In mid-September this year, the Administrative Appeals Tribunal (AAT) made a decision about a case which addresses a situation that faces many families: separated parents, a child with a complex disability and an NDIS Plan! This blog highlights the parts of that case which might be of value to parents facing similar challenges. Of course, it is not legal advice. But if you do need legal advice on your NDIS situation, give me a call.
A bit about the background
BGBZ and National Disability Insurance Agency concerned a young person, “Miss AB” who is 17 years old and has complex disabilities, including a communication disability which limits her ability to express her wishes. Miss AB’s parents separated in about 2010 and since then, Miss AB lived between their houses until 2018 when Miss AB came to live solely with her mother, step-father and sisters. At the time of the decision, it was accepted by the Tribunal that Miss AB’s father has no contact with her but he did tell the Tribunal he hoped that would change in the future. Miss AB’s mother provides her full-time care and takes on the responsibility of organising all her supports. Throughout the decision, it is evident that Miss AB’s parents do not get along.
Miss AB’s mother sought to have the sole parental responsibility of Miss AB for the purposes of the NDIS Act. That is, she wanted to be the only one who could make decisions about Miss AB’s NDIS Plan and supports. The NDIA declined that request because “the Court Order documentation provided that both parents have equal shared responsibility”. Following the usual process, an internal review was sought and the NDIA again confirmed its decision and so Miss AB’s mother appealed to the AAT.
The law
It is definitely not out of the contemplation of the NDIS Act, its associated Child Rules and Operational Guidelines that parents of children with disabilities may be separated and need to make decisions about their child’s Plan and supports. The case specifically considers section 75(3) of the NDIS Act which says:
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 responsibility for the child for the purposes of this Act.
The Child Representatives Operational Guidelines come into play. And as a quick note on Operational Guidelines, they are policies, not law. However, the Tribunal adopts the view that where applying policy helps to achieve consistency it should be applied unless there is a good reason not to do so.
Operational Guideline 5.1.1 deals with the situation “where more than one person has parental responsibility for a child”. Rule 4.9 of the Child Representative Rules sets out the matters which the CEO of the NDIA is “to have regard” to in making a determination regarding parental responsibility of a child:
The preferences (if any) of the Child
The views of any person who has parental responsibility for the child,
Whether 1 or more of those persons are best placed to carry out the duties to the child (i.e. existing arrangements between those persons and the child, which persons have day-to-day parenting decisions and which persons can act in conjunction with other representatives and supporters of the child in the best interests of the child),
Whether 1 or more of those persons is willing and able to work together in the best interests of the child,
Preserving family relationships and informal support networks of the child, and
Criminal history concerns (see rule 4.9(f))
The interesting part
So for a child who was unable to express her wishes clearly, lived with solely with her mother and her mother and father did not get along, the Tribunal were most persuaded when looking at the Rule which considered who was best placed to carry out the duties to the child. In considering this Rule 4.9(c), the Tribunal noted:
When considering the existing arrangements that are in place between the parents and the child, the mother had sole custody for Miss AB and makes all arrangements for her care.
Miss AB’s mother had the responsibility for day-to-day parenting decisions. And,
Miss AB’s mother had demonstrated she was able to act in conjunction with representatives and supporters of Miss AB in her best interests.
On this basis, Miss AB’s mother was found to be the one person to have parental responsibility for the child for the purposes of the NDIS Act.
As I mentioned at the start, this a good decision for the common situation where a parent does not want to keep sharing the parental responsibility of an NDIS Plan with their estranged former partner. Even where the other parent has an interest in their child, it does matter what the everyday situation looks like for the child rather than just what the Family Court order says.
The consideration of being able to act in accordance with representatives and supporters is especially important here. In this case, representatives and supporters included working with medical and allied health professionals. Miss AB’s mother had a long history of liaising with the psychologist, the OT, the speechie and the GP. This history was shown by independent evidence of reports from those professionals. Whereas, Miss AB’s father cited only attending bi-annual visits to the neurologist and did not present independent evidence demonstrating engagement with other representatives or supporters of Miss AB. In my view, that makes complete sense. Coordinating and liaising with all those types of professionals is a pretty standard part of the parenting gig when your child has a disability. Demonstrating that you can do this should be important to an application to be able to make decisions about their NDIS Plan and supports!
If this blog has raised questions for you, you can email me or call me and we can go through your concerns together.
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