Tribunal: Senior Member F Meagher
The National Disability Insurance Agency (the Agency) administers the National Disability Insurance Scheme (NDIS). The applicant was the mother of a child participating in the NDIS and the father was another party in this matter. The mother had applied to the Agency to make a determination that she have sole parental responsibility for the child. The Agency declined this request and the mother applied to the AAT for a review of the decision.
The AAT made a decision on the papers for this matter, based on written submissions from the parties.
Family Court orders state that both parents have parental responsibility for the child. The National Disability Insurance Scheme Act 2013 (the Act) provides that parental responsibility under family law equates to parental responsibility in the the NDIS context, unless an alternative decision is made by the Agency.
The key issue for the AAT to consider was whether or not the mother should have parental responsibility for the purposes of the Act[1].
The AAT reviewed the family’s circumstances, the Act and the National Disability Insurance Scheme (Children) Rules 2013. Rule 4.9, in particular, sets out how decision makers should determine parental responsibility.
The AAT was required to consider the preferences of the child. As the child was non-verbal and had limited communication skills, the AAT found it would be difficult for a decision maker to determine the child’s preferences.
The AAT considered the views of both parties with parental responsibility for the child. It placed weight on the fact that the mother had sole care and made all decisions for the child’s daily care in consultation with health and education professionals. The father had not been in contact with the child since July 2018 and acknowledged that situation.
The final consideration was whether the mother and father were willing and able to work together in the best interests of the child. The AAT was not satisfied this could be achieved in this case.
The AAT set aside the decision made by the Agency and substituted a decision for the mother to have sole parental responsibility for the purposes of the child’s NDIS participation.
Read the full decision on Austlii.