BRQ v State of NSW (Department of Family and Community Services)
[2015] NSWCATAD 29
•2 March 2015
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New South Wales |
Case Name: | BRQ v State of NSW (Department of Family and Community Services) |
Medium Neutral Citation: | [2015] NSWCATAD 29 |
Hearing Date(s): | 4 November 2014 |
Decision Date: | 2 March 2015 |
Jurisdiction: | Administrative and Equal Opportunity Division |
Before: | N Hennessy LCM, Deputy President |
Decision: | Leave is refused for the applicant’s complaints of sex, race and disability discrimination to proceed. |
Catchwords: | ANTI-DISCRIMINATION - treatment of parent involved in care proceedings - complaint declined lacking in substance - whether fair and just for it to proceed – |
Legislation Cited: | Anti-Discrimination Act 1977 (NSW) |
Cases Cited: | Director-General, Department of Community Services v MM and Another [2003] NSWSC 1241 |
Category: | Principal judgment |
Parties: | BRQ (Applicant) |
Representation: | Solicitor: |
File Number(s): | 1410290 |
Publication Restriction: | The publication of the name of the applicant, his former partner or his son or any information picture or other material that identifies any of those people or is likely to lead to their identification is prohibited. |
REASONS FOR DECISION
Introduction
BRQ is a man of Lebanese background who has complained that officers employed by the Department of Family and Community Services have discriminated against him on the grounds of sex, race and disability in breach of the Anti-Discrimination Act 1977 (NSW). His disability is said to be psychological and mental illness including post-traumatic stress disorder, depression and anxiety.
I have decided to prohibit the disclosure of BRQ’s name, the name of his former partner and the name of their 4 year old son including any information, picture or other material that identifies them or is likely to lead to their identification: Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(a). The reason I have made that decision is to prevent publication of material which may identify BRQ’s son: Children and Young Persons (Care and Protection) Act, 1998 (NSW) (Care Act), s 105; OW & OV v Members of the Board of the Wesley Mission Council [2010] NSWCA 155 at [79].
The respondent has been identified as the Department of Family and Community Services. As this is a complaint about the provision of services, not employment, the correct respondent is the State of NSW (Department of Family and Community Services).
Complaint declined
The President of the Anti-Discrimination Board declined BRQ’s complaints as misconceived and lacking in substance. The President also concluded that the subject matter of the complaints has been, is being, or should be dealt with by another person or body: Anti-Discrimination Act, 92. A complaint of discrimination that has been declined by the President cannot be heard unless the Tribunal gives permission: Anti-Discrimination Act, s 96.
The Supreme Court set out the principles to be applied when determining whether to grant leave in Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143. In that case Schmidt J:
·emphasised at [32] that a cautious approach should be adopted because a refusal of leave will “finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights”;
·found at [28] that the Tribunal’s discretion is unfettered and is not confined to the grounds on which the President of the Anti-Discrimination Board may decline a complaint;
·concluded that leave must be granted or refused “depending on what (is) fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted . . .” and went on to say, at [38] that:
Whatever the contest between the parties might be, the question of leave must be determined having in mind the purposes of the Act, which includes precluding unlawful discrimination and to permit those who have been so discriminated against, a remedy. Given that the legislation does not require all complaints to be investigated and dealt with, this means that while on the one hand, an obviously meritorious complaint will not be refused leave, where, for example on the other, it is apparent that the complaint lacks substance, or where the complaint is already being redressed elsewhere, leave may be refused, if that is what justice dictates.
Even if it is likely that an applicant will be able to prove a breach of the Anti-Discrimination Act, leave may be refused where, for example, the respondent has taken appropriate steps to remedy or redress the conduct complained of”: Jones & Anor v Ekermawi [2009] NSWCA 388 at [32]. Similarly, if any damages that could be awarded are within a very low range, that may also be a factor affecting the fairness of granting leave: Mitry v Abbas [2013] NSWADT 214.
I have decided that the complaints should not go ahead for the reasons set out below.
Background
On 28 December 2011, when he was 19 months old, BRQ’s son was removed from the care of his parents and came under the care of the Minister pursuant to the powers granted under the Care Act, s 44. There had been ‘risk of harm’ reports to the Department in relation to the child from June 2010 to December 2011. There was a domestic dispute on 29 August 2011 in which it was alleged that BRQ struck his partner in the face. BRQ denied the incident. When the child was removed BRQ was in gaol for 5 days and the child’s mother was in a mental health unit. Both parents had some history of illegal drug use. BRQ agrees that his former partner has used drugs but claims that, at least since his son was removed, he has ‘always been drug free’.
In District Court proceedings (S v Department of Family and Community Services (District Court, unreported, 12 February 2014)) Elkaim J stated that the child’s removal was prompted “in part by incidents of domestic violence within the home but more substantially by the mental health of (the child’s mother) and her use of illegal drugs.” BRQ disputes that he engaged in domestic violence.
On 5 January 2012, eight days after the child was removed, the Children’s Court made an interim order that parental responsibility be vested in the Minister and the child was placed with his maternal grandparents. On 25 January 2012 the Director General filed a “Summary of Proposed Future Plan” which provided for restoration to the mother if she complies with certain conditions. On 7 February 2012 the Children's Court found, by consent, that the child was in need of care and protection. In March or April 2012 the Department filed a Care Plan stating that there was no realistic possibility of restoration to either parent.
Between April and July 2012 BRQ completed a domestic abuse programme for men following a direction from Probation and Parole. In May 2012 BRQ also completed a Positive Lifestyles Program with the Salvation Army. During 2012 there were issues in relation to BRQ’s contact visits with his son including BRQ cancelling several contact visits and the Department temporarily suspending contact. According to BRQ on one occasion the Department made his son wait in the car for him when he had told them he was not attending. The Department says there was a ‘mix-up’ in the arrangements.
After they had separated, BRQ continued to contact his former partner by text message and phone calls. BRQ alleges that the Department convinced his former partner to apply for six Apprehended Violence Orders against him.
On 9 July 2012 the Department filed a Care Plan expressing the opinion that restoration to the mother is a realistic possibility in about 12 months’ time. On 26 November 2012 the Children’s Court found that there was a realistic possibility of restoration to the mother but not the father. On 10 January 2013 the Department filed an addendum to the Care Plan outlining the conditions under which unsupervised contact with BRQ would be considered. From February 2013 BRQ declined to have contact visits with his son on a supervised basis.
A further Care Plan was filed on 14 April 2013 recommending that the child live with his mother long term and that BRQ have contact six times a year for two hours. The Care Plan also sought an order under s 90A of the Care Act that the father and mother be prohibited from contacting one another.
On 26 May 2012 the Children's Court determined that there was no realistic possibility of the child being restored to his father’s care but that there was a realistic possibility of restoration to his mother’s care. Nearly a year later, on 7 May 2013, the Children’s Court made final orders placing the child in the parental responsibility of his mother. The Court also ordered that, for two years until May 2015, the Director General would have sole parental responsibility for decisions in relation to contact between BRQ and his son. The Court also ordered that the parents not contact each other.
BRQ applied for a variation or rescission of the Care Order under s 90 of the Care Act. That application was heard by the President of the Children’s Court on 12 September 2012. The Court held that BRQ had failed to demonstrate that there had been a significant change in any relevant circumstances since the care order had been made. In response to BRQ’s submission that his barrister failed to adduce relevant evidence in the original care proceedings, the Court observed that that was a matter to be raised on appeal, not in a s 90 application.
At the beginning of October 2013 Helpline staff contacted caseworkers to say that BRQ had sent a threatening e-mail to the Director General and had also indicated to his former partner an intention to abscond with the child. BRQ maintains that this was a false report.
BRQ appealed to the District Court against the Children’s Court decision in relation to contact. He did not appeal against the decision to allocate parental responsibility to the mother or the denial of parental responsibility to himself. The Director General filed a cross appeal. The appeal proceeded as a rehearing on the issue of contact between BRQ and his son.
On 17 April 2013 an officer gave evidence that a reason that it had been decided to schedule less contact with BRQ was so that the child could form a stronger bond with his mother.
The District Court’s decision summarises the evidence. Initially BRQ had seen his son every 2 weeks. Pursuant to the Care Plan developed by Departmental Officers, BRQ was to have supervised contact with his son six times a year for two hours on each occasion. BRQ decided to cease contact with his son in February 2013 and did not see him again until at least the time of the District Court hearing in February 2014. The District Court outlined the reasons BRQ gave for that decision including that his son would be harmed by only seeing his father every two months ‘in a box”, that is, in a room and under supervision.
The District Court concluded that while BRQ’s had a loving and caring relationship with his son prior to removal and that he usually behaved appropriately during contact sessions, his conduct otherwise has been “entirely unsatisfactory”. According to the District Court at [15], “[H]e has developed a deep hatred and suspicion of the Department and blames some of its officers for his separation from [his son] and the problems that have followed since December 2012.” The District Court then cited several examples of what it referred to as “highly insulting messages to Department officers and vicious correspondence to the Crown Solicitor’s Office and to the Director General.” The District Court noted that police spoke to BRQ after he sent a particularly obnoxious email to the Director General.
Elkaim J accepted the Department’s evidence that contact should be supervised because of fears that BRQ would say things to his son which would undermine the placement with his mother. Elkaim J also accepted that BRQ should not be permitted to communicate with his former partner. Finally, the District Court made the point that Departmental officers were continuing to co-operate with BRQ and that if he co-operated with them, more frequent unsupervised contact may be possible.
After three days of hearing, the District Court made final orders on 12 February 2014 varying the contact regime, giving the Director General sole parental responsibility for decisions in relation to contact until the child turns 12. The Court noted the Director General’s intention to review contact arrangements depending on various matters including whether BRQ met certain conditions. BRQ has appealed to the Supreme Court against that decision.
The alleged treatment
The alleged treatment is set out in Tabs 1, 2, 3 and 4 and 6 of the President’s Report. The Department’s response is contained in Tab 8. BRQ’s response to that response is contained in Tab 9. This material is voluminous but repetitive. BRQ’s response in Tab 9 alone is 442 pages.
I have not listed allegations against barristers, solicitors, judges or police. Only conduct for which the service provider is personally or vicariously liable is within the Tribunal’s jurisdiction: Anti-Discrimination Act, s 53.
I have not taken account of any allegations that occurred outside the period of the complaint which is from 1 January 2012 to 31 October 2013. BRQ’s son was removed from his care in late December 2011. Anything that Departmental officers did prior to 1 January 2012 does not form part of the complaint. Similarly, events occurring after 31 October 2013 are not relevant.
I have not listed matters which could not constitute a breach of the Anti-Discrimination Act. In these proceedings, this Tribunal has no jurisdiction to determine a breach of another kind of statutory or common law duty, such as a breach of privacy or an action for defamation or “slander”. Nor does the Tribunal have jurisdiction to find that any of the kinds of criminal offences which BRQ alleges - including corruption, fraud, perjury and blackmail - have been proved.
I must consider the merits of BRQ’s submission that any treatment which would otherwise come within the Tribunal’s jurisdiction is on the ground of his sex, race or disability. There is no dispute that BRQ is a Lebanese male with a disability, but he also alleges discriminatory treatment on grounds which are not grounds of discrimination under the Anti-Discrimination Act including his “character” and his “drug use”. Because the Tribunal has no jurisdiction to determine a complaint on those grounds I have not included them in the list of allegations.
I can only have regard to allegations that are sufficiently particularised. At times, BRQ makes vague allegations of unfairness including being shunned, ignored, ridiculed, harassed and belittled. He also makes general assertions that Departmental officers only listened to his former partner; favoured her over him as the preferred parent and treated him unfavourably in relation to the arrangements for access visits with his son. These matters are too vague to constitute allegations to which the Department should have to respond.
I have categorised and summarised the remaining allegations BRQ makes in relation to each ground of discrimination.
Firstly, BRQ claims sex discrimination on the basis, among other things, of the way Departmental officers have treated him compared with the way they have treated his former partner. BRQ alleges that officers:
(1)assessed him as unsuitable to be the primary carer for his son and kept him away from his son so that the child’s mother could form a bond with her son;
(2)made decisions about the nature and frequency of contact and the arrangements for contact which were adverse to him such as:
(a)not allowing more frequent, unsupervised contact;
(b)making his son wait for him when they knew he would not be attending the access visit;
(c)not giving him a reason for their failure to allow outside visits to resume with his son;
(d)dishonouring a mediation agreements about the location of contact visits
(3)did not offer him counselling, guidance or other services that were offered to the mother;
(4)only presented the evidence to the Children’s Court on 7 May 2013 that he had attended a Domestic Violence Program and did not present psychological reports, doctor’s reports, counselling reports and the outcome of his Positive Lifestyles Program;
(5)stereotyped him in Children’s Court proceedings as the instigator of domestic violence because he is male;
(6)bullied and blackmailed his former partner and forced her to cease contact with him and take out six Apprehended Violence Orders against him; and
(7)altered COPS police reports to make him look bad.
Secondly BRQ claims disability discrimination on the basis of his psychological issues and mental illness. BRQ said that at one stage he was diagnosed with bi-polar disorder but that a later diagnosis was borderline personality disorder. He criticises the Department for mentioning that he had been diagnosed with bi-polar disorder in court proceedings when there was evidence from his doctor that he had been misdiagnosed. In addition, BRQ says that officers:
(1)used his mental health issues as a reason to keep him away from his son when his former partner also had mental health issues;
(2)required contact visits to be supervised because of his behaviours and perceived mental health issues;
(3)questioned his mental health and used it against him in court proceedings including by:
(a)cross-examining him, but not his former partner;
(b)giving false evidence in court such as that he is “unstable” and “aggressive”;
(c)using negative reports against him in court but not relying on negative reports about the mother
(4)falsified a Helpline report stating that he was going to abduct his child from pre-school.
Thirdly, BRQ complains of race discrimination. He says that the fact that his son does not live with him or have regular unsupervised contact with him means that he is being deprived of being raised in his own Lebanese culture and background. He says he has the right to care for his son and teach him his cultural heritage, beliefs and language.
Consideration and Conclusion
BRQ is the only complainant. Any treatment of others, including his former partner, his son, his father, his current partner and other family members cannot be part of BRQ’s complaint because they are not complainants. BRQ’s race discrimination complaint is about treatment of the child and the consequences for his cultural identity of not having a close relationship with BRQ and his Lebanese family. Contrary to BRQ’s submission, he does not have a “right” under the Anti-Discrimination Act to care for his son and teach him his cultural heritage, beliefs and language. None of BRQ’s concerns about his son being exposed to his Lebanese culture could amount to a breach of the Anti-Discrimination Act in relation to BRQ. Consequently the Tribunal has no jurisdiction to entertain the complaint of race discrimination as formulated by BRQ and leave for it to proceed is refused.
For the same reason, his former partner has no remedy for any allegations about the way she was treated. I understand that the allegations that she was bullied and blackmailed and told not to have contact with BRQ is also claimed to be indirect treatment of BRQ. In addition, BRQ’s complaint relies on a comparison between the treatment that was afforded to him and the treatment that was afforded to his former partner. I acknowledge that that treatment may be relevant when determining whether the “differential treatment” part of the test for direct discrimination has been met.
Only treatment that can be characterised as the refusal of a service or the provision of a service on certain terms by the Department is subject to the Anti-Discrimination Act. In relation to the complaint of sex discrimination, the relevant provision is s 33
(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of sex:
(a) by refusing to provide the person with those goods or services, or
(b) in the terms on which he or she provides the person with those goods or services.:
Section 49M in relation to disability discrimination.
The term ‘services ’ is defined by s 4 of the Anti-Discrimination Act to include "services provided by a council or public authority.” The first step in determining whether a person has been refused a service or provided a service on unfavourable terms is the proper characterisation of the relevant service: Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 404-405 per McHugh J, IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 16-17 per Brennan CJ and McHugh J.
Section 9 and s 16 of the Care Act recognise that two of the Director General’s roles are to “provide services” including “involving children and young persons and their families in processes that affect them and making services and information available to them” as well as “implementing procedures to assess the suitability of people having contact with children and young people”.
On the basis of the material BRQ provided, it appears that he claims that Departmental officers were providing at least four kinds of services. The first is assessing his suitability to be the primary carer for his son and to have contact with him. The second is making decisions about the frequency, duration and nature of contact and the arrangements for contact visits. The third is providing him with “services and information” such as counselling and guidance. The fourth is the decisions about the preparation and presentation of evidence before the Children’s Court.
There is no binding authority of which I am aware as to whether any of these kinds of services constitute “services” within the meaning of that term in the Anti-Discrimination Act.
The only two decisions of the Supreme Court which relate to the Care Act concerned applications by members of the public to be authorised foster carers: Director-General, Department of Community Services v MM and Another [2003] NSWSC 1241 and OV & OW v Members of the Board of the Wesley Mission Council [2010] NSWCA 155. In Director-General, Department of Community Services v MM and Another Barr J answered “yes” to the question, “[W]as the State of New South Wales providing ‘services’ to AM and/or MM within the meaning of s 49M(1) and s 47 of the Anti-Discrimination Act 1977 when determining their application to become foster parents?” That decision was accepted by the parties in another case in the context of a refusal by Wesley Mission to authorise two people who were partners in a same-sex relationship to be authorised as foster carers: OV & OW v Members of the Board of the Wesley Mission Council [2010] NSWCA 155.
These decisions are readily distinguishable from the facts in this case because BRQ did not apply under the Care Act for any decision to be made in his favour. Rather, BRQ’s son came under the care of the Director General pursuant to the powers granted under the Care Act. One of the Director General’s role is to assess people for their suitability as carers and to have contact with children. The Director General must then apply to the Children’s Court for interim and final orders in relation to each of those matters.
The Appeal Panel has recently decided that the classification of inmates under the under the Crimes (Administration of Sentences) Regulation 2008 (NSW) does not constitute a “service” to those individuals by the State of NSW: State of New South Wales v Whiteoak [2014] NSWCATAP 99 (4 December 2014). The conclusion of President Wright at [217] was that:
(1) providing "services" to a person involves making available to the class of persons to which the aggrieved person belongs activities to supply the needs of, to do work for, or to assist or help that class of persons; and
(2) when a governmental function or statutory duty is being performed for a purpose other than benefitting the relevant class of persons and any outcome is imposed on, rather than just being made available to, that person, it is unlikely that this will amount to "services" being "provided" in the relevant sense.
Apart from the availability of ‘services’ such as counselling and information, the other matters that BRQ characterises as “services” were ‘imposed’ on him.
Assessing his suitability to be the primary carer for his son and to have contact with him are matters which are preliminary to interim or final decisions being made by the Children’s Court. Those orders are binding on all parties and cannot be the subject of a complaint of discrimination: Anti-Discrimination Act, s 54. I do not consider it fair or just for BRQ to be able to complain about those decisions in circumstances where the Children’s Court has heard evidence and made a binding decision in relation to those matters.
I am also satisfied that a Tribunal hearing this matter would not regard the preparation and presentation of evidence before the Children’s Court or the District Court as the provision of a service to BRQ. An application for a care order must be accompanied by a report. That report including all relevant material must be served on the parents: Care Act, s 64(4). The way the Director General conducts litigation is wholly separate from any service that it may provide to BRQ.
The remaining group of allegations concerns ‘services’ such as counselling, “meetings, home visits, courses, safety house services, security cameras and follow up phone calls”. BRQ also says that the Department failed to assess his home and family to see if they were suitable for contact or custody but did assess the maternal grandparents’ home.
BRQ has not adduced evidence about the kind of courses or counselling, that was made available to his former partner that was not made available to him. Nor has he indicated why he needed “safety house services” or security cameras. The fact that the Department failed to assess his home and family to see if they were suitable for contact or custody is explicable because the court had decided that restoration to BRQ was not a realistic possibility. These matters all contribute to my conclusion that it is not fair and just to grant leave for these complaints to proceed.
Sex discrimination is defined in s 24 and disability discrimination in s 49A, s 49B and s 49C. I understand BRQ’s to be complaining of direct sex and disability discrimination as defined in s 24 (1)(a), although I have also considered the possibility that his complaint may constitute indirect discrimination as defined in s 24 (1)(b).
(1) A person ("the perpetrator" ) discriminates against another person (the aggrieved person" ) on the ground of sex if the perpetrator:
(a) on the ground of the aggrieved person’s sex or the sex of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex or who does not have such a relative or associate of that sex, or b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex, or who do not have a relative or associate of that sex, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
The equivalent provision in relation to disability discrimination is 49B(1)(a).
In order to substantiate a complaint of sex or disability discrimination BRQ would have to prove that:
(1)in the same circumstances or in circumstances which are not materially different, the Respondent did not treat, or would not have treated a person of a different sex or who did not have a disability in the same way; and
(2)at least one of the reasons for the treatment was BRQ’s sex or disability.
For some of his allegations, BRQ compares the way the officers treated him with the way officers treated his former partner. One difficulty with that comparison is that the mother’s circumstances are almost certainly “materially different” from his circumstances. Without a relevant comparator or any direct evidence of discriminatory treatment, BRQ would have to persuade a Tribunal to draw inferences on the basis of primary facts that those matters were at least one of the reasons for the way he was treated: Sharma v Legal Aid (Queensland) [2002] FCAFC 196 Dutt v Central Coast Area Health Service [2002] NSWADT 133.
When I asked BRQ at the hearing why he thought the treatment he had received related to his sex, race or disability he replied, “What else could it be - prejudice, bias, lies.” BRQ essentially relies on the unfairness as he perceives it in the way he has been treated. He does not accept that his conduct justifies that treatment. While not binding on this Tribunal, the District Court disagreed with that view. Elkaim J rejected BRQ’s submission that the Department had “for no good reason, favoured the mother over the father.” In his Honour’s view any divergence in treatment was because of BRQ’s “admitted misbehaviour”. In my view it is highly unlikely that a Tribunal hearing this matter would find that any treatment of BRQ which comes within the definition of ‘services’ was on the ground of his sex or disability. That is a further reason for refusing leave.
The strength of any defence or exception on which the Department could rely is another relevant consideration. Section 54(1)(d) of the Anti-Discrimination Act provides that:
(1) Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of:
. . .
(d) an order of any court, not including an order or award of a court or tribunal having power to fix minimum wages and other terms and conditions of employment,
On 7 May 2013 the Children’s Court made final orders placing the son in the parental responsibility of his mother. The Court also ordered that, for 2 years until May 2015, the Director General would have sole parental responsibility for decisions in relation to contact between BRQ and his son. It is not fair or just for BRQ to be permitted to complain about anything that it was necessary for Departmental officers to do in order to comply with an interim or final order of the Children’s Court or the District Court.
It is also relevant to inquire as to whether allegations that BRQ makes are, or have been, the subject of complaints to other agencies so that it is unfair or unjust for those matters to be also dealt with by the Tribunal. One allegation that was the subject of a complaint to both police and the NSW Ombudsman was that officers had altered entries in COPS records relating to BRQ’s contact with police. BRQ maintains that one particular officer should be charged with fraud and perjury. Following an investigation of this matter by police a finding was made that no officer had committed a criminal offence. I am not aware of the outcome of any Ombudsman investigation. Because allegation (7) in the sex discrimination complaint has been the subject of allegations to police and a finding has been made, it is not fair or just for that to be the subject of a further complaint of discrimination.
For the reasons set out above, leave is refused for the complaints to proceed.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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