BGBZ and National Disability Insurance Agency
[2019] AATA 3505
•13 September 2019
BGBZ and National Disability Insurance Agency [2019] AATA 3505 (13 September 2019)
NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2018/6266
Re:BGBZ
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
HXSNAnd
OTHER PARTY
DECISION
Tribunal:Senior Member F Meagher
Date:13 September 2019
Place:Brisbane
The Tribunal sets aside the decision under review and in substitution decides that the Applicant be the one person to have parental responsibility for the child for the purposes of this Act, being the National Disability Insurance Scheme Act 2013.
................................[SGD].....................................
Senior Member F Meagher
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – where participant in scheme is a child – where more than one person has parental responsibility under section 75(1) – whether determination should be made that one person have parental responsibility under section 75(3) for the purposes of the National Disability Insurance Scheme Act 2013 – decision under review set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Family Law Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Children) Rules 2013 (Cth)Cases
Brinkworth and Repatriation Commission (2008) 102 ALD 164; [2008] AATA 174
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; (1979) 46 FLR 409
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Goldie v Commonwealth of Australia [2002] FCA 261
Re Proctor and Commissioner of Taxation [2005] AATA 389; (2005) 87 ALD 247
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262
Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152Secondary Materials
National Disability Insurance Scheme Operational Guideline – Child Representatives
REASONS FOR DECISION
Senior Member F Meagher
13 September 2019
INTRODUCTION
The Applicant, (“BGBZ”), seeks review of a decision by the Respondent, the National Disability Insurance Agency (“the Agency”), pursuant to section 103 of the National Disability Insurance Scheme Act 2013 (“the NDIS Act”). The decision in question is one which affirmed by internal review the earlier decision by the Agency to decline the request by BGBZ that the CEO (of the Agency) determine that she alone have parental responsibility for the purposes of the NDIS act.
BACKGROUND
The child in this matter (“Miss AB”) was born in 2002 and is now 17 years old. She is the child of BGBZ, the Applicant in this matter, and HXSN, the Other Party in this matter. Miss AB became a participant in the National Disability Insurance Scheme (“the NDIS”) on 8 February 2018.
BGBZ and HXSN (Miss AB’s mother and father respectively) consented to interim orders under the Family Law Act 1975 on 4 February 2010, which have remained in place thereafter.
Section 75(1)(a) of the NDIS Act provides that a person has parental responsibility “if a person is the child’s parent and has not ceased to have parental responsibility for the child because of an order made under the Family Law Act 1975 or a law of a State or Territory.”
On 25 June 2018 BGBZ requested that that the CEO of the Agency make a determination that she have sole parental responsibility of Miss AB for the purposes of the NDIS Act.
On 3 October 2018 the Agency (which is the Respondent in this matter) declined BGBZ’s request on the basis that “Court Order documentation provided that both parents have equal shared parental responsibility.”
Subsequently, on 3 October 2018, BGBZ sought internal review of this decision, and referred the Agency to the National Disability Insurance Scheme (Children) Rules 2013 (the NDIS Children Rules), and in particular rule 4 .9 thereof.
On 19 October 2018 the Agency confirmed its decision of 3 October 2018, and provided lengthy reasons for its confirmation of its earlier decision.
On 6 November 2018 BGBZ made an application to the Administrative Appeals Tribunal for review of that decision.
On 6 December 2018 HXSN, pursuant to section 30(1A) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) applied to be made a party to the proceeding, on the basis that his interests may be affected by the decision of the Tribunal. On 20 December 2018 the Tribunal ordered, by consent, that the interests of HXSN are affected by the outcome of the decision under review, and that pursuant to section 30(1)(d) of the AAT Act he be made a party to the proceedings.
On 11 January 2019 directions were made regarding the provision of submissions and evidence in relation to the matter.
SUBMISSIONS AND EVIDENCE BEFORE THE TRIBUNAL
On 25 June 2018 BGBZ made her original request to the Agency with respect to a determination regarding parental responsibility. BGBZ’s request included submissions.[1]
[1] T-Documents T16, p76; Supplementary T Documents ST1, p1.
Attached to BGBZ’s request of 25 June 2018 were a number of documents, including:
·Orders of the Federal Magistrates Court of Australia which provide that BGBZ and HXSN have equal shared responsibility with respect to the Child;[2]
·Various correspondence regarding Child Support Assessment outlining that BGBZ had 100% care of Miss AB from 7 April 2018;[3]
·Letter from a Speech Language Pathologist (“the Speech Language Pathologist”);[4]
·Letter from a Psychologist (“the Psychologist”);[5]
·Statutory Declaration of a school bus supervisor,[6] and a Statutory Declaration of a second school bus supervisor[7] (collectively “the school bus supervisors”);
·Letter from a General Practitioner (‘the General Practitioner”);[8]
·Letter from a Senior Medical Officer (“the Senior Medical Officer”);[9]
·Letter from another General Practitioner (“the second General Practitioner”);[10] and
·Letter from a Clinical Psychologist (“the Clinical Psychologist”).[11]
[2] Supplementary T Documents ST1A, pp5-9.
[3] Supplementary T Documents ST1B, pp10-13.
[4] Supplementary T Documents ST1D, p15.
[5] Supplementary T Documents ST1E, p16.
[6] Supplementary T Documents ST1F, p17.
[7] Supplementary T Documents ST1G, p18.
[8] Supplementary T Documents ST1H, pp19-20.
[9] Supplementary T Documents ST1I, p21.
[10] Supplementary T Documents ST1K, pp10-13.
[11] Supplementary T Documents ST1L, pp25-26.
On 7 October 2018 BGBZ provided further submissions to the Agency.[12]
[12] Supplementary T Documents ST2, p27.
On 6 November 2018 BGBZ made her application for internal review by way of further submissions[13] to the Agency, to which she attached:
·Statement of BGBZ dated 6 November 2018;[14]
·Letter from HXSN to BGBZ dated 20 March 2018;[15]
·Letter from BGBZ to HXSN dated 23 March 2018;[16] and
·Letter from HXSN to BGBZ dated 27 March 2018.[17]
[13] T Documents T1, p1.
[14] T Documents T1A, p5.
[15] T Documents T1B, p7.
[16] T Documents T1C, p9.
[17] T Documents T1D, p10.
As set out in the Agency’s Statement of Facts, Issues and Contentions:
On or around 30 November 2018 the [Agency] filed in the Tribunal a bundle[18] of relevant documents which included a copy of the Internal Review Decision, a copy of [BGBZ]’s internal review request with attachments and statements, interaction records reflecting conversations had with [BGBZ] and with [HXSN], various reports relevant to [Miss AB]’s care needs and a copy of the legislative and operational guidance.[19]
[18] T Documents.
[19] Respondent’s Statement of Facts, Issues and Contentions dated 21 March 2019, para 13.4.
On 7 February 2019 HXSN filed written submissions[20] and a statement by way of letter dated 7 February 2019[21] and a number of attachments as follows:
·Letter from HXSN to BGBZ dated 27 February 2019;[22]
·Email from BGBZ to HXSN dated 27 February 2018;[23]
·Letter from HXSN to BGBZ dated 5 March 2018;[24]
·Letter from BGBZ to HXSN dated 13 March 2018;[25]
·Letter from HXSN to BGBZ dated 20 March 2018;[26] and
·Letter from BGBZ to HXSN dated 19 April 2018.[27]
[20] Supplementary T Documents ST4B, p59.
[21] Supplementary T Documents ST4A, p56.
[22] Supplementary T Documents ST4C, pp63-64.
[23] Supplementary T Documents ST4D, p65.
[24] Supplementary T Documents ST4E, p66.
[25] Supplementary T Documents ST4F, pp67-68.
[26] Supplementary T Documents ST4G, pp69-70.
[27] Supplementary T Documents ST4H, p71.
On 25 February 2019 BGBZ filed submissions in reply[28] and a statement in reply[29] to which she attached:
·Letter from BGBZ to HXSN’s Solicitors dated 25 September 2017;[30]
·Letter from BGBZ to HXSN dated 31 January 2018;[31]
·Letter from BGBZ to HXSN dated 14 February 2018;[32]
·Emails between a representative of a provider of NDIS supports and BGBZ dated 23 March 2018;[33]
·Emails between a second representative of a provider of NDIS supports and BGBZ dated variously 23 March 2018, 26 March 2018, 28 March 2018, and 29 March 2018;[34]
·Emails between a third representative of a provider of NDIS supports and BGBZ dated variously 3 April 2018 and 4 April 2018;[35] and
·Letter from BGBZ to HXSN dated 25 October 2017.[36]
[28] Supplementary T Documents ST3I, pp48-53.
[29] Supplementary T Documents ST3A, pp31-36.
[30] Supplementary T Documents ST3B, p37.
[31] Supplementary T Documents ST3C, p38.
[32] Supplementary T Documents ST3D, p39.
[33] Supplementary T Documents ST3E, pp40-41.
[34] Supplementary T Documents ST3F, pp42-44.
[35] Supplementary T Documents ST3G, pp45-46.
[36] Supplementary T Documents ST3H, p47.
On 21 March 2019 the Agency filed its Statement of Facts, Issues and Contentions, and all further documents it considered relevant to the proceeding.[37]
[37] Supplementary T Documents.
Thereafter hearing certificates were provided, and on 1 April 2019 BGBZ requested that the matter be heard on the papers. On 4 April 2019 the Agency and HXSN consented to that request, and HXSN provided his final submissions in that regard.
The Tribunal made a decision on the papers pursuant to section 34J of the AAT Act. I had regard to the nature of the matter before me, including that the issue is clearly defined, the parties had a full opportunity to provide submissions and evidence, and that the Tribunal has an obligation to pursue its objectives of being accessible, fair, just, economical, informal and quick. Accordingly I have proceeded to decide the matter on the papers.
THE LEGISLATIVE SCHEME
Part 4 of Chapter 4 of the NDIS Act deals with Children. Section 9 of the NDIS Act defines a child as “a person who is under 18 years of age.” Section 74(1) relevantly states:
74Children
(1) If this Act requires or permits a thing to be done by or in relation to a child, the thing is to be done by or in relation to:
(a)the person who has, or the persons who jointly have, parental responsibility for the child;
[…]
Relevantly s.75 of the NDIS Act provides:
75 Definition of parental responsibility
(1)For the purposes of this Act, a person has parental responsibility for a child if:
(a) the person is the child’s parent and has not ceased to have parental responsibility for the child because of an order made under the Family Law Act 1975 or a law of a State or Territory; or
[…]
(3)If subsection (1) would result in more than one person having parental responsibility for a child, the CEO may determine that one or more of those persons have parental responsibility for the child for the purposes of this Act.
(4)The National Disability Insurance Scheme rules may prescribe requirements with which the CEO must comply, criteria that the CEO is to apply or matters to which the CEO is to have regard in deciding whether to make a determination under subsection (2) or (3).
(5)A determination under subsection (2) or (3) must be in writing.
(6)A determination under subsection (2) or (3) is not a legislative instrument.
Section 76 of the NDIS Act deals with “Duty to children” and provides as follows:
76Duty to Children
(1)It is the duty of a person who may do a thing because of section 74 to ascertain the wishes of the child concerned and to act in the best interests of the child.
(2)A person does not breach the duty imposed by subsection (1) by doing a thing if, when the thing is done, the person reasonably believes that:
(a)he or she has ascertained the wishes of the child in relation to the thing; and
(b)the doing of the thing is in the best interests of the child.
(3)A person does not breach the duty imposed by subsection (1) by refraining from doing a thing if, at the relevant time, the person reasonably believes that:
(a)he or she has ascertained the wishes of the child in relation to the thing; and
(b)not doing the thing is in the best interests of the child.
(4)The National Disability Insurance Scheme rules may prescribe other duties of a person who may do a thing in relation to a child because of section 74, including duties requiring the person:
(a)to support decision-making by the child personally; or
(b)to have regard to, and give appropriate weight to, the views of the child.
Assistance in applying the provisions of the NDIS Act may be gathered from s.3 which sets out the Objects of the Act, s.4 which sets out the General principles guiding actions under this Act and s.5 which sets out the General principles guiding actions of people who may do actual things on behalf of others. Section 3 relevantly sets out:
3Objects of Act
(1)The objects of this Act are to:
(a)in conjunction with other laws, give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and
[…]
(e)enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
[…]
(i)in conjunction with other laws, give effect to certain obligations that Australia has as a party to:
[…]
(iii)the Convention on the Rights of the Child done at New York on 20 November 1989 ([1991] ATS 4); and
[…]
Section 4 of the NDIS Act relevantly sets out:
4General principles guiding actions under this Act
(1)People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.
[…]
(3)People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.
[…]
(8)People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity.
[…]
(12)The role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected.
[…]
(16)Positive personal and social development of people with disability, including children and young people, is to be promoted.
[…]
Section 5 of the NDIS Act relevantly sets out:
5General principles guiding actions of people who may do acts or things on behalf of others
It is the intention of the Parliament that, if this Act requires or permits an act or thing to be done by or in relation to a person with disability by another person, the act or thing is to be done, so far as practicable, in accordance with both the general principles set out in section 4 and the following principles:
(a)people with disability should be involved in decision making processes that affect them, and where possible make decisions for themselves;
[…]
(c)the judgements and decisions that people with disability would have made for themselves should be taken into account;
(d)the cultural and linguistic circumstances, and the gender, of people with disability should be taken into account;
(e)the supportive relationships, friendships and connections with others of people with disability should be recognised;
(f)if the person with disability is a child—the best interests of the child are paramount, and full consideration should be given to the need to:
(i)protect the child from harm; and
(ii)promote the child’s development; and
(iii)strengthen, preserve and promote positive relationships between the child and the child’s parents, family members and other people who are significant in the life of the child.
As referred to above, s.75(4) sets out that the NDIS rules may prescribe matters to which the CEO of the Agency is to have regard in deciding whether to make a determination under subsections (2) or (3). The rules in this case are the NDIS Children Rules. Pursuant to s.209 of the NDIS Act, the NDIS Children Rules are a legislative instrument, thus binding the Tribunal. Part 4 of the NDIS Children Rules deals with “who has parental responsibility?” The NDIS Children Rules relevantly state as follows:
Part 4Who has parental responsibility?
4.1There are different rules for determining who has parental responsibility, depending on whether or not the child has a guardian. Under these rules, in each case, the person with parental responsibility will either be:
(a)the child’s guardian; or
(b)1 or more of the persons who satisfy parental condition 1 or parental condition 2.
4.2The parental conditions are as follows:
parental condition 1 is that the person:
(a)is a parent of the child; and
(b)has not ceased to have parental responsibility for the child because of an order made under the Family Law Act 1975 or a law of a State or a Territory.
[…]
Children who do not have guardians
4.7If a child does not have a guardian, then any person who satisfies parental condition 1 or parental condition 2 has parental responsibility for the child.
4.8Where this results in more than 1 person having parental responsibility for a child, the CEO is able to determine that 1 or more of those persons have parental responsibility for the child for the purposes of the Act. This is discretionary; the CEO does not need to make this determination.
Paragraphs 4.7 and 4.8 summarise subsections 75(1) and (3) of the Act.
4.9When deciding whether to make a determination referred to in paragraph 4.8, the CEO is to have regard to the following:
(a)the preferences (if any) of the child;
(b)the views of any person who has parental responsibility for the child;
(c)whether 1 or more of those persons are best placed to carry out the duties to children set out in section 76 of the Act and Part 6 of these Rules, taking into account:
(i)existing arrangements that are in place between those persons and the child; and
(ii)which persons have responsibility for day-to-day parenting decisions; and
(iii)which persons can act in conjunction with other representatives and supporters of the child in the best interests of the child;
(d)whether 1 or more of those persons are willing and able to work together in the best interests of the child;
(e)the desirability of preserving family relationships and informal support networks of the child;
(f)for any of the persons:
(i)where the CEO has asked the person to answer any questions or provide any information in relation to making a determination that applies to that person (including requesting the person to consent to the release of information concerning their criminal history or suitability to work with children):
(A)any answers or information that have been provided by the person; and
(B)any refusal by the person to provide answers or information; and
(ii)any relevant conviction for an offence under Commonwealth, State or Territory law; and
(iii)any relevant information relating to the suitability of the person to work with children.
Also relevant are the rules contained in Part 6 Duties of child’s representatives which state as follows:
Part 6Duties of child’s representatives
6.1The Act provides guidance as to how a child’s representative is to act under the NDIS.
6.2One duty of a child’s representative is to:
(a)ascertain the wishes of the child; and
(b)act in a manner that promotes the best interests of that child.
6.3This duty is not breached if the child’s representative does a thing, or refrains from doing a thing, so long as:
(a)the child’s representative reasonably believes that they have ascertained the wishes of the child in relation to the thing; and
(b)the child’s representative reasonably believes that doing the thing, or refraining from doing the thing, promotes the best interests of the child.
The duty set out in paragraph 6.2 and the qualification set out in paragraph 6.3 summarise subsections 76(1) to (3) of the Act.
6.4A child’s representative also has a duty to consult, wherever practicable, with the following in relation to doing things under, or for the purposes of, the Act:
(a)the guardian of the child (if any) and any other person who satisfies parental condition 1 or parental condition 2 (see paragraph 4.2) in relation to the child;
(b)any other person who assists the child to manage their day-to-day activities and make decisions.
There also exist Operational Guidelines issued by the CEO of the Agency. The operational guidelines amount to policy. The status of executive policy was considered in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) by Brennan J who considered that the application of policy to decision making would assist in achieving consistency, and should therefore be applied unless there are cogent reasons not to do so.[38]
[38] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Operational Guideline 5.1.1 deals with the situation “where more than one person has parental responsibility for a child”, And relevantly states:
5.1.1Where more than one person has parental responsibility for a child
In some circumstances, the rules which apply for children who do not have guardians may result in more than one person having parental responsibility for a child. For example, where a child’s parents have separated both parents may continue to have parental responsibility for the child.
Where this occurs, all those persons will generally have joint parental responsibility and will together be the child’s representative for the purposes of the NDIS Act.
However, the NDIA may decide that one or more of those persons is to have parental responsibility for the child to the exclusion of others for the purposes of the NDIS Act (section 75(3)).
Any decision by the NDIA that one or more persons with parental responsibility for a child is to be the child’s representative to the exclusion of others must be in writing (section 75(5)).
A decision of this kind is discretionary and the NDIA may simply choose to leave all persons having parental responsibility for the child to jointly be the child’s representative for the purposes of the NDIS Act.
[…]
The Operational Guidelines then go on to restate the matters set out in rule 4.9 of the NDIS Children Rules, namely the matters to which the Agency must have regard “when deciding whether it is appropriate for one or more persons with parental responsibility to be a child’s representative to the exclusion of others.”
JURISDICTION
I note that the Agency’s Statement of Facts, Issues and Contentions contends that the Tribunal has jurisdiction to review the decision in question. The chronology is that the Agency (via a delegate of the CEO) made a decision on 3 October 2018 in relation to an application by BGBZ under s.75(3) of the NDIS Act. An application for internal review of that decision was requested by BGBZ pursuant to s100(2) of the NDIS Act. On 19 October 2018 a (different) delegate of the CEO of the Agency confirmed the original decision pursuant to s.100(6)(a) of the NDIS Act. I therefore find that the Tribunal has jurisdiction to review the decision under s.103 of the NDIS Act.
ISSUE
The issue in this case is whether BGBZ should be determined under s.75(3) to be the one person to have parental responsibility for Miss AB be for the purposes of the NDIS Act.
CONSIDERATION
As set out above, s.75(1)(a) of the NDIS Act provides that a person has parental responsibility “if a person is the child’s parent and has not ceased to have parental responsibility for the child because of an order made under the Family Law Act 1975 or a law of a State or Territory.” This issue is not in dispute before me – see letter from BGBZ to the CEO, NDIS Launch Transition Agency dated 25 June 2018, attaching interim consent orders dated 4 February 2010 of the Federal Magistrates Court of Australia made under the Family Law Act 1975.[39] In response to correspondence from the Agency, BGBZ advised that the final hearing in relation to the matters the subject of the interim consent orders was held in May 2010, but ultimately adjourned until 19 August 2010, and the interim consent orders have not been revisited since.[40] Accordingly, I find that BGBZ and HXSN have parental responsibility within the meaning of s.75(1) of the NDIS Act.
[39] T documents T3, pp19-26.
[40] Supplementary T Documents ST6, pp81-82.
Section 75(3) of the NDIS Act states that “If subsection (1) would result in more than one person having parental responsibility for a child, the CEO may determine that one or more of those persons have parental responsibility for the child for the purposes of this Act.”
The Operational Guidelines contemplate a situation where more than one person has parental responsibility for a child, and those persons are separated (see paragraph 31 above).
BGBZ, in her application has requested the Tribunal to exercise a discretion. The exercise of statutory discretion is discussed in a number of cases culminating in Goldie v Commonwealth[41] in which French J stated “[a] statutory discretion must be exercised by reference to the subject matter, the scope and the purpose of the legislation which creates it…” Thus the discretion must be exercised by reference to the Objects and Principles set out in paragraphs 25, 26 and 27 above.
[41] [2002] FCA 261, [45].
Rule 4.9 sets out those matters to which the CEO (of the Agency) is to have regard in making a determination regarding parental responsibility for a child. The meaning of “to have regard” is considered in Singh v Minister for Immigration and Multicultural Affairs[42] where Sackville J stated:
Secondly, s 54(1) of the Migration Act employs the expression “have regard to”. This expression is capable of different meanings, depending on its context. […] a statutory obligation to have regard to specified matters when making an administrative decision may require the decision-maker to take the matters into account and “give weight to them as a fundamental element in making his [or her] determination”: R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322; 25 ALR 497 at CLR 329 per Mason J. Indeed, this is the meaning that was given to the predecessor of s 501(6)(c) of the Migration Act (relating to the character test): Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 194; 153 ALR 463 at 469. But the phrase “have regard to” can simply mean to give consideration to something (Shorter Oxford English Dictionary). In this sense a direction to a decision-maker to have regard to certain factors may require him or her merely to consider them, rather than treat them as fundamental elements in the decision-making process.
[42] (2001) 109 FCR 152, [54].
The decision in Singh was considered, amongst a lengthy review of the principles relevant to the phrase “have regard to” in Minister for Immigration and Citizenship v Khadgi:[43]
[43] (2010) 190 FCR 248 [57]–[61].
The relevant principles
[57] Section 109(1)(c) of the Act obliges the tribunal to “have regard to” the prescribed circumstances set out in reg 2.41. The consideration of those prescribed circumstances is thus a jurisdictional prerequisite to the exercise of the ministerial discretion to cancel a visa under s 109. In order to comply with that prerequisite, the decision-maker must engage in what has been described as “an active intellectual process” in which each of the prescribed circumstances receives his or her “genuine” consideration: Tickner at FCR 462; ALR 238 per Black CJ and Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; 178 ALR 421; 65 ALD 1; [2001] HCA 17 at [105] per Gleeson CJ and Gummow J.
[58] In the absence of any statutory or contextual indication of the weight to be given to factors to which a decision-maker must have regard, it is generally for him or her to determine the appropriate weight to be given to them: Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24; 66 ALR 299 per Mason J. The failure to give any weight to a factor to which a decision-maker is bound to have regard in circumstances where that factor is of great importance in the particular case may support an inference that the decision-maker did not have regard to that factor at all.
[59] Similarly, a decision-maker does not take into account a consideration that he or she must take into account if he or she simply dismisses it as irrelevant. On the other hand, it does not follow that a decision-maker who genuinely considers a factor only to dismiss it as having no application or significance in the circumstances of the particular case will have committed an error. A decision-maker is entitled to be brief in his or her consideration of a matter which has little or no practical relevance to the circumstances of a particular case. A court would not necessarily infer from the failure of a decision-maker to expressly refer to such a matter in its reasons for decision that the matter had been overlooked. But if it is apparent that the particular matter has been given cursory consideration only so that it may simply be cast aside, despite its apparent relevance, then it may be inferred that the matter has not in fact been taken into account in arriving at the relevant decision: Elias v Commissioner of Taxation (2002) 123 FCR 499; [2002] FCA 845 at [62] per Hely J. Whether that inference should be drawn will depend on the circumstances of the particular case.
[60] In some cases it may be apparent that among the factors to which a decision-maker is bound to have regard, there is one factor (or perhaps more than one) which is critical or fundamental to the making of the decision in question. This was true of the particular matter referred to by Mason J in R v Toohey; Ex Parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 338; 44 ALR 63 at 71. As his Honour’s reasons in R v Hunt; Ex Parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329; 25 ALR 497 at 504 show, the relevant statutory provisions may make clear that a particular factor is “a fundamental matter for consideration”. But the converse is also true. The relevant statutory provisions may show that a particular matter to which a decision-maker must have regard is not fundamental to the decision-making process in the sense discussed by his Honour: see, for example, Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152; 194 ALR 599; [2001] FCA 389 at [57] (Singh) per Sackville J.
[61] We respectfully agree with Sackville J in Singh where his Honour pointed out that the expression “have regard to” is capable of different meanings depending on its context[…]
Bearing in mind the guidance contained in the authorities set out above I have had regard to all of the matters to which the CEO of the Agency is to have regard in making the determination foreshadowed in s.75(3) of the NDIS Act.
Rule 4.9(a) The preferences (if any) of the Child
There is significant persuasive evidence before me regarding the limitations of Miss AB’s communication skills. As well as the reports by BGBZ with respect to those limitations there is evidence from the General Practitioner,[44] the Psychologist (report dated 16 May 2018;[45] letter dated 25 June 2018[46]), the Speech Language Pathologist (letter dated 21 June 2018[47]), the Occupational Therapist (undated letter[48]), and a Child, Adolescent and Adult Psychiatrist (“the Psychiatrist”) (letter dated 26 October 2017[49]). I accept that Miss AB has limited communication skills.
[44] T Documents T16E, pp84-85.
[45] T Documents T12, pp64-70.
[46] T Documents T16B, p81.
[47] T Documents T16A, p80.
[48] T Documents T6, pp38-39.
[49] T Documents T5, p35.
BGBZ submits that Miss AB “has a strong preference for [BGBZ] over [HXSN]”.[50] There is independent evidence before me that Miss AB is very comfortable with BGBZ - as reported in the Psychologist’s letter dated 25 June 2018 ,[51] the letter of the Speech Language Pathologist dated 21 June 2018,[52] and the undated letter of the Occupational Therapist.[53] I accept that BGBZ is extremely committed to the care of Miss AB and that Miss AB is very close to, and reliant upon, BGBZ.
[50] T Documents T1, pp1-4, para 21.
[51] T Documents T16B, p81.
[52] T Documents T16A, p80.
[53] T Documents T6. pp38-39.
There is limited independent evidence before me regarding Miss AB having a preference for BGBZ over HXSN. BGBZ provided a USB drive containing footage she claimed shows Miss AB to be reluctant to accompany HXSN. In this regard, HXSN made several submissions including most relevantly “this is but one changeover throughout the course of changeovers over a number of years.”[54] I accept that submission, and place no weight upon the contents of the USB drive as it is one example only, and not necessarily representative of Miss AB’s overall response to HXSN. There are the undated statements referred to in paragraph 13 above[55]-[56] from the two school bus supervisors which conclude, using very similar language, that Miss AB prefers BGBZ. They both opined that Miss AB became “extremely agitated” when she noticed “the bus taking the route to [HXSN]’s residence… Including slapping the bus windows.” They also both stated “when in [HXSN]’s company she displays no signs of affection and appears to have no difficulty leaving him to get on the bus.” They also conclude that Miss AB shares a very close bond with BGBZ. I place limited weight on the statements: the two school bus supervisors have been providing care for Miss AB for a number of years and are therefore very familiar with her, however, there is no evidence before me of their expertise in assessing Miss AB’s preferences.
[54] Supplementary T Documents ST4A, pp56-58.
[55] T Documents T16C, p82.
[56] T Documents T16D, p83.
The Speech Language Pathologist provided independent expert evidence[57] regarding Miss AB’s interaction with HXSN as follows:
Observation of [Miss AB]’s interaction on one occasion with [HXSN], indicated that [Miss AB] did not greet him with a smile and did not initiate going towards him, instead preferring to turn away and seek prolonged physical contact with [BGBZ]. [Miss AB] responds well to deep pressure input (ie hugs) when she is feeling anxious or ‘uncertain’. She required reassurance and continued hugging [BGBZ] when [HXSN] asked her to leave with him. [HXSN] did not ‘connect’ with Miss AB using any interpersonal strategies. When [HXSN] physically assisted [Miss AB] to move away, by pulling her, [Miss AB] continued to look back to [BGBZ]. [Miss AB]’s affect is markedly different when in the presence of [HXSN].
[57] T Documents T16A, p80.
HXSN submitted[58] with respect to the Speech Language Pathologist’s observations, as follows:
The information [the Speech Language Pathologist] relies upon has been provided by [BGBZ] and would appear, in [the Speech Language Pathologist]’s own words, and interaction on one occasion with me. Perhaps this is the video recording [BGBZ] has included in her submission. As I have pointed out in my statement (refer Statement: [HXSN]), this is but one instance of a change over and it is curious that [BGBZ] has chosen that one instance rather than all the previous changeovers.
[58] Supplementary T Documents ST4B, pp59-62 para 16.
Given that the matter is being determined on the papers, with the consent of BGBZ, HXSN and the Agency, I am unable to question BGBZ or the Speech Language Pathologist regarding the circumstances of her observation of HXSN’s interactions with Miss AB. I therefore place no weight upon it.
HXSN has placed no independent evidence before me regarding Miss AB’s preferences.
BGBZ submits:[59]
21.The material provided by the [BGBZ] unequivocally demonstrates that [Miss AB] has a strong preference for [BGBZ] over [HXSN]. While this does not amount to “a clear view of [Miss AB]’s preference regarding who should have the responsibility of making decisions regarding her NDIS plan”, it provides a reasonable basis for such an inference to be drawn. It is submitted that, to give effect to the Act, such an inference must be drawn.
22.Section 4 of the [NDIS] Act “General principles guiding actions under this Act” provides:
“People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity.” (emphasis added).
23.The decision maker’s rejection of the evidence provided means that [Miss AB]’s preferences are ignored. Although [Miss AB] has severe cognitive deficiencies and is non-verbal, the evidence, including therapist statements, proves that she has unequivocally communicated her preference for [BGBZ] to the full extent of her capacity. Although this is not “a clear view of [Miss AB]’s preference regarding who should have the responsibility of making decisions regarding her NDIS plan”, it is as much as her capacity allows and [Miss AB] has the right to have her preference (however expressed) taken into account.
[59] T Documents T1, pp1-4 paras 21-23.
With respect to the making of an inference, HXSN submits:[60]
The submissions made by [BGBZ] suggest that it is reasonable to draw an inference that [Miss AB]’s views are for [BGBZ]to manage her affairs. I would suggest that this is an incorrect inference to draw.
[60] Supplementary T Documents ST4B, pp59-62 para 29.
HXSN also relevantly asserts, by way of letter to the Tribunal,[61] the following with respect to “the preferences (if any) of the child”:
[61] Letter HXSN to the Administrative Appeals Tribunal dated 4 April 2019.
Considerations
(a)The preferences (if any) of the child
It is noted that [BGBZ] suggests that in her submissions dated 6 November 2018 that the letters she has obtained unequivocally demonstrates that [Miss AB] has a strong preference for [BGBZ] over her [HXSN]. [BGBZ] concedes that this does not amount to a clear view of [Miss AB]’s preference regarding who should have the responsibility of making decisions regarding her NDIS plan. [BGBZ] suggests that it is either a case of myself or [BGBZ] being able to have responsibility for making decisions and ignores the fact that there is the option of both of us making the decisions together.
Further, there is nothing in the Act which suggests that a child having a preference for the day to day interaction of one parent over another or of comfort from one parent over another is in any way preventative of both parents maintaining their position as nominees under the NDIS plan.
Despite [BGBZ] conceding that none of her “witnesses” have had any discussions or interactions with me or in some cases no qualifications to make the statements that they do, somehow those people provide “unequivocal evidence” that I should be removed as a decision maker.
[BGBZ] acknowledges that none of those people have provided independent evidence and says the question for the Tribunal is the weight to be given to these people. Despite this position [BGBZ] asserts that there is “unequivocal evidence” to support removing me as a decision maker.
In its Statements of Facts, Issues and Contentions, the Agency has contended:[62]
Rule 4.9(a)
34In circumstances where the Child is non-verbal and has limited capacity for communication, it may be difficult for the Tribunal to be satisfied of the true nature of the Child’s preferences.
35[BGBZ] has supplied various letters that support an inference being drawn that [Miss AB] would prefer for [BGBZ] to be the sole nominee. [HXSN] has called into question the independence of these opinions.
36In the [Agency]’s submission, the Tribunal must determine whether it is appropriate for the inference to be drawn and, if so, the weight it should be given.
[62] Respondent’s Statement of Facts, Issues and Contentions dated 21 March 2019, paras 34-36.
In Seltsam Pty Ltd v McGuiness, [63] Spigelman CJ stated:
The courts must determine the existence of a causal relationship on the balance of probabilities. However, as is the case with all circumstantial evidence, an inference as to the probabilities may be drawn from a number of pieces of particular evidence, each piece of which does not itself rise above the level of possibility. Epidemiological studies and expert opinions based on such studies are able to form “strands in a cable” of a circumstantial case.
The Administrative Appeals Tribunal has applied the remarks of Spigelman CJ in ReBrinkworth and Repatriation Commission.[64]
[63][2000] NSWCA 29; (2000) 49 NSWLR 262 at [98].
[64] [2008] AATA 174; (2008) 102 ALD 164.
Weighing up all of the evidence, I conclude that Miss AB has a very close and supportive bond with BGBZ, and may (based on the statements of the two school bus supervisors) prefer to be in her care on a day-to-day basis, rather than that of HXSN. However, based on the evidence regarding Miss AB’s communication skills, I am not satisfied that an inference can be drawn that Miss AB has a preference for BGBZ to be the one person to have parental responsibility for the child. Therefore this consideration favours neither BGBZ nor HXSN.
Rule 4.9(b) the views of any person who has parental responsibility for the child
BGBZ’s views are set out in her request for the CEO’s determination dated 25 June 2018,[65] in which she states:
My strong view is that, as [Miss AB]’s mother and her 100% care provider, it would be in [Miss AB]’s best interests if I had sole parental responsibility for her for the purposes of the NDIS (to the exclusion of [HXSN]).
They are also contained in BGBZ’s statement of 25 February 2019,[66] in which she states:
My view is that if I continue to be required to consult with [HXSN] it would not result in any mutually agreed positions on any NDIS outcomes whatsoever. [Miss AB] is profoundly disabled and requires care for 24 hours per day, 7 days per week. I have a part-time job working from home so I can care for [Miss AB]. Since 7 April 2018 I have been solely responsible for [Miss AB]’s day-to-day care, and the emotional distress that further disagreements with [HXSN] would cause me would not be in [Miss AB]’s best interests.
[65] T Documents T16, pp76-79 para (b).
[66] Supplementary T Documents ST3A, pp31-36 para 5.
HXSN’s views are contained in his letter of 7 February 2019,[67] in which he states that he is “of the view that it is in [Miss AB]’s best interest that both her parents remain nominees for the purpose of the National Disability Insurance Scheme (NDIS) and that the broader advocacy that co-nominees provides for [Miss AB] is a safeguard to ensure her ongoing best interest.” He restates those views in his letter to the Administrative Appeals Tribunal of 4 April 2019. He also confirms in the undated submission attached to his letter of 7 February 2019[68] that “I wish to confirm my current role with [Miss AB]’s NDIS plan.”
[67] Supplementary T Documents ST4A, p56.
[68] Supplementary T Documents ST4B, pp59-62 para 22.
The Agency submits that it would be open to the Tribunal to make a finding on each of these views and deciding the appropriate level of weight to give them in deciding whether or not to exercise its discretion to make the determination sought by BGBZ. My conclusion in relation to this consideration is that the views of both parties have equal weight, and accordingly this consideration favours neither BGBZ nor HXSN.
Rule 4.9(c) whether 1 or more of those persons are best placed to carry out the duties to children set out in section 76 of the Act and Part 6 of these Rules, taking into account:
(i)existing arrangements that are in place between those persons and the child; and
(ii)which persons have responsibility for day-to-day parenting decisions; and
(iii)which persons can act in conjunction with other representatives and supporters of the child in the best interests of the child;
What are the existing arrangements in place between those persons and the child?
Family Court orders were made in February 2010[69] contemplating BGBZ and HXSN would share care of Miss AB. By reference to a report of the Psychologist prepared on 10 November 2014,[70] Miss AB lived with BGBZ and her stepfather 9 nights per fortnight and with HXSN and her stepmother 5 nights per fortnight. By reference to BGBZ’s statement of 6 November 2018 that situation largely prevailed until around March 2018.[71] There is evidence before me that in late March 2018, BGBZ and HXSN sought to change the arrangements.[72]
[69] T Documents T3, pp19-26.
[70] T Documents T4, pp27-31.
[71] T documents T1A, pp5-6 paras 3-4.
[72] Correspondence between BGBZ and HXSN dated variously 27 February 2018, 5 March 2018, 13 March 2018 and 20 March 2018: Supplementary T Documents pp63-70.
HXSN’s letter to BGBZ of 20 March 2018[73] states inter alia:
[73] T Documents T1B, pp7-8.
2.YOUR PROPOSAL REGARDING PARENTING ARRANGEMENTS OF [Miss AB]
As you are aware, from my recent correspondence in relation to matters concerning [Miss AB’s sister], my decisions with regard to parenting and time arrangements for the girls are focussed solely on their needs. As such, I feel it is in [Miss AB]’s best interests that she is with her sisters and has a consistent home life. This is not an easy decision for me personally, but it is made in the best interest of [Miss AB].
I will spend time with and care for [Miss AB] once a month for 4 hours at a mutually agreed time. I anticipate that this will commence on 21 April 2018 and continuing on from the 3rd Saturday of each month thereafter until [Miss AB]’s 18th birthday […].
[Miss AB]’s new school has advised me that changing the bus to collect and return [Miss AB] from your home is relatively easy and can be arranged for the start of next term.
[…]
I will be advising the school this Friday of the change in arrangement from 21st April, 2018, so that they can advise the bus company of this change with notice.
I await your response on the administration of the NDIS (item 1) within the next 14 days (3rd April). Should you wish the change to the parenting arrangement (item 2) to occur prior to 21st April 2018, so as [Miss AB] can be with her sisters for the Easter break, please get back to me immediately.
[…]
BGBZ’s response, dated 23 March 2018[74] stated:
I refer to your letter dated 20 March 2018 informing me of your decisions to:
·relinquish your care for [Miss AB] to me, effective in the second school term 2018; and
·advise [Miss AB]’s school of your decision, “so that they can advise the bus company of this change with notice.”
I agree with your request for [Miss AB]’s school to change [Miss AB]’s bus route such that, commencing in term 2 2018, she is always picked up and dropped off at my residence. I have informed [Miss AB]’s school of my agreement to your changes.
I also agree to vary the Court Orders such that [Miss AB] spends no nights in your care, commencing 3:00PM Saturday 7 April 2018.
[74] T Documents T1C, p9.
In reply, by letter dated 27 March 2018,[75] HXSN stated:
I agree that I will care for [Miss AB] for four hours each month. To better coincide with existing arrangements, this new arrangement would commence on the 28th April 2018 (from 10am) and continue on the fourth Saturday of each month (from 10am) until [Miss AB]’s 18th birthday. (Note: The change of arrangement would, therefore, come into effect Wednesday, 25th April 2018 being the first day that [Miss AB] would have been in my care under existing arrangements.) Upon your confirmation, I will advise [the Agency].
[75] T Documents T1D, p10.
Submissions made by BGBZ dated 4 October 2018[76] state:
[HXSN]’s monthly 4 hour visits (excluding school holidays) no longer occur at all and he has absolutely no contact with, or input into, [Miss AB]’s day-to-day activities or care.
[76] Supplementary T Documents ST2, p27 para 10.
In his letter to the Administrative Appeals Tribunal dated 4 April 2019 HXSN states that these arrangements are for Miss AB’s benefit:[77]
The fact that I have accepted a more limited role with respect to the care of [Miss AB] should not be seen as me seeking to relinquish my parental duties or in any way suggest that I am not interested in [Miss AB]’s care and well-being. In order to try and reduce the conflict in the relationship between [BGBZ] and I it has been necessary to reduce the level of contact. In my experience the reduction in the level of conflict allows us to co-parent more effectively. I note that where there has been disagreements I have always been willing to discuss these with [BGBZ] including through mediation as outlined in letter supplied by her and I to the Tribunal.
In that submission HXSN also states:
It is accepted that at this point in time my contact with [Miss AB] has ceased however that does not mean that this will remain the case forever and I am hopeful that when things calm down arrangements will be able to be put in place with respect to me spending time with [Miss AB].
[77] Letter HXSN to the Administrative Appeals Tribunal dated 4 April 2019, p2.
Taking all of the evidence before me into account, I conclude that the existing arrangements that are in place for Miss AB are that BGBZ has sole custody and makes all of the arrangements for her care, and that HXSN has no contact with Miss AB, and on the evidence before me does not currently resist that situation.
Which persons have responsibility for day-to-day parenting decisions
There is a weight of evidence to suggest that BGBZ has responsibility for day-to-day parenting decisions, and HXSN does not contend otherwise: in his submission of 4 April 2019 he states:
It is not contested that [BGBZ] is currently making the day-to-day parenting decisions regarding [Miss AB]. However, as I have previously stated the fact that I wish to remain involved with [Miss AB]’s NDIS will not in any way impact on the day-to-day parenting decisions made by [BGBZ] for [Miss AB].
I accept that BGBZ has responsibility for day-to-day parenting decisions with respect to Miss AB.
Which persons can act in conjunction with other representatives and supporters of the child in the best interests of the child
The evidence before me is that BGBZ has acted in conjunction with numerous medical and allied health professionals in the best interests of Miss AB. These include evidence of BGBZ liaising with the Psychologist, the Occupational Therapist the Speech Language Pathologist, and the General Practitioner referred to in paragraphs 42 and 43 above. For example, the Psychologist has prepared a report assessing the implementation of recommendations requested by BGBZ.[78]
[78] T documents T4, p32.
HXSN’s statement of 7 February 2019[79] indicates that he attends Miss AB’s biannual neurology appointments, (as does BGBZ), which may be inferred from correspondence regarding a complaint by BGBZ to the Hospital about who may attend Miss AB’s neurology appointments,[80] and also sets out as follows:
I have cared for [Miss AB] since she was born […] I have worked part-time when required in order to care for her, met with teachers and specialists and negotiated support for her. I have tried to ensure she is happy, safe and given the opportunity to develop her abilities to their full extent. While [BGBZ] and I were divorced in 2010, custody arrangements merely formalised [Miss AB]’s care. In 2017 several culminating factors required changes to the arrangements between [BGBZ] and me regarding [Miss AB]’s care.
However, there is no other independent evidence before me supporting HXSN’s engagement with other representatives and supporters of Miss AB.
[79] Supplementary T Documents ST4A, pp56-58.
[80] T Documents T16G, pp87-88.
HXSN further states in his statement of 7 February 2019:[81]
Thirdly, it had become apparent to me that [BGBZ] was already making decisions for [Miss AB] which should have been made jointly. This is evidenced by her decision to remove [Miss AB] from [her former] School and transfer her to her current school […] Throughout the evidence provided to this tribunal, [BGBZ] has also engaged both psychologists and occupational therapists for [Miss AB] without my knowledge.
[81] Supplementary T Documents ST4A, pp56-58.
I also note that BGBZ, in her Statement in Reply dated 25 February 2019[82] states:
8.I alone act in conjunction with [Miss AB]’s treating GP, therapists, teachers and carers in [Miss AB]’s best interests.
9.The only other representatives and supporters of [Miss AB] are her sisters […] and her step-father […]. They all live full-time with me and [Miss AB] in my household and I alone act in conjunction with them in [Miss AB]’s best interests.
10.[HXSN] does not act in conjunction or consult with any of these representatives and supporters of [Miss AB] in her best interests, or at all.
11.I consult with every person who assists [Miss AB] to manage her day-to-day activities and make decisions.
[82] Supplementary T Documents ST3A, pp31-36 paras 8-11.
On the basis of the evidence before me I consider that there is far more evidence to support that BGBZ can act in conjunction with other representatives and supporters of Miss AB, in Miss AB’s best interests.
In relation to this issue, the Agency in its Statement of Facts, Issues and Contentions states at paragraph 41 as follows:
The information before the Tribunal demonstrates that [Miss AB] is primarily in the care of [BGBZ] who has responsibility for day-to-day parenting decisions. The information demonstrates that both [BGBZ] and [HXSN] can act in conjunction with other representatives and supporters of [Miss AB] in the best interests of [Miss AB] and that it is [BGBZ] who primarily undertakes these responsibilities.
At paragraph 42 of the Statement of Facts Issues and Contentions the Agency submits:
In the [Agency]’s submission, it would be open to the Tribunal to make findings on this information and decide on an appropriate level of weight to give them in deciding whether or not to exercise its discretion to make the determination sought by [BGBZ].
I am not persuaded that the information before me demonstrates that both parties can act in conjunction with the representatives and supporters of the child in the best interests of the child. As already canvassed, I consider the evidence favours BGBZ being able to act in conjunction with representatives and supporters of Miss AB in the best interests of Miss AB.
I am required to consider whether one or more of those persons (that is those persons with parental responsibility) are best placed to carry out the duties to children set out in s.76 of the NDIS Act and Part 6 of the NDIS Children Rules, taking into account the factors set out above.
I have already determined that it is not possible to make an inference as to Miss AB’s preferences regarding whether BGBZ should be the one person having parental responsibility. However the duty imposed by s.76 of the NDIS Act and Part 6 of the NDIS Children Rules is a more general duty to ascertain the wishes of the child concerned and to act in the best interests of the child. Taking into account the evidence before me in relation to sub-rules 4.9(c)(i), (ii) and (iii), I consider BGBZ is the one person in the best position, that is best placed, to ascertain Miss AB’s wishes (to the extent that that is possible, and on the evidence Miss AB is able to convey some of her choices and needs[83]) and act in her best interests.
[83] T Documents T4, T6, p27, p29, p30 and p38.
A further duty under Rule 6 is to consult wherever practicable, with any other person who satisfies parental condition 1 or parental condition 2 in relation to the child. In this case HXSN satisfies parental condition 1. BGBZ has stated in her request for determination regarding sole parental responsibility of 25 June 2018[84] that she is “willing to provide [HXSN] with copies of [Miss AB]’s annual NDIS Plans and keep him informed of any therapy she may be able to access under the Plans.” However, “keep informed” is not the same as “consult.” There is no evidence before me of effective consultation regarding Miss AB, however there is evidence of BGBZ attempting to consult,[85] and to arrange mediation in relation to schooling.[86] There is evidence of HXSN responding to some of BGBZ’s requests to consult,[87] however it is not possible to conclude on the available evidence that BGBZ or HXSN consult with one another, although it may be possible to conclude that BGBZ is more proactive than HXSN, and as such has attempted more consultation.
[84] T Documents T16, pp76-79.
[85] Supplementary T Documents ST3C, ST3D, p38, p39.
[86] Supplementary T Documents ST3B, p37.
[87] Supplementary T Documents ST4C, p64.
Having regard to all of the evidence, I conclude that BGBZ is best placed to carry out the Duty to children set out in s.76 of the NDIS Act and Duties of child’s representatives contained in Part 6 of the NDIS Children Rules. I therefore conclude that this consideration favours BGBZ, and given the extent of BGBZ’s engagement in carrying out the Duty to children and Duties of child’s representatives place significant weight upon this consideration.
Rule 4.9(d) whether 1 or more of those persons are willing and able to work together in the best interests of the child
The evidence before me from BGBZ in this regard includes that contained in her request for determination regarding sole parental responsibility dated 25 June 2018,[88] in which she states inter alia that "I am unable to effectively work together with [HXSN] because he does not act in [Miss AB]'s best interests." BGBZ listed a number of examples. BGBZ, in her Statement in Reply dated 25 February 2019,[89] states “I am not willing and able to work together with [HXSN] in [Miss AB]’s best interest because he does not act in [Miss AB]’s best interests.” A number of further examples claimed by BGBZ to demonstrate HXSN’s failure to act in Miss AB’s best interests were cited.
[88] T Documents T16, p76.
[89] Supplementary T Documents ST3A, pp31-36.
HXSN, in his letter of 7 February 2019 to the Administrative Appeals Tribunal,[90] states “I submit that I have been willing to work with [BGBZ] about the NDIS and that none of the material which she supplied in her submission provides any specific instances where that has not occurred.” Somewhat inconsistently, in a letter to BGBZ dated 27 February 2018,[91] HXSN said “I see no evidence to suggest any bipartisan collaboration to date with regard to [Miss AB]’s needs.” HXSN also states in his undated submission[92] that “I submit that I am able to demonstrate that I’m able to work together with [BGBZ] in the best interests of [Miss AB]. Please refer to my statement for further information.” HXSN made further submissions by way of letter to the Tribunal dated 4 April 2019 in which he canvassed a number of situations referred to by BGBZ as evidence of the inability and unwillingness of HXSN to work together (with her) in the best interests of Miss AB, and explained them from his point of view.
[90] Supplementary T Documents ST4A, pp56-58.
[91] Supplementary T Documents ST4C, p64.
[92] Supplementary T Documents ST4B, pp59-62.
There is some conflict in the evidence regarding the situations, which include the circumstances of Miss AB changing school, and an attempt to arrange mediation in that regard. There is other evidence of conflict between BGBZ and HXSN, particularly with respect to HXSN’s attitude towards Miss AB’s stepfather attending Miss AB’s neurology appointments.
The Agency submits that it is open to the Tribunal to make a finding as to whether BGBZ and HXSN are willing and able to work together in the best interests of Miss AB and give that finding some weight in deciding whether to make, or not make the determination sought by BGBZ.
Taking all of the evidence into account I am not satisfied that one or more of the persons are willing and able to work together in the best interests of Miss AB. I base that finding on BGBZ’s statements and the level of conflict evident between BGBZ and HXSN, in spite of HXSN’s assertions of his willingness and ability to work together in the best interests of Miss AB. Therefore I find that this consideration favours neither BGBZ nor HXSN. I find this weighs in favour of determining that the one party have parental responsibility for Miss AB for the purposes of this Act (being the NDIS Act) as one person without conflict is better able to act in accordance with the objects and the principles of the NDIS Act in terms of Miss AB’s best interests.
Rule 4.9(e) the desirability of preserving family relationships and informal support networks of the child
According to BGBZ, in her original request for determination dated 25 June 2018:[93]
If I was to have sole parental responsibility for [Miss AB] for the purposes of the NDIS, this would have no effect whatsoever on “preserving family relationships” for [Miss AB] as [HXSN] has already fully relinquished his care of [Miss AB] to me. Similarly, none of [Miss AB]’s “informal support networks” would be affected if I was to have sole parental responsibility for her for the purposes of the NDIS, since her only informal support networks are while she is in my care.
[93] T Documents T16,pp76-79.
BGBZ also dealt with this issue extensively in her Statement in Reply dated 25 February 2019,[94] in which she stated that Miss AB’s only family relationships and informal support networks are her step-father and her sisters, both of whom live with BGBZ and Miss AB’s stepfather. BGBZ maintains that HXSN has had no contact with Miss AB since July 2018, and that prior to that the only other person who had previously provided support for Miss AB was Miss AB’s paternal grandmother, HXSN’s mother. However, BGBZ states that that contact no longer occurs.
[94] Supplementary T Documents ST3A, p31.
HXSN states in his letter to the Tribunal dated 4 April 2019 “it is accepted that at this point in time, [his] contact with [Miss AB] has ceased however that does not mean that this will remain the case for ever.” HXSN also states, in his undated submissions,[95] that he always had involvement in Miss AB’s life, and assisted in her care, and that he wishes to continue to have such involvement. HXSN states, in his letter of 7 February 2019[96] that he reduced his contact with Miss AB to minimise unnecessary disagreements between the parties, and provides a number of other responses as to why his contact with Miss AB has declined, including that such a decrease in contact was brought about in accordance with BGBZ’s wishes. It is not the Tribunal’s place to inquire behind the evidence – the evidence is that the family relationships and informal support networks that Miss AB has all currently arise through BGBZ.
[95] Supplementary T Documents ST4B, pp59-62 para 25.
[96] Supplementary T Documents ST4B, pp56-58.
I acknowledge the value in preserving family relationships and informal supports. In relation to this consideration I do not have evience before me to support that in not making one person have sole responsibility for the child, such family relationships and informal networks would be preserved. However, it is difficult to see how family relationships and informal support networks would be preserved with HXSN, in circumstances where there are currently none. Accordingly, I think this consideration favours BGBZ and place some weight upon it.
Rule 4.9(f) for any of the persons:
(i) where the CEO has asked the person to answer any questions or provide any information in relation to making a determination that applies to that person (including requesting the person to consent to the release of information concerning their criminal history or suitability to work with children):
(A) any answers or information that have been provided by the person; and
(B) any refusal by the person to provide answers or information; and
(ii) any relevant conviction for an offence under Commonwealth, State or Territory law; and
(iii) any relevant information relating to the suitability of the person to work with children.
No information has been sought with respect to Rule 4.9(f)(ii) and (iii). HXSN responded to questions asked by the CEO of the Agency on 16 October 2018 as set out in interaction notes forwarded to the Tribunal by the Agency. BGBZ was asked some questions regarding the Family Court Orders by the CEO of the Agency, to which she responded as set out in emails contained within materials provided by the Agency to the Tribunal.
BGBZ submits that Rule 4.9(f) is not relevant,[97] and the Agency in the Statement of Facts, Issues and Contentions contended that:
49The [Agency] has not had cause to ask either [BGBZ] or [HXSN] questions of a nature envisioned by this criteria. Neither [BGBZ] or [HXSN] have placed information before the Tribunal to indicate that either has any relevant convictions or to suggest that there may be issues of suitability of the person to work with children.
50Accordingly, the [Agency] submits that it would be open to the Tribunal to find that this consideration is not central to its decision and give that finding little or no weight in deciding whether to make, or not make, the determination sought by [BGBZ].
[97] T Documents T1, pp1-4.
As both BGBZ and HXSN responded to questions asked by the CEO of the Agency it is my view that this consideration favours neither BGBZ nor HXSN.
OTHER MATTERS
For completeness, I have not taken into account conclusions drawn in medical or allied health reports on the matters before me. I have had regard to that material only as to the extent to which it has assisted me in deciding how much weight to give the considerations set out in the Rules. This accords with the view expressed by Deputy President Forgie in Re Proctor and Commissioner of Taxation with whom I respectfully agree.[98]
[98] Re Proctor and Commissioner of Taxation [2005] AATA 389; (2005) 87 ALD 247.
Further, to the extent to which HXSN and the Agency have raised issues regarding a “child’s representative”, I note that consideration of whether a person has parental responsibility for the purposes of s.75(3) of the NDIS Act does not require consideration of whether it is appropriate for the purposes of s.74(1) that the person is a “child representative” which is outside the scope of this review.
As to the submissions made by both parties regarding the claimed deficiencies in the decision made by the delegate of the CEO of the Agency, I observe this is a hearing de novo and the Tribunal stands in the shoes of the decision maker. Accordingly I have not considered those submissions to the extent that they deal with the delegate’s decision.[99]
[99] See Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; (1979) 46 FLR 409, 419 per Bowen CJ and Deane J.
CONCLUSIONS
The Tribunal has had regard to all relevant circumstances, including the matters to which it is required to have regard pursuant to Rule 4.9 of the NDIS Children Rules. Most of the specified matters, specifically rules (a), (b), (e) and (f) do not assist in my consideration as they are evenly weighted as between BGBZ and HXSN.
The Tribunal considers the matters in Rule 4.9(d) to have some relevance in the particular circumstances of this case because they support that the one person have parental responsibility for the child for the purposes of the NDIS Act and takes that into account.
However, of particular relevance, in the Tribunal’s view, in relation to this particular matter are the matters listed at Rule 4.9(c) which requires consideration of whether one or more of the persons with parental responsibility for the child are best placed to carry out the duties to children and requires that subparagraphs (i) to (iii) are to be taken into account. As regards subparagraph (i), which requires consideration of the existing arrangements that are in place between those persons and the child, the Tribunal accepts that BGBZ has sole custody of Miss AB and makes all arrangements for her care and that HXSN has no contact with her and does not resist that situation. As regards subparagraph (ii), which requires consideration of which persons have responsibility for day-to-day parenting decisions, the Tribunal accepts that BGBZ has responsibility for day-to-day parenting decisions with respect to Miss AB. As regards subparagraph (iii) which requires consideration of which person can act in conjunction with other representatives and supporters of the child, in the best interests of the child, the Tribunal considers the evidence favours BGBZ being able to act in conjunction with representatives and supporters of Miss AB in the best interests of Miss AB. Taking these matters into account I find that BGBZ is best placed to carry out the duty to children set out in s.76 of the NDIS Act and the Duties of child’s representatives contained in Part 6 of the NDIS Children Rules.
The Tribunal considers these particular matters of significant relevance in assessing whether BGBZ should be the one person to have parental responsibility for Miss AB and, having had regard to its findings canvassed above, the Tribunal sets aside the decision under review and in substitution decides that the Applicant be the one person to have parental responsibility for the child for the purposes of this Act, being the National Disability Insurance Scheme Act 2013.
DECISION
The Tribunal sets aside the decision under review and in substitution decides that the Applicant be the one person to have parental responsibility for the child for the purposes of this Act, being the National Disability Insurance Scheme Act 2013.
I certify that the preceding 97 (ninety-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member F Meagher
.............................[SGD]............................
Associate
Dated: 13 September 2019
Date of hearing: Heard on the papers Representative for the Applicant:
The Applicant’s Husband Solicitor for the Respondent: Mr Adrian Downie Representative for the Other Party: Self
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