BQJW and National Disability Insurance Agency (NDIS)
[2024] ARTA 646
•25 October 2024
BQJW and National Disability Insurance Agency (NDIS) [2024] ARTA 646 (25 October 2024)
Applicant/s: BQJW
HHBL
Respondent: National Disability Insurance Agency
Tribunal Number: 2024/2036
2024/2037
Tribunal:Senior Member S Webb
Place:Canberra
Date:25 October 2024
Decision:The decision under review is set aside. The Tribunal determines under s 75(3) of the National Disability Insurance Scheme Act 2013 (NDIS Act) Parent A, alone, has ‘parental responsibility’ for BQJW and HHBL for the purposes of the NDIS Act.
……[SGD]………………………………………………………
Senior Member S Webb
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – child participants – meaning of ‘parental responsibility’ – discretion to determine – preconditions to exercise of discretion – relevant considerations – duties to children – best interests and views of each child – consideration of family relationships and support networks of children – lack of engagement – inferred views – appropriate to exercise discretion – decision set aside and substituted
Legislation
Administrative Appeals Tribunal Act1975 ss 34J, 37
Administrative Review Tribunal Act ss 23, 106
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024, Schedule 16
Family Law Act 1975 ss 60CC, 61C
National Disability Insurance Scheme Act 2013 ss 4, 5, 74, 75, 76, 99, 103National Disability Insurance Scheme (Children) Rules 2013 rr 1.2, 1.4, 3.2, 3.3, 4.1, 4.2, 4.8, 4.9 7.4
Cases
Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145
Statement of Reasons
BQJW and HHBL (Applicants) are child participants in the National Disability Insurance Scheme (NDIS). They are the children of Parent A and Parent B. Parent A and Parent B are divorced. The National Disability Insurance Agency (NDIA) decided to approve Parent B as another ‘child representative’ for each of the Applicants over Parent A’s objection. Parent A, as ‘child representative’ for the Applicants, requested internal review and revocation of the decision to approve Parent B as another ‘child representative’. The NDIA reviewer decided to affirm the original decisions. Parent A lodged applications for review of these decisions on behalf of each Applicant.
The application for review was lodged with the Administrative Appeals Tribunal (AAT) under the Administrative Appeals Tribunal Act 1975 (AAT Act). The AAT Act has been repealed and the AAT has been replaced by the Administrative Review Tribunal (ART). Under the transitional provisions set out in Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024, from 14 October 2024, the ART has jurisdiction to conduct the review under the Administrative Review Tribunal Act 2024 (ART Act).
Using contact information supplied to it by the NDIA, the Tribunal issued notice of the applications for review to Parent B, providing an opportunity for Parent B to apply to be joined as a party in each of the proceedings. Parent B did not respond and has not been joined as a party. Parent B has not participated in these proceedings to any extent. I am satisfied Parent B has been given a reasonable opportunity to engage with the proceedings.
The parties agreed the applications could be determined on the papers without a hearing. Considering this, I accepted it was appropriate to decide these applications without a hearing and determined to proceed in that manner under s 34J of the AAT Act. As the ART Act is presently applicable, this issue is to be determined under s 106 of the ART Act. I am satisfied s 106(2) applies and it is appropriate to proceed to decide the review on the papers, without a hearing.
Documents have been given to the Tribunal under s 37 of the AAT Act (which broadly aligns with s 23 of the ART Act) in each application. For ease of reference, these will be referred to as ‘T documents’ in application 2024/2036 and ‘AT documents’ in application 2024/2037.
Facts
The Applicants are 16 and 17 years old.
In 2016, each Applicant became a participant in the NDIS. BQJW and HHBL have disability attributable to functional impairments relating to autism and other disorders. Each has a participant plan which includes supports which will be funded under the NDIS.[1]
[1] T34; AT36.
Parent A and Parent B were married. They separated in 2008 and were divorced in 2010.
On 22 February 2011, Parent A and Parent B agreed to parenting orders relating to BQJW and HHBL (Consent Orders).[2]
[2] T4; AT4.
On 22 August 2022 and 13 October 2022, Parent B applied to the NDIA to be placed on the record as a plan nominee for BQJW and HHBL.[3] I understand Parent B wanted to access NDIS plan letters for each child. Parent A did not consent to this.
[3] T5, page 40; AT5, page 39.
On 24 October 2022, the NDIA declined Parent B’s plan nominee applications.[4]
[4] T6, page 41; AT6, page 41.
On 14 November 2022, Parent B lodged a complaint with the NDIA and the Minister.
On 9 March 2023, an NDIA complaints officer refused to grant Parent B access to the information he was seeking in respect of the Applicants’ NDIS plans.
On 17 March 2023, Parent B requested review of this result.
On 20 March 2023, the complaints officer reiterated the response provided: “… you do not currently have permission/consent to seek information on your Children’s NDIS funding”.[5]
[5] T7, page 42; AT9, page 58.
Parent B lodged a complaint with the Commonwealth Ombudsman.[6]
[6] T7; AT9.
On 4 August 2023, an NDIA officer informed Parent A that Parent B would be entitled to be added as a Child Representative under the Consent Orders, and sought Parent A’s views.[7] Communications between Parent A and the NDIA ensued.
[7] T9, pages 49-50; AT11, pages 65-66.
On 8 August 2023, Rose Terrey, an Advocacy For Inclusion (AFI) advocate, provided written submissions to the NDIA,[8] requesting that the NDIA make a determination of parental responsibility and to determine that Parent A is the sole representative on each child’s plan.
[8] T10; AT12.
Also on 8 August 2023, an NDIA officer decided Parent B would be given access to each child’s plan as a Child Representative and sought information from Parent A about any information which should be redacted from each child’s plan information.[9]
[9] T11, page 61; AT13, page 77.
On 16 August 2023, Parent A provided further supporting submissions to the NDIA.[10]
[10] T13; AT15.
On 11 September 2023, Parent A provided additional submissions and supporting materials to the NDIA.[11] Parent A gave the NDIA further written submissions in an undated letter,[12] in which she addressed the Consent Orders and argued:
Order 1 does provide equal shared parental responsibility however it must be read in the context of Order 2 that clearly states responsibility for making decisions lies with me – specifically in regards to day to day care, schooling and medical treatment. This must be considered in the case of NDIS plans as my responsibility. NDIS plans are all about supporting day to day living.
When read collectively with Order 9, it is clear that the intention again, is that I have sole decision making with medical (and therefore disability) as long as I provide consent to the provider to share information with [Parent B]…[13]
[11] T16; AT18.
[12] T29; AT31.
[13] T29, page 111; AT31, page 126.
On 22 September 2023, an NDIA senior planner/restricted access officer issued a decision under the National Disability Insurance Scheme Act 2013 (NDIS Act) in which it stated:
Under the NDIS Act, [Parent B] is automatically entitled to be appointed as a Child Representative because [Parent B] is the children’s father and has, jointly with you, parental responsibility for each child…
…
… the CEO is not able to cancel [Parent B’s] appointment as Child Representative for the two children.[14]
[14] T19; AT21.
On 22 September 2023, Ms Terrey requested reassessment of this decision, noting that Parent A was not opposed to Parent B being notified of the assessment.[15]
[15] T18, page 81; AT20, page 96.
On 20 November 2023, an NDIA senior escalations officer sent an email to Jamelle Boettcher (an AFI advocate) and Ms Terrey, apologising for the delay in responding and stating:
… the information provided by [the Senior Planner/Restricted Access Officer] is correct…
If [Parent A] would like to have the decision reconsidered [Parent A] will need to submit evidence to the Agency an/or [sic] updated Orders.[16]
[16] T22, page 91; AT24, page 106.
On 27 February 2024, a delegate of the NDIA CEO issued a primary decision, stating:
We received a request to review [Parent B] to act as a child representative for [BQJW and HHBL].
…
I have considered all the information available and have decided to uphold them as child representative at this time.
…
If you disagree with this decision, you can request an internal review of a decision within three months of receiving this letter…[17]
[17] T24, pages 101-102; AT26, pages 116-117.
On 4 March 2024, Parent A requested internal review of this decision.[18]
[18] T25; AT27.
On 26 March 2024, a delegate of the NDIA CEO issued an internal review decision to confirm the primary decision to approve Parent B as a Child Representative for BQJW and HHBL.[19]
[19] T1A; AT1A.
This decision was sent to Parent A and Parent B.[20]
[20] T28; AT30.
On 5 April 2024, Parent A lodged applications for review of each decision by the Tribunal.
On 29 April 2024, the Tribunal notified Parent B of the applications for review and invited Parent B to apply to join the proceedings. Parent B did not provide a response and did not apply to be joined as a party. Notice of the proceedings was sent to Parent B using contact information provided by the NDIA. Parent B did not respond to the Tribunal’s notice of the proceedings and its invitation to apply to join the proceedings.
On 5 June 2024 and 15 August 2024, the parties were heard on issues of the Tribunal’s jurisdiction, and each were given an opportunity to produce materials on which they intended to rely. Thereafter, each party filed relevant materials and submissions. The applications were set down for a hearing on 12 September 2024.
On 6 September 2024, the parties requested the applications be determined on the papers without a hearing. The Tribunal decided it was appropriate to grant this request.
Legislation and Issues
The issue to be determined is Parent A’s application for removal of Parent B as a Child Representative of BQJW and HHBL and for Parent A to be determined to have sole parental responsibility for BQJW and HHBL for the purposes of the NDIS Act.
The term ‘child representative’ does not appear in the NDIS Act. It is a term used in the National Disability Insurance Scheme (Children) Rules 2013 (Rules) which is given following meaning in rule 7.4:
child’s representative means a person referred to in subsection 74(1) of the Act.
Subsection 74(1) appears in Part 4, Chapter 4 of the NDIS Act which deals with provisions relating to children, relevantly:
74 Children
(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; or
(b) if the CEO is satisfied that this is not appropriate—a person determined in writing by the CEO.
…
(2) If a person mentioned in subsection (1) makes a plan management request for a participant who is a child, the person may request:
(a) that the person manage the plan wholly or to the extent specified in the request; or
(b) that the plan be managed wholly, or to the extent specified in the request, by a registered plan management provider nominated by the person to manage the plan; or
(c) that the plan be managed wholly, or to the extent specified in the request, by the Agency or a person specified by the Agency.
…
(5) Subsections (1) and (2) of this section do not have effect in relation to a participant who is a child if:
(a) the CEO is satisfied that the child is capable of making decisions for himself or herself; and
(b) the CEO is satisfied that it is appropriate in the circumstances for those subsections not to apply to the child; and
(c) the CEO makes a determination that those subsections do not apply to the child.
(6) The National Disability Insurance Scheme rules may make provision for determining any matter for the purposes of this section, including but not limited to:
(a) requirements with which the CEO must comply; and
(b) methods or criteria that the CEO is to apply; and
(c) matters that the CEO may, must or must not take into account;
in making any decision under this section.
Note: For example, National Disability Insurance Scheme rules could be made under this subsection that apply for the purposes of making a decision under paragraph (5)(a) whether a child is capable of making decisions for himself or herself.
…
As can be seen, where the NDIS Act requires or permits something to be done by or in relation to a child, it is to be done by a person (or persons) with ‘parental responsibility’ for the child unless the CEO is satisfied this is not appropriate and determines to authorise another person for the purposes of s 74(1), or the CEO is satisfied the child is capable of making their own decisions and it is appropriate for s 74(1) and (2) not to apply to the child. It is the duty of a person authorised to do things for a child under s 74 to ascertain the wishes of the child concerned and to act in the best interests of the child; s 76(1). Where the CEO has made a determination under s 74(1)(b) in respect of a person, the CEO has power to revoke the determination if requested to do so by the person, or in circumstances where the CEO is satisfied the determination is no longer appropriate; s 77(1).
The term ‘parental responsibility’ is given meaning in s 75:
(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
(b) under a parenting order (within the meaning of the Family Law Act 1975):
(i) the child is to live with the person; or
(ii) the child is to spend time with the person; or
(iii) the person is responsible for the child’s long‑term or day‑to‑day care, welfare and development.
…
(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.
Plainly enough, where there is more than one person with ‘parental responsibility’ under the terms of s 75(1), the CEO has discretion to determine which of the persons has ‘parental responsibility’ for the child for the purposes of the NDIS Act. When making such a determination, the CEO must comply with requirements, applying criteria and having regard to matters, prescribed in the Rules.
The Rules reflect the principle that a child’s ability to make decisions on their own behalf increases as they develop, and that children should be consulted in relation to and involved in decision-making which affects them; rule 1.2. Principles set out in s 4 and s 5 of the NDIS Act which are particularly relevant are set out in rule 1.4:
(a) the role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected;
(b) where acts or things are done on behalf of a child with disability, the best interests of the child are paramount, and full consideration should be given to the need to:
(i) protect them from harm; and
(ii) promote their development; and
(iii) strengthen, preserve and promote positive relationships between them and their parents, family members and other people who are significant in their life;
(c) positive personal and social development of people with disability, including children and young people, is to be promoted;
(d) where acts or things are done on behalf of a person with disability:
(i) they should be involved in decision-making that affects them, including making decisions for themselves, to the extent possible; and
(ii) they should be encouraged to engage in the life of the community; and
(iii) the judgements and decisions they would have made for themselves should be taken into account; and
(iv) their cultural and linguistic circumstances, and gender, should be taken into account; and
(v) their supportive relationships, friendships and connections with others should be recognised.
With regard to the question ‘Who is the child’s representative?’, Rules 3.2 and 3.3 are noted:
3.2 The child’s representative will normally be the person who has, or the persons who jointly have, parental responsibility for the child. (See section 75 of the Act and Part 4 of these Rules for how to determine who has parental responsibility.)
3.3 However, in exceptional circumstances, the CEO might be satisfied that this is not appropriate. (For example, in a particular case, there might be a substantial degree of doubt as to what persons have parental responsibility under section 75 of the Act, and in view of this doubt, the CEO might be satisfied that it is not appropriate for the persons referred to in paragraph 3.2 to be the child’s representative.) In such circumstances, the CEO may determine that the child’s representative should be a different person, or a different group of persons. A person determined by the CEO in this way need not have parental responsibility.
While rule 3.3 expressly refers to s 75 of the NDIS Act, the CEO’s discretion to determine a different person or group than a person with parental responsibility as a child’s representative arises under s 74((1)(b) of the NDIS Act. No such issue arises in these proceedings. The issue in these proceedings is whether Parent A and Parent B have ‘parental responsibility’ for BQJW and HHBL and, if so, whether the discretion conferred by s 75(3) of the NDIS Act should be exercised to determine Parent A alone has ‘parental responsibility’.
Part 4 of the Rules sets out criteria for determining who has ‘parental responsibility’ for a child:
4.1 There 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.
4.2 The 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.
parental condition 2 is that, under a parenting order (within the meaning of the Family Law Act 1975):
(a) the child is to live with the person; or
(b) the child is to spend time with the person; or
(c) the person is responsible for the child’s long-term or day-to-day care, welfare and development.
Persons who satisfy parental condition 1 or parental condition 2 will also satisfy paragraph 75(1)(a) or (b) of the Act.
As BQJW and HHBL do not have guardians, any person who satisfies parental condition 1 or parental condition 2 has ‘parental responsibility’ for each of them; rule 4.7. Where this results in more than one person having parental responsibility, under s 75(3) of the NDIS Act (and rule 4.8), the CEO has discretion to determine which of those people has ‘parental responsibility’ for each child for the purposes of the NDIS Act. Rule 4.9 sets out the matters which the CEO is to have regard to when making such a discretionary determination:
4.9 When 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.
The terms of the primary and internal review decisions do not expressly refer to the legislation under which each decision was made or the Rules which were relevantly applied.
In all likelihood, the primary decision-makers were determining matters for the purposes of s 75(3) of the NDIS Act and rule 4.8 of the Rules. A decision under s 75(3) is a ‘reviewable decision’ under s 99(1). The internal review decision-makers addressed the same issues when confirming the primary decisions. These matters inform the Tribunal’s jurisdiction under s 103 of the NDIS Act.
The issues on review, therefore, are:
(a)do Parent A and Parent B each have ‘parental responsibility’ for BQJW and HHBL; and if so
(b)having regard to the matters set out in rule 4.9 of the Rules, is it appropriate to exercise the discretion to determine that Parent B should not have parental responsibility for BQJW and HHBL for the purposes of the NDIS Act?
Parental responsibility
Parent A and Parent B are the parents of BQJW and HHBL.
Noting the definition of ‘parental responsibility’ in s 75(1) of the NDIS Act and s 61B of the Family Law Act 1975 (Family Law Act), for the purposes of Part VII of that Act, the parental responsibility of each Parent in respect of BQJW and HHBL has not ceased. The terms of the Consent Orders remain in effect.
Consequently, for the purposes of s 75(1) of the NDIS Act, Parent A and Parent B have ‘parental responsibility’ for BQJW and HHBL.
Discretion
As more than one person has ‘parental responsibility’ for BQJW and HHBL, the discretion conferred by s 75(3) is enlivened.
The discretion is to be construed in its statutory context in accordance with the purposes of the legislation. The significance of ‘parental responsibility’ in the context of Part 4, Chapter 4 of the NDIS is in respect of the doing of a thing the NDIS Act permits or requires in relation to a child. Central to such matters are the best interests of the child and the principles set out in s 5 of the NDIS Act. The duties of persons with ‘parental responsibility’ set out in s 76(1) and Part 6 of the Rules illuminate what is required.
Exercise of the discretion requires regard to be had to the matters set out in rule 4.9 of the Rules and the scope and purposes of Rules and the NDIS Act. While consideration of these matters is a jurisdictional prerequisite to exercise of the discretion, the apportionment of appropriate weight is a matter for determination in the particular circumstances. [21]
[21] Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145 at [57].
BQJW and HHBL each expressed a preference for Parent B not to have access to their information under the NDIS.[22] Their preference is supported by the report of Ms Leesa Morris, a forensic psychologist.[23] Ms Morris conducted interviews with BQJW and HHBL and elicited their views in respect of Parent B’s participation in managing their NDIS support plans. The views each child expressed are clearly supported by reasoning which can readily be understood. The children’s preferences are reflected in the materials provided by their Support Coordinator. While it is possible Parent A might have influenced the views of each child, Ms Morris’ expert report of the views of BQJW and HHBL is consistent with the weight of relevant materials on this point, without contraindication, and I am satisfied it can be accepted as reliable and accurate.
[22] T31, page 116; AT14.
[23] Report of Leesa Morris, Illuminate Forensic Psychology & Linguistics, 25 August 2024, pages 5 and 6.
The views of Parent A are that Parent B should be removed as a ‘child representative’ of BQJW and HHBL. Parent A provided a Statement of Lived Experience, dated 26 July 2024, in which Parent A sets out relevant matters in support of the proposition Parent B should not have ‘parental responsibility’ for each child for the purposes of the NDIS. The views of Parent A are also expressed in communications with the NDIA.[24]
[24] T29, pages 111-114; AT31, pages 126-129.
The views of Parent B are not known. Nevertheless, Parent B’s views may be inferred from the NDIA records which demonstrate Parent B sought access to the restricted files of BQJW and HHBL and, when this was refused, Parent B complained to the NDIA, the Commonwealth Ombudsman and the Minister. This suggests Parent B held the view that Parent A and Parent B should each have parental responsibility for the purposes of the NDIS Act. I will proceed on that basis. This weighs against exercising the discretion in the manner contended for by Parent A.
The weight of the available evidence strongly supports a finding that Parent A is best placed to carry out the duties to each child which are set out in s 76(1) of the NDIS Act. The existing parenting orders and related arrangements between Parent A and Parent B in respect of BQHW and HHBL have continuing effect. Parent A has primary responsibility for making decisions about the day-to-day care, schooling and medical treatment of the children, who live with Parent A. While medical or other professional persons with whom the children are involved are authorised to communicate with and provide information to each of the Parents, there is evidence of past conflict or disputation between Parent B and persons involved in providing support, including therapeutic and medical support, to each of the children.[25] These are matters which are illuminated in the report of Ms Morris. Some caution must be exercised in respect of such evidence in circumstances where it has not been tested and Parent B has not had an opportunity to reply. This reduces the weight which should be given.
[25] T9A, T9B, T12, T13, T15, T29; AT11, AT12, AT15, AT17.
Nevertheless, on the question of whether Parent A and Parent B are willing and able to work together in the best interests of each child, it is clear enough there has been some divergence of opinion between them over what is in each child’s best interests, including in respect of appropriate supports and support workers. The evidence of Ms Morris and support workers[26] support this finding.
[26] Ibid.
With regard to questions relating to the best interests of BQJW and HHBL, the Rules do not provide express guidance about how this is to be approached. When addressing such questions and applying the principles set out in rule 1.4, the matters a court must consider when determining the best interests of the child under s 60CC(2) of the Family Law Act illuminate considerations which may be relevant for the purposes of the NDIS Act and the Rules:
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
Ben Tyrell, a support worker for BQJW and HHBL, provided information about difficulties he experienced with Parent B, including BQJW missing medications, difficulties arranging outings and activities for each child, and behavioural issues.[27] Mr Tyrell’s account is consistent with evidence provided by Deb Miles-Howe (another support worker)[28] and other relevant materials[29]. This material, and Mr Tyrell’s evidence in particular, raises questions about Parent B’s capacity to provide for the developmental, psychological, emotional and cultural needs of each child, particularly BQJW.
[27] T15; AT17.
[28] T9A; AT11A.
[29] Statement of ‘XC’, 14 August 2024.
The Statement of Lived Experience provided by Parent A sets out examples in which Parent A acted in conjunction with support workers, care teams, behavioural specialists and treatment providers in the best interests of BQJW and HHBL. There is no probative material of Parent B acting in such a manner in each child’s best interests. Rather, the available materials point to difficulties supporters of the children encountered when dealing with Parent B, including difficulties which led to the withdrawal of treatment and support services to each child.[30]
[30] Report by Ms Morris, 25 August 2024, at [5.1] and [6.1]; T9A, pages 52-53; T15, page 76; AT11A, pages 68-69; AT17, page 91.
On the evidence of Parent A, conflicts have arisen when attempting to work with Parent B in the best interests of each child. This is demonstrated in Parent A’s Statement of Lived Experience and the matters set out by Ms Terrey in her letter to the NDIA, dated 8 August 2023[31]. Even though there is no evidence from Parent B, I accept Parent A’s ability to work with Parent B in the best interests of each child is reduced by the conflicts and difficulties Parent A has set out.
[31] T10, page 58.
There is a clear benefit to each child maintaining a relationship with each Parent.
The desirability of preserving family relationships and the informal support networks of BQJW and HHBL is an important consideration under rule 1.4 and rule 4.9. This is relevantly informed by Ms Morris’ recommendation “that, in order to preserve the children’s relationship with their father, [Parent B] be removed from managing their NDIS support plans”.[32] It appears Ms Morris’ recommendation draws heavily from the views of BQJW and HHBL, including their past experiences of and attitudes to Parent B.[33] Ms Morris’ opinion is consistent with and it is supported by the preponderant weight of the relevant materials before the Tribunal.
[32] Report by Ms Morris, 25 August 2024, at [6.4].
[33] Ibid, at [5.1]-[5.4] and [5.5]-[5.8].
I note the NDIA’s submission the discretion should only be exercised in exceptional circumstances. This proposition is drawn from rule 3.3. The terms of rule 3.3 are not entirely clear. The substance of the rule is not expressly directed to the definitional nature of s 75 (and the discretion conferred by s 75(3)), but it is rather directed to the determination of a person who does not have ‘parental responsibility’ as a child’s representative under s 74(1)(b) of the NDIS Act. So much is clear from the note which states “Paragraphs 3.1 to 3.4 summarise the effect of subsections 74(1) and (1A) of the Act”.
Where more than one person has ‘parental responsibility’ for a child, the discretion under s 75(3) of the NDIS Act should not be exercised too readily or without taking all relevant matters into account. This is the purpose of rule 4.9. Exceptionality is expressly referred to in rule 3.3 which refers to s 74(1) and (1A) of the NDIS Act. Exercise of the discretion under s 75(3) is not conditioned by exceptional circumstances. The discretion provides flexibility to respond to circumstances in any case where more than one person has ‘parental responsibility’ for a child for the purposes of the NDIS Act which make it appropriate to determine that only one of those people has ‘parental responsibility’ for the child in the particular circumstances of the case. The question arising is not whether the circumstances are exceptional but who should have ‘parental responsibility’ for each child in the particular circumstances, having regard to the matters set out in rule 4.9.
Considering these matters and determining the question of ‘parental responsibility’ for BQJW and HHBL without hearing directly from Parent B is a matter of some concern. Nevertheless, on the available materials, the balance of relevant considerations weighs strongly in favour of exercising the discretion to determine Parent A has ‘parental responsibility’ for BQJW and HHBL in the particular circumstances.
It should be noted that determination of the person or persons with ‘parental responsibility’ for a child under s 75(3) of the NDIS Act takes account of relevant circumstances. Such a determination may be revisited should relevant circumstances change.
Having regard to those matters and the submissions of the parties, for the purposes of s 75(3) of the NDIS Act, I am satisfied it is appropriate to determine that Parent A, alone, has ‘parental responsibility’ for BQJW and HHBL. This aligns with the preferences and the best interests of BQJW and HHBL and the preponderant weight of matters to which the Tribunal should have regard.
This means, while this decision has effect, Parent B will not have ‘parental responsibility’ for BQJW and HHBL under the NDIS Act and Parent B will not be authorised to do things the NDIS Act requires or permits in relation to each child.
Decision
The decision under review is set aside. The Tribunal determines under s 75(3) of the NDIS Act that Parent A, alone, has parental responsibility for BQJW and HHBL for the purposes of the NDIS Act.
I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Senior Member Webb.
…………[SGD]……………………………
Associate.
Dated: 25 October 2024
Date of hearing:
On the papers
Date final submissions received:
30 September 2024
Solicitor for applicant:
Solicitor for respondent:
Ms Bridie Harders (Legal Aid ACT)
Ms Jane Thomson (Moray & Agnew)
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