Do Children have Rights to See Their Parents?

That is the question the NSW Supreme Court considered in the case of EB v GB (No 2) [2022] NSWSC 1011.

The facts of that case are as follows:

At the time of the case, the father was 98 years old and suffering from Alzheimer’s disease. His condition had deteriorated to the point where he didn’t recognise most people and could not communicate. His wife was his appointed guardian and attorney.

The father and his wife had three children: two sons and a daughter, from whom they were estranged.

Four years earlier, in 2018, the daughter had commenced legal proceedings against members of her family and the companies controlled by the family. The proceedings were complex and contentious and caused a rift in the relationship between the daughter and her parents that was never fixed.

The father had moved into the aged care facility in early 2019 and in May 2020 the daughter, through her solicitor, requested to visit him. As this was during COVID19, a video conference was arranged for August 2020 and the following rules were made:

• an employee of the facility had to be present to monitor the father’s well-being,
• the daughter was not to mention the family litigations, and
• the meeting would be terminated if the daughter mentioned the litigations or if the father became distressed.

At this time, the daughter had not seen her father for about 3 years and given the estrangement as well as the father’s cognitive decline, it was anticipated that the father would find the interaction distressing or become agitated.

There was a second video meeting in December. They were not very successful as the father by then could not communicate and was not entirely lucid.

18 months later, in May 2022, the daughter phoned the facility to speak to her father. When she told her father who she was, he let out an “almighty scream”.

The daughter had her third and final video conference with the father in May 2022.

Since then, the daughter has made attempts to visit her father but has been refused permission to by the wife, acting as the father’s guardian.

There was communicating back-and-forth between the daughter’s solicitor and the wife’s solicitor. The wife’s solicitor argued that as the father’s guardian, the wife was entitled to decide whether the daughter was permitted to visit him and that she was too physically ill at that time to give instructions.

Without agreement, the matter proceeded to the NSW Supreme Court.

The Court had to decide whether an appointed guardian had the power to decide who could and could not have contact with the incapacitated person.

The Supreme Court determined that access and contact did not fall within the above powers. Nor was it provided for in NSW legislation.

As a result, it was found that the wife as the guardian was not authorised to refuse the daughter contact. However, it noted that the aged care facility did have some power to determine who can access residents.

The Residential Agreement for Residential Care stated that the facility can refuse entry to visitors who fail to comply with the reasonable directions and rules of the facility. The Court noted that the facility would be entitled to canvass the opinions of the family members, including the daughter, when deciding whether to grant her access.