The Power under the NDIS Act to determine parental responsibility - BGBZ and NDIA

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Key Points

  • The decision of BGBZ and NDIA [2019] AATA 3505 [opens in new window] involves an application by a mother, who had divorced her husband, to become the sole person with parental responsibility for her child under the NDIA Act.
  • If there are multiple people with parental responsibilities for a child who is a participant in the NDIA, the NDIA has the power to direct that one of those people has sole parental responsibility under the NDIS Act. This would give that person solely the ability to make decisions about e.g. the plan or services obtained by the child under the NDIS.
  • The power to make such a direction is discretionary; the NDIA is not required to make such a direction. A decision to make, or not make, such a direction is reviewable by the Tribunal.
  • In reviewing the decision the Tribunal is bound by the factors set out in the National Disability Insurance Scheme (Children) Rules 2013 (Children Rules) [opens in new window].

Background

The applicant is the mother of Miss AB, who has profound disabilities. Miss AB is a participant in the NDIS. 

In 2010 the applicant divorced her husband, who is the father of Miss AB. In February 2010 the Family Court made orders contemplating that the applicant and her ex-husband would share care of Miss AB. By about March 2018, the applicant and her ex-husband decided that Miss AB would live with the applicant full time. After this change, the ex-husband cared for Miss AB about 4 hours per month, but according to the applicant this had stopped by October 2018, and the ex-husband had no contact with Miss AB.

The applicant applied to the NDIA for a determination that she have sole parental responsibility for Miss AB pursuant to s 75(3) of the NDIS Act [opens in new window]. The NDIA declined on the basis that the Family Court's orders provided for shared care of Miss AB. The applicant sought review of this decision in the Tribunal. 

The Tribunal's decision

The Tribunal noted that it was bound by the Children Rules. This is because of s 209 of the NDIS Act [opens in new window].

Section 75(1)(a) of the NDIS Act [opens in new window] states:

   (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 [...]

Rule 4.8 of the Children Rules [opens in new window] makes clear that if s 75(1)(a) results in more than one person having parental responsibility, then the CEO of the NDIA can make a decision that one of those people have parental responsibility for the purposes of the Act. This is a discretionary decision; the CEO does not have to make any decision.

Rule 4.9 of the Children Rules [opens in new window] states:

  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 first issue that the Tribunal considered was whether Miss AB had a preference for either her mother or her father. At [42] of the decision [opens in new window] the Tribunal noted that Miss AB had limited communication skills. The applicant provided evidence of a video of a handover of Miss AB from her to her ex-husband, which apparently showed Miss AB's distress. The applicant also provided evidence from a speech therapist and an occupational therapist which stated that Miss AB had a preference for her mother over her father, as well as from a school bus driver who gave evidence that Miss AB appeared distressed when the bus travelled towards the father's home. Miss AB's father denied the effect of this evidence. 

Ultimately, the Tribunal placed no weight on the speech therapist and OT's evidence because they were not cross-examined (the parties wanted the Tribunal to deal with the matter 'on the papers' - that is, without an oral Tribunal hearing). At [54] of the decision [opens in new window] the Tribunal concluded that because of Miss AB's limited communication skills, it was not possible to infer that she had a preference for one parent or the other. Thus the Tribunal gave no weight to this factor.

Next the Tribunal considered the views of the people who had parental responsibility for Miss AB. The applicant stated that it would not be possible to make decisions jointly with her ex-husband; the ex-husband stated that it was possible. At [57] of its decision [opens in new window] the Tribunal decided that these views were equally balanced and favoured neither person. 

Next, the Tribunal considered the existing caring arrangements between the parties. At [64] of its decision it noted that since March 2018 the applicant had sole custody and made all of the arrangements for Miss AB's care, that the father did not have any contact with Miss AB and did not currently resist that situation.

At [75] of its decision, the Tribunal member stated:

I have already determined that it is not possible to make an inference as to Miss AB’s preferences regarding whether BGBZ should be the one person having parental responsibility. However the duty imposed by s.76 of the NDIS Act and Part 6 of the NDIS Children Rules is a more general duty to ascertain the wishes of the child concerned and to act in the best interests of the child. Taking into account the evidence before me in relation to sub-rules 4.9(c)(i), (ii) and (iii), I consider BGBZ is the one person in the best position, that is best placed, to ascertain Miss AB’s wishes (to the extent that that is possible, and on the evidence Miss AB is able to convey some of her choices and needs) and act in her best interests.

The Tribunal then considered whether the parents were willing and able to work together in the best interests of Miss AB. Although the father stated that he was willing, the mother stated that she was not. At [82] of its decision [opens in new window] the Tribunal stated that because of the level of conflict between the parents, it was not satisfied that they could work together. 

Ultimately at [95] of its decision [opens in new window] the Tribunal decided to make the applicant the sole person to have responsibility for the child for the purposes of the NDIS Act. The Tribunal placed significant emphasis on the fact that the applicant had day-to-day responsibility for Miss AB, and that the father did not have any contact with her.

Discussion

Given that Miss AB lived with her mother full-time and her mother had day-to-day responsibility for her, it is easy to see why the Tribunal reached the decision that it did. In my view, there will be cases where it will be much harder for the Tribunal to make an order making one parent the sole person responsible for NDIS-related decisions. The Tribunal does not practice in the area of family law, and it might be reluctant to intervene in more finely-balanced decisions (for example, where there is a continuing co-parenting relationship that has been specified in Court orders). 

At the same time, this case demonstrates that the existence of family law orders will not necessarily prevent a parent from being given sole responsibility for the making of NDIS decisions. 

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