense payments and correspondence from Perpetual, when staff members are on leave, stating that “to keep clients waiting is absolutely unethical”. She suggested that the services of Perpetual should be conducted “within a reasonable time frame”. (She suggested that a reasonable time frame for “necessary processes” would be “straight away”.)

The June 2016 letter, to which reference was made, dealt with her complaints regarding the departure of Mr Pearson, and also of Ms Nicole Woodward, and to the purchase of L’s property in Spain.

There was some evidence that in about March 2016, Mr Pearson had left the employ of Perpetual. LP complained that his “position remained empty until July 2016” and that she “was advised, upon HAVING TO ASK, that Matthew Lansdell would be ‘filling’ in for [Mr Pearson] until a replacement for him was found” (her emphasis).

Ms Woodward, another employee, with whom LP had dealings, left in May 2016. LP described Ms Woodward as “an absolute breath of fresh air and fabulous to work with”. LP said that she had been notified of Ms Woodward’s departure by automated reply email. No person from Perpetual had made contact to inform her of the departure before LP received the automated reply email.

LP also complained that Ms Woodward had been “instructed by Perpetual not to advise any of her clients prior to her departure” and that “it took until September for Perpetual to advise me that Saul Bernstein would be taking over the day to day running of [L’s] account”.

In regard to the last assertion, an email dated 28 July 2016, from LP to Mr Lansdell contains “thanks for advising that Saul is now going to be taking over Nicole’s former role”: Ex.2D1/1. (This statement appears inconsistent with the complaint made by LP on this topic.)

By email dated 9 March 2016, Ms Woodward had advised LP that “NSWTG has approved for us to proceed with the purchase for [L]” and “we also have the upfront approval to perform the modification works up to $125k”. (It is to be noted that the email sent by Ms Woodward was sent on the same day as the approval was received.)

In an attachment to an email to her solicitor referring to the June 2016 letter, LP commented on her complaints and noted “Result: matters in regard to the property transaction started to be properly addressed, although action on all matters remained appallingly slow”. She also suggested that some matters in her letter remained unaddressed, such as the “provision to me of Perpetual’s charges for handing [L’s] account”. (Although, as will be read, these charges have been disclosed since the letter was written.)

LP also complained, subsequently, about the actions of the lawyers instructed by Perpetual, both in Australia, and in Spain, to act on the purchase of the property in which L was to live. She stated that as a result of the dilatory conduct, L had lost 20,000 euros on the purchase. She identified “a long chain of emails attesting to this between the Spanish lawyer, myself, Perpetual and Richard Lyons”. (The Court was not taken to any of this “long chain of emails”.)

LP also asserted that since she had been back in Spain with L, she had continued “to have to spend many hours, more than I believe I should, in trying to resolve issues with Perpetual and obtaining prompt attention to [L’s] needs”. She described having been contacted by third parties in regard to what were said to be three outstanding accounts, in order for her to “follow up” payment by Perpetual.

LP submitted, also, that she was “dissatisfied” with the way Perpetual charges a fee in relation to the property in Spain that has been purchased for L. She expanded on this issue in the attached document which she sent via email to her solicitor on 13 March 2017, which was said to summarise the “most important points” in relation to her dissatisfaction with Perpetual.

In that document, LP stated:

In relation to receiving an indication of the fees and charges of Perpetual, LP stated that whilst she “had received details of Perpetual’s charges on or about 15 December 2016 from Saul Bernstein … [t]his information was not forthcoming until I had requested it multiple times over a period of five and a half months, including by way of correspondence to Geoff Lloyd, CEO of Perpetual…”.

LP also asserted that “Overall, I believe that AET has provided more transparency in relation to the costs of managing [L’s] estate than has currently been the case with Perpetual”.

In her affidavit sworn on 27 April 2017, LP raised her concern that she believed her “relationship with Perpetual has irrevocably broken down.” She then stated:

In her affidavit sworn on 17 August 2017, the following passage was read as a submission (not as proof of fact) in respect of LP’s relationship with Perpetual:

In her affidavit sworn 21 March 2018, LP stated that since her last affidavit, “I have dealt with Shivani Singh and Saul Bernstein, as needed, usually by email”. However, she then added that Ms Singh had left the employ of Perpetual, and that “I was not given the courtesy of a personal phone call from management and/or Shivani’s replacement advising of the departure. As at the date of swearing this affidavit, I have still not received any proactive communication about the departure.” In fact, on 4 March 2018, LP had received an automated email reply advising her that Ms Singh had left Perpetual.

LP then submitted that the staff turnover was “excessive and not in [L’s] best interest”. She further submitted that she has had to correspond with eight people from Perpetual in relation to L in “just under six years”, including “Travis Read, Charu Mathur, Matt Pearson, Nicole Woodward, Matthew Lansdell, Shivani Singh, Saul Bernstein and now Shivani’s replacement”.

LP also stated that “I have found it difficult forming a trusting relationship with the current managers”. Why, or how, this difficulty was exhibited, so far as the current manager, Mr Bernstein, was concerned, is not disclosed in LP’s evidence.

It appears, however that LP relies on Mr McDonough’s evidence that:

As an example of a lack of trust, LP relied upon evidence given by WP about a conversation that WP had with Charu Mathur, at Perpetual:

It was submitted by counsel for LP that this conversation “raises significant doubts about Perpetual's ability to handle the complex family dynamics that exist in [L’s] case”.

The reporting of this exchange was said to be the “the final blow” to the relationship of LP and Perpetual. Furthermore, it was submitted that the issues raised by Ms Mathur have not been subsequently addressed by Perpetual.

It is relevant that Ms Mathur has since left the employ of Perpetual.

(Due to Ms Mathur’s involvement with L’s estate from at least 2012 to 2015, I accept that hearing of such a conversation would cause distress to LP. However, in the context of the conversation, where Ms Mathur took WP aside before leaving her position, it seems likely these views might have been the personal views of Ms Mather.)

LP also stated that, following discussions with Mr McDonough of AET, she was confident that “I will deal mostly with Mark and receive prompt attention”. As well, she pointed to the evidence given by Mr McDonough to the effect that AET deliberately seeks to align clients with relationship managers with a longstanding history of employment with AET and that whilst it was inevitable, that over time, staff would leave and new staff would join AET, it has built a very stable and experienced team of relationship managers to work with compensation clients. This includes core staff members with between 10 and 30 years of employment with AET, including Mr McDonough who has held the position of National Manager, Compensation Trusts with AET for 10 years and will be the primary contact person at AET, should it be appointed Financial Manager.

Additional email correspondence, which it is not necessary to repeat, between LP and Perpetual, does, on many occasions, reflect expressions of distress at the lack of funds in L's account; complaints about LP’s need to use her own funds for expenses (including paying carers), and requests for a "float", so that shortfalls do not occur.

In relation to her dealings with Perpetual, in her most recent affidavit, LP stated that she is now being paid “a regular monthly sum for [L’s] expenses”, which “has made things easier as I do not have to constantly seek funds and/or reimbursement of funds”; that she has put in place what is to occur in the event that she becomes sick or dies, which involves her local solicitor being contacted, with him to contact Perpetual and MP immediately; and that her local solicitor has a support network to assist in co-ordinating L’s care.

LP gave evidence that there was no proposal to seek a change to the NSW Protected Estates Management regime pursuant to the NSW Trustee and Guardian Act. She stated that if AET were appointed L’s financial manager, it would operate subject to the orders and direction of the NSW Trustee and Guardian, including the lodgement of annual accounts with the NSW Trustee and Guardian; it would prepare an Annual Expenditure Plan (annual budget) which is also a requirement of the NSW Trustee and Guardian; it would liaise with other family members, and would provide them with trust account statements each month showing income and expenditure for that month. AET would also provide annual budget and investment plans; it would meet with family members, at least once a year, on a routine basis and more often if required or if a problem arose.

The parties agreed that there may be a saving in the annual fee charged by AET (T31.03 – T31.42) as compared with Perpetual as financial manager. (However, it was asserted by counsel for the first Defendant, and counsel for the second to sixth Defendants, that even if there was a saving, that “would only demonstrate one part of the picture to be presented to the Court”: T31.44 – T32.01.)

However, in LP’s Amended Outline of Submissions, at [18], senior counsel submitted:

During the discussion on this topic, senior counsel for LP stated, at T29.21 – T29.23:

Finally, it should be noted that LP submitted that in the event that Perpetual was not removed as the financial manager, it should operate in respect of the terms set out in Ex. C. That document, dated 24 May 2018, provided that:

It is clear that LP’s requirements, as set out above, would make the position of Perpetual virtually untenable. In my view, Ex. C is a completely unrealistic and unworkable view of the requirements to be imposed upon any financial manager and the Court should not impose upon Perpetual the sort of requirements identified in this document.

In relation to changes of staff, senior counsel for L submitted, perhaps, unsurprisingly, that changes in staff are a normal, and unavoidable, incident for any company providing financial management services, not merely Perpetual. Not unnaturally, also, it was acknowledged that there were, or may have been, transition issues, but that such issues, whilst frustrating to the recipient of services, are not, generally, unless prolonged, a basis for change of management.

In any event, L tendered a document described as a Summary of Perpetual Personnel and the Responsibilities for L (Ex. 1D2) which showed that there has been one employee described as an “Advisor”, one Trust Manager between 2012 and 2015 (Ms Mathur), a different Trust Manager between 2015 and 2016 (Ms Woodward), an Acting Trust Manager (Mr M Lansdell) for three months in 2016, and since August 2016, Mr Bernstein has been the sole Trust Manager with the day to day responsibility for L. (Ms Singh, who was the Manager of the Health & Personal Injury (H&PI) Division of Perpetual, briefly assumed the day-to-day responsibility for L, in February 2017, while Mr Bernstein was on annual leave.)

(Of course, various managers at Perpetual have also had responsibility and oversight in relation to L in supervising employees responsible for the day-to-day management of L’s estate. These included Mr Pearson (who was the H&PI Division Manager until 28 March 2016) and Ms Singh (who was the H&PI Division Manager from about October or November 2016 to 25 February 2018).)

In relation to Mr Bernstein, it is to be noted that whilst he has investigated some matters of increased medical expenditure to be paid to a company of which LP was the director, he concluded, in a “Letter of Update” dated 13 January 2017, addressed to the NSW Trustee and Guardian, having “reviewed all supporting documentation” that he was “in support of the increased cost attributed to care over the period previously noted. The care costs have proven to be a medical necessity”.

Furthermore, there is email correspondence dated 28 May 2017, between Mr Bernstein and LP, following a request for a payment of an invoice, in which LP thanked him and commented that she “wasn’t expecting a ‘communication’ from you on a Sunday!”

There is other correspondence, on 30 May 2017, in which LP sent Perpetual “receipts for the building/internal modification works carried out” on L’s property. There was a response, dated 31 May 2017, in which LP’s email was acknowledged, and the statement was made, by Perpetual, that “[w]e will process a reimbursement”.

In relation to the delay in enabling the purchase of the property in Spain for L, it was pointed out that “one of the tasks of a financial manager is to undertake a degree of due diligence in relation to a property purchase particularly one in a foreign country”. I accept the practical sense of this submission.

Ultimately, it was submitted that there was no good reason to remove Perpetual and that there was nothing to suggest that it was in L’s best interest to do so.

The second to sixth Defendants, did not support LP’s application to remove Perpetual and to appoint AET. They submitted that “Perpetual have always acted in the best interests of [L] and [have] been more than helpful in keeping the Family informed with respect to expenditures approved by Perpetual from [L's] estate and it would not be in [L’s] best interests to incur the costs and disruption to the management of his estate by the appointment of a new Financial Manager”.

They pointed to LP’s evidence and submitted that Perpetual had gone above, and beyond, its obligations as a Financial Manager and have assisted both L and LP by:

They contrasted the evidence of AET, to the effect that it would be necessary to incur the costs of appointing an expert, or experts, to assist in preparing the annual budget, monitoring L's medical care and welfare, implementing the exit plan and implementing the property plan.

In respect of AET requiring expert assistance in preparing the annual budget, the second to sixth Defendants also pointed to Mr McDonough’s affidavit sworn 15 March 2018, at [6], which states:

In respect of AET requiring expert assistance in monitoring L’s medical care and welfare, the second to sixth Defendants referred to the same affidavit at [11] and [28]:

In respect of requiring assistance in implementing an exit plan, the second to sixth Defendants pointed to Paragraph [41], which references AET’s relationship managers taking steps to:

Finally, in respect of expert assistance in implementing a property plan relating to the property in Spain, the second to sixth Defendants noted Paragraph [45] of Mr McDonough’s affidavit:

They advanced the following reasons for not removing Perpetual:

There can be no doubt that the Court has the power to remove Perpetual as manager of L's estate and to appoint AET in its place: s 41(2) and s 64 of the NSW Trustee and Guardian Act; s 47(1)(b) of the Interpretation Act 1987 (NSW); MB v Protective Commissioner (2000) 50 NSWLR 24; [2000] NSWSC 717; Application of J & K [2009] NSWSC 1453 at [4]; M v M [2013] NSWSC 1495.

Furthermore, it should also be stressed that “given the protective, purposive character of protected estate management, no manager has an entitlement to remain in office”: L v L [2014] NSWSC 1686, per Lindsay J, at [40], citing Ability One Financial Management Pty Ltd v JB by his Tutor AB, at [151]–[153].

There was really no dispute about the relevant principles that apply in regard to removal. Although not regarded as rules, or even guidelines, the framework within which the Court approaches a matter such as this have been set out in a number of cases, the most recent of which the parties adverted to was Re TLH, a protected person [2017] NSWSC 737, in which Lindsay J wrote at [4] – [12]:

There was no dispute that before making any orders, the Court must be satisfied that such orders are in the best interests, or for the benefit, of L. That test is an objective one, concerned with the best interests, or benefit, of L, and not the best interests, or the benefit, of another person. If the Court comes to the view that it is in L’s best interests, or for his benefit, it is "duty bound" to revoke the order previously made and make another order.

Lindsay J in Re S, An Incapacitated Young Person [2017] NSWSC 859, at [54], has also noted another matter of importance:

Whilst “benefit” is not defined in the cases, it is clear that it is a word with a broad meaning and would include not only direct financial benefit. In this case, it has been put that the benefit of continuity of approach to the financial management of L’s estate would outweigh the immediate financial benefit (if there is one).

Counsel for LP had submitted that the relationship between the Plaintiff and Perpetual was of importance because of her role as carer to L. It was further submitted that through her role of facilitating the care of L, she will have the most contact with Perpetual, and “any shortcoming in service will be most felt by her”. Finally, it was put that as LP is L’s carer, companion and mother, it was “reasonable to assume that a reduction in strain upon [LP] … must benefit her interactions with [L]”.

One other aspect of the protected person’s best interests will involve a consideration of the views of family members, particularly those who are involved in the care and welfare of that protected person. That aspect has been considered in the present case.

It is to be remembered that there is an “ongoing need to place each individual protected person, and his, or her, family and carers, centre-stage”: Re TLH, at [9]. Such a consideration will usually involve a protected person, and his or her family, and carers, having the opportunity to consider for themselves whether the change is in the best interests, and for the benefit, of the protected person: Re LSC and GC [2016] NSWSC 1896 at [41]; SLJ v RTJ [2017] NSWSC 137, at [26].

However, the view of family members, and carers, is not determinative, but is one aspect going to the paramount consideration of ensuring the welfare and best interests of the protected person. All aspects and factors must be balanced by the Court, so that it may reach its own view on what is in the best interests of L.

Of course, a change in financial manager for L was not the collective view of L’s family. Indeed, it is solely the view of LP that a change will be in the best interests of L.

It is clear that LP’s case is not one in which she has asserted, let alone tried to establish, that Perpetual, as the financial manager, is incompetent, or that it has acted, in a relevant way, improperly or unlawfully. Nor is it a case in which it has been asserted by LP that Perpetual faces a conflict of interest and duty which prevents it from continuing to act as the financial manager of L.

Furthermore, as stated, there is no suggestion that accounts for L’s estate have not been passed for each year since its appointment; or that Perpetual has not been compliant with its obligations as L’s financial manager vis-à-vis the NSW Trustee and Guardian; or that there was any other information available to the NSW Trustee and Guardian that would warrant a review of the continuation of the appointment of Perpetual as manager.

Rather, bearing in mind the reasons advanced, LP appears to be relying upon a passage from Re TLH, at [12], which is in the following terms:

It is in the context of the business of a service provider that LP’s reasons should be noted and considered. After all, the principal bases advanced by her for the removal of Perpetual are her frustrations with Perpetual, the delays in its decision making and in its communication with her, and also its staff turnover.

As LP is the person who has the day to day care (with the aid of carers) of L, her views should be given very serious consideration. But, there are also other family members, who, whilst they do not have the same involvement in L’s life since he moved to Spain, have expressed views that should also be considered. Yet, as stated above, neither the views of LP, nor those of the other family members, are determinative or of paramount importance.

In every case, the paramount consideration is whether an order for a change of manager is in the interests, or for the benefit, of the protected person. In deciding what is in L's best interests, or what is for his benefit, the Court will have regard to all the circumstances. It must be shown, forensically, by a consideration of all of the evidence, that L's best interests will in some way be advanced, or promoted, by removing the existing financial manager and appointing someone else in its place.

Of course, the standard of proof is the usual civil standard, namely the balance of probabilities. It does not have to be clear and convincing or compelling. However, the Court should be comfortably satisfied that an order replacing the financial manager is in the interests, or for the benefit, of the person in need of protection and that to do so will also be of utility.

Whilst a financial manager should endeavour to be wholly aloof from family disputes and should not side with one family member over the other, this does not mean that the financial manager should not inform family members of requests being made by other family members, or that it should not consider the factual merits of any request made, weigh up competing arguments, and having done so, express the opinion that an argument is more persuasive, and, for articulated reasons, should grant, or reject, the request.

L’s estate, and, until recently, his circumstances, are complex, and that has required strategic decisions in relation to the financial management to be considered carefully. One would expect L’s financial manager to have consulted, and worked with, his family members in relation to these matters.

An assertion by a family member that the financial manager appeared to be biased in coming to a conclusion, is of no assistance unless the nature of the conduct relied on is identified and the connection between that conduct and the departure from impartial decision-making is articulated. Here, this has not occurred.

Indeed, in hindsight, many of the requests made by LP have, after consideration, been accommodated. In this case, in considering all of the evidence, neither the conduct of, nor the departure from, impartial decision-making, by Perpetual, has been established.

It cannot be doubted that LP’s evidence overall demonstrates her significant sense of frustration, particularly, at various times, from the appointment of Perpetual in 2012, and from about 2016 regarding staff changes. Yet, whilst her correspondence reveals that sense of frustration, objective facts should also be noted.

Between about September 2013 and March 2016, LP had dealings with Mr Pearson, who, although not responsible for the day to day handling of L’s estate, had acted as the supervisor to the Trust Manager responsible for L. LP appears to have had no problems with him. Indeed, one of her complaints is that he left the employ of Perpetual. His responses to LP’s correspondence were said, by her, to be prompt, and their dealings were cordial and respectful.

Between June 2015 and May 2016, LP dealt with Ms Woodward. I have referred to LP’s description of her earlier in these reasons.

Then, in about July 2016, Mr Bernstein became the person at Perpetual with whom LP had dealings. The sense of frustration that LP may have felt earlier, at least as evidenced in the email correspondence, has diminished, to a significant extent, following his appointment as the Trust Manager and his involvement in the day to day management and affairs of L.

Indeed, the more recent email correspondence between them clearly demonstrates that there exists, now, a cordial relationship between them. They appear to be corresponding regularly and in a manner that shows mutual understanding and respect. It hardly demonstrates an irretrievable breakdown of the relationship with Perpetual.

Even if I were to be satisfied that there had been friction between LP and some of the employees of Perpetual, I would also need to be satisfied that the friction, whatever its cause, would impede the proper management of L’s property and his financial affairs. There is no evidence that satisfies me that it has done so. To the contrary, it seems like all of the causes of friction have been worked through, albeit not in the manner, or with the speed, that LP considers appropriate.

I must also consider the context of the complaints made by LP. In that context, some of LP’s complaints reveal difficulties that might simply occur in the ordinary course of financial management.

Between 2012 and late 2015, there were many disputes about L existing between the family members. Prior to this time, LP and KP had been in frequent disagreement about the type of treatment services from which L would benefit and who should provide such services.

Between 2012 and the date of L’s move to Spain, LP travelled between Spain and Australia regularly, and often, more than once a year and for several months at a time. The peripatetic existence, no doubt, contributed to the emotional strain on her that already must have existed as a parent of a catastrophically injured young man.

Furthermore, the significant conflict between LP and other family members, continued, during this period in relation to whether L should be moved to live in Spain, an application that LP made, the first time, in 2012. On this topic, as between family members, what was in the best interests of L, was, again, hotly contested. There were allegations and counter-allegations made that included a lack of bona fides on the part of both LP and of KP. There was a request for a review following the initial decision of the Public Guardian to have L move to Spain.

Also, there was a serious issue being agitated about the past care claims that were made by both LP and KP. In respect of both issues, each opposed the proposals of the other.

The confirmation of the Public Guardian’s decision in September 2015 had taken approximately 9 months to finalise, following which another issue was created, being the purchase of accommodation for L in Spain.

In this regard, no doubt, LP was anxious for arrangements to be made as quickly as possible and accommodation to be purchased so that when L arrived in Spain, he would have a settled place to live.

However, it was not until March 2016 that the NSW Trustee and Guardian gave its approval for the purchase of the home in Spain. The delay (if it be a delay) was not a matter that was caused by Perpetual. Perpetual approved the purchase of the property for L in April 2016, following which it was required to investigate and implement the procedures by which the property would be secured. The matters it raised had to be confronted.

In September 2016, a home for L in Spain was purchased, the purchase was completed in October 2016 and, in March 2017, L departed Australia.

Then, there were associated issues and arrangements to be made to ensure that whilst living in Spain, L’s needs could be met. This prompted further dispute between family members because of some expressed concern that LP had set up a company to provide services for L, which raised a conflict of interest. Again, the issues raised had to be confronted by Perpetual.

During the whole of the period, whilst all of these disputes about L were occurring, some accounts to be paid to LP, and to others, were not paid as promptly as they might have been.

In all of these things, whilst there was a sense of urgency exhibited by LP, the same sense of urgency could not be expected to have been exhibited by Perpetual, which, as L’s financial manager, had particular duties to perform and complete. It was obliged to satisfy itself that the income and the capital assets of L’s estate were properly devoted to his interests. Furthermore, employees had to read a volume of correspondence, not only from LP, in order to consider the merits of what was being put. No doubt, this was not always an easy task, or one that could be attended to with the alacrity that LP required.

Especially where, as in this case, the bulk of L’s estate is made up of a verdict calculated by reference to his expectation of life and as compensation for injuries, disabilities, pain and suffering and loss of the enjoyment of life, it was also appropriate for Perpetual to ensure that the capital and income should be expended, as intended, to advance the quality of his life, whilst, at the same time, ensuring that it would not be exhausted whilst he had an ongoing need for care.

Serious consideration, and, no doubt, legal advice, was required for the purchase of a property, using trust assets, outside the jurisdiction, in Spain, and steps had to be taken, otherwise, to ensure that the property purchased would suit the needs of L. Perpetual seems to have attended to the matters reasonably promptly.

Now, L is living securely, and it would seem, happily, in Spain. There should not be dispute about many of the issues that had previously caused disharmony between the parties and between LP and Perpetual. The correspondence passing between LP and Perpetual, particularly since about March 2017, reveals a degree of calmness and co-operation.

Senior counsel appears to appreciate that whilst “at present, [LP’s] role is one of full time case manager, in addition to her hours as carer … in time, the case management aspect of her role will demand less hours once the numerous tasks associated with establishing L in his new life and home are complete”: Paragraph [61] of LP’s Amended Case Outline dated 26 April 2018.

There is really no dispute that, currently, L is happy and healthy and his needs are being met.

I have not given very much weight to the possibility that there might be a reduction of the level of professional fees if AET were appointed. LP’s senior counsel seems to have accepted that a potential saving (if, indeed there is such potential) is not of significance in determining whether Perpetual should be removed. Additionally, the involvement, in these proceedings, of the NSW Trustee and Guardian, which has a role in considering the charges made by Perpetual, and which has examined and passed various accounts submitted by Perpetual, should not be forgotten.

In all the circumstances, and guided always by the welfare and best interests of L as the paramount consideration, I am not satisfied that the relationship between LP and Perpetual has broken down irretrievably, or that a change of financial manager is for L’s benefit, or in his best interests, or that to change financial managers would be of utility.

It seems to me that the evidence, overall, requires the conclusion that, whilst there may have been tensions in the past between LP and Perpetual, at the date of the hearing and for some time before, there exists, and has existed, a prudential management regime that is being administered, generally, without strife, and in a way that is simple and expedient. I am not satisfied that there is any acceptable reason for replacing Perpetual as the financial manager of L and appoint AET in its place, as the financial manager of L, and I do not propose to do so.

I shall allow the parties an opportunity to finalise, with the NSW Trustee and Guardian, the matters referred to in Ex. D and to attempt to reach agreement on the questions of the costs of the proceedings. At the time of delivering these reasons, I shall also appoint a mutually convenient date for any argument about costs.

The Court orders: