BGBZ and National Disability Insurance Agency

The Administrative Appeals Tribunal reviewed a decision by the National Disability Insurance Agency (NDIA) concerning the parental responsibility of a child participant in the National Disability Insurance Scheme (NDIS). The applicant, BGBZ, sought a determination that she alone held parental responsibility for her daughter, Miss AB, for the purposes of the NDIS Act 2013. This request followed the NDIA's affirmation of an earlier decision to decline BGBZ's request, based on existing court orders granting equal shared parental responsibility to both BGBZ and Miss AB's father, HXSN. HXSN was subsequently joined as a party to the Tribunal proceedings due to his affected interests.

The central legal issue before the Tribunal was whether to exercise the discretion granted under section 75(3) of the NDIS Act to determine that BGBZ alone have parental responsibility for Miss AB, despite the existence of Family Law Act orders providing for equal shared parental responsibility between BGBZ and HXSN under section 75(1). The Tribunal was required to consider the purpose of the NDIS legislation and the specific matters outlined in Rule 4.9 of the NDIS Children Rules when exercising this discretion.

The Tribunal considered the evidence presented, including court orders, correspondence, and reports from various professionals. It noted that section 75(1) of the NDIS Act defines parental responsibility based on parentage and the absence of specific Family Law Act orders ceasing that responsibility, which was not the case here as interim orders for equal shared responsibility remained in place. However, section 75(3) allows the CEO to determine that one or more persons have parental responsibility if subsection (1) would result in more than one person holding it. The Tribunal found that BGBZ bore the responsibility for day-to-day parenting decisions and had actively engaged with numerous medical and allied health professionals in Miss AB's best interests. While HXSN stated he wished to remain involved with Miss AB's NDIS and attended some appointments, the independent evidence did not support his consistent engagement with other representatives and supporters in the same manner as BGBZ.

The Tribunal concluded that BGBZ had sole custody and made all arrangements for Miss AB's care, with HXSN having no contact and not resisting this situation. Accordingly, the Tribunal set aside the NDIA's decision and substituted a new decision determining that BGBZ alone have parental responsibility for Miss AB for the purposes of the NDIS Act.