QZCD and Chief Executive Officer, National Disability Insurance Agency
[2024] ARTA 32
•23 December 2024
Applicant:QZCD
Respondent: Chief Executive Officer, National Disability Insurance Agency
Other Parties: DHHN
Tribunal Number: 2023/1743
Tribunal:Senior Member K Parker
Place:Melbourne
Date:23 December 2024
Decision:The Tribunal affirms the deemed Decision Under Review, which affirmed the Determination made by a delegate of the Chief Executive Officer of the Respondent on 22 December 2022.
.................[SGD]...........................
Senior Member K Parker
Catchwords – NATIONAL DISABILITY INSURANCE SCHEME – child participant – parents of child are separated – child representative – parental responsibility – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Family Law Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth)National Disability Insurance Scheme (Children) Rules 2013
Cases
BGBZ and National Disability Insurance Agency [2019] AATA 3505
CM and National Disability Insurance Agency [2023] AATA 4885
CM and National Disability Insurance Agency [2024] AATA 3308
Harman v Secretary of State for the Home Department [1983] 1 AC 280QZCD and National Disability Insurance Agency [2022] AATA 458
Secondary Materials
Convention on the Rights of Person with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008
NDIS Operational Guidelines entitled “Child representatives” issued on 28 October 2024 - Child representatives | NDIS
Statement of Reasons
INTRODUCTION
The Applicant, QZCD, and the Other Party, DHHN, are the separated parents (that is, father and mother respectively) of two sons aged 11 and 9, who will be referred to in this Statement of Reasons as “H” and “J” respectively.[1] H and J both live with disabilities and are child participants in the National Disability Insurance Scheme (‘NDIS’). This application relates to H. There is a related application numbered 2022/5756 also before this Tribunal relating to J. For brevity, the Tribunal will refer to application numbered 2022/5756 as the ‘J Application’ and this application numbered 2023/1743 as the ‘H Application’. The Tribunal will refer to the J Application and the H Application collectively as the ‘Two Applications’.
[1] Pursuant to orders made under s 70(1) of the now repealed Administrative Appeals Tribunal Act 2024 (Cth), the pseudonym ‘QZCD’ has been used in place of the Applicant’s name and the pseudonym ‘DHHN’ in place of the Other Party’s name. Those orders were made to keep the identity of the Applicant, Other Party and their two children, confidential. The Tribunal has also omitted references to certain personal information in this Decision if it would lead to the identification of H and his family members.
The NDIS is administered by the National Disability Insurance Agency (‘NDIA’) under the provisions of the National Disability Insurance Scheme Act 2013 (Cth) (“NDIS Act”) and various associated NDIS rules (as detailed below, as relevant to this proceeding).
The H Application relates to a deemed decision under s 100 of the NDIS Act (‘Decision Under Review’) about a determination made on 12 December 2022 by a delegate of the Chief Executive Officer of the NDIA (‘CEO’) (‘Determination’), to the effect that:
(a)under s 75(3) of the NDIS Act, only DHHN has “parental responsibility” for H for the purposes of the NDIS Act; and
(b)it is “not appropriate” for both QZCD and DHHN to exercise their right to act for H under s 74(1) of the NDIS Act, and instead, only DHHN has the right to do so.
On 14 October 2024, the Administrative Review Tribunal (‘AAT’) became the Administrative Review Tribunal (‘this Tribunal’). Under transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (‘Transitional Act’), applications for review to the AAT that were not finalised before 14 October 2024, are taken to be an application for review to this Tribunal. The Transitional Act gives this Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
This Tribunal has the authority to undertake a review in respect of the H Application under s 18 of the Administrative Review Tribunal Act 2024 (Cth) (‘ART Act’), operating in conjunction with s 103 of the NDIS Act. For completeness, a decision made by the CEO (or her authorised delegate) to make or not to make a determination under sub-section 74(1)(b) of the NDIS Act in relation to a person, is a “reviewable decision” described under Item 17 of the Table in s 99 of the NDIS Act, and therefore, able to be reviewed under s 100 of the NDIS Act. Further, a decision made by the CEO (or her authorised delegate) to make or not to make a determination under s 75(3) of the NDIS Act, is also a “reviewable decision” described under Item 19 of the Table in s 99 of the NDIS Act.
For the reasons set out below, the Tribunal affirms the Decision Under Review.
ISSUE
The Tribunal must decide whether the Decision Under Review is correct or preferable. In doing so, the Tribunal must consider the following two issues:
(a)firstly, under s 75(3) of the NDIS Act, whether only DHHN should have “parental responsibility” for H for the purposes of the NDIS Act; and
(b)secondly, under s 74(1) of the NDIS Act, whether the Tribunal satisfied that it is “not appropriate” for both QZCD and DHHN to exercise their right to act for H for the purposes of the NDIS under sub-section 74(1)(a), and if so, whether only DHHN should have the right to do so.
LEGISLATIVE FRAMEWORK
Sub-section 74(1)(a) of the NDIS Act provides that if the NDIS Act requires or permits a thing to be done by or relating to a child, the thing is to be done by or in relation to the person who has, or the persons who jointly have, “parental responsibility” for the child.
Sub-section 74(1)(b) of the NDIS Act confers power on the CEO to make a determination in writing to designate a specific person/s to act as the child’s representative, if the CEO is satisfied that it is not appropriate that the person/s described in sub-section 74(1)(a) be permitted to act for the child.
The phrase “parental responsibility” is defined in s 75 of the NDIS Act. It is different from the definition of “parental responsibility” under the Family Law Act 1975 (Cth).[2]
[2] Section 61B of the Family Law Act 1975 (Cth) defines “parental responsibility” as follows: “In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
Sub-section 75(1) provides that a person has “parental responsibility” if:
(a)in accordance with sub-section 75(1)(a), they are the child’s parent and have not ceased to have responsibility for the child, because of an order made under the Family Law Act 1975 (Cth) or a law of a State or Territory; or
(b)in accordance with sub-section 75(1)(b), under a parenting order (within the meaning of the Family Law Act 1975 (Cth)):
(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.
Sub-section 75(3) of the NDIS Act confers discretion on the CEO to make a determination that one or more of the persons described in sub-section 74(1) has “parental responsibility” for a child if the result of sub-section 75(1) results in more than one person having parental responsibility for the child for the purposes of the NDIS Act.
The Tribunal must apply the National Disability Insurance Scheme (Children) Rules 2013 (‘NDIS Children Rules’) as relevant, when deciding this application. Of particular relevance, are the factors set out in Rule 3.5 which the Tribunal must have regard to when making its decision. These are addressed further below.
EVIDENCE AND SUBMISSIONS
On 12 July 2022, QZCD lodged the J Application. On 26 July 2022, the NDIA lodged with the Tribunal an unredacted set of documents pursuant to its obligations under s 37 of the then AAT Act (‘J T-Documents’), in respect of the J Application. These unredacted T-Documents were not given to QZCD.
On 20 March 2023, QZCD lodged the H Application.
On 24 March 2023, the NDIA lodged with the Tribunal a redacted version of a set of further documents (marked “Draft”) pursuant to its obligations under s 38AA of the then AAT Act, in respect of the J Application. The redactions are described by the NDIA as being the redactions of the information that DHHN wished to be kept confidential.
On 17 May 2023, the NDIA sent a set of redacted T-Documents in the H Application to QZCD and copied in the Registry of the Tribunal.[3]
[3] This set of documents attaching an application for confidentiality orders under s 35 of the then AAT Act in respect of T9, T10 (being emails from DHHN to the Early Childhood Early Intervention (‘ECEI’) South Australia dated 3 February 2022), T13 (being an email from DHHN to the NDIA, undated) and T14 (interaction records kept by the NDIA from 15 October 2021 to 21 March 2021). In the covering email from the NDIA’s representative, it referred to the Tribunal having made a confidentiality order in the J Application over certain documents and noted that that these four documents are the same as, or contained information which is the subject of the confidentiality order in the J Application.
On 14 April 2023, the Tribunal (differently constituted) made an order joining DHHN as a party to the H Application under s 30(1A) of the then AAT Act.
On 17 April 2023, the Tribunal (differently constituted) handed down an interlocutory decision in the J Application (CM and National Disability Insurance Agency [2023] AATA 4885) containing directions that the NDIA lodge with the Tribunal, and give to QZCD and DHHN, a redacted version of the ST-Documents lodged on 16 November 2022. Specifically, the Tribunal (differently constituted) directed that redactions be made to 12 lines in total from ST-Documents ST1 and ST2 in the J Application. In this decision, the presiding member referred to:
(a)there being an issue about “whether, and if so to what extent, it should redact passages from documents the Respondent has filed with the Tribunal pursuant to section 35 of the now repealed [AAT Act] to restrict their disclosure to the Applicant”;[4]
(b)the NDIS being concerned that these documents, “contained information that may be confidential in nature”, and sought to be excused from serving a copy on QZCD and DHHN;[5]
(c)QZCD and DHHN being “estranged and engaged in Family Court of Australia proceedings”, which are part-heard, and to allegations that QZCD had “perpetrated acts of family violence against her, and against the child participant and its sibling”;[6] and
(d)DHHN having “obtained a form of restraining order against” QZCD, from the Magistrates’ Court to “protect herself and her children”.[7] The Tribunal (differently constituted) conducted a hearing with the NDIA present, but in the absence of both QZCD and DHHN. The Tribunal (differently constituted) stated that the NDIA took a “neutral” position about whether a confidentiality order under the then AAT Act should be made.
[4] CM and National Disability Insurance Agency [2023] AATA 4885, [1].
[5] Ibid, [14].
[6] Ibid, [15].
[7] Ibid.
Before the Tribunal (differently constituted) made this decision, it sought an indication from DHHN as to which parts of those documents she may wish to have redacted. DHHN indicated that she wanted 12 lines of text in total (as appearing in ST-Document 1 and ST-Document 2) redacted from the documents including her email, address, and telephone details.[8] The presiding member remarked in the Tribunal’s decision that, “it may well be that the information the Other Party is reluctant to have disclosed is irrelevant to the questions the Tribunal will ultimately have to consider and decide”.[9] The presiding member stated, “If it emerges that the redacted portions are relevant to the Tribunal’s determination of the matter, and are to be relied upon, the question of disclosure to the Applicant can be revisited”.[10]
[8] Ibid, [24].
[9] Ibid, [36].
[10] Ibid, [39].
On 24 April 2023, the NDIA lodged a redacted version of the J ST-Documents (marked “Final”) (‘J ST-Documents’).
On 17 May 2023, the NDIA lodged a redacted version of T-Documents in the H Application and gave a copy to QZCD.
On 22 May 2023, QZCD lodged a set of documents with the Tribunal comprising a set of documents he had lodged in an earlier related application numbered 2021/10277 (‘2021/10277 T-Documents’).
On 26 May 2023, the Tribunal (differently constituted) issued an order joining DHHN as a party to the H Application.
On 6 June 2023, the Tribunal (differently constituted) made orders as follows:
(a)an order that the J Application and H Application “be linked and programmed and heard together and, subject to relevance, the evidence in any one application will be taken as evidence in the other application” (‘Linking Order’); and
(b)the redacted J T-Documents lodged by the NDIA with the Tribunal on 17 May 2024, be “deemed to have been given” to the Tribunal, QZCD and DHHN, in respect of the H Application.
On 23 August 2023, the NDIA lodged a single redacted and single unredacted version of its single Statement of Facts, Issues and Contentions with the Tribunal relating to both the J Application and the H Application.[11] The NDIA’s representative explained in the covering email that only the redacted version was provided to QZCD, and the NDIA undertook to clarify with DHHN whether confidentiality was pressed in respect of the redacted materials.
[11] NDIA’s Combined HTB, Document A1/4-17.
On 11 December 2023, the Tribunal (differently constituted) directed, in respect of the Two Applications, that:
(a)the NDIA give QZCD its unredacted version of the NDIA’s SFIC dated 23 August 2023 (which it did); and
(b)until further order, information lodged with the Tribunal in the J Application, “subject to orders under s 35(4) of the [AAT] Act”, must not be disclosed to QZCD except when subject to redactions as directed by the Tribunal.
During the course of this proceeding DHHN lodged the following documents with the Registry of the Tribunal:
(a)psychologist child contact visits report dated 5 May 2021;[12]
[12] NDIA’s Combined HTB, C1/0179-0218.
(b)email from DHNN to QZCD dated 25 January 2022;
(c)email exchange regarding “Lindy” dated 6 to 18 February 2022;
(d)court order issued by the FCFCOA in respect of H and J dated 8 August 2023;[13]
[13] Ibid, C7/0230-0235.
(e)Optima Family Assessment Reports in respect of H and J:
(i)dated 30 September 2021 (‘First FAR’);
(ii)dated 21 July 2022 (‘Second FAR’);
(f)DCP Safety Plan in respect of H and J:
(i)issued in July 2023 (‘First Safety Plan’);[14]
(ii)issued in August 2023 (‘Second Safety Plan’);[15]
(iii)issued in September 2023 (‘Third Safety Plan’);[16]
(g)subpoena to give evidence addressed to DHHN filed on 16 June 2023;[17] and
(h)letter from DCP to DHHN dated 26 October 2023.[18]
[14] Ibid, C4/0227.
[15] Ibid, C4/0228.
[16] Ibid, C4/0229.
[17] Ibid, C3/0223.
[18] Ibid, C8/236.
On 12 January 2024, QZCD wrote to the Registry of the Tribunal objecting to the use of:
(a)certain of the documents lodged by DHHN with the Tribunal (specifically the First FAR, Second FAR, and a further “Children’s Contact Visits Report” by Registered Psychologist [FM] dated 21 May 2021 (‘FM’s Report’)); and
(b)DHHN’s Affidavit referred to above, sworn on 18 May 2023.
On 15 January 2024, QZCD lodged a single set of written submissions in the J Application and the H Application, in support of his objection application (‘QZCD’s Objections’). QZCD contended that the documents referred to in the above paragraph were subject of a “Harman” undertaking,[19] which restricted their use for the purpose of and in proceedings other than those for which they were intended.[20] QZCD contended that this prevented their use in these matters before this Tribunal, unless the documents were released from that undertaking.[21] DHHN did not lodge any submissions in reply.
[19] An implied “Harman” undertaking refers to the principle arising from the High Court of Australia decision in Harman v Secretary of State for the Home Department [1983] 1 AC 280 that there is an obligation on a person not to use a document or information for any purpose other than the proceeding, where the person knows that the document or information was obtained because another party to the proceeding disclosed the document or information under compulsion (be it by court order, a rule of court, or otherwise).
[20] Ibid, [24].
[21] Ibid.
The NDIA lodged a written submission in response but did not make any contentions as to whether the documents were the subject of an implied “Harman” undertaking, other than to set out some relevant legal principles to assist the Tribunal.[22]
[22] Ibid, [25].
On 21 August 2024, the Tribunal (differently constituted) handed down a second interlocutory decision (CM and National Disability Insurance Agency [2024] AATA 3308) containing directions that:
(a)QZCD must lodge and give to the other parties all “Family Court Orders” which he considered to be relevant to the question of the use the Tribunal should make of the two psychologist reports arising from the Family Assessments ordered by the FCFCOA and a further report issued in relation to the child visits by QZCD over a period of time;
(b)subject to the Tribunal receiving further information, that the two Family Assessment reports “ought not be received into evidence by the Tribunal, as they may potentially be” the subject of an implied “Harman” obligation; and
(c)“subject to further information and relevance”, the report produced after the child visits and an affidavit by DHHN sworn in support of a court application for an intervention order against QZCD, “may be” received into evidence by the Tribunal.
On 10 September 2024, this application was reconstituted to the Tribunal (as presently constituted). This Tribunal held a directions hearing by telephone on 19 September 2024 (‘Directions Hearing’). DHHN provided advance notice to the Tribunal of her intention not to appear at the Directions Hearing. Registry wrote to DHHN to inform her that the Tribunal would not excuse her attendance. DHHN failed to appear. The Directions Hearing proceeded in her absence. QZCD and the NDIA were both present.
At the Directions Hearing, the Tribunal noted the complicated procedural history of the Two Applications, and the lengthy period of time that they had been on foot before the Tribunal. For procedural efficiency and on account of the common factual background and legal issues arising in these two related applications, the Tribunal indicated that it was content for the parties to address both applications jointly in their submissions and when lodging their hearing tender bundles. For this reason, the Statement of Reasons in this Decision is very similar, but not identical, to the Statement of Reasons in the J Application. The Tribunal requested that the parties were to identify the key documents and submissions upon which they rely. For this purpose, the Tribunal directed that the parties lodge their respective (revised) Statements of Facts, Issues, and Contentions and tender bundles by 10 October 2024. The Tribunal referred the Two Applications to be listed this application for a substantive hearing in December 2024.
At the Directions Hearing, the Tribunal articulated what it considered to be the key issues for determination. There was also a discussion about the evidence that would be most helpful for the Tribunal to make its decision. The Tribunal did not consider it was necessary for the purpose of the Tribunal making its decision in these Two Applications to receive particularised accounts and evidence relating to the history of the disputation which has taken place between QZCD and DHHN. The Tribunal indicated that it would only need to assess whether there was disputation at a high level for the purpose of assessing whether QZCD and DHHN would be able to communicate with one another well enough to be able to act jointly and collaboratively as H’s and J’s child representatives. This was one factor the Tribunal foreshadowed it would be taking into account, as well as the amount of time that H and J would be spending with each parent (and for this reason, the Tribunal would need to carefully consider the parenting court orders). The NDIS Children Rules were also mentioned and in particular, the Tribunal asked the parties to address the factors in Rule 3.5 in their respective submissions.
On 10 October 2024, QZCD lodged his Statement of Facts, Issues and Contentions with the Tribunal (‘QZCD’s SFIC’).
On 15 October 2024, QZCD lodged a tender bundle of evidence with the Tribunal (‘QZCD’s Tender Bundle’).
On 15 October 2024, QZCD lodged a document entitled “Record of Outcome – Order” issued by the Magistrates’ Court on 3 April 2024. The Tribunal has received this document into evidence in this application. This Order revoked an interim intervention order which had previously been made against QZCD and dismissed an application for an intervention order against QZCD following its withdrawal by the Commissioner of Police and the “withdrawal of its charges”.
On 6 November 2024, the NDIA lodged:
(a)its revised SFIC which it described as being “updated” (‘NDIA’s Updated SFIC’).[23] The NDIA states that the Updated SFIC “is to supplement” its SFIC dated 23 August 2023,[24] upon which it would continue to rely. In its Updated SFIC, the NDIA acknowledged that the NDIS Act had been amended by the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth). The NDIA submitted that the provisions of the NDIS Act remain unchanged, as relevant to parental responsibility. The Tribunal agrees, and neither of the other parties contended otherwise; and
(b)an unredacted version of a combined hearing tender bundle combining various documents which had been lodged with the Registry of the Tribunal by the NDIA, QZCD and DHHN in respect of the H Application and J Application, totalling 381 pages, containing:
(i)the J T-Documents and H T-Documents;
(ii)the J ST-Documents;
(iii)documents lodged by QZCD;
(iv)documents lodged by DHHN;
(v)updated extracts of the relevant legislative provisions in the NDIS Act, associated NDIS rules and various NDIS Operational Guidelines issued by the NDIA including the current guideline relating to child representatives.
[23] NDIA’s Combined Tender Bundle, A2/0018-0025.
[24] Ibid, A1/0004-0017.
On 11 November 2024, QZCD lodged a further supplementary submission (in email form) (‘QZCD’s Further Supplementary Submission’) to the Tribunal.
DHHN did not to lodge any Statement of Facts, Issues, and Contentions in this application.
By 12 November 2024, all parties had provided written consent to the Tribunal for it to make a decision in this application “on the papers”.[25] The Tribunal was satisfied it was appropriate to do so.
[25] QZCD’s email to the Registry dated 11 November 2024, DHHN’s email to the Registry dated 12 November 2024, NDIA’s email to the Registry dated 11 November 2024.
On 4 December 2024, the Tribunal instructed the Registry to inform the parties by correspondence that it would decide the matters “on the papers”, that is, without proceeding to a hearing.
On 12 December 2024, the Tribunal requested and was given a copy of the redacted version of the NDIA’s combined tender bundle referred to in paragraph [39(b)] above (that is, the same version that was given to QZCD) (‘NDIA’s Combined Tender Bundle’).
The Tribunal notes QZCD’s contentions in his SFIC dated 10 October 2024 as follows:
PART 5 – CONTENTIONS
45. As the Applicant has never been the children’s representative and the Tribunal has previously permitted significant redactions in the Applicant’s copy of the T-documents in this matter, the Applicant has been placed at a major disadvantage. The Applicant has been disallowed from informing himself fully of the evidence.
46. The Applicant contends that the Tribunal should put little to no weight on the parts of the evidence of the Respondent and Other Party that have been redacted or omitted from the Applicant’s versions of these documents.
Given the complexity of the history of documentary lodgements in the H Application and the J Application and jointly, in the Two Applications, as set out above, on 13 December 2024, the Tribunal requested that its Registry send a letter to all parties (‘Registry’s Letter’) to clarify with the parties prior to handing down its decision, that it proposed to receive into evidence (or in the case of submissions, acknowledge receipt thereof) and to take into account the following documents, in respect of the H Application, when making its decision in this matter (to which no party raised any objection):
(a)the version of the redacted H T-Documents lodged with the Tribunal on 17 May 2023;
(b)QZCD’s Tender Bundle lodged on 13 October 2024;
(c)an unredacted version of the NDIA’s SFIC lodged on 23 August 2023 (because it was ordered by the Tribunal (differently constituted) to be given to QZCD on 11 December 2023);
(d)QZCD’s SFIC lodged on 10 October 2024;[26]
(e)NDIA’s Updated SFIC lodged on 6 November 2024;
(f)QZCD’s Further Supplementary Submission lodged on 11 November 2024; and
(g)the redacted version of the NDIA’s Combined Tender Bundle lodged on 6 November 2024 (subject to excluding heading “Part C, Other Party’s Additional Documents” except for the court orders at C7 and C9 which will be considered by the Tribunal – see further explanation below).
[26] This was a further SFIC lodged by QZCD but it has been received as QZCD’s primary SFIC in this proceeding and labelled “QZCD’s SFIC” in this Statement of Reasons. QZCD’s earlier SFIC was lodged with the Tribunal on 20 September 2023.
In the Registry’s Letter, the parties were informed that the Tribunal does not propose to receive into evidence the documents as lodged with the Tribunal by DHHN, as no submission was made by her as to whether she seeks to tender them into evidence and as to why she considers them to relevant to the issues to be decided in these proceedings. Specifically, DHHN did not lodge a Statement of Facts, Issues and Contentions in these proceedings, nor did she attend the Directions Hearing to make oral submissions about documentation sought to be relied upon by her. Otherwise, it is not apparent to the Tribunal from the label on those documents that they are necessary for the Tribunal to decide the issues in this proceeding. The Tribunal notes that some of these documents are duplicated in the NDIA’s Combined Tender Bundle. The Tribunal proposes to strike out (and not have regard to) the section of DHHN’s documents from the NDIA’s Combined Tender Bundle (Documents C1, C2, C3, C4, C5, C6, C8 and C10), for the same reason, except for the court orders which the Tribunal receives into evidence and has considered (that is, C7 and C9).
Finally, in the Registry’s Letter, an indication was provided to the parties that this Tribunal does not propose to consider the two separate psychologist reports issued as a result of court-ordered Family Assessments. If these reports are contained in any of the documents or sets of documents (or information from them referred to in any SFICs), the Tribunal has not received them into evidence and has not considered those documents or this information. As explained in this Statement of Reasons, the Tribunal considers that detailed information about the particulars of the disputation between QZCD and DHHN is not required and the Tribunal is not proposing to take into account, the preferences of H given he is still quite young, to the extent these reports contain any information about his preference for one parent, over the other, to have parental responsibility for him and to act for him for the purpose of the NDIS Act.
BACKGROUND
Earlier review application by QZCD in respect of J in 2021
Between 19 August 2021 and 26 October 2021, QZCD states, in his SFIC, that he “had 17 separate contacts” with the NDIA, including telephone calls, emails, and a visit to one of its offices, in an effort to be recognised as a child representative of J.[27] QZCD states he complied with the NDIA’s requests in relation to what he was required to do, to be recognised as H’s child representative.[28]
[27] QZCD’s SFIC, [8].
[28] Ibid, [9].
The NDIA has refused to recognise QZCD as a representative of the children under s 74(1)(a), operating in conjunction with s 75(1) of the NDIS Act.[29] For all practical purposes, since the commencement of J’s NDIS plan, the NDIA has only ever been prepared to recognise DHHN’s rights under s 74(1)(a) of the NDIS Act, and to enable her, administratively, to act as the representative of H. This has caused a great deal of frustration to QZCD.
[29] Such a representative is colloquially known as a “child representative”, although the Tribunal notes that it is not a term used in the relevant provisions of the NDIS Act.
Consequently, on 28 October 2021, QZCD lodged an earlier application numbered 2021/10277 with the Tribunal to address this situation in respect of J (‘Earlier J Application’). It was made at a time when the CEO had not yet made any determination under sub-sections 74(1)(b) and/or 75(3) of the NDIS Act, in respect of J.
The Earlier J Application was heard and decided by the Tribunal as presently constituted on 17 March 2022 – refer QZCD and National Disability Insurance Agency [2022] AATA 458.
The Tribunal’s decision in relation to the Earlier J Application, addressed the operation of the provisions in the NDIS Act dealing with the representation of a child participant in the NDIS. The Tribunal dismissed the Earlier J Application on the basis that no reviewable decision was before the Tribunal in the absence of any determination having been made by the CEO at that time. The Tribunal also made a non-binding observation that a qualifying person’s right under s74(1)(a)[30] is automatic and the NDIA should either:
(a)facilitate, administratively, QZCD being able to exercise those rights; or
(b)if the NDIA considered it inappropriate that both DHHN and QZCD jointly do so, it should consider exercising the CEO’s discretion and make determinations under s 74(1)(b) and/or s 75(3) of the NDIS Act.
[30] As of the date of this earlier decision, the final parenting orders in respect of J and H had not been made.
The Tribunal highlighted that should the CEO make such a determination and it does not favour QZCD, QZCD would then have the option of seeking merits review by the Tribunal of the CEO’s determination.[31] Without the determination (and consequently, an internal review decision under s 100 of the NDIS Act (either deemed or actual), QZCD was essentially “stuck” and could do nothing to challenge the NDIA’s administrative approach to him in respect of his otherwise existing right under the NDIS Act to be J’s child representative up to that stage.
[31] QZCD and National Disability Insurance Agency [2022] AATA 458, [57].
Earlier review application by QZCD in respect of H in 2022
On 9 March 2022, DHHN lodged a review application in the then AAT seeking review of a decision not to grant access to H as a participant in the NDIS.[32] QZCD made an application to be joined as a party to that proceeding.[33] The NDIA consented to this application.[34] On 8 September 2022 the Tribunal made a decision to the effect that H met the access criteria to become a participant in the NDIS.[35] During September and November 2022, QZCD states, in his SFIC, that he had “multiple separate contacts”, including by telephone, emails and visits, with the NDIA, in an effort to be recognised as H’s child representative.[36]
[32] QZCD’s SFIC, [26]. AAT application numbered 2022/1979.
[33] Ibid, [27].
[34] Ibid, [28].
[35] Ibid, [29].
[36] Ibid, [30].
On 16 November 2022, QZCD wrote to the NDIA, pursuant to s 13(1) of the Administrative Decisions (Judicial Review) Act 1977, seeking:[37]
… a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision to not allow me to exercise my rights under s 74(1)(a) of the National Disability Insurance Scheme Act 2013 relating to my son, [H] …
[37] Ibid, [32].
Determination made by a delegate of the CEO in December 2022
On 12 December 2022, a delegate of the CEO made a determination under s 75(3) of the NDIS Act, that “only [H’s] mother, [DHHN], has parental responsibility and is a child representative for [H] for the purpose of NDIS at this time”.[38] The delegate referred to sub-section 74(1)(b) of the NDIS Act and stated that the CEO is satisfied that it is “not appropriate” for both of H’s parents to have parental responsibility for the purposes of the NDIS Act. The delegate referred to “Family Law Court Orders” dated 25 and 26 March 2021 and noted they confirm that H resides with DHHN and has “access visits” with QZCD on weekends. The delegate concludes that this information demonstrated that DHHN has primary responsibility for making decisions about H’s NDIS supports, including assisting H to choose and engage with NDIS supports.[39]
[38] NDIA’s Combined Tender Bundle, T11/0166-0169.
[39] Ibid, T11/0167.
Procedural history of QZCD seeking review of the Determination
On about 14 December 2022, QZCD sought an internal review under s 100 of the NDIS Act, of the Determination.[40]
[40] Ibid, T12/0170-0175.
In response to QZCD’s internal review request, the NDIA did not make a decision under sub-section 100(6) of the NDIS Act, as it was required to do so, within the 90-day statutory time frame under sub-section 100(6A)(b). Accordingly, the CEO is taken to have affirmed the Determination.
On 20 March 2023, QXCD sought review by the then AAT.[41]
[41] Ibid, T1/0121-0125.
History of various court orders relating to QZCD, DHHN, H and J
There has been a significant history of parenting orders having made under the Family Law Act 1975 (Cth), in respect of the parenting of H and J by QZCD and DHHN, including:
(a)Interim Order issued by Judge Kari of the Federal Circuit Court of Australia (‘FCCOA’) on 25 March 2021, to the effect that H lives with DHHN and that a Family Assessment be undertaken by a psychologist from Optima Psychology.[42] The FCCOA ordered that communication between the parties must take place only by email in respect of certain confined matters, as set out in this order;
(b)Interim Order issued by Judge Kari of the FCCOA on 26 March 2021, to the effect that H spend time with QZCD for a period of eight visits for four hours on Saturday and Sunday of each week, to be supervised by FM.[43] The FCCOA issued an injunction restraining DHHN from changing the school enrolment or principal place of residence of H outside of their current city, without the written consent of QZCD or an order from the Court. Permission was given in the interim orders for QZCD to be able to attend certain school events in respect of H’s school;
(c)Interim Order issued by Judge Jenkins on 1 February 2022 of the FCFCOA, to the effect that an updated Family Assessment Report be prepared.[44] Other procedural orders were made in preparation for the substantive hearing before the FCFCOA which was scheduled to place between 29 August 2022 and 2 September 2022;
(d)Order by Judge Jenkins on 8 June 2023 of the FCFCOA, ordering that QZCD be permitted to provide the transcript of the proceeding on 8 March 2023 and the Court orders dated 25 March 2021 and 26 March 2021 to his criminal solicitors, the South Australia Police and the Magistrates’ Court, and that DHHN be released from a purported implied “Harman” undertaking in respect of those materials;[45]
(e)Order by Judge Jenkins on 14 December 2023 of the FCFCOA, ordering that QZCD be permitted to provide the transcript of the proceeding on 9 March 2023 and DHHN’s Affidavit sworn on 9 March 2023, to his criminal solicitors, the South Australia Police and the Magistrates’ Court, and that DHHN be permitted to provide the same documents to “the prosecution in this matter”.[46] The FCFCOA ordered that QZCD and DHHN be released from a purported implied “Harman” undertaking in respect of those materials;
(f)Interim Order issued by Judge Jenkins on 8 August 2023 of the FCFCOA,[47] adjourning a further proceeding filed by QZCD on 26 May 2023; and
(g)Final Order issued by Judge Jenkins of the FCFCOA on 1 February 2024 (‘Final Court Order’).[48]
[42] Ibid, T5/0145-0150.
[43] Ibid, T4/0151-0155.
[44] Ibid, T5/0159-0165.
[45] NDIA’s Combined Tender Bundle, D1/245-250.
[46] Ibid, D2/251-256.
[47] Ibid, C7/230-235.
[48] Ibid, C9/237-243.
Final Court Orders – 1 February 2024
The Final Court Order is of primary importance. QZCD was directed to lodge this order with the Tribunal. It is a primary document providing clarity about the legal parenting arrangements for H as ordered by the FCFCOA. Specifically, this Tribunal sought clarification from the parties as to whether QZCD had ceased to have parental responsibility for H under those orders, whether QZCD was permitted under them to spend time with H (and if so, to obtain particulars of those times), and to understand what other orders were made pertaining to the respective parental responsibilities and decision-making in respect of H.
As set out in the Final Court Order, the FCFCOA has ordered that J and H are to live with DHHN and that DHHN is to have “sole parental responsibility for the children” subject to her notifying QZCD “upon making any long term decisions” in relation to H (and J). The effect of this order is that QZCD has “ceased to have parental responsibility for [H] because of an order made under the Family Law Act 1975”.
For this reason, the Tribunal finds that sub-section 75(1)(a) does not apply to QZCD any longer because his parental responsibility for H under an order made by the Family Law Act 1975 (Cth), that is, the Final Court Order, has ceased. Accordingly, the Tribunal finds that QZCD does not have parental responsibility for H under sub-section 75(1)(a) of the NDIS Act.
However, sub-section 75(1)(b) provides QZCD with an alternative basis upon which he is able to fall under the definition of being a person who has parental responsibility for H for the purpose of sub-section 74(1) of the NDIS Act. It is enough for “the person”, in this instance QZCD, to be considered as having parental responsibility for H, if, under a parenting order, H is “to spend time with” QZCD.
The Final Court Order contains a parenting order specifying that QZCD is to spend time with H in accordance with the specifications in the paragraph below. For this reason, sub-section 75(1)(b)(ii) applies to QZCD. Accordingly, the Tribunal finds that QZCD has parental responsibility for H within the meaning of s 75(1) for the purpose of sub-section 74(1) of the NDIS Act and even though the FCFCOA has ordered, for the purposes of the Family Law Act1975 (Cth), that DHHN has sole parental responsibility for H.
The Court has ordered that QZCD may spend time with H, as follows:
(a)each Saturday from 10.30am to 4.30pm;
(b)on the first Sunday of the short school holidays from 10.30am until 4.30pm;
(c)on the first, third and fifth Sunday of the “long school holidays” from 10.30am to 4.30pm;
(d)on father’s day, from 10.30am to 4.30pm
(e)on H’s birthday, if it falls on a Sunday, from 10.30am to 4.30pm, or if it falls during the school week, from after school until 6pm; and
(f)on Christmas Day, from 3pm to 9pm each year.
Under the Final Court Order, DHHN is permitted to suspend QZCD's time with H (and his brother) in the “long summer holidays” for a period of up to two weeks, to take the children on a holiday, provided DHHN gives QZCD 30 days’ written notice in advance, and such time does not coincide with Christmas Day.
Under the Final Court Order:
(a)DHHN is required to notify QZCD by email of H's engagement with a new medical or allied health professional including the name, phone number and address of that health professional. The Tribunal notes that QZCD does not have any right to veto any such engagement;
(b)QZCD and DHHN may:
(i)liaise with any educational institution, including private tutors, attended by H in relation to his progress;
(ii)receive (direct from the school), all school reports, newsletters, and other information which either parent may reasonably request, at the requesting parent's expense;
(iii)liaise with any person providing a health service, as defined in the Privacy Act 1988 (Cth), to H; and
(iv)receive (direct from that person), all reports, results, and any other health information, as defined in the Privacy Act 1988 (Cth), relating to H, at the requesting parent's expense;
(c)in the event of any medical emergency involving H, the parent having care of him must immediately notify the other parent, either by text message or telephone call;
(d)from 6.00pm to 7.00pm each Wednesday and on H’s birthdays, that is spent with either QZCD or DHHN, that parent must initiate a call to the other parent via a video conferencing application and ensure that the children are available at the above time and the children have privacy during their communication with the other parent;
(e)QZCD is permitted to send DHHN one email within 24 hours of his time with H in relation to any issues that have arisen during his time with H, and QZCD is to respond to that email within 24 hours;
(f)QZCD is restrained, by injunction, from:
(i)denigrating DHHN to, or in the hearing of H or permitting any other person to do so;
(ii)verbally or physically abusing H or permitting any other person to do so;
(iii)leaving H in the care of the paternal grandmother or permitting the paternal uncle [name omitted] to be left unsupervised with them;
(iv)attending H's school or any school events, save and unless DHHN notifies QZCD in writing that she will not be in attendance;
(v)attending any medical or allied health appointment of H, at which DHHN is in attendance;
(vi)“physically disciplining” H;
(vii)communicating with DHHN in any form, either by text, email, or telephone, save in accordance with the orders referred to in sub-paragraphs 69(c) and 69(e) above;
(g)DHHN be restrained, by injunction, from denigrating QZCD to or in the hearing of H or permitting any other person to do so.
At the Directions Hearing, in answer to questions from this Tribunal, QZCD confirmed that he spends time once a week on the weekends with H (and J). QZCD informed the Tribunal that H (or J) does not stay overnight with him on any day of the week.
CONSIDERATION
QZCD and DHHN separated in 2020. The documents refer to a significant history of disputation between them, resulting in legal proceedings in the Federal Circuit Court of Australia (‘FCCOA’), the Federal Circuit and Family Law Court of Australia (‘FCFCOA’) and the Magistrates’ Court of South Australia (‘Magistrates’ Court’). QZCD and DHHN have each asserted that the other has engaged in inappropriate conduct towards them and the children (H and J). For instance, DHHN has made serious allegations against QZCD that he has engaged in domestic violence and abuse towards her and their children. There have been no convictions made in respect of those allegations.
For a period of time, an interim intervention order was issued against QZCD by the Magistrates’ Court. As set out in more detail below, subsequently, the intervention order was revoked, and the application for interventions orders has been withdrawn, as have the “charges” against QZCD. The Tribunal notes this withdrawal of the proceeding in the Magistrates’ Court, took place shortly after final parenting orders were issued by the FCFCOA under the Family Law Act 1975 (Cth) on 1 February 2024.
QZCD seeks to be recognised as having parental responsibility for his children under sub-section 75(1) of the NDIS Act and that he be allowed by the NDIA to act on behalf of H in accordance with sub-section 74(1) of the NDIS Act. QZCD is not requesting to be able to undertake this role to the exclusion of DHHN. QZCD indicated that he is content to do so jointly with DHHN.
In his SFIC, QZCD asserts that the children (that is, a reference to H and J) regularly tell him that they have “care workers” attending at DHHN’s residence on most days of the week. QZCD states that, at times, he has witnessed care workers accompany the children to their extra-curricular activities, specifically, Taekwondo.[49] QZCD states his belief that those care workers are funded from H’s (and J’s) NDIS plan respectively.[50]
[49] QZCD’s SFIC, [39].
[50] Ibid.
QZCD states that H (and J) have spent regular time with him for most of the time since “the separation” in May 2020. He said that despite this, “at no time” since the children began as participants in the NDIS, during the times they spend with QZCD, has DHHN permitted the children “to have support for their various disabilities under the NDIS”.[51]
[51] Ibid, [40].
QZCD stated that since February 2024, he has commenced co-habitation with his (now) fiancée. He states that she has an “excellent relationship” with H and J. He states his fiancée is becoming increasingly more significant in their lives, and that she forms part of their informal support networks. QZCD states that his fiancée is a Consultant Paediatrician.[52]
[52] Ibid, [41].
In his SFIC, QZCD highlights the following two objectives and principles as set out in the NDIS Act:
(a)firstly, QZCD refers the Tribunal to the objective stated in sub-section 3(1)(a) of the NDIS Act, to give effect to Australia’s obligation under the Convention on the Rights of Person with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008 (‘CRPD’), containing the following provisions at Article 7(2);[53]
In all actions concerning children with disabilities, the best interests of the child shall be a primary consideration.
(b)secondly, QZCD refers the Tribunal to the principle under sub-section 5(f)(iii) of the NDIS Act which is set out below:
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:
(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:
…
(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.
[53] Ibid, [42] and [43].
The Tribunal notes that the principle set out in sub-section 5(f)(i) of the NDIS Act requires the Tribunal to also give full consideration to the need to “protect the child from harm” and under s 5(f)(ii), “to promote the child’s development”.
Further, there are some other principles under s 4 of the NDIS Act which are relevant in this matter (and which are also referred to in the NDIS Children Rules), specifically:
(a)under sub-section 4(12), the role of families, carers, and other significant persons in the lives of people with disability is to be acknowledged and respected;
(b)under sub-section 4(12A), the relationship between people with disability and their families and carers is to be recognised and respected; and
(c)under sub-section 4(16), positive personal and social development of people with disability, including children and young people, is to be promoted.
In QZCD’s SFIC, he contends that he has been placed at a “major disadvantage in this proceeding” because of having been “disallowed from informing himself fully of the evidence” for two reasons:[54]
(a)QZCD has never been permitted to act as the child representative of his children; and
(b)the Tribunal previously permitted significant redactions to DHHN’s copy of the T-Documents in this matter.
[54] Ibid, [45].
QZCD contends that this Tribunal should place little to no weight on the redacted parts of the documents.[55] This Tribunal has not read the redacted parts of the NDIA’s Combined Tender Bundle when making its decision in this application and considers that it does not need to do so. The Tribunal is satisfied by:
(a)the mere fact of the numerous court hearings in the Magistrates’ Court, the FCCOA, and the FCFCOA, to which QZCD and DHHN were either a party or a key deponent/informant, about matters pertaining to their children; and
(b)by looking at the form of the Final Court Order made by the FCFCOA imposing stringent limitations on the future communications permitted to take place between QZCD and DHHN;
that the relationship between QZCD and DHHN is irretrievably and completely damaged. The Tribunal finds that on the balance of probabilities, QZCD and DHHN are not capable of co-parenting, being civil to one another, or willing and able to cooperate with one another to act in parallel as a child representative for H under s 74(1) of the NDIS Act.
[55] Ibid, [46].
QZCD contends that in respect of “all actions concerning children with disabilities, Australia and thus the CEO must consider, as a primary consideration, the best interest of the children”. The Tribunal agrees. However, the Tribunal considers that in the circumstances of this matter, given the demonstrated ongoing conflict between QZCD and DHHN, it would not be in the best interests of H to put him in a situation where his parents are required to work cooperatively to manage the funding and other aspects of his NDIS plan, including its administration and implementation. The Tribunal considers this could have potentially adverse results. The Tribunal considers the best way to serve H’s best interests is to make a decision in this application which will minimise the conflict that H will be exposed to by limiting the extent to which QZCD and DHHN are required to communicate with each other in relation to H’s rights under the NDIS Act and the administration and implementation of his NDIS plan.
QZCD contends that DHHN has been unwilling or unable to coordinate support for H’s needs, during the time he has spent with H. Specifically, QZCD is only with J for six hours each Saturday for most weeks of the year. This comprises four per cent[56] of the total number of hours in a week.
[56] This figure is rounded up.
There was no detailed evidence before the Tribunal indicative of H’s support needs, nor the amount and type of funding that is approved under his NDIS plan. With the limited information before the Tribunal, it is not open to the Tribunal to make any finding about whether H might be exposed to any risk of harm or disadvantage by not being able to receive NDIS-funded formal paid supports under H’s plan during the six hours that QZCD spends with H each week. No expert evidence by an allied therapist (such as an occupational therapist), or any of H’s treating medical practitioners was produced in support of this application, that contained an opinion about whether H was at risk of harm or disadvantage in these circumstances as asserted by QZCD.
For these reasons, the Tribunal does not accept QZCD’s contention that DHHN’s “withholding” of paid supports to H while H is spending time with QZCD would not be in H’s “best interests”.[57]
[57] The Tribunal does not have any authority to make a decision in this application about whether QZCD should be provided with access to formal supports for H during the times when H is with QZCD. The Tribunal notes, however, that as the child’s representative, DHHN has certain responsibilities under the NDIS Act to H. Under s 76 of the NDIS Act, the person who acts for the child under s 74 must act in the best interests of the child. The Tribunal notes, also, under s 77 that the CEO may revoke a determination under s 74 if satisfied that it is no longer appropriate for the determination to remain in effect. In light of this statutory obligation, the Tribunal would make the observation that DHHN is expected to make her decisions about where and when H requires support, such as support worker assistance, based on objective clinical evidence irrespective of whether H will be in her care or in the care of QZCD at any particular time.
NDIS Children Rules
Rule 3.5 of the National Disability Insurance Scheme (Children) Rules 2013 (“NDIS Children Rules”) requires the Tribunal upon review of this application, to have regard to the following matters:
In deciding whether to make such a determination, the CEO is to have regard to the following:
(a) the preferences (if any) of the child;
(b) the desirability of preserving family relationships and informal support networks of the child;
(c) who is best placed to carry out the duties set out in section 76 of the Act and Part 6 of these Rules;
(d) for a particular person that the CEO is considering appointing:
(i) any existing arrangements that are in place between that person and the child; and
(ii) whether that person has responsibility for day-to-day parenting decisions; and
(iii) whether that person can act in conjunction with other representatives and supporters of the child in the best interests of the child; and
(iv) where the CEO has asked the person to answer any questions or provide any information in relation to the possible appointment of that person as a child’s representative (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
(v) any relevant conviction for an offence under Commonwealth, State or Territory law; and
(vi) any relevant information relating to the suitability of the person to work with children.
Rule 3.5(a) – preferences of the child
In respect of Rule 3.5(a), QZCD contends there is no evidence before the Tribunal of the preference of H and that the Tribunal should not draw any inferences from third persons as to whether H might have a preference for DHHN having parental responsibility for him.[58]
[58] Ibid, [50] and [51].
The Tribunal notes that H is only 11 years old and still quite young. The Tribunal has not been provided with evidence detailing H’s disability and the degree of his impairments, to be able to assess whether H is capable of forming a preference one way or other about which parent should have parental responsibility for him and should act as his child representative for the purposes of the NDIS or whether he is able to understand what this means.
Due to H’s young age, the Tribunal concludes that this is a neutral consideration and in the circumstances of this application, it has not influenced the Tribunal’s Decision.
Rule 3.5(b) – preserving family relationships
The Tribunal will consider next the desirability of preserving family relationships and informal support networks of the child, under Rule 3.5(b) of the NDIS Children Rules.
QZCD contends as follows in relation to this consideration:[59]
The Applicant contends that in the absence of any contemporary views of the Other Party, made to the Tribunal in the first person, that the Tribunal should not draw any inference from historical views of the Other Party which were expressed whilst matters were on-foot in the family law jurisdiction.
[59] Ibid, [3(a)].
DHHN has not lodged any submissions or a witness statement in this application.
The Tribunal refers to its findings as set out in paragraph [81] and [82] above. They are relevant to Rule 3.5(b). The Tribunal is satisfied that based on the evidence of the history of ongoing conflict having occurred between QZCD and DHHN, over matters involving H and J, and the resulting poor state of their relationship as demonstrated by the numerous hearings in the FCCOA, FCFCOA and the Magistrates’ Court proceedings, that making a decision in this application which would have the effect of QZCD and DHHN needing to communicate and cooperate with one another, may give rise to unwanted further conflict between them. On the balance of probabilities, the Tribunal finds that this is likely to have a negative impact upon H and would not be in his best interests. The Tribunal finds, on the balance of probabilities, that minimising communication between QZCD and DHHN is likely to lessen the chances of the animosity between QZCD and DHHN deteriorating further. This will serve to preserve family relationships and informal support networks of H, by not making them any worse.
The Tribunal considers that this factor weighs in favour of a determination that only DHHN should have parental responsibility for H and be permitted to act for him, for the purposes of the NDIS Act.
Rule 3.5(c) – who is “best placed”
Rule 3.5(c) requires the Tribunal upon review to consider “who is best placed to carry out the duties” set out in section 76 of the NDIS Act and Part 6 of the NDIS Children Rules.
Part 6 is reproduced below (emphasis added):
Part 6 Duties of child’s representatives
6.1 The Act provides guidance as to how a child’s representative is to act under the NDIS.
6.2 One 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.
6.3 This 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].
6.4 A 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.
For the Tribunal to take into account the consideration referred to in Rule 3.5(c), it will consider the respective “place” (which is a wide concept) of each parent to carry out the duties as H’s child representative and then make a comparison of those respective “places”, in order to be satisfied which of them is “best placed”. The Tribunal considers this will include (among other things) a pragmatic consideration of the amount of time H will spend with each of his parents or under their control. It also calls for an assessment by the Tribunal as to which parent is “best placed” to make assessments about H’s progress and to identify his disability-related support needs, as they may change from time to time. The Tribunal considers that this will depend upon the amount of time QZCD and DHHN are each able to make direct observations of H when performing his activities of daily living or when he is accessing the community. This will promote H’s best interests.
There were no submissions or evidence before the Tribunal indicating that the arrangements under the Final Court Order were not being complied with. In fact, QZCD confirmed at a directions hearing, that he spends time with H on the weekends, but H does not stay with him overnight, this being consistent with the Final Court Order. As mentioned above, for most weeks of the year, H is only with QZCD, or within his control, for four per cent of the time. By comparison, H is with DHHN, or within her control, for the remaining 96 per cent of the time, which provides a very substantial opportunity for her to make direct observations of H and to directly oversee the provision of supports to H. The Tribunal considers that this is in H’s best interests.
The Tribunal can also see from the Final Court Order that DHHN has the primary control of H in relation to where he attends school, where he lives (as H lives with her), and what services H will receive in the case of an emergency, albeit accompanied by an obligation that she notifies QZCD about such matters. On the face of those orders, DHHN is H’s primary day-to-day carer and she carries responsibility for him, except at the limited times that H spends time with DHHN.
QZCD asserts that he is willing to act in conjunction with DHHN, and supporters (especially, QZCD’s fiancée), in the best interests of H and J.[60] QZCD asserts that he is “acutely aware of his duty” as H’s child representative.[61] QZCD says he is “already practiced in ascertaining the wishes of, and acting in the best interests of, the children” and is “aware of his duty to consult, wherever practicable” with DHHN in relation to doing things to support H’s disability under the NDIS.[62] There was insufficient evidence of correspondence before the Tribunal for it to confirm a pattern of constructive and cooperative communications between QZCD and DHHN having taken place since their separation, and importantly, for the Tribunal to assess the quality of those communications during recent years. Based on the ongoing history of disputation between QZCD and DHHN, as evident by the occurrence of protracted legal proceedings, as referred to in detail above, the Tribunal is satisfied that it is likely that QZCD will not be able to succeed in acting in conjunction with or collaboratively with DHHN, in H’s best interests, despite his expressed willingness to do so.
[60] Ibid, [54].
[61] Ibid, [55].
[62] Ibid.
QZCD has contended that the existing orders under the Family Law Act 1975 (Cth) are wide enough to “not be detrimental” to QZCD being able to act in conjunction with DHHN. The Tribunal does not accept this proposition because apart from two limited sets of circumstances (see the exceptions in the Final Court Order as referred to in paragraphs [69(c)] and [69(e)] above), the FCFCOA made a clear order restraining QZCD from communicating with DHHN (see the injunction referred to in paragraph [69(f)(vii)] above.
QZCD agrees that DHHN primarily deals with communicating with and making arrangements with support providers of the children. He states that this is solely because the NDIA has determined that QZCD does not have parental responsibility for the children under the NDIS Act or in other words, the NDIA’s actions are the underlying reasons that he is prevented from communicating with and making arrangements with support providers of the children.
Rule 3.5(c) requires the Tribunal to consider “who is best placed to carry out the duties” as set out in s 76 of the NDIS Act and Part 6 of the NDIS Children Rules. The Tribunal considers that it is not relevant how the person came to be “best placed” to carry out the duties. The contentions that QZCD has made explaining how he got to be where he is placed at the moment (that is, his indication that the NDIA is responsible for this), is not a relevant consideration in deciding this matter. The primary focus must be in the best interests of H as a child participant in the NDIS, in accordance with the principles set out in the NDIS Act as referred to above.
There was no suggestion by either party that QZCD or DHHN had any impairments themselves which might make one, more so than the other, better placed to carry out the duties as H’s child representative under the NDIS Act. QZCD spoke of having a fiancée who is a Consultant Paediatrician. The Tribunal acknowledges that it may be beneficial to H if QZCD’s fiancée is or is becoming part of H’s informal network and it is positive that she is reportedly building rapport with H. However, the fact remains that, at best, QZCD’s fiancée will only see H for four per cent of the time, during most weeks of the year. This is not sufficient to find that any significant weight should be placed on this consideration.
In conclusion, the Tribunal considers that it must look at the uncontested facts about the relative times that H will spend time with each parent, when having regard to this consideration. On most weeks of the year, H will spend time with and be under the control of DHHN for 96 per cent of the time. By contrast, H will only spend time with QZCD for four per cent of the time.
As an 9-year-old boy, the Tribunal is satisfied that H relies upon those persons physically present in his immediate environment to help him to understand his disability-related needs and to appropriately respond to them by having access to appropriate NDIS supports.
For these reasons, the Tribunal concludes that DHHN is “best placed” to carry out the duties as H’s child representative because she is likely to have a better understanding of his daily routines, his lived experience given his disability and the impairments arising from them, and importantly, to make very frequent direct observations of H’s progress and his response to his various supports (which may or may not require adjustment from time to time). Objectively, DHHN is able to make a vastly greater number of direct observations, than QZCD, about the quality of H’s supports and if they become sub-standard, to act in a timely way and to make changes to them for the benefit of H.
For these reasons, the Tribunal is satisfied that DHHN is “best placed” to fulfil the duties as H’s child representative. This weighs heavily in favour of concluding that only DHHN should have “parental responsibility” for H and that only she should act for him for the purposes of the NDIS Act, because it is not appropriate for QZCD and DHHN to jointly do so.
Rule 3.5(d)(i) – existing arrangements with the child
Under Rule 3.5(d)(i), the Tribunal is required to consider any existing arrangements in place between the child participant and the person it is considering appointing.
QZCD, contends in his SFIC, that he is willing and able to work together with DHHN in the best interests of the children, especially for those periods during which he has responsibility for the day-to-day parenting decisions.[63]
[63] QZCD’s SFIC, [56].
The existing arrangements in place between H and DHHN, and between H and QZCD, were addressed in detail above when considering the matters set out in Rule 3.5(c), in particular the parenting arrangements as set out in the Final Court Order. As mentioned above, no party to this application asserted that the Final Court Order was not being complied with. Under the Final Court Order, DHHN has the primary control of H in relation to where he attends school, where he lives (as H lives with her), and what services H will receive in the case of an emergency, albeit accompanied by an obligation that she notifies QZCD about such matters, as well as any long-term decisions affecting H. On the face of the Final Court Order, the Tribunal finds that DHHN is H’s primary day-to-day carer and that she carries responsibility for him except for the limited times (amounting to four per cent on most weeks), that H spends time with QZCD.
The Tribunal concludes that this factor weighs in favour of concluding that only DHHN should have “parental responsibility” for H and that only she should act for him for the purposes of the NDIS Act because it is not appropriate for QZCD and DHHN to jointly do so.
Rule 3.5(d)(ii) – responsibility for day-to-day parenting decisions
The next consideration, under Rule 3.5(d)(ii), is whether the person has responsibility for day-to-day parenting decisions.
H will be with DHHN for 96 per cent of the time during most weeks of the year. For this reason, she will be responsible for the vast majority of all day-to-day parenting decisions for H. It is true that while H is with QZCD for the remaining four per cent of the time, during most weeks of the year, and during some periods a slightly higher percentage of the time as prescribed in the Final Court Order, relatively speaking, QZCD’s responsibility for day-to-day parenting decisions for H is minimal.
For this reason, the Tribunal concludes that this factor weighs in favour of concluding that only DHHN should have “parental responsibility” for H and that only she should act for him for the purposes of the NDIS Act because it is not appropriate for QZCD and DHHN to jointly do so.
Rule 3.5(d)(iii) - acting in conjunction with other representatives and supporters
Rule 3.5(d)(iii) calls for a consideration by the Tribunal as to whether the person can act in conjunction with other representatives and supporters of the child in the best interests of the child.
As outlined above, QZCD, contends in his SFIC, that he is willing and able to work together with DHHN in the best interests of the children.[64] For reasons already outlined above, the Tribunal has found that both QZCD or DHHN are not capable of working in a cooperative, civil, and collaborative manner and in the best interests of H or to do so without conflict arising between them. However, the same applies to DHHN’s capacity to be able to act in conjunction with QZCD or other supporters. On this basis, the Tribunal finds that neither QZCD nor DHHN have demonstrated an increased capacity, more so than the other, to act in conjunction with H’s other representative and supporters in his best interests.
[64] Ibid, [56].
For these reasons, the Tribunal concludes that the consideration under Rule 3.5(d)(iii) weighs in favour of determining that both QZCD and DHHN should have parental responsibility for H and be jointly permitted to act for him for the purpose of the NDIS Act.
Rule 3.5(d)(iv) - provision of information
Rule 3.4(d)(iv) requires Tribunal to consider whether the person has been requested by the CEO (or the Tribunal on review) to answer any questions or to provide any information, in relation to the possible appointment of that person as H’s representative.
QZCD asserted that he has answered every question put to him by the NDIA. There was no challenge to this proposition and in light of DHHN’s decision not to engage in the Tribunal’s processes.
The Tribunal notes that DHHN failed to appear at the telephone directions hearing of this matter despite a request by the Tribunal for her to do so, and despite the Tribunal’s assurances as to the safety of the telephone directions hearing processes. DHHN also failed to lodge any submissions to state her position in respect of this application.
If the current court-ordered parenting arrangements in place for H had provided that he was to spend time more time with QZCD, the Tribunal considers that this factor under Rule 3.4(d)(iv) would have had greater significance to the present application and may have weighed more heavily in favour of QZCD succeeding in this application.
The Tribunal has placed some limited weight on this factor in favour of a determination that both QZCD and DHHN should have joint parental responsibility for H and be permitted to act for him for the purpose of the NDIS Act.
Rule 3.5(d)(v) – prior convictions
Rule 3.5(d)(v) calls for a consideration by the Tribunal of whether the person has any relevant conviction for an offence under Commonwealth, State or Territory law. There is no evidence of either QXCD or DHHN having any prior criminal convictions.
For these reasons, the Tribunal concludes that the consideration under Rule 3.5(d)(v) weighs in favour of determining that both QZCD and DHHN should have parental responsibility for H and be jointly permitted to act for him for the purpose of the NDIS Act.
Rule 3.5(d)(vi) – suitability to work with children
Rule 3.5(d)(vi) calls for a consideration by the Tribunal as to whether there is any relevant information relating to the suitability of the person to work with children.
QZCD contends that he is a suitable person to fulfil the duties of the children’s representative.[65] He has previously asserted that he retains a current South Australian “Working with Childrens’ Check” and for this reason, this factor should weigh in favour of varying the NDIA’s decision. He contends that it is desirable that H preserves his relationship with him, and by extension, the informal support networks that H’s relationship with him “opens up”.[66] QZCD contends that by permitting QZCD to become informed by the children’s support providers directly, and by him informing the support providers directly, it will enable a “more holistic approach” to supporting H’s disability needs.[67] QZCD contends that in line with the principles set out in the NDIS Act, this will in turn, enhance the desirability of preserving family relationships between H and himself.[68]
[65] Ibid, [57].
[66] Ibid, [58].
[67] Ibid, [59].
[68] Ibid, [59].
There are some documents before the Tribunal recording allegations previously made against QZCD that he was the perpetrator of domestic violence and other acts of harm against his family members. These are extremely serious allegations. They arise in the context of two separated parents which, unfortunately, which has been embroiled in longstanding and bitter disputation about who is to care for and have parental control over H and J and whether QZCD is to be restrained from having contact with them. The veracity of the allegations contained in the documentary evidence before the Tribunal was unable to be tested. The Tribunal notes that shortly after the Final Court Order was made, the Police withdrew the previous “charges” against QZCD and also, withdrew the application for intervention orders. The interim intervention order was revoked.
As mentioned above, the Tribunal has only considered the redacted version of the NDIA’s Combined Tender Bundle and this did not include DHHN’s documents (except for the court orders). Further, the Tribunal was unable to ask DHHN about those allegations at the directions hearing in these proceedings as she failed to attend. There was no further opportunity to ask DHHN or QZCD about those allegations, as all parties consented to the matter being heard “on the papers”.
Given these matters, the Tribunal is not prepared to make findings about any conduct by QZCD or DHHN relevant to their suitability to work with children. QZCD has now regained the right to spend time with H following a period of supervised time spent with H over eight sessions and the assessment reports which followed (which the Tribunal has not read as explained above). The Tribunal is satisfied that both QZCD and DHHN are on the face of the documents which have been received into evidence, both suitable people to work with children.
For these reasons, the Tribunal concludes that the consideration under Rule 3.5(d)(vi) weighs in favour of determining that both QZCD and DHHN should have parental responsibility for H and be jointly permitted to act for him for the purpose of the NDIS Act.
CONCLUSION
On balance, the Tribunal concludes that the factors under Rules 3.5(b), 3.5(c), 3.5(d)(i) and (d)(ii), weighing in favour of making a determination under s 74(1)(b) and s 75(3) of the NDIS Act that only DHHN should have parental responsibility for H and be permitted to act for him for the purpose of the NDIS Act, outweigh the factors under Rule 3.5(d)(iii), (d)(iv), (d)(v) and (d)(vi) weighing in favour of determining that both QZCD and DHHN should have parental responsibility for H and be jointly permitted to act for him for the purpose of the NDIS Act.
The Tribunal affirms the deemed Decision Under Review, which affirmed the Determination made by a delegate of the Chief Executive Officer of the Respondent on 22 December 2022.
I certify that the preceding 133 (one-hundred and thirty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker
......................................[SGD]..................................
Associate
Dated: 23 December 2024
Date(s) of hearing: Decided on the papers Date final submissions received: 11 November 2024 Applicant:
Self-represented Solicitors for the Respondent: Taylor Hawkridge, Maddocks Lawyers Other Party: Self-represented
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