KJ v SJ

The applicant, who is referred to in this proceeding by the pseudonym “SJ” pursuant to orders made by the Court on 6 July 2020, is a 29 year old married woman with three young children. She lives together with her husband and their three children, and works part-time at an aged care facility.

SJ was born on 6 June 1991. On 21 March 2000, she was struck by a vehicle travelling at high speed as she was crossing the road. She was 8 years old at the time. There is no dispute that, as a result of the accident, SJ suffered a severe traumatic brain injury. She also suffered a number of physical injuries from which she subsequently recovered.

In 2003, SJ’s mother, as tutor for SJ, commenced proceedings in the District Court of New South Wales against the driver of the vehicle. SJ’s mother is referred to in this proceeding by the pseudonym “KJ” pursuant to orders made by the Court on 6 July 2020.

It appears that the District Court proceeding was inactive for a number of years after commencement. However, by mid-2013, it was anticipated that the District Court proceedings would be settled by payment of a significant sum of money to SJ in compensation for her injuries. SJ was then 22 years old.

KJ commenced the present proceeding by Summons filed on 17 July 2013 seeking a declaration under s 41(1) of the NSW Trustee and Guardian Act 2009 (NSW) (the NSW Trustee Act) that SJ is incapable of managing her affairs and an order that The Trust Company (Australia) Ltd (Trust Company) be appointed as manager of her estate.

On 26 August 2013, the Court made a declaration pursuant to s 41(1)(a) of the NSW Trustee Act that SJ is incapable of managing her affairs, an order that her estate be subject to management under that Act and an order that Trust Company be appointed manager of her estate subject to the orders and direction of the NSW Trustee and Guardian (NSW Trustee).

On 1 March 2015, the assets and liabilities of the appointed manager Trust Company were transferred to Perpetual Trustee Company Ltd (Perpetual) in accordance with a voluntary transfer determination made by the Australian Securities and Investments Commission on 2 February 2015 pursuant to s 601WBA of the Corporations Act 2001 (Cth).

Perpetual sought orders in this proceeding appointing it as the manager of SJ’s protected estate in place of Trust Company. On 29 April 2020, the Court made orders discharging the appointment of Trust Company as manager of SJ’s estate and appointing Perpetual as manager of SJ’s estate, subject to the orders and direction of the NSW Trustee. Certain other orders were made in relation to the position between 1 March 2015 and the date of the orders.

The orders made on 29 April 2020 were expressly noted to be without prejudice to the application made by SJ by notice of motion filed on 27 August 2018 and amended on 11 October 2018 for orders to the effect that the protected estate management orders affecting her be revoked under s 86(1) of the NSW Trustee Act. It is that application that is the subject of these reasons.

The principal substantive relief sought by SJ is set out in paragraphs 4 and 5 of the amended notice of motion filed on 11 October 2018:

As a result of the orders made on 29 April 2020, after the amended notice of motion was filed, an order in terms of order 5 of the amended notice of motion would be ineffective to revoke or discharge the appointment of the current manager of the applicant’s estate. However, the hearing was conducted on the basis that the relief sought by the applicant is the revocation or discharge of the appointment of the manager of her estate, namely Perpetual.

The first respondent to the amended notice of motion is KJ. The second, third and fourth respondents are Trust Company, NSW Trustee and Perpetual respectively.

The amended notice of motion was heard over four days commencing on 6 July 2020. Mr Dalzell, of counsel, appeared for SJ. KJ opposed the revocation of the protective orders, and was represented by Mr Hickey of counsel.

Trust Company and Perpetual neither consented to nor opposed the relief sought in the amended notice of motion (subject to being heard on the question of costs and the form any final orders made). Mr Meek of senior counsel appeared for Perpetual and Trust Company and made submissions and examined witnesses to assist the Court. The Court is most grateful for that assistance.

NSW Trustee neither consented to nor opposed the revocation orders sought in the amended notice of motion. Ms Brouwer, Senior Legal Officer at NSW Trustee, appeared on the first day of the hearing and was excused from further attendance at her request.

As will be apparent from the terms of paragraphs 4 and 5 of the amended notice of motion set out above, SJ’s application was for revocation of the whole of the protective regime put in place by the orders made on 26 August 2013, as varied by the orders made on 29 April 2020. Mr Dalzell confirmed during the hearing and in closing submissions that no alternative application was made for a variation of those orders or other relief less than revocation.

As a consequence of the orders made on 26 August 2013, SJ is a “protected person” for the purpose of Chapter 4 of the NSW Trustee Act [1] and a “person under legal incapacity” for the purpose of Part 7, Division 4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). [2] The effect of Part 7, Division 4 of the UCPR is that SJ may not commence or carry on her application except by a tutor, unless the Court makes an order under s 14 of the Civil Procedure Act 2005 (NSW) dispensing with the requirements of those rules in relation to the application.

The notice of motion filed on behalf of SJ on 27 August 2018 was styled as an application by a Mr Gelin as tutor for SJ. Mr Gelin’s appointment as tutor appears to have been irregular, in that UCPR r 7.15(3) and (4) required that the manager of SJ’s estate act as her tutor, unless the manager declined to act as tutor. There was no evidence that Trust Company or Perpetual had declined to act. In addition, neither Mr Gelin nor the solicitor who filed the notice of motion had filed with the Court the documents required by UCPR r 7.16.

In the amended notice of motion filed on 11 October 2018, the reference to Mr Gelin as tutor was struck out and no alternative tutor was referred to. I was informed that this was done after a Registrar of the Court questioned why SJ required any tutor in relation to her application. I infer that the Registrar had in mind that the application was similar to the application in P v NSW Trustee and Guardian [2015] NSWSC 579, in respect of which Lindsay J made orders under s 14 of the Civil Procedure Act dispensing with the requirement for a tutor to prosecute the protected person’s appeal from financial management orders made by the Guardianship Division of the NSW Civil and Administrative Tribunal. However, prior to the first day of the hearing before me, no order had been sought or made revoking the appointment of Mr Gelin as tutor. I considered it appropriate to clarify the record concerning Mr Gelin’s position and, on the first day of the hearing, I made an order revoking his appointment as tutor.

In circumstances where SJ is applying for revocation of the management orders made in relation to her estate, there is no challenge made by any party to her standing to do so without a tutor, the former and current managers neither oppose nor consent to the revocation orders but appeared to assist the Court and KJ is a contradictor to the application, I formed the view after hearing from the parties on the first day of the hearing that any requirement for SJ to prosecute the application through Perpetual as her tutor may compromise the manager’s role in providing assistance to the Court without being invested in advocating for a particular outcome and would not serve the purpose of the Court’s protective jurisdiction in this matter. I considered that the protective purpose would be better served by dealing with the substantive application with the benefit of the evidence adduced and submissions made on behalf of SJ in support of the relief sought, on behalf of KJ in opposition to the relief sought, and with the assistance provided to the Court on behalf of Perpetual and Trust Company: P v NSW Trustee and Guardian (supra) at [160]–[167]; see also IA v TA [2016] NSWCA 179 at [56]–[57]. I therefore made an order on the first day of the hearing dispensing with the requirements of Part 7, Division 4 of the UCPR in relation to SJ’s amended notice of motion.

Pursuant to orders made by the Court on 6 July 2020:

Before turning to the evidence adduced on the hearing of SJ’s application, it is convenient to refer to the legal principles applicable to the determination of the application. Those principles were addressed in the helpful written submissions of Mr Meek SC, and were not in dispute.

SJ’s application is made under s 86 of the NSW Trustee Act, which provides:

Section 86 falls within Chapter 4 of the NSW Trustee Act. Section 39 of that Act provides:

Those general principles, together with the nature and purpose of the Court’s parens patriae jurisdiction, inform the approach to determining SJ’s application under s 86 of the NSW Trustee Act: CJ v AJK [2015] NSWSC 498 at [27]–[39] (and the authorities there cited); Re R [2014] NSWSC 1810 at [88]–[94].

The question whether SJ is capable of managing her affairs must be considered in the context of her particular personal, subjective circumstances, including any family or community support available to her. Care needs to be taken to focus on the facts of the particular case: Re X [2016] NSWSC 275 at [31]; CJ v AJK (supra) at [27(d)] and [54]; Re D [2012] NSWSC 1006 at [60]–[62].

The matters that inform the determination whether a person is capable of managing his or her own affairs will depend on all of the circumstances of the particular case, and formulations of the reasons for a conclusion that a person is or is not capable in one case are not to be read as a universal test for the concept of capacity for self-management. Relevant considerations include not only whether the person lacks the ability to deal with complicated (or even simple) transactions and matters, but also whether by reason of that lack of ability there is a real risk that the person may be disadvantaged in the conduct of his or her affairs or that money or property may be dissipated or lost, or whether there is a risk of neglect, abuse or exploitation: CJ v AJK (supra) at [30]–[42] and the authorities there cited.

The focus of the inquiry is on SJ’s functional capacity for self-management in her particular circumstances, not injury, impairment or disability per se. As Lindsay J explained in Re X (supra) at [35]:

That inquiry looks to functional capacity not only to the day of the decision, but also to the reasonably foreseeable future: CJ v AJK (supra) at [27(e)] and the authorities there cited.

In addressing these issues, the Court looks to the protection of SJ. Any benefit, detriment or inconvenience to the State or others is irrelevant: CJ v AJK (supra) at [27(c)] and the authorities there cite.

Protective proceedings are not adversarial in character. The Court applies an independent mind to the question of capacity or incapacity, and does not approach the application under s 86 with any presumption that SJ’s affairs should continue to be governed by the orders made by the Court previously unless proven otherwise: Re X (supra) at [36]. However, the Court’s power to make the orders sought by SJ under s 86 of the NSW Trustee Act does depend on the Court reaching a positive state of satisfaction that SJ is capable of managing her affairs.

On 13 September 2013, Gibson DCJ approved the settlement of the District Court proceeding on terms that resulted in payment of $2,650,000 to SJ.

At the hearing of the amended notice of motion, Perpetual tendered the portfolio valuation for SJ’s estate as at 29 June 2020 [3] and a copy of the Directions and Authorities issued by the NSW Trustee on 13 May 2020 pursuant to which Perpetual manages that estate in accordance with the orders made by this Court on 26 August 2013, as varied by the orders made on 29 April 2020. [4]

As at 29 June 2020, SJ’s managed estate is valued at $2,593.965.37, comprising: [5]

It is important to understand the detailed summary of the evidence that I have set out below in the context of the following matters.

As I have already noted above, it is common ground that SJ suffered a severe traumatic brain injury in the accident that occurred when she was eight years old.

The expert evidence adduced on the hearing of the amended notice of motion includes opinion evidence based on psychometric testing carried out at different times during the period from 2003 to 2016 and clinical assessments of SJ conducted at different times during the period 2011 to 2018. The clinical assessments involved interviewing SJ and, in some instances, gathering information from members of her family.

The following matters were not the subject of disagreement between the expert witnesses:

However, the experts differed in their opinions about the following matters:

These differences of opinion reflect:

KJ relied principally on three reports of Dr Jungfer, who is a consultant psychiatrist. Those reports were prepared in August 2011, March 2013 and October 2018. Dr Jungfer’s opinions were based on reports of testing carried out by psychologists, other medical reports relating to SJ, interviews conducted with KJ and TJ in August 2011 and March 2013, information provided by MJ in October 2018 and her interviews with and clinical assessments of SJ in August 2011, March 2013 and October 2018. KJ also relied on a report of a neurologist, Associate Professor Paul Darveniza, dated 5 October 2011.

SJ relied principally on three reports of Dr Frukacz, who is also a consultant psychiatrist, and one report of Dr Woods, who is a forensic psychologist who conducted psychometric testing and assessed SJ in November 2016. Neither Dr Frukacz nor Dr Woods had the benefit of interviewing any member of SJ’s family, other than LJ.

The discrepancy in the information available to the medical experts is attributable to the fact that SJ ceased contact with her parents KJ and TJ in November 2014, when she gave birth to her first child with LJ.

As a result of the breakdown in their relationship with SJ in November 2014, KJ and TJ have not come to know LJ, and have no current relationship with SJ and LJ. KJ and TJ do not know the children of SJ and LJ, and have not seen how SJ is managing her day-to-day life as a working mother of three children.

Dr Frukacz and Dr Woods were not able to interview KJ and TJ, or SJ’s sisters KC and MJ. As I have referred to above, Dr Frukacz and Dr Woods interviewed SJ and LJ. Dr Woods was provided with some affidavits and statements of KJ, TJ, KC and MJ, but it is clear from his report that he regarded the information from KJ and TJ as “historical” and irrelevant to the question of SJ’s ability to manage her own affairs at the time that he assessed her in November 2016, even though at least some of the affidavits and statements provided to him were made after the seven year period that Dr Woods considers to represent the maximal recovery period after brain injury. Dr Woods’ report makes no reference to the affidavits and statements provided by KC and MJ. It appears that he did not take those into account in his assessment, even though he recorded that SJ had a close relationship with MJ. [14]

LJ has known SJ since December 2013, when they commenced their relationship. They have lived together since June 2014 and have been raising children together since November 2014. They married in January 2019. None of SJ’s family have formed a relationship with LJ. This includes SJ’s sister, MJ, even though SJ maintained a close relationship and almost daily contact with MJ until December 2018. LJ’s perception that SJ is capable of managing her own affairs is principally based on his view that she is managing their household budget adequately. However, for reasons that will be explained in considering the evidence of SJ, LJ and MJ below, managing their household budget is a task of very limited scope and LJ has little visibility of whether SJ is undertaking this task adequately.

SJ ceased contact with her sister KC in about September 2015. SJ also ceased contact with her sister MJ in December 2018 upon discovering that MJ had written a letter to Dr Jungfer for the purpose of Dr Jungfer assessing SJ in October 2018.

Allegations and counter-allegations were made by SJ, KJ and KC in their affidavits about the underlying causes of the breakdown in the relationships between SJ and her parents and siblings. These matters were barely mentioned in cross-examination, and KJ and KC said that they did not know what had caused the breakdown or problems in their relationship with SJ, despite their affidavit and oral evidence strongly implying that this had been caused by LJ. [15] It was not put to LJ in cross-examination that he had prevented SJ from seeing her family or caused her to cease contact with them.

It is neither necessary nor appropriate for the Court to make findings about the causes of the breakdown in the relationships between SJ and her family.

However, it is important to appreciate the fact of the breakdown when assessing the evidence of SJ, LJ, KJ, TJ, KC and MJ and weighing it up together with the expert evidence in order to determine whether SJ has the capacity to manage her own affairs.

On the one hand, KJ and TJ were unable to give any evidence concerning how SJ is managing her day-to-day life as a working mother of three children. Their evidence in opposition to SJ’s application for revocation of the protective orders was based on their experience of SJ as a child, teenager and young adult in the years leading up to 2014.

On the other hand, LJ’s evidence is limited to the period since December 2013. Due to the nature of his work, LJ is away from home during the week and spends time with SJ and their children only on weekends. This means that he has limited opportunity to observe how SJ is managing the day-to-day affairs of herself and of their household and family.

As someone who was close to SJ, and had daily contact with her until December 2018, MJ is perhaps best placed to shed light on matters concerning SJ’s conduct of her day-to-day affairs in the period prior to December 2018.

As will become apparent in the summary of the evidence that follows, there were numerous discrepancies between the evidence of SJ on the one hand, and the evidence of KJ, TJ, KC and MJ on the other hand. In addition, LJ’s assessment of SJ’s management of their household finances was at odds with the account given by MJ of SJ’s spending patterns during the period prior to December 2018.

However, it does not follow from these discrepancies that one witness is telling the truth and the other is not. In some instances, the discrepancy is most likely attributable to SJ’s impaired memory, to which I refer below. In other instances, the witnesses simply have different perspectives on the same events. On the one hand, SJ views certain matters through the lens of her drive as a late teenager and young adult to be independent (and to be seen as independent) and feeling hurt and frustrated by what she saw as her parents’ interference with her life. On the other hand, it was apparent from the manner in which KJ and TJ gave their evidence that they felt deeply hurt and exasperated by what they saw as SJ putting herself at risk by fighting against the steps they have taken with great care and effort, to look after what they see as her best interests and protect her from potential exploitation. [16]

In my assessment, each of SJ, LJ, KJ, TJ, KC and MJ gave truthful evidence, to the best of their recollection, albeit that some aspects of their evidence was coloured by their particular perspective concerning the matters about which they were being asked, and many aspects of SJ’s evidence were affected by her impaired memory.

I turn now to consider the substance of the evidence in detail. It is important to bear in mind that the question is not whether SJ is injured or impaired, but whether she has the functional capacity to manage her own affairs having regard to her particular circumstances: see [23]–[30] above. The evidence of testing of SJ’s cognitive and executive functioning informs to some extent the interpretation of the lay evidence concerning SJ’s conduct of her day-to-day affairs, and that lay evidence in turn informs to some extent the significance or otherwise of the test results.

On the hearing of the amended notice of motion, the applicant read the following evidence:

Each of SJ, LJ and Mr Gelin were cross-examined.

The first respondent read the following evidence:

Each of those witnesses was also cross-examined.

Perpetual read the following evidence:

Mr Wallace and Ms Pulverenti were not cross-examined.

The summary of the evidence that follows does not endeavour to capture every historical event referred to in the affidavits, but is limited to the matters that have a rational bearing on the determination whether SJ is capable of managing her own affairs. The relevant evidence falls into six broad categories: evidence concerning SJ’s impaired memory; evidence concerning SJ’s independence in day-to-day living activities; evidence concerning SJ’s employment; evidence concerning SJ’s management of money in her day-to-day life; SJ’s plans for her $2.6 million estate if the protective orders are revoked; and seizures suffered by SJ.

SJ gave inconsistent evidence about her memory.

In cross-examination, SJ initially denied that her memory was not good. [17] However, at other times SJ acknowledged that she did have problems with her memory. In particular, SJ said that, at times, she suffers from poor memory as a result of her brain injury, and agreed that this had been the case for many years. [18] In response to questions from me, SJ said that memory loss was a problem when she was sleep deprived as a result of having three children. She said that, prior to having children: “I had memory loss like we all do. I wouldn’t say it was extreme, but I did have memory loss.” [19]

In response to a question from me about strategies that she had developed to help her with her memory, SJ said that she usually wrote things down to help her remember them “or I discuss it with my husband. He, yeah, he’s very good, yeah.” [20] LJ gave evidence that he had “not really” observed SJ’s memory problems. [21] I attribute this to the fact that LJ’s work requires him to travel long distances from home, and he is away from the family home Monday to Friday each week and is only home on weekends. His opportunity to notice memory deficiencies is therefore somewhat limited. It may be that LJ does not realise that SJ sometimes discusses things with him as a tool to help her remember those things.

In March 2013, SJ was assessed by Dr Jungfer. SJ told Dr Jungfer that her main problems at that time related to fatigue, forgetfulness, headaches and difficulties in sustaining concentration. [22] SJ also told Dr Frukacz in March 2015 that she suffered from poor memory as a result of her brain injury. [23] I note that SJ made these self-assessments well outside the maximal recovery period of between approximately two years and seven years referred to in [38(3)] above.

There were two particular aspects of SJ’s evidence that, in my view, clearly demonstrated that her memory is poor.

First, SJ’s sister, KC, was married in September 2015. In her affidavit sworn on 20 December 2018, KC deposed that she had asked SJ to be part of her bridal party, but SJ told KC that LJ would not allow her to attend the wedding. In her affidavit sworn on 25 February 2019, SJ deposed that KC’s wedding was held one month before she was due to give birth to her second child. SJ said: [24]

However, in his affidavit sworn on 14 July 2018, LJ deposed that their first child was born in November 2014 and their second child was born in July 2016. Accordingly, SJ was not heavily pregnant in September 2015. The marriage of a sibling and the impending birth of a child are both significant life events. In my opinion, the fact that SJ remembers the marriage of KC and the last stages of her second pregnancy as coinciding, and believes that she made a considered decision not to attend the wedding due to the risks of going into early labour, when she plainly was not heavily pregnant at the time, confirms that her memory is very poor and that she is prone to inaccurately remembering even significant life events.

Second, in her affidavit sworn on 8 November 2018, SJ deposed that she began making and selling jewellery as a hobby in 2014. [25] This is roughly consistent with the account that SJ gave to Dr Jungfer in March 2013 that she purchased a lot of beads because she was getting ready to establish a store. [26] I note that 2014 was also the year in which SJ and LJ began living together and had their first child. However, in cross-examination, SJ was unable to recall the period of time for which she has been making and selling jewellery. When asked if she could even place a year on it, she answered: “Probably around 2016, 2017, yeah.” [27] In my opinion, the fact that SJ has such different recollections of when she started this activity, and appears to be unable to recall it by reference to the timing of other significant events in her life, provides further confirmation that her memory is very poor.

As addressed in detail later in these reasons, testing administered by Dr Bogan in 2009 and by Dr Woods in 2016 found SJ’s working memory capabilities to be within the low average range compared to her peers. However, the more comprehensive memory testing undertaken by Dr Bogan placed SJ’s memory skills in the extremely low range compared to her peers. Dr Bogan was of the view in October 2009 that SJ had difficulty with all aspects of memory. In his report dated 17 April 2011, Dr Bogan expressed the view that SJ’s poor memory had been consistently demonstrated in previous assessments by himself and others, and that she continued to have significant difficulties with verbal memory capacity. On the basis of that expert evidence and the evidence referred to in [65]–[72] above, I find that SJ’s memory is very poor.

SJ’s evidence that she was not informed about the protective orders made by this Court in August 2013, and that she discovered them only when a solicitor acting for SJ and LJ informed SJ about the orders in 2014, must be viewed in the context of her poor memory.

Moreover, that evidence does not sit well with other evidence given by SJ in her affidavit sworn on 8 November 2018 that her parents told her in or about 2013 that a trust fund was set up because she was unable to look after her own affairs. Whilst it may be that SJ cannot recall court orders being mentioned in this context, this evidence of SJ confirms that she was informed about the substance or effect of the orders that this Court made.

There was documentary evidence that the Trust Company had met with SJ in August 2013 to gather preliminary information to be used in preparing a financial plan for her. This would also tend to suggest that SJ was aware in August 2013 that there was a substantial fund of money and arrangements were being made to manage that for her.

KJ swore an affidavit on 7 July 2013 that was provided to the Court in support of the application for protective orders in 2013 and was also read on the hearing of SJ’s application to revoke those orders. KJ deposed that she had discussed with SJ her (that is, KJ’s) wish for SJ’s financial affairs to be managed by the NSW Trustee and that SJ was supportive of those wishes.

In her affidavit sworn on 3 April 2019, KJ deposed: [28]

TJ gave evidence to the same effect in his affidavit sworn on 10 April 2019. [29]

In cross-examination, SJ said that she could not recall this discussion with the solicitor, but she did not deny that it had occurred. [30] SJ agreed that she did go to some meetings with the solicitor, but she could not recall what she had learned there. [31]

In her affidavit sworn on 8 November 2018, SJ deposed that she had asked KJ for details and documents concerning the compensation payment received as a result of the District Court proceeding, “but she would not tell me”. [32]

However, KJ gave evidence in her affidavits sworn on 20 December 2018 and 3 April 2019 that SJ had been present at many meetings with the solicitor concerning her claim and at all settlement discussions. TJ gave evidence to the same effect in his affidavit sworn on 10 April 2019. KJ deposed that SJ had been disinterested in the claim and in the settlement discussions, saying “I don’t care about the money”. [33] KJ nevertheless made it clear to SJ on many occasions the nature and size of the settlement, and SJ was present at the District Court when the settlement was listed for approval. [34]

I accept the evidence of KJ and TJ that SJ was informed about the settlement of her District Court claim, the 2013 application to this Court for the protective orders and that the fact that those orders were made. SJ’s own evidence indicates that she was informed about the effect of the protective orders. Given SJ’s poor memory, it is understandable that she may not now recall that the trust arrangement she was told about had been established by orders made by the Court.

In her affidavit sworn on 8 November 2018, SJ deposed that she has been living independently since 2013.

In about late 2013, SJ moved out of the family home into rented accommodation by herself. In her affidavit sworn on 20 December 2018, KJ deposed that she had helped SJ to find a property, purchase the furniture she needed and liaise with the Trust Company in relation to the lease and those purchases. According to KJ, SJ found it too difficult to deal directly with the Trust Company about these matters.

In her affidavit sworn on 25 February 2019, SJ deposed that KJ had no involvement in the process of SJ moving into the rental property. However, in the very same paragraph, SJ deposed that KJ did purchase the furniture and then arrange for reimbursement from Trust Company. [35]

In her affidavit sworn on 9 April 2019, MJ deposed that KJ assisted SJ arranging another rental property in 2014 by helping her to complete and sign the rental documentation and explaining the terms to SJ. Documentary evidence confirming KJ’s role in arranging SJ’s move to this property is annexed to Ms Pulverenti’s affidavit affirmed on 29 March 2019. This was the property in which SJ and LJ lived together from about June 2014 after they commenced their relationship in December 2013. MJ also gave evidence in her affidavit and in cross-examination that MJ had to explain to SJ the need to arrange insurance, and she then called the insurance company and arranged the insurance on SJ’s behalf.

I accept the evidence of KJ and MJ about the assistance that SJ required and received to arrange her rental properties in 2013 and 2014. KJ’s evidence in relation to SJ’s move into the first rental property in 2013 is consistent with SJ’s own evidence. Some aspects of the evidence concerning her move into the second property in 2014 are corroborated by contemporaneous email correspondence annexed to Ms Pulverenti’s affidavit affirmed on 29 March 2019. SJ’s evidence about events in 2013 and 2014 is unreliable due to her poor memory: see [65]–[73] above.

Since about November 2016, SJ and LJ have lived in their current home which was purchased by the Trust Company as manager using funds of SJ’s estate.

LJ works away from home as a fencing contractor each week and is typically home only on the weekends. SJ currently has the sole care of her three young children while LJ is working away from home during the week (and joint care of them with LJ when he is at home on the weekends). She performs all tasks necessary to look after the children and maintain the household, in addition to working part-time, as referred to below.

SJ obtained an Aged Care Certificate III qualification in 2011. That is ordinarily a one year TAFE course, but SJ completed the course over two years from 2009 to 2011 with the assistance of a learning aide.

Since February 2011, SJ has worked part-time as a Nursing Assistant at two different aged care facilities (with the exception of some periods of maternity leave following the birth of her children). She currently works five days per fortnight, and is on call for an additional two days.

SJ’s duties include assisting residents with their daily care needs and activities, and assisting a registered nurse with the administration of medication. More recently, she has also been given some responsibility for training school leavers who are starting work in the aged care facility as trainees.

SJ described her work as involving “enormous pressure”. When I asked SJ to describe the nature of the pressure, she said that it is very stressful when a resident passes away because it is necessary to contact the family members and funeral home, and it is not very pleasant. SJ also explained that aged care is “very full on”, and it is sometimes necessary to prioritise competing demands. SJ gave the example that, if a resident has a fall, it is necessary to give priority to assisting that resident.

There was no evidence adduced from any supervisor or colleague of SJ concerning her work. Given that SJ has held her current position since 2014, I infer that her employer finds her work to be satisfactory. However, the evidence does not allow the Court to form any assessment of the extent to which SJ’s work is supervised, or whether or not her duties have been modified or structured in some way in order to accommodate any difficulties associated with her brain injury.

In her affidavit sworn on 8 November 2018, SJ deposed that she began making and selling jewellery as a hobby in 2014. As I have referred to above, SJ has given inconsistent evidence about when she began doing this. She has sometimes described this activity as a business and sometimes as a hobby. In her oral evidence at the hearing SJ emphasised that it was more of a hobby than a business. In his affidavit sworn on 14 July 2018, LJ described it as a business and said that the jewellery that SJ makes is distributed to customers Australia-wide. [36] However, he does not know whether or not SJ makes a profit. [37]

There were no records concerning the jewellery-making activity in evidence, and SJ gave evidence in her affidavit sworn on 25 February 2019 and in cross-examination that she did not keep detailed records of it. [38] SJ gave evidence that she knew how much each piece cost her to make, based on the price per bead, so she knew how much profit she was making on each piece. [39] However, this inconsistent with SJ’s evidence that she has difficulty doing calculations “off the top of my head”. [40] In my view, the state of the evidence is such that is not possible to draw any conclusions about the manner in which SJ conducts her jewellery-making activities that would have any relevance to the question whether she has the ability to manage her own affairs.

SJ’s sister, KC, gave evidence that, when she was in her late teens and living at home, SJ would impulsively buy things for herself, such as large volumes of clothing that she never wore. The clothes would periodically be taken to a charity outlet when too many of them accumulated in her room. KJ and TJ gave evidence to the same effect. TJ said: “If [SJ] had money, she spent it.” In her affidavit sworn on 25 February 2019, SJ denied that she was impetuous with money. She said that she had bought a lot of clothing as a teenage girl who loved clothes, but she only gave them away if they no longer fitted her. SJ also said that, as a mother of children, she no longer purchases new clothes unless necessary. However, MJ gave evidence of SJ having three or four large bags containing what appeared to be hundreds of brand new dresses in her garage in late 2018, and that SJ told her she was going to donate the dresses to charity as she did not know what to do with them.

KJ and KC also gave evidence that SJ had a habit of generously buying things for friends without thinking about whether she could afford it. KJ attributed this to SJ’s need to be liked by her peers. In her affidavit sworn on 25 February 2019, SJ denied buying unnecessary gifts for her peers and other people.

KJ and KC also gave evidence that, prior to 2013, SJ had taken out a loan and given the funds to her boyfriend at the time, who had used the money to either put towards a deposit for a property or to carry out renovations at his property. SJ accepted this in her affidavit made on 25 February 2019, and deposed that: “I think the amount was about $5,000”. [41] SJ never recovered that money, and says that she was not advised by her former solicitor or KJ to take any steps to recover it. In her affidavit sworn on 3 April 2019 and in cross-examination, KJ gave evidence that the loan taken out by SJ in 2013 was in fact for $10,000, and that SJ had also taken $5,000 out of an account that her parents had established for her and given the money to a friend or boyfriend who needed to fix their car. In cross-examination, SJ accepted that she had lent $5,000 to a former boyfriend and that she had lost that money. She said: “I was young and silly at the time”. [42] She agreed that the former boyfriend had exploited her. [43]

In her affidavit sworn on 8 November 2018, SJ deposed that she and LJ have separate bank accounts. LJ confirmed this is in his oral evidence. [44]

SJ and LJ each gave evidence that SJ manages their household finances. This involves purchasing the groceries, paying for car registration and insurance and paying for childcare. SJ also pays her phone bill. The manager of her estate pays most of the bills, including council rates, gas, electricity and water. The manager also provides a fixed amount of money for any specific one-off purchases.

LJ gave evidence that SJ had never asked him for assistance with the management of their finances, and “has always managed our finances sensibly”. [45] LJ explained in his oral evidence that he considers that SJ manages their finances sensibly because he sees that the children are fed, well clothed and go to daycare, and LJ doesn’t see notices of unpaid and outstanding bills.

In her affidavit sworn on 25 February 2019, SJ deposed that she had borrowed money from MJ on two occasions, and that she had borrowed about $300 on each occasion. She deposed that one of these loans had been to buy petrol “and similar items” and one had been to pay her phone bill. SJ deposed that she had paid back the first loan within a few weeks and that MJ had not required her to repay the second loan. SJ gave no evidence about when these loans had been made.

In her affidavit sworn on 9 April 2019, MJ deposed that she had loaned or given SJ amounts of $200 and $300 on many occasions. MJ annexed three bank transfers to her affidavit as examples of these loans. The transfers were dated March, April and September 2018.

In oral evidence, MJ said that she had observed during the whole of the period since SJ’s accident, including during the period from 2014 to 2018 when MJ and SJ were in almost daily contact, that SJ lacked the ability to prioritise her spending. MJ had seen no change or improvement in this since SJ’s accident. MJ gave the following specific example that had occurred in the period 2016 to 2018, which she described as typical of the instances in which SJ failed to prioritise her spending: [46]

MJ said that SJ would often call her for assistance and MJ would give SJ money or advise her about what to do next. Given that she was in almost daily contact with SJ, MJ found it difficult to estimate how frequently SJ contacted MJ in these circumstances over the period from 2014 to 2018, but she said that the frequency was closer to weekly than monthly.

I accept MJ’s evidence about the frequency with which SJ needed her advice or financial help because she had run out of funds in the period prior to December 2018. MJ has no reason at all to give untruthful evidence about this subject. Indeed, it was a very difficult thing for MJ to give evidence opposing SJ’s application to revoke the protective orders, and she paid a heavy price for doing so: SJ terminated their relationship. In her affidavit, MJ said: [47]

Moreover, MJ’s evidence is broadly consistent with the evidence of Dr Jungfer, referred to below, that SJ’s bank account statements that Dr Jungfer reviewed with SJ online during her assessment of SJ on 30 October 2018 showed multiple overdrawn fees. In her affidavit sworn on 25 February 2019, SJ deposed that she does not have overdrawn fees “on an overly regular basis”. [48] SJ said that the weekly remittances by the Manager into her account are “often” late. [49] However, in her affidavit affirmed on 29 March 2019, Ms Pulverenti deposed that SJ receives her payments every Monday, with the exception of public holidays when the payment is paid to SJ the Friday preceding the holiday. Ms Pulverenti was not cross-examined. It will be necessary to return to Dr Jungfer’s evidence concerning overdrawn fees later in these reasons.

I attribute the discrepancy between the evidence of MJ and SJ about SJ’s spending patterns and frequent need for financial assistance from MJ to SJ’s very poor memory (see [65]–[73] above) and to her lack of insight, as assessed by Dr Jungfer. I refer to Dr Jungfer’s evidence about SJ’s lack of insight in [210]–[213] below. I accept Dr Jungfer’s evidence for the reasons set out in [218]–[225] below.

As I have already mentioned, LJ works away from home as a fencing contractor each week and is typically home only on the weekends. SJ and LJ do not share a joint bank account. LJ buys his own food while he is working away from home and pays his other expenses from his own funds. He pays an amount of money to SJ’s account each week or each fortnight and leaves it to SJ to feed and clothe the children. SJ receives two fixed amounts from Perpetual each week, one of which is specifically for childcare expenses, together with the wages from her part-time work. LJ’s view that SJ is managing the household budget adequately is based on the fact that, when he is at home on the weekends, he sees that the children are well clothed and fed. In addition, LJ is aware that the children attend daycare and he does not receive notices that bills are outstanding. However, as I have referred to above, most of the household bills are paid directly by the manager of SJ’s estate. Because he does not have any relationship with MJ, LJ would not be aware of the regular financial assistance that MJ has provided to SJ at times when she has failed to prioritise her spending. He would not have learned about this from SJ, who denies the frequency with which she has sought and received assistance from MJ after overspending.

In her affidavit sworn on 9 April 2019, MJ deposed: [50]

In her affidavit affirmed on 14 May 2019, SJ deposed: [51]

In cross-examination, SJ said she had already consulted a financial adviser since the conversations that MJ referred to in her affidavit, and that her plans had become more settled as a result of the advice she had received, although the financial adviser could not finalise the advice or any plan for SJ until the outcome of her application to revoke the protective orders is known. [52]

At the time of the hearing, SJ had received her most recent portfolio statement from Perpetual approximately two weeks earlier. She was aware that the total value of her estate is approximately $2.6 million. However, she was unable to tell the Court the form in which her assets were held without prompting. When prompted, SJ was able to explain that her portfolio included the property in which she lives valued at approximately $570,000, two lots of shares each worth about $500,000 and “an account with my money that is budget”. [53]

The portfolio statement [54] includes a list of five managed investments, two of which are expressly described as investments in shares. Some of the other three may be investments in the form of shares, but they may be investments in other securities such as treasury bonds or units in managed investment schemes. The two managed investments that are expressly described as shares do have a value in the vicinity of $500,000 each. However, in describing the composition of her portfolio with the assistance of the gentle prompting offered by Mr Meek SC’s questions, SJ did not appear to recognise that the $570,000 property and $1 million shares portfolio that she referred to fell far short of the $2.6 million value of her estate and that there were additional assets worth approximately $1 million to make up the $2.6 million total. She did not mention the additional three managed investments, nor did she mention that the total managed investments (including the two share portfolios) were worth $2 million.

In relation to the share investments that SJ did mention, she did not know the nature of the assets or investments the shares were held in. SJ gave the following evidence in response to questions asked by Mr Meek SC: [55]

SJ was also asked what she would like to do with her estate if the protective orders were revoked and she were managing her own affairs. SJ gave evidence that she had spoken to her financial adviser approximately four times, the most recent occasion being two weeks prior to the hearing. SJ had told her financial adviser what she would like to do. The questioning by Mr Meek SC and SJ’s answers continued as follows: [56]

In response to further questions from me, SJ said that her intentions that she had initially described to Mr Meek SC reflected the plan that she had discussed with her financial adviser, except that SJ had added in the spending on house renovations. [57] SJ said that her evidence that she would like to keep some money in shares was something that she had decided for herself, and not in conjunction with her financial adviser. [58] SJ gave the following explanation: [59]

In response to further questions asked by Mr Hickey, SJ gave the following evidence: [60]

SJ’s evidence that I have referred to in [114]–[120] above was given over a short period of time during the afternoon of the first day of the hearing. The inconsistencies within that evidence are very troubling. SJ said that she would consult a financial adviser, particularly in relation to “anything with shares” and that she did not know how to assess whether an investment in shares was profitable and would not make such an assessment without legal advice or advice from a financial adviser. Her financial adviser’s plan, as SJ described it in her evidence, did not involve any investment in shares and involved SJ putting a very large sum of money “in an account so it can earn interest”. However, almost immediately after describing this plan that she had developed with her financial adviser, SJ said under cross-examination by Mr Meek SC that she would “definitely” invest $2 million of her estate in shares rather than putting it in an account to earn interest. In response to my questions, SJ said that she had made this decision for herself, without advice from her financial adviser. The decision was based on a very general notion that SJ thought that shares would be worth a lot more than money earning interest in a bank account, yet she had not given any consideration to the type of shares in which she would wish to invest.

I observed SJ closely in the witness box while this evidence was given. Her demeanour was calm. She did not appear to be flustered, frustrated or confused by the questions, except when she expressly said so. On those occasions, she calmly asked for clarification about the question. For the most part, she was smiling and nodding as she gave her answers. SJ appeared to me to be completely untroubled by the obvious inconsistencies in her answers. The inconsistencies are so stark that I infer from SJ’s untroubled appearance that she was not aware of, or did not understand, those inconsistencies.

KJ, KC and SJ each gave evidence that SJ has suffered from seizures over the years since the accident that caused her brain injury, including when she was pregnant with her first child and during her pregnancy with her third child. SJ gave evidence that she is not having treatment for the seizures, and her last seizure occurred in April 2019. She is assessed annually by her general practitioner to determine whether she is medically fit to drive, and she is required to present the general practitioner’s assessment to Service NSW when renewing her drivers’ licence. It will be necessary to return to the subject of the seizures in considering the medical evidence below.

Dr Jungfer is a consultant psychiatrist who has specialised in psychiatric aspects of head injury and traumatic brain injury since 1991. [61] KJ relied on the following three reports of Dr Jungfer:

KJ also relied on a report of Associate Professor Paul Darveniza, neurologist, dated 5 October 2011. That report was annexed to Professor Darveniza’s affidavit affirmed on 25 June 2013, which was read without objection. Professor Darveniza’s report also formed part of the evidence before the Court when the protective orders were made on 26 August 2013.

SJ relied on three reports of Dr Frukacz, consultant psychiatrist, dated 8 December 2015, 22 February 2016 and 17 November 2017. Each of those reports was annexed to the affidavit of Mr Frukacz sworn on 9 August 2018, which was read without objection. Dr Frukacz does not claim any special expertise in relation to traumatic brain injury. His curriculum vitae states that, since 1997, he has been providing “general adult psychiatric services” to patients referred to him by their general practitioners and he sees patients with a wide variety of conditions, including mood disorders, anxiety disorders, post-traumatic stress disorders and personality disorders. In cross-examination, Dr Frukacz said that he was “familiar within a general sense with traumatic brain injuries”. [62] I infer that it was for this reason that Dr Frukacz stated in his first report, and repeated in his oral evidence, that the opinion of Dr Jungfer, as a psychiatrist specialising in brain injury, should be considered very carefully. [63]

SJ also relied on the report of Dr Woods, a forensic psychologist, dated 30 March 2017. The report is annexed to his affidavit sworn on 7 August 2018. According to Dr Woods’ curriculum vitae, his experience includes neuropsychological assessment of traumatic brain injury. However, his professional appointments reveal that the focus of his work has been in the area of forensic psychology in the field of criminology, including profiling for the New South Wales and Victorian Police and the Australian Defence Forces. Since 2013, Dr Woods has been an Adjunct Associate Professor and, later, an Adjunct Professor at the School of Law and Justice at Southern Cross University in New South Wales. [64]

Dr Woods, Mr Frukacz and Dr Jungfer were cross-examined on the third day of the hearing of the Application. Professor Darveniza was not required for cross-examination.

Dr Bogan is a psychologist with a doctorate in neuropsychology on the assessment of children and adolescents with traumatic brain injuries. Dr Bogan assessed SJ in May 2003, October 2009 and March 2011. His reports were referred to extensively by Dr Jungfer and also by Dr Woods in their respective reports and in their oral evidence. Dr Bogan’s three reports were tendered on the final day of the hearing. [65] He was not required for cross-examination.

Dr Bogan first assessed SJ on 13 May 2003. He interviewed SJ, and also interviewed KJ and TJ, and reviewed various medical and school reports relating to SJ. Dr Bogan administered the Wechsler Intelligence Scale for Children – Third Edition (WISC-III), the Auditory Verbal Learning Test (AVLT) and the Verbal subtests of the Test of Memory and Learning (TOMAL). Dr Bogan also administered two separate measures of executive function: the Seals Test and the Wisconsin Card Sorting Task. The Seals Test is a developmental measure of executive function developed by Dr Bogan which involves remembering simple rules for moving coloured balls and the position of the balls while planning moves to solve problems at three levels of difficulty. The Wisconsin Card Sorting Task is a computerised matching exercise in which the matching criteria change without warning.

In his report dated 27 June 2003, Dr Bogan referred to the medical records concerning SJ’s accident, which suggested, in his view, that SJ had sustained a severe acquired brain injury. Dr Bogan then set out his opinions based on his assessment of SJ (emphasis added): [66]

Dr Bogan re-assessed SJ on 13 October 2009. He again interviewed SJ and separately interviewed KJ and TJ, and reviewed SJ’s school reports. Dr Bogan also reviewed a number of medical reports and neuropsychological assessments of SJ undertaken by other medical practitioners. Dr Bogan also administered the Wechsler Adult Intelligence Scale – Third Edition (WAIS-III), the Wechsler Memory Scale – Third Edition (WMS-III) and the Seals Test, in addition to the Beck Anxiety Inventory and the Beck Depression Inventory – Second Edition.

Dr Bogan expressed the following opinions in his report dated 21 October 2009 (emphasis added): [67]

Dr Bogan’s most recent assessment of SJ was undertaken on 8 March 2011. As on previous occasions, Dr Bogan interviewed SJ and separately interviewed KJ and TJ. Dr Bogan also reviewed reports prepared by a psychiatrist, occupational therapist and neurologist concerning SJ. Dr Bogan administered the WAIS-III and the WMS-III. He did not complete long-term memory components of the testing, because it was apparent to him that SJ was not able to focus on the task. [68] Dr Bogan had intended to administer the Behavioural Assessment of the Dysexecutive Syndrome (BADS) to SJ, but this was not possible due to SJ’s fatigue. Dr Bogan instead asked KJ and TJ to complete a questionnaire from the BADS. [69]

Dr Bogan expressed the following opinions in his report dated 17 April 2011 (emphasis added): [70]

SJ was 20 years of age when Dr Jungfer first assessed her on 1 August 2011.

Dr Jungfer’s report dated 5 August 2011 [71] was prepared on the basis of an interview conducted with SJ on 1 August 2011 and a separate interview conducted on the same day with KJ and TJ together, and her review of certain documents provided to her. Dr Jungfer did not order any investigations of SJ.

Dr Jungfer reviewed the medical records concerning SJ’s condition and treatment in the immediate aftermath of her accident in March 2000 and concluded that SJ had sustained a severe, traumatic brain injury in that accident. [72]

Dr Jungfer made the following observations based on her review of the three neuropsychology assessments conducted by Dr Bogan (emphasis added): [73]

Dr Jungfer reviewed a CT of SJ’s brain in July 2007, which had been reported as normal. Dr Jungfer also referred to the report of a neurologist, Professor Hawke, which stated that an MRI scan conducted in 2008 was considered to be normal.

Dr Jungfer also referred to correspondence from Professor Hawke describing seizures that SJ was suffering as non-convulsive, with stress and headaches having a role in the onset of the seizures. EEG monitoring had been conducted, during which SJ had suffered a typical seizure which was considered to be non-epileptic. Dr Jungfer noted that the interictal EEG (that is, the EEG recording made at times when SJ was not suffering a seizure) showed no epileptic form discharges but slow discharges consistent with SJ’s brain injury. [74] Despite this, Dr Jungfer noted in her report that “true seizures” (as opposed to non-convulsive seizures) “cannot be excluded even on the basis of normal EEGs.” [75]

The information obtained by Dr Jungfer from her interview with SJ included:

The information obtained by Dr Jungfer from her interview with KJ and TJ included:

On the basis of the information obtained during the interviews with SJ and her parents and the medical reports that she reviewed, Dr Jungfer expressed the following opinion (my emphasis): [88]

Dr Jungfer concluded (emphasis added): [89]

Dr Jungfer also expressed the opinion that SJ (emphasis added): [90]

Dr Jungfer considered that SJ had made the maximum medical recovery. [91]

For the purpose of preparing his report dated 5 October 2011, Professor Darveniza examined SJ on 26 September 2011 (including administering a Mini Mental State Examination) and conducted a separate interview with KJ on that occasion.

The history taken by Professor Darveniza in September 2011 from SJ and KJ was not materially different from that taken by Dr Jungfer in August 2011.

Professor Darveniza expressed the following opinions (emphasis added): [92]

Dr Jungfer’s second report dated 21 March 2013 was prepared on the basis of an interview with SJ on 12 March 2013, and a separate interview with KJ and TJ on the same date, together with her review of various documents provided to her. The report states that Dr Jungfer “did not assess [SJ] cognitively”. In cross-examination, Dr Jungfer explained that whilst she has expertise in understanding neurospychometric and psychometric testing reports for the purpose treating patients with brain injury, she does not administer such testing and is not trained to interpret the raw scores of such testing. [93]

Dr Jungfer recorded that SJ had reported her predominant problems as being related to fatigue, forgetfulness and headaches, and that she described difficulties regarding her ability to sustain concentration. [94] SJ was no longer experiencing seizures at the time of her interview with Dr Jungfer on 12 March 2013. [95] Dr Jungfer also recorded that SJ reported that: [96]

Dr Jungfer recorded that SJ’s parents had reported that:

Dr Jungfer reviewed numerous previous medical reports for the purpose of preparing her report dated 5 June 2013, [100] including the following assessments:

Based on her review of the documentation, Dr Jungfer concluded (my emphasis): [105]

Dr Jungfer’s assessment of SJ based on her interview with SJ, her interview with KJ and TJ and her review of documentation is set out in section 10 of her report dated 21 March 2013. Of particular relevance to SJ’s application are the following opinions of Dr Jungfer at paragraphs 10.8 to 10.10 (my emphasis):

Dr Jungfer stated: [106]

Dr Frukacz’s first report dated 8 December 2015 was based on one consultation with SJ on 11 March 2015, a review of various documents provided to him, including the reports of Dr Jungfer dated 5 August 2011 and 5 June 2013 and his administration of the Folstein Mini-Mental State examination. On examining SJ, Dr Frukacz found that her cognitive functions were grossly intact. His examination found no evidence of cognitive impairment, although he acknowledged that this would not exclude subtle impairments that would only be evident on more extensive neuropsychological testing. In cross-examination, Dr Frukacz described the Folstein Mini-Mental State examination as a patient-oriented examination that looks at whether the patient knows where she is and what date it is, tests short-term memory and the ability to focus attention by persisting at a task. It does not test for frontal lobe dysfunction – that is, dysfunction in the areas of the brain that govern reasoning, planning, judgment and insight. [107]

Dr Frukacz considered that the earlier medical reports he reviewed contained contradictory findings regarding SJ’s level of cognitive functioning. Nevertheless, and despite the limitations of the Folstein Mini Mental State examination and his acknowledgement that SJ may have subtle impairments that would only be revealed on more extensive testing, Dr Frukacz concluded: [108]

In my view, Dr Frukacz’s first report fails to explain the limitations of the assessment that he carried out. With respect, it is difficult to understand how Dr Frukacz arrived at the opinion above notwithstanding the limitations of his assessment tool and without resolving what he considered to be contradictions in the findings of earlier, more thorough, assessments by others. For those reasons and in light of the lack of evidence that Dr Frukacz has experience in assessing patients who have suffered traumatic brain injury, Dr Frukacz’s opinions in his first report carry very little weight.

Dr Frukacz’s second report dated 22 February 2016 was based on his consultation with SJ on 11 February 2016, during which he again administered the Folstein Mini Mental State Examination and also administered the Addenbrooke’s Cognitive Examination. In cross-examination, Dr Frukacz explained that the Addenbrooke’s Cognitive Examination is very similar to the Folstein Mini Mental State Examination, although it does involve more items and so was a little more comprehensive. It does not focus on frontal lobe functions. [109] (I note that Dr Jungfer gave evidence that the Addenbrooke’s Cognitive Examination would provide information about “some aspect[s] of frontal lobe impairment, but … not the really important parts”. [110] ) Dr Frukacz considered that SJ’s presentation was essentially unchanged from when he had seen her on 11 March 2015. Mr Frukacz’s report states: [111]

Dr Frukacz’s opinions in his second report are based on the opinions in his first report, to which I give very little weight for the reasons I have already explained, and his administration of the Addenbrooke’s Cognitive Examination and the Folstein Mini Mental State Examination. As Dr Frukacz acknowledged in cross-examination, those tests do not examine the frontal lobe functions of reasoning, planning, judgment and insight. For those reasons, the opinions expressed by Dr Frukacz in his second report also carry very little weight.

For the purpose of preparing his report dated 30 March 2017, Dr Woods conducted a “detailed clinical interview lasting well in excess of two and a half hours” of SJ on 17 November 2016 and “a detailed and clinically reliable test of cognitive functioning”. Dr Woods also interviewed LJ and reviewed Dr Jungfer’s reports dated 5 August 2011 and 5 June 2013, Associate Professor Darvenizia’s report dated 25 June 2013, Mr Frukacz’s reports dated 11 March 2015, 8 December 2015 and 22 February 2016, and various other documents.

In his affidavit annexing his report, Dr Woods deposed that: [112]

The testing conducted by Dr Woods consisted of:

The Mental Status examination was an assessment, based on Dr Woods’ interview with SJ, of whether SJ appeared to be in touch with reality, whether her vocabulary was adequate, whether her affect was consistent with what she was saying and whether she was able to attend to questions. [118] It is not a detailed assessment of executive functioning.

In his report, Dr Woods described the WAIS-IV as a well-researched and validated measure of neuropsychological functioning. [119] In cross-examination, Dr Woods accepted that it primarily tests intelligence rather than executive function. I refer to these aspects of Dr Woods’ evidence in more detail below.

Dr Woods referred to the results of the WAIS-III testing undertaken by Dr Bogan in 2009 and 2011. Dr Woods noted Dr Bogan’s statements in his 2011 report that: [120]

The above quotations are inaccurate. The underlined words (my underlining) do not appear in that sentence in Dr Bogan’s report. The paragraph of Dr Bogan’s report from which the above partial sentences were extracted by Dr Woods reads as follows (my emphasis): [121]

It is clear from the paragraph as a whole that the improvement Dr Bogan is referring to is an improvement in intelligence.

Moreover, the paragraph is part of a longer passage in Dr Bogan’s report, which I have set out at [135] above. Dr Woods ignores Dr Bogan’s other opinions set out in his report, including that SJ’s poor memory had been consistently demonstrated in assessment undertaken by Dr Bogan and other psychologists, and that SJ continued to experience difficulty in specific areas of executive functioning such as difficulty in initiating activities and breaking down information into smaller chunks so as not to become overwhelmed with large amounts of information.

Dr Woods set out the results of the WAIS-IV test that he administered to SJ as being in the low average range for full scale IQ, verbal comprehension, perceptual reasoning and working memory and in the average range for processing speed. [122] However, in cross-examination, Dr Woods acknowledged that those results are relevant to intelligence, not executive functioning. [123] He also acknowledged that intelligence can be unaltered after brain injury. [124] WAIS-IV does not specifically test capacity for decision-making, problem solving, cognitive flexibility, complex attention processing, judgment and reasoning, although it does touch on some aspects of those. [125] Dr Woods’ report is devoid of analysis of the implications of the test results of the kind presented by Dr Bogan in his reports.

Dr Woods gave evidence that there are specific tests that can be used to assess decision-making and problem solving. These include the D-KEF group of tests that are designed to test executive functioning. However, Dr Woods did not administer those tests. Instead, Dr Woods administered two sub-tests within the WAIS-IV which he considers “correlate with” what can be ascertained from D-KEF tests. [126] In cross-examination, Dr Woods explained that these were the picture completion sub-test and the letter number sequencing sub-test. [127]

SJ’s performance in the picture completion and letter number sequencing sub-tests in the WAIS-IV formed the basis for Dr Woods’s statement in his report that SJ’s performance on various sub-tests within the WAIS-IV “identified a number of strengths (with subtest results in the normal range) in both nonverbal and performance areas of functioning”. [128] In cross-examination, Dr Woods explained that the letter number sequencing sub-test is relevant to assessing the ability to switch from one concept to another concept, whilst keeping the first concept in the mind. He said that this is one aspect of executive functioning. SJ’s score on this sub-test was in the average range. The picture completion sub-test required SJ to complete a partial picture that she was presented with. This tested her ability to see how things fit together, and is relevant to reasoning ability, spatial ability and planning. Again, SJ scored within the average range on this sub-test. [129]

Dr Woods gave evidence that SJ’s performance in the coding sub-test of the WAIS-IV did not reveal impulsivity. [130]

Dr Woods accepted that insight and judgment would be relevant to SJ’s ability to manage her own affairs. [131] There are tests designed to assess insight and judgment, which are governed by the frontal lobes. However, in Dr Woods’ view, insight and judgment are better assessed by interview. [132] Dr Woods was asked about the questions he had put to SJ during the interview in order to test her insight and judgment. Dr Woods said that he had not drilled down deeply into that. [133]

Dr Woods gave evidence that it was widely accepted that “non-intellective factors of intelligence”, including a person’s ability to function in the social environment, should be considered together with test scores when determining the person’s “global functioning”. [134] In cross-examination, Dr Woods described the assessment of “global functioning” as involving gathering information from SJ and LJ and using his clinical judgment to assess it. He described this clinical assessment of SJ as more important than raw test results. [135] Dr Woods assessed SJ’s “psychosocial functioning” or “global functioning” based on the account given to him by SJ and LJ, as follows: [136]

Dr Woods noted that SJ reported that she had not suffered seizures for a long time. [137] SJ has suffered at least one further seizure since Dr Woods assessed her: see [119] above.

Dr Woods expressed the following opinions in his report: [138]

In assessing SJ’s “global functioning”, Dr Woods’ report did not acknowledge that SJ’s TAFE studies, in what is normally a one year course, had been completed over a two year period with the assistance of a learning aide, [139] although Dr Woods said in cross-examination that he had been aware of this.

Dr Woods’ report also placed significant emphasis on the “profit-generating part-time boutique jewellery business”. However, as I have found above, there is no evidence that the business (which SJ in fact describes as more of a hobby) generates any profit, or indeed earns sufficient revenue to cover costs. In cross-examination, Dr Woods said that SJ had described the jewellery-making activity as “covering costs, more of a hobby”. [140] Dr Woods sought to downplay the distinction between this and his description of it in his report as a profit-generating business as a mere matter of terminology. [141] I do not accept this. Dr Woods’ report conveys the clear impression that he was impressed by SJ’s ability to establish what he described as a profit-generating online boutique jewellery business and that this was an important consideration in his assessment of her “global functioning” which formed a substantial part of the basis of his opinion that she is capable of managing her own affairs. Dr Woods also assumed that SJ kept records of the income and expenditure of her jewellery-making business. [142] As I have referred to in [92]–[93] above, SJ did not maintain any such records. I infer that Dr Woods did not make inquiries about records, and was content to receive only the bank statements to which I refer immediately below.

Dr Woods referred to the bank statements that SJ had provided as evidence of her ability to pay bills, and placed significant weight on SJ and LJ’s assessment that SJ was successfully managing the family budget.

The bank statements comprised a transaction history print out for a Commonwealth Bank account for the period 28 November 2016 to 17 January 2017 and a Westpac document showing transactions during the period from 12 October 2016 to 13 January 2017. [143] Neither of these records shows the name of the account holder, although it is reasonably clear from the names recorded in the transaction descriptions in the Commonwealth Bank print out and from the regular payments by Perpetual that this is SJ’s account.

The Commonwealth Bank account transaction history shows regular payments to AfterPay. The account was overdrawn on two occasions in December 2016 and January 2017. The transaction history also records a payment of $250 from MJ on December 2016.

The Westpac document shows the debit or credit amount of each transaction listed, but does not show the account balance.

The period covered by the Commonwealth Bank and Westpac documents post-dates Dr Woods’ assessment of SJ on 17 November 2016. I infer that SJ sent these records to Dr Woods after she attended his rooms on that date, and that Dr Woods therefore did not question SJ about them in the course of his assessment.

It is not clear precisely how these documents informed Dr Woods’ conclusions about SJ’s “global functioning”. The documents are not capable of demonstrating whether or not SJ’s jewellery-making activities were profitable. To the extent that Dr Woods relied on them as corroborating SJ and LJ’s assessment that she was capably managing their household budget, the regular use of AfterPay and the overdrawing of the Commonwealth Bank account on two occasions call that assessment into question, in my view. As I understand Dr Woods’ evidence in cross-examination, he did not ask LJ any detailed questions about how SJ managed their household finances because SJ and LJ both said that she did so capably. It was only if they had conveyed different points of view about SJ’s ability in that area that Dr Woods would have asked any detailed questions. [144] For the reasons set out in [98]–[107] above, I have found that SJ was not in fact capably managing their family budget.

In any event, when he assessed SJ in November 2016, Dr Woods was not aware that, if SJ were to manage her own affairs, she would be managing a portfolio comprising her home and investments in shares and other securities with a total value of approximately $2.6 million. He assumed that SJ would be managing a relatively small amount of money. [145] He accepted in cross-examination that there was a distinction between the ability to manage day-to-day finances and the ability to manage a portfolio of that nature. He observed that most people would find it difficult to manage such a portfolio. [146] Dr Woods nevertheless maintained in cross-examination that SJ had the ability to manage her own affairs. He said that he had asked SJ whether she would seek the advice of a financial adviser if the protective orders were revoked, and SJ told him that she would do so. [147] Dr Woods said: [148]

Dr Woods gave the following further evidence in response to questions from me: [149]

With respect, I found this evidence of Dr Woods unconvincing. I accept that it would be sensible for SJ, or indeed any person, to seek out professional financial advice concerning the management of a $2.6 million portfolio of assets. I do not consider that this conclusion requires the clinical or professional judgment of a psychologist. In answering the questions above, Dr Woods simply kept repeating the activities of daily life that SJ was undertaking, without explaining the relevance of those activities to complex financial decision-making of the kind that would be required to manage a $2.6 million portfolio even with professional financial advice. Dr Woods did not apply his clinical or professional judgment by assessing SJ’s ability to comprehend the kind of financial information and make the kind of financial decisions that would be necessary to manage a $2.6 million portfolio. The need to do so cannot be written off by simply observing that most people would find it difficult to manage such a portfolio. The question is not whether SJ would find it difficult or challenging, but whether she has the capacity to conquer such difficulties and manage her affairs. Dr Woods did not offer any explanation as to why it was logical or rational to extrapolate from an ability to manage day-to-day life to conclude that SJ has the ability to manage a $2.6 million portfolio of assets, including understanding complex financial advice and making complex financial decisions based on such advice.

Mr Frukacz’s third report dated 11 November 2017 is based on his review of Dr Woods’ report referred to above and his consultation with SJ on 30 October 2017.

Dr Frukacz’s report states: [150]

Dr Frukacz’s opinions relied heavily on Dr Woods’ WAIS-IV testing and Dr Woods assessment of how SJ was managing her daily life. [151]

In cross-examination, Dr Frukacz acknowledged that WAIS-IV tests general intelligence rather than executive functioning, and that the average range results recorded in Dr Woods’ report related to intelligence rather than executive functioning. It was beyond Dr Frukacz’s expertise to say whether a person might have impairment of executive function and yet achieve results within the average range on the WAIS-IV tests for intelligence. [152] As I have noted in [34] above, Dr Woods and Dr Jungfer both gave evidence to the effect that a traumatic brain injury may not adversely affect a person’s intelligence even if it affects their executive functioning capacity.

Dr Frukacz regarded as significant to his assessment Dr Woods’ report that SJ successfully managed the family’s finances and also managed her boutique jewellery business from which she was earning small amounts of money. Dr Frukacz acknowledged that, if the information provided to him and to Dr Woods was incorrect, he would need to revisit his assessment of SJ. [153] As I understand his report and his oral evidence, Dr Frukacz’s own assessment of SJ’s “global functionality” was limited to asking her “general questions about decision-making” such as what she would like to do with her money. [154]

Dr Frukacz also took into account that SJ told him that she would consult a financial adviser. [155] He gave the following evidence in cross-examination answer to questions from Mr Hickey: [156]

Dr Frukacz also gave the following evidence in answer to questions asked by me: [157]

Dr Jungfer’s third report is dated 30 October 2018. That report, together with letters of instruction and materials provided to Dr Jungfer, is annexed to the affidavit of KJ’s solicitor sworn on 14 January 2019, which was read without objection. The third report was prepared on the basis of Dr Jungfer’s interview with SJ on 30 October 2018 and her review of various documents provided to her, including the report of Dr Woods referred to above.

Dr Jungfer noted the limitations in the Folstein Mini Mental State Examination and the Addenbrooke’s Cognitive Examination administered by Dr Frukacz. Dr Jungfer also noted that Dr Frukacz’s report did not document whether he assessed SJ’s decision-making processes, which Dr Jungfer considered to be a key issue in determining financial capacity. [158] I note that this accords with my own assessment of Dr Frukacz’s evidence: see [195] above.

Dr Jungfer also referred to the WAIS-IV administered by Dr Woods and stated that it would be inadequate to determine SJ’s financial cognitive ability as it may not assess brain injury-related impairments because intelligence can be unaltered after brain injury and: [159]

Dr Jungfer considered that the WAIS-IV testing would not examine executive or frontal lobe impairments. [160] Dr Jungfer explained in her oral evidence that executive functioning involves the cognitive processes that govern problem solving, reasoning, decision-making and the ability to initiate and cease an activity (such as a spoken word, thought or behaviour). She said that executive functioning is also assessed and demonstrated by things such as verbal fluency and the degree of insight that a person has, and may also be manifest in regulation of emotional control. Executive functioning is most commonly thought to be regulated or operated from the frontal regions of the brain. In Dr Jungfer’s view, insight and judgment are governed by the frontal lobe region. [161]

Dr Jungfer acknowledged that the WAIS test does look at working memory which is also governed by the frontal areas of the brain. However, she described the test as really looking at a person’s “crystallised knowledge” or “intelligence base”, rather than how they apply knowledge or intelligence. [162] Dr Jungfer was not familiar with the picture completion test administered by Dr Woods as part of the WAIS. She has some familiarity with the letter number sequencing sub-test and acknowledged that it does tap into some executive functioning skills. It was beyond Dr Jungfer’s expertise to say whether the outcome of the letter number sequencing sub-test would enable an opinion to be formed about a person’s capacity to manage their financial affairs. [163]

Dr Jungfer regarded the neuropsychometric testing undertaken by Dr Bogan in 2009 was the most recent testing which extensively tested SJ’s executive functioning. She considered it reasonable to rely on Dr Bogan’s 2009 testing because it had not demonstrated significant change from previous testing, “which meant that considering when the injury had occurred in terms of the length of time and the absence of any change over time it would indicate that [SJ] had plateaued from the impairments and deficits”. Dr Jungfer acknowledged that it was reasonable to also rely on the results of the WAIS as well, and added that it was necessary to rely on a range of information in forming an opinion and that an opinion should not be formed solely on the basis of psychometric testing. [164] As I have referred to above, Dr Woods also emphasised the need to rely on information concerning how SJ is functioning in the community rather than relying solely or principally on testing results.

During the course of her interview with SJ on 30 October 2018, Dr Jungfer reviewed SJ’s banking records together with her online on SJ’s mobile phone. Dr Jungfer noted in her report that the Commonwealth Bank account showed regular overdrawn account fees and that SJ was unaware how often her account was overdrawn. In her oral evidence, Dr Jungfer said that SJ had said in her interview that she thought she overdrew the account infrequently, yet the records reviewed by Dr Jungfer during the interview showed that it had been overdrawn “quite frequently”. Dr Jungfer’s report refers to the account having been overdrawn on a number of occasions in the two week period leading up to the interview on 30 October 2018. Dr Jungfer’s report also noted that SJ was not able to calculate what her regular AfterPay payments were. [165]

Dr Jungfer’s report also noted that SJ denied receiving any advice or assistance from her sister, MJ, contrary to information that MJ had provided to Dr Jungfer. [166] That is also contrary to the evidence given by MJ in this proceeding, which I have accepted for the reasons in [98]–[107] above.

Dr Jungfer asked SJ what she wanted to do with her funds. Dr Jungfer’s report records: [167]

In response to questions asked by Mr Meek SC, Dr Jungfer explained that she had drilled down and asked further questions of SJ in her interview on 30 October 2018 in order to understand her reasons and decision-making process that led her to the view that she wanted to buy a larger home and rent out her current home. Dr Jungfer said that SJ had told her that she would receive $550 per week in rent, and this would provide a stable income greater than the income SJ earns now. However, SJ had not considered what would happen in the event that the property was not tenanted for a period of time. Nor had she considered the expenses that she would incur as a landlord, and what the net rental income would be after paying those expenses. [168]

In relation to SJ’s expressed wish to have the balance of her funds (after purchasing another property and placing some money in trust of her children) placed with the public trustee, Dr Jungfer was perplexed by the notion that the public trustee would be more “lenient” than SJ’s present trustee. This is indeed perplexing, as the manager administers SJ’s estate in accordance with directions made by the NSW Trustee. [169] This indicates that SJ has a poor understanding of the arrangements under which her estate is administered.

Dr Jungfer noted that SJ had previously been assessed as incapable of managing her own affairs based on neuropsychometric testing carried out “when she was very remote from the injury”. This is a reference to the testing carried out by Dr Bogan. [170] Dr Jungfer expressed the following opinions (emphasis added): [171]

In her oral evidence, Dr Jungfer explained that, after the maximum recovery period for a traumatic brain injury (which Dr Jungfer considered to be a two year period, although the position is less clear in relation to brain injuries sustained by children, as in SJ’s case), improvements observed are usually adaptions to the impairments rather than recovery from the impairments. [172]

Dr Jungfer acknowledged that SJ had made significant adaptive changes, in that she had married and had three children, was running a household and working part-time. Dr Jungfer acknowledged that this indicates that SJ has the ability to acquire information and to learn, and there is the prospect for SJ to take new information and apply it to make adaptive change. [173] Dr Jungfer said: [174]

Dr Jungfer also gave evidence under cross-examination by Mr Dalzell about the importance of insight in assessing a person’s ability to use new learning in order to make adaptive change (emphasis added): [175]

I asked Dr Jungfer about the basis on which she had formed the opinion that SJ had limited insight. Dr Jungfer said: [176]

I also asked Dr Jungfer whether the adaptive changes that SJ had made (in parenting children and working part-time) shed any light on the question whether she would be able to make adaptive change in areas relevant to financial management. Dr Jungfer answered: [177]

Dr Jungfer’s reference to epilepsy above is a reference to the seizures to which I have referred in [123] above. There is no evidence that these are epileptic seizures, although Dr Jungfer considers that this cannot be ruled out. [178] Dr Frukacz and Dr Woods placed little significance on the question whether SJ is continuing to suffer from seizures for the purpose of forming their opinions about whether SJ has the ability to manage her own affairs. By contrast, Dr Jungfer considered that the fact that SJ suffers from seizures, and drives a vehicle and cares for young children without have sought medical intervention or treatment for the seizures, indicates impaired judgment. [179] With respect to Dr Jungfer, I do not accept that this reflects poor judgment on the part of SJ. As I have referred to at [123] above, SJ gave evidence that she is assessed annually by her general practitioner to determine whether she is fit to drive a vehicle, and her licence is issued upon that medical assessment being provided to Service NSW. Dr Jungfer did raise a serious question about whether a general practitioner is competent to undertake such assessments, [180] but that would reflect poorly on the general practitioner rather than SJ herself. SJ is dependent on the medical advice she receives. For this reason, I do not conclude that SJ’s dismissal of the concerns that Dr Jungfer raised with her necessarily demonstrates lack of insight.

However, Dr Jungfer’s description of SJ’s reaction to being presented with the calculation of the Afterpay monthly payments without appearing to appreciate that she had been unable to work it out bears striking similarities with my own non-expert assessment of SJ’s apparent lack of awareness and understanding of the stark inconsistencies in her evidence about how she would manage her own affairs if the protective orders were revoked: see [121]–[122] above.

Neither Dr Woods nor Dr Frukacz had been provided with Dr Jungfer’s report dated 31 October 2018 before giving evidence at the hearing of the Application.

For the following reasons, I regard the evidence of Dr Jungfer as the most reliable expert evidence concerning SJ’s current executive functioning and ability to manage her own affairs.

First, Dr Jungfer has had regard to the extensive neuropsychometric testing carried out by Dr Bogan in 2009 and 2011, in addition to Dr Woods’ more limited testing in 2016, when forming her opinions. By contrast, Dr Woods and Dr Frukacz have relied principally on Dr Woods’ testing. Neither of them made any attempt to grapple with the complex picture revealed by Dr Bogan’s analysis of the results of his more extensive testing. As I have referred to in [169]–[171] above, Dr Woods’ report presented an inaccurate summary of the outcomes of Dr Bogan’s testing and essentially ignored Dr Bogan’s analysis of those outcomes. Dr Woods’ testing is more recent, but Dr Bogan’s was more thorough and was carried out after the time at which SJ could have achieved maximal recovery from her brain injury, assuming that the recovery time frame is seven years as Dr Woods says rather than the two years preferred by Dr Jungfer. As I have noted above, Dr Jungfer and Dr Bogan have extensive experience in the assessment and treatment of brain injury, whereas Dr Woods and Dr Frukacz do not.

Second, in his assessment of SJ’s “global functioning”, Dr Woods disregarded the information provided by SJ’s family, discarding it as “historical”: see [45] above. I acknowledge that Dr Woods was assessing SJ as at November 2016, and that the affidavits and statements of SJ’s family members were dated between about 2011 and 2013. Nevertheless, this “historical” information post-dated the expiry of the seven year period that Dr Woods regards as period in which maximal recovery can be achieved after a traumatic brain injury. It was information that provided some context against which he could have assessed and tested the account given to him by SJ and LJ in November 2016. His failure to do so reduces the weight of his opinions, in my view.

By contrast, Dr Jungfer relied on a range of sources of information.

Third, Dr Woods’ assessment of SJ’s “global functioning”, on which Dr Frukacz also relied, rested on the five matters set out in [177] above. I have found that evidence does not establish two of those matters (the successful management of the household budget and the profit-generating jewellery business). The bank statements relied on by Dr Woods do not provide any objective support for his opinion, for the reasons in [182]–[187] above.

Fourth, even if the assumption made by Dr Woods and Dr Frukacz that SJ is adequately managing her household budget or day-to-day financial affairs was supported by the evidence (and it is not), neither Dr Woods nor Dr Frukacz explained how this supported the conclusion that SJ has the ability to manage a complex $2.6 million portfolio of assets. By contrast, Dr Jungfer’s evidence explained the different nature of the learning that SJ has acquired and applied since her injury on the one hand, and the learning that would need to be applied for complex financial decision-making on the other hand. Dr Jungfer’s more detailed approach to questioning SJ, compared to the very general approach of Dr Woods and Dr Frukacz to which I have referred above, revealed lack of insight on the part of SJ. I also observed that lack of insight during SJ’s oral evidence: see [121]–[122] and [216] above.

I accept Dr Jungfer’s evidence, based on her extensive experience, of the importance of insight in a person’s capacity to successfully apply new learning and the difficulty of teaching insight to a brain injured patient. I also accept Dr Jungfer’s evidence that SJ’s history of financial management to date does not support the conclusion that she has sufficient insight, presently or with the benefit of new learning, to be able to manage a $2.6 million portfolio of assets, even with the benefit of professional financial advice.

Fifth, both Dr Frukacz and Professor Woods placed great weight on the fact that SJ told them that she would seek advice from a financial adviser if she were managing her own affairs. Their evidence does not reveal that they made any attempt to explore SJ’s capacity to make sound judgments when selecting a financial adviser to consult, when considering the financial advice provided, and when deciding how to act in response to that advice. Dr Woods appeared to dismiss the need to investigate this on the basis that any person would find this complex. That may be so, but the question is whether, in light of her traumatic brain injury and all of the history available to them concerning the problems that SJ has suffered following that injury, SJ has the capacity to undertake these complex assessments. Dr Frukacz acknowledged that he had not asked SJ the questions that would need to ask in order to form an opinion about this.

The central issue raised by SJ’s application under s 86 of the NSW Trustee Act is whether SJ is capable of managing her affairs now and for the foreseeable future.

On behalf of SJ, it was submitted that the Court should not expect SJ to have a degree of capability greater than “the everyday person”. It was submitted that the Court should consider SJ’s overdrawing of her accounts as involving minor amounts and that the Court should assume that “one may find a lot of the population overdraw their accounts”. It was submitted that SJ is living a “normal life” even though she has a disability and that the Court should therefore find that she is capable of managing her own affairs.

In my opinion, these submissions fail to grapple with the nature of SJ’s portfolio and the nature of the activities that would be required to manage that portfolio if the protective orders were to be revoked. This is at the heart of inquiry that the Court must undertake in order to determine SJ’s application under s 86 of the NSW Trustee Act: see [23]–[31] above. It is not helpful to speak in terms of “the everyday person” and “normal life”. It is necessary to consider all of SJ’s circumstances and all of the factual and expert evidence about her capabilities in order to determine whether she has the capability to manage her own affairs.

In SJ’s particular circumstances, if the protective orders are revoked, the management of her affairs will involve making decisions about what proportion of her assets, currently valued at $2.6 million, should remain invested in real property and what proportion should be held in other investments such as shares, managed funds and interest bearing accounts with financial institutions.

I accept SJ’s evidence that she would seek professional financial advice about those matters. However, SJ would need to make informed decisions based on that advice. The making of informed decisions would require SJ to understand the information presented in the advice and weighing up the potential risks and potential benefits of alternative courses of action identified in the advice, even where the advice recommends one course of action over others.

All of this would need to be done in a considered (that is to say, not impulsive) manner and with regard to both the short-term and long-term consequences or potential consequences of the decision. For example, a choice to allocate a larger proportion of SJ’s assets to fund the purchase of a new family home may provide immediate lifestyle benefits, but it would also reduce the funds available for investment in securities that may provide a source of income over many years of SJ’s life to supplement the income from her part-time work.

Similarly, the long-term consequences of decisions about discretionary spending on things such as holidays and home renovations would need to be taken into account. Depending on the frequency of such spending and the amounts involved, this might materially reduce the income-earning potential of the asset pool over time.

Having carefully considered all of the evidence summarised above, having made the findings set out above in relation to SJ’s poor memory and the difficulties that she experiences in managing the household finances (even in circumstances where most bills are paid by the manager of her estate), having observed the readiness with SJ to change her mind in the witness box about what she would do with her estate if managing it herself (deviating from the plan discussed with her financial adviser without being able to offer any reasoned explanation for the deviation) and having formed the view for the reasons set out in [218]–[225] above that Dr Jungfer’s evidence provides the most reliable expert assistance to guide the Court in determining whether or not it is satisfied that SJ in capable of managing her affairs, I have come to the conclusion that the evidence before the Court does not satisfy me that SJ has that capability.

I acknowledge that SJ and LJ strongly believe that SJ is capable of managing her affairs. I also acknowledge that SJ is presently managing to be the primary carer (indeed, the sole carer for most of each week) for three young children and also to work part-time. This is no small task. As Dr Jungfer, recognised, SJ has had to acquire and apply new learning in order to achieve this. The fact that SJ has done so is to be greatly admired.

However, I accept Dr Jungfer’s evidence that these achievements that SJ has made involve very different skills compared to financial decision-making and that they do no demonstrate that SJ is capable of managing her $2.6 million portfolio of assets: see [188]–[190], [196]–[197], [211]–[214] and [223] above. As I have said earlier, I also accept Dr Jungfer’s evidence that SJ suffers from lack of insight into her limitations and that the evidence does not support the conclusion that she has sufficient insight, presently or with the benefit of any new learning that she may be able to acquire, to manage a $2.6 million portfolio of assets, even with the benefit of professional financial advice. The neuropsychometric testing carried out by Dr Bogan in 2009 and 2011, which was conducted nine and eleven years after SJ sustained her brain injury and which Dr Jungfer regards as the most reliable testing available in this case, identified that SJ suffers from executive dysfunction, including difficulty inhibiting inappropriate responses, difficulty in initiating activities, difficulty in breaking down information into smaller chunks and becoming overwhelmed with large amounts of information. Dr Bogan’s report dated 17 April 2011 acknowledges that strategies for breaking down information into manageable units can be taught. However, having regard to Dr Jungfer’s evidence about SJ’s lack of insight into her limitations, I am not satisfied that SJ would be able to effectively apply any such learning. In any event, the evidence does not demonstrate that SJ has learned any strategies of the kind referred to by Dr Bogan that would assist her in making decisions of the kind to which I have referred above if the protective orders were revoked.

I accept the submission made on behalf of SJ that overdrawing of her accounts, by itself, would not necessarily justify the conclusion that SJ is not capable of managing her own affairs. However, the evidence established that SJ overdrew her accounts in addition to receiving financial assistance from her sister MJ in circumstances where SJ failed to prioritise her spending, and that SJ appeared to have no insight into how frequently this occurred and not altered her behaviour to avoid the problem: see [104]–[111], [209] and [212] above.

For all of these reasons, I am not satisfied that SJ has the capability to manage her affairs now or in the foreseeable future. On the contrary, my assessment of the evidence leads me to conclude that SJ would struggle to manage her affairs, even with the benefit of professional advice. There is therefore a real risk that, if the protective orders were revoked, SJ would be disadvantaged in the conduct of her affairs, in that money or property in her estate may be dissipated due to poor decisions made as a result of the cognitive deficits to which I have referred. That risk of dissipation is contrary to SJ’s welfare and best interests, which is the paramount consideration of the Court. The property and assets in her estate represent the proceeds of the compensation paid as a result of the District Court proceeding, which was intended to provide for SJ’s needs over the course of her life.

For all of the reasons above, SJ’s application under s 86 of the NSW Trustee Act is dismissed and I will hear the parties in relation to costs.

I make the following orders: