Child Representatives Operational Guideline - Determining who has parental responsibility for a child

5. Determining who has parental responsibility for a child

Generally, a child will be represented for the purposes of the NDIS by the person or persons who have parental responsibility for the child (section 74(1)(a)).

However, this will not be the case where the NDIA decides:

  • that it is not appropriate for the person or persons with parental responsibility to represent the child and appoints another person (see determining whether a person other than a person with parental responsibility should be a child's representative);
  • or decides that a child can represent themselves.

There are different rules for determining who has parental responsibility for a child depending on whether or not the child has a guardian.

5.1 Children who do not have a guardian

In most cases, there will not be a guardian appointed for a child.

When there is no guardian appointed for a child, the person with parental responsibility for a child, and who will normally be the child's representative will be:

  • the child's parent (provided the child's parent has not ceased to have parental responsibility for the child because of a court order or under a State or Territory law) (section 75(1)(a)); or
  • the person identified in a parenting order (within the meaning of the Family Law Act 1975):
    1. that the child is to live with (section 75(1)(b)(i));
    2. that the child is to spend time with (section 75(1)(b)(ii)); or
    3. who is responsible for the child's long term or day-to-day care, welfare and development (section 75(1)(b)(iii)).

5.1.1 Where more than one person has parental responsibility for a child

In some circumstances, the rules which apply for children who do not have guardians may result in more than one person having parental responsibility for a child. For example, where a child's parents have separated both parents may continue to have parental responsibility for the child.

Where this occurs, all those persons will generally have joint parental responsibility and will together be the child's representative for the purposes of the NDIS Act.

However, the NDIA may decide that one or more of those persons is to have parental responsibility for the child to the exclusion of others for the purposes of the NDIS Act (section 75(3)).

Any decision by the NDIA that one or more persons with parental responsibility for a child is to be the child's representative to the exclusion of others must be in writing (section 75(5)).

A decision of this kind is discretionary and the NDIA may simply choose to leave all persons having parental responsibility for the child to jointly be the child's representative for the purposes of the NDIS Act.

When deciding whether it is appropriate for one or more persons with parental responsibility to be the child's representative to the exclusion of others, the NDIA must have regard to:

  • the preferences (if any) of the child (rule 4.9(a) of the Children Rules);
  • the views of any person who has parental responsibility for the child (rule 4.9(b) of the Children Rules);
  • whether one or more of those persons are best placed to carry out the duties to children taking into account:
    1. existing arrangements that are in place between those persons and the child (rule 4.9(c)(i) of the Children Rules);
    2. which persons have responsibility for day-to-day parenting decisions (rule 4.9(c)(ii) of the Children Rules); and
    3. which persons can act in conjunction with other representatives and supporters of the child in the best interests of the child (rule 4.9(c)(iii) of the Children Rules).
  • whether one or more of those persons are willing and able to work together in the best interests of the child (rule 4.9(d) of the Children Rules);
  • the desirability of preserving family relationships and informal support networks of the child (rule 4.9(e) of the Children Rules); and
  • for any of the persons:
    1. where the NDIA 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):
      • any answers or information that have been provided by the person;
      • any refusal by the person to provide answers or information;
      • any relevant conviction for an offence under Commonwealth, State or Territory law; and
      • any relevant information relating to the suitability of the person to work with children (rule 4.9(f) of the Children Rules).

Where more than one person has parental responsibility for a child, a decision by the NDIA in relation to whether one or more of those persons is to have parental responsibility for the child (to the exclusion of others) can be reviewed, and is known as a reviewable decision (section 99(k)).

The NDIA must notify each person directly affected by the decision relating to whether a person with parental responsibility should be the child's representative to the exclusion of others in writing, including a statement to the effect that the person may request that the NDIA review the decision (section 100(1)).

The NDIA will also attempt to contact all people directly affected by the decision by telephone to advise them of the decision which has been made.

5.2 Children who have a guardian

If a child has a guardian, the guardian normally has parental responsibility for the child, and will therefore normally be the child's representative (section 75(2)).

However, the NDIA is able to decide that one or more other persons with parental responsibility (i.e. a child's parents or a person identified in a parenting order) be the child's representative instead of the child's guardian (section 75(2)).

A decision of this kind must be in writing (section 75(5)).

When deciding whether one or more persons with parental responsibility should be the child's representative instead of the child's guardian, the NDIA must:

  • consult, in writing, with the child's guardian (rule 4.6(a) of the Children Rules); and
  • have regard to the following:
    1. the preferences (if any) of the child (rule 4.6(b)(i) of the Children Rules);
    2. the principle that the child's guardian should be the child's representative unless the NDIA is satisfied that this is not appropriate (rule 4.6(b)(ii) of the Children Rules);
    3. whether the child's guardian recommends that another person should be the child's representative (rule 4.6(b)(iii) of the Children Rules);
    4. the extent to which the child's guardian is willing and able to perform the duties to children (rule 4.6(b)(iv) of the Children Rules); and
    5. whether a child's parent/s or a person with a parenting order is more willing and able to carry out the duties to children (rule 4.6(b)(v) of the Children Rules);

Note, where the child's guardian is a State or Territory Minister, or the head of a Department of State, that person must agree in writing to the NDIA deciding that another person with parental responsibility is to be the child's representative (section 75(3A)).

A decision by the NDIA in relation to whether one or more other persons with parental responsibility should be the child's representative instead of the child's guardian can be reviewed, and is known as a reviewable decision (section 99(k)).

The NDIA must notify each person directly affected by the decision to allow, or refuse to allow another person with parental responsibility to be the child's representative instead of the child's guardian in writing, including a statement to the effect that the persons may request that the NDIA review the decision (section 100(1)).

The NDIA will also attempt to contact all people directly affected by the decision by telephone to advise them of the decision which has been made.

This page current as of
26 April 2019