Chinchen v NSW Department of Education and Training

[2006] NSWADT 180

Set aside by Appeal:

CITATION:	Chinchen v NSW Department of Education and Training [2006] NSWADT 180
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANTS Christine Chinchen and Noel Chinchen on behalf of Rhys Chinchen, Christine Chinchen and Noel Chinchen RESPONDENT NSW Department of Education and Training
FILE NUMBER:	021065
HEARING DATES:	10-14/02/2003, 23-26/06/2003, 8-10/09/2003, 17-19/09/2003, 29-30/07/2004, 18/04/2005, 20/04/2005 and 30/05/2005
SUBMISSIONS CLOSED:	09/27/2005
DATE OF DECISION:	06/15/2006
BEFORE:	Goode P - Judicial Member; Nemeth de Bikal L - Non Judicial Member; Weule B - Non Judicial Member
CATCHWORDS:	Disability Discrimination - Education - Victimisation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Disability Discrimination Act 1992 (Cth) Disability Discrimination Act 1995 (UK) Freedom of Information Act 1989
CASES CITED:	‘Y’ v Human Rights and Equal Opportunity Commission and Australia Post, 4 March 2004 Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 Bonella v Wollongong City Council [2001] NSWADT 194 Borg v Commissioner, Department of Corrective Services & Anor [2002] NSWADT 42 Clark v TDG Ltd t/a Novacold [1999] IRLR 318 Clarke v Catholic Education Office (2003) 202 ALR 340 D v Berkeley Challenge Pty Ltd [2001] NSWADT 92 Giorgianni v The Queen (1985) 156 CLR 473 Haines v Leves (1987) 8 NSWLR 442 HJ Heinz Co Ltd v Kenrick [2000] IRLR 144 Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301 Hurst and Devlin v Education Queensland [2005] FCA 405 IW v City of Perth (1997) 191 CLR 1 Jamal v Secretary Dept of Health (1988) 14 NSWLR 252 London Borough of Hammersmith & Fulham v Farnsworth [2000] IRLR 69 Martin v McKensey (No. 2) [2003] NSWADT 126 Mooney v Commissioner of Police, New South Wales Police Service (No 2) [2003] NSWADT 107 Nesci v TAFE Commission of NSW (No. 2) [2005] NSWADT 183 Pignat v Richmond Valley Council [2005] NSWADT 162 Purvis v New South Wales (Department of Education and Training) [2003] 202 ALR 133 Randell v Consolidated Bearing Company (SA) Pty Ltd [2002] FMCA 44 Re Prezzi and Discrimination Commissioner & Quest Group Pty Ltd; Party Joined (1996) 39 ALD 729 Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 Sivananthan v Commissioner of NSW Police Service [2001] NSWADT 44 State Transit Authority v Sloey & Anor [1999] NSWSC 47 Sutton v Ultimate Manufacturing & Ors (1997) EOC 92-891 Tate v Raffin [2000] FCA 1582 University of Ballarat v Bridges [1995] 2 VR 418 Walker v State of New South Wales [2003] NSWADT 13 Waterhouse v Bell (1991) 25 NSWLR 99 Waters and Others v Public Transport Corporation (1991) 173 CLR 349 X v McHugh, Auditor-General for the State of Tasmania (1984) EOC 92-623
REPRESENTATION:	APPLICANTS In person RESPONDENT S Flanagan, Barrister
ORDERS:	Unlawful Discrimination ; Allegation (1); 1. That part of the complaint that relates to the allegation that Rhys was denied access to support for his disability is substantiated.; 2. Within 28 days of the date of this order, the Respondent is to pay the Applicants the sum of $7,000 to be held in trust for Rhys until he attains the age of 18; Allegation (3); 3. That part of the complaint that relates to the allegation that Rhys was placed under threat of removal from the extension class is substantiated; 4. Within 28 days of the date of this order, the Respondent is to pay the Applicants the sum of $2,000 to be held in trust for Rhys until he attains the age of 18; Allegation (10); 5. That part of the complaint that relates to the allegation that the School’s decision to exclude Rhys from the extension class was unlawful is substantiated; 6. Within 28 days of the date of this order, the Respondent is to pay the Applicants the sum of $5,000 to be held in trust for Rhys until he attains the age of 18; Other Allegations; 7. That part of the complaint that relates to the remainder of the allegations of unlawful discrimination is dismissed; Victimisation; Allegation (9); 8. That part of the complaint that relates to the allegation that the School’s withdrawal of the home support plan constituted victimisation is substantiated; 9. Within 28 days of the date of this order, the Respondent is to pay the Applicants the sum of $1,000 to be held in trust for Rhys until he attains the age of 18; Other Allegations; 10. That part of the complaint that relates to the remainder of the allegations is dismissed

Background

1 Rhys Chinchen (‘Rhys’) is a gifted child with a learning disability. His disability is known as motor dyspraxia. Susan Lowe, an occupational therapist who works with children who have dyspraxia, defines motor dyspraxia as: “difficulty in consistently planning, sequencing and then executing efficient and coordinated movement - at will or on command - to perform age appropriate skills” (‘Developmental Motor Dyspraxia’, published at: Motor planning is a learned ability which requires interaction with the environment to develop. Once a skill is learnt it no longer requires motor planning. Lowe explains in her article how for some children this process comes unstuck.

3 The Respondent is the Department of Education and Training. The proceedings relate to Rhys’ education at Seaforth Public School (‘the School’) in 1999 and 2000. Given that Rhys was aged 10 and 11 at the time, the proceedings were brought on his behalf by his parents, Christine and Noel Chinchen. The Chinchens also brought a separate claim against the Respondent in relation to the treatment they allegedly received while Rhys was at the School. In this decision we refer to the Chinchens as the Applicants.

4 It is common ground that Rhys has motor dyspraxia and that it is a disability for the purposes of the Anti-Discrimination Act 1977 (‘the Act’).

5 Rhys’ dyspraxia affects his ability to learn in a number of ways. It is of particular relevance that he finds it difficult to complete tasks, especially written ones, under a time constraint. This difficulty does not reflect his understanding of a subject or his ability to speak about it.

6 On 24 May 2000 the Applicants lodged a complaint on Rhys’ behalf with the Anti-Discrimination Board (‘the Board’). It was alleged that Rhys had been denied various benefits and subjected to various detriments in his education on the ground of his disability. (At the time Rhys’ disability was identified as a specific disability in efficient processing skills.) In particular it was alleged that Rhys had been removed from the School’s extension class. It was also alleged that Rhys and his parents had been victimised as a consequence of making various complaints about Rhys’ treatment.

7 It was alleged in the complaint document that Rhys’ disability affected his ability to learn and therefore that he required various ‘adjustments’. These adjustments included:

(1) The availability of flexible options to take down information, for example, audio tapes, the use of a computer, and photocopies of written work such as spelling lists.

(2) The provision of a flexible approach to submitting work, for example audiotapes and the use of a computer.

(3) The allowance of increased time for written work to be completed.

(4) Access to parental support.

8 The formal diagnosis of motor dyspraxia was not made until November 2002. By this time Rhys was in High School. It is usual for assessments of motor dyspraxia to be made by either a paediatrician or an occupational therapist. In Rhys’ case the diagnosis was made by a paediatrician, Dr Mark Selikowitz. He described Rhys’ condition as a ‘specific learning disability in the form of severe motor dyspraxia’.

9 In October 1999 a private psychologist, Mr Ernst Meyer, identified Rhys as a very gifted child with ‘a specific disability in efficient processing skills’. This was made known to the Respondent on 10 November 1999. While this may also be a disability for the purposes of the Act, the case proceeded on the basis that the relevant disability was motor dyspraxia.

10 The evidence shows that a specific disability in efficient processing skills may contribute to a person having motor dyspraxia. However the terms are not synonymous. Motor dyspraxia implies a broader disability as it usually involves the gross motor system as well as the fine motor system. In Rhys’ case, the disability primarily affects his fine motor skills.

11 There are a number of characteristics which generally appertain to or are generally imputed to motor dyspraxia. The characteristics which are particularly relevant to the present case are:

Difficulty completing tasks under a time constraint

Slow, untidy handwriting

Difficulty organising self and possessions

12 The case also raised questions about how gifted students who have specific learning disabilities can best be educated to their full potential.

13 Rhys is the youngest of three children all of whom have attended the School. He was born on the 1st of October 1988. He attended the School from Kindergarten to mid Year 3 and again in Years 5 and 6. In the second half of year 3 and all of year 4 the Chinchen family were in the United Kingdom.

14 On the School’s recommendation, Rhys was placed in the Year 5/6 extension class in 1999 rather than a mainstream class. At the time he was selected for the extension class, the School did not know that he suffered from either a specific disability in efficient processing skills or motor dyspraxia. The Applicants did not know either. However both the School and the Applicants knew that his handwriting was slow and untidy and that he found it difficult to complete set tasks in class.

15 The extension class was established by the School to cater for children who were assessed as having superior academic ability. It was designed to provide extended teaching and learning activities for these children. Students were generally required to satisfy the School’s selection criteria in order to gain a place in the class. In 1999 the written criteria specified that children were to be selected in accordance with the following assessments:

Basic Skills Tests

University of New South Wales Competition Results

Reading Age Score

School Assessment

16 If selected, children were normally placed in the extension class for the final 2 years of primary school. The Respondent’s district personnel were not involved in the selection process. The class included a gifted and talented component as part of its overall program. It was not however an Opportunity Class. These are classes provided by the Respondent for students in Years 5 and 6 who are identified as gifted and talented as a result of taking part in a state-wide testing process. The School did not have an Opportunity Class.

17 As Rhys was in the United Kingdom in 1998 when students were selected for the 1999 extension class, he was unable to satisfy the School’s written criteria for selection. Nonetheless the Principal of the School, Mr Ray Ogilvie, made a special case for him to be selected in the class. He had observed him to be a bright student who appeared to lack motivation. He considered that the stimulating program of the class and the diligence and competency of the class teacher might act as a catalyst to increase what he perceived as Rhys’ lack of motivation towards his schoolwork.

18 Rhys was in the extension class for all of 1999. At the end of the year he was moved into a mainstream class. He returned to the extension class for the final term of 2000.

19 The Board did not commence its investigation of the Applicants’ complaint until 18 April 2002. A conciliation conference conducted by the Board was unable to resolve the matter. The President of the Board referred the complaint to the Tribunal on 27 June 2002.

20 The case has had a slow passage through the Tribunal which is not unusual in cases where, as here, the Applicants represent themselves. The documentary evidence was voluminous. The Tribunal was called upon to analyse many hundreds of pages of detailed written submissions, the bulk of which were filed by the Applicants. While it is not possible to specifically refer to each submission in this decision, we have given careful consideration to all the matters raised.

21 Rhys did not give evidence. The case for the Applicants consisted of evidence given by Mr and Mrs Chinchen and various documents. This material included the President’s Report dated 27 June 2002, minutes of meetings and correspondence between the School and the Applicants, and between the Applicants and the Respondent’s Northern Beaches District Office (‘the District Office’), examples of Rhys’ schoolwork and handwriting, a report prepared by Mr Meyer, dated 7 October 1999, a report by Dr Selikowitz, dated 29 November 2002, and a report by an occupational therapist, Ms Lyn Lennox, dated 16 April 2003. The Applicants’ case also relied on various articles on motor dyspraxia, several articles on gifted children with learning disabilities, and various internal documents obtained from the Respondent under the Freedom of Information Act 1989, including notes written by Ms Jill Ravens, the school counsellor for the District Office (‘the school counsellor’).

22 The case for the Respondent consisted of evidence given by Mr Ogilvie, Ms Bonita Hawkes, Rhys’ teacher in 1999, Ms Joy Nielsen, the District Office Student Services and Equity Coordinator, and Mr Roger Stonehouse, the Respondent’s Co-ordinator of Student Counselling and Welfare. The Respondent’s case also relied on documentary evidence. This material included internal Departmental correspondence, various policy documents, and a report prepared by Mr Barry Higgins, the Respondent’s Chief Education Officer (School Improvement), in August 2000 (‘the Higgins Report’).

23 The Applicants and the School shared a common goal. They were both motivated by a desire for Rhys to gain the maximum benefit from his schooling. However they could not agree on how this could best be achieved. On the one hand, the Applicants genuinely believed that Rhys’ educational needs could best be met by allowing him to remain in the extension class. They believed that it was important for Rhys to access the benefits of the gifted and talented program (‘the G&T program’) in an environment where he was able to mix with like minded children, yet still receive support for his learning difficulty by being allowed to complete his schoolwork at home. On the other hand, Mr Ogilvie and Ms Hawkes genuinely believed that Rhys’ educational needs could best be catered for by moving him into a mainstream class which moved at a slower pace and provided a more structured environment. They anticipated that Rhys would be able to complete the G&T program under the supervision of the mainstream class teacher. However, as events transpired, when Rhys moved into a mainstream class in the year 2000 the class teacher declined to administer the program.

24 In many cases of unlawful discrimination, the alleged conduct relates to a single incident. The present case spans many months. Throughout that time the classroom dynamic was constantly changing. The intensity of Rhys’ symptoms also fluctuated. As part of his motor dyspraxia, he generally found it difficult to complete assignments in class. However, he could complete maths tasks in class without any apparent difficulty and could complete assignments at home which were of an exceptionally high standard. The reasons behind this disparity are complex but they appear to be typical of learning disabled gifted children. See the article by C June Maker and Anne Jo Udall entitled, ‘Giftedness and Learning Disabilities’, published at: Both the School and the Applicants were well aware that Rhys was a bright child. However they did not become aware that his full scale 1Q was within the ‘very superior’ range and at the 99th percentile in relation to his peer age group until they read Mr Meyer’s report.

26 There is no doubt that in 1999 Rhys’ achievement at School did not match his ability. The picture of Rhys that emerged from the evidence was that although he was a bright student, he produced little written work in class, little ‘design and make’ work, and little group work. By way of contrast, he gave excellent oral presentations, had very good general knowledge, was very good at maths, produced high quality G&T work on the computer at home, and (when he participated) gave excellent contributions in class discussions. Ms Hawkes described him as a lovely, well behaved boy who did not distract the other students.

27 There may be a number of reasons why a bright child is underachieving. Motivation, interest, and specific aptitudes usually influence the amount of energy that students are willing to apply to a task. Social or emotional problems can also interfere with a student’s level of achievement as can the disabling effects of a learning difficulty.

28 Ms Hawkes concluded that the reason Rhys was generally having difficulty completing tasks in class was because he was ‘lazy and unmotivated’. The Applicants disagreed. They perceived Rhys’ learning difficulty to be about ‘work habits’ and the ‘mechanics of getting things done’. It was not until the results of the psychometric assessment were made available in Mr Meyer’s report that anyone became aware that Rhys had a specific disability (in efficient processing skills).

29 Ms Hawkes formed the conclusion that Rhys was lazy and unmotivated because he was able to complete his maths in class, but not other activities. By forming this conclusion within the first few weeks of teaching Rhys, she appears to have closed her mind to the possibility that Rhys’ apparent difficulty with completing tasks in class (other than maths) was attributable to some other cause. Notwithstanding her failure to find any strategies to motivate Rhys and Mrs Chinchen’s insistence that Rhys was not lazy and unmotivated, her view remained unchanged throughout 1999.

30 A central theme of the Applicants’ case is the importance of viewing Rhys’ disability in the context of his giftedness and the support required in order to meet his two co-existing needs.

31 The various recommendations put forward by Mr Meyer in his report addressed Rhys’ giftedness as well as his disability. He acknowledged that Rhys’ education must be a considerable frustration for him. It is not necessary to refer to all the recommendations set out in his report. Of particular relevance are :

Rhys’ school should be made aware of the outcome of the report. It is critical that Rhys’ school acknowledge his very significant ability and nurture it [and] be sensitive to his specific ability as outlined. Rhys should be included in any gifted and talented programmes that are offered at the school.

Appropriate strategies that can be put in place at school would include extra time for examinations, use of a writer or personal computer. Rhys should also sit next to a faster writer. Whilst Rhys must write he could photocopy his ‘buddy’s’ notes to compliment the notes that he cannot get down.

You are encouraged to obtain membership of the NSW Gifted and Talented Association. This will assist in your understanding of Rhys… It is also important that Rhys be provided with the opportunity of interacting with children of like mind. The Association has a support group for parents of gifted children with specific learning disabilities…

32 We note that the Applicants did not follow up on the recommendation that Rhys become a member of the NSW Gifted and Talented Association.

33 The District Office had concerns about Mr Meyer’s report, including the finding that Rhys was gifted. Nonetheless when Ms Ravens met with Mrs Chinchen on 16 December, she accepted that Rhys was a gifted child with a learning disability. According to the minutes, agreement was reached that the new class teacher for 2000 needed to be briefed on Rhys’ two co-existing needs.

34 The Respondent’s policy on the education of students with learning difficulties makes it clear that it is the Principal’s responsibility to establish sound mechanisms for assessment within the school. The policy sets out these mechanisms and states that a range of resources, both human and material, is available to assist teachers with the design and implementation of programs for students with learning difficulties. The policy provides that resource personnel within the school ‘may’ include:

The Principal and executive, the Support Teacher [Learning Difficulties], other class teachers, the Counsellor and the Careers Adviser. External personnel may include consultants, specialist counsellors, itinerant teachers, the staff of Education/Guidance clinics and staff of various government departments.

…Principals may request school counsellors to arrange referrals beyond the school if school resources are insufficient for the needs of particular students.

35 According to Ms Nielsen’s evidence, the District Office provided a learning difficulties’ support teacher to schools (including Seaforth) for a minimum of one day a week. In the present case, the support teacher was not consulted. We accept the Respondent’s submission that Rhys would not have qualified for this support.

36 It is part of the Applicants’ case that the School breached the policy on the education of students with learning difficulties as well as the Respondent’s policy on gifted and talented students (‘gifted students’). The latter policy acknowledges that Government schools have a responsibility to educate all students to their full potential. It states that schools have a responsibility to identify their gifted students (Policy Statement 1). It recognizes that gifted students with specific learning difficulties may be difficult to identify. The policy states that schools should recognize that certain factors may inhibit the expression of giftedness. The following are included in the list of factors:

Lack of motivation to achieve in school-oriented tasks

Students with specific learning difficulties may need intervention programs which enable their giftedness to flourish

37 Policy Statement 2 sets out the school’s responsibilities in relation to gifted students. They include:

Helping individual teachers to meet the needs of gifted students

Establishing and maintaining liaison with parents

38 The Respondent contends that in 1999 Rhys was provided with support over and above that usually available to students. According to Ms Hawkes, Rhys:

Had exclusive use of a laptop computer

Was allowed to do oral presentations in substitution for written assignments

Was allowed to complete tasks at home

Was able to sit with her so that she could write down his ideas before he transferred them to the computer

Was allowed to do drafts of work on the computer

39 The Applicants dispute that this support was provided. In addition to therapeutic intervention, the recommendations made by Mr Meyer and the matters set out in paragraph 7, they submit that there were numerous other strategies which would have been of assistance to Rhys.

40 Based on Mr Meyer’s report, Mr Stonehouse expressed the opinion that a student with a difficulty in processing skills would be supported by their regular teacher through the ‘modification of their program to allow for extra time to complete tasks and programs targeted at improving visual-motor co-ordination, writing skills and organisation skills.’ He said that if a student had particular problems with producing written material, he/she ‘may’ receive increased access to technology.

41 Mr Flanigan submits that an early diagnosis of motor dyspraxia would not have altered Rhys’ education. He submits that the adjustments recommended by Mr Stonehouse had in any event been adopted by Ms Hawkes. The Applicants dispute Mr Flanigan’s submissions.

42 The various articles tendered by the Applicants show that opinions differ as to whether learning disabled gifted students should be placed in programs which emphasise the development of their gifts and talents rather than the remediation of their particular disabilities. Drawing on the results of a variety of special programs for learning disabled gifted students funded by the State of Connecticut over a 6 year period, Susan Baum concludes that more gains are seen when intervention focuses on the gift rather than the disability. These programs had emphasized the development of the students’ gifts and talents. The results showed a dramatic improvement in student self-esteem, motivation, and productive learning behaviours. Unexpectedly, they also showed an improvement in basic skills. (See the article entitled, ‘Gifted but Learning Disabled: A Puzzling Paradox’, published at: http:/

43 Naturally each case has to be considered on its merits. However we have drawn attention to Baum’s article because it may explain why the Applicants were so insistent throughout 1999 that Rhys’ educational needs could best be met by remaining in the extension class. It may also explain why, once they became aware of Mr Meyer’s findings, they were so keen to get an acknowledgement from the School and the District Office that Rhys was both gifted and disabled.

44 It is clear from the conflict that developed that the parties found it increasingly difficult to move from their respective positions. Had they not become so entrenched in defending the correctness of their positions, they would have been able to consider alternative solutions to the stalemate. The tragedy of the case is that for all of 1999 the School overlooked the need to have Rhys assessed by the school counsellor. Had it done so, the School would have been able to obtain expert assistance at a much earlier stage and to address Rhys’ difficulties in a more informed manner. Whether Rhys had or had not remained in the extension class, it is likely that his education would have been far less stressful for everyone concerned.

45 The Higgins Report described the need for outside intervention this way:

There was neither common agreement nor indeed any significant school-based or psychometric assessment regarding Rhys’ behaviour, his ability or disability. This lack of agreement and evidence frustrated any attempt to provide an appropriate learning environment and the resolution of the dispute. The district school counsellor would have assisted the school significantly by providing appropriate assessment and intervention. As an experienced counsellor Ms Ravens would have assisted the school and the family mediate their differences in the best interests of Rhys and his education.

It is regrettable that the dispute pitched school against parent and that it continued for such a long period of time in 1999. There was a clear need for an external mediator to be involved much earlier in this dispute.

The school should have involved the district school counsellor and the district office in the resolution of the dispute and in providing professional advice as to whether or not Rhys had a disability under the Department’s disability criteria and guidelines.

46 In his letter to the Applicants dated 13 September 2000, Dr Alan Laughlin, the Respondent’s Assistant Director-General, was critical of the School’s failure to seek assistance from the school counsellor (see para 131). The School’s failure to seek assistance from Ms Ravens remains a mystery. She is a qualified psychologist and had provided support with the special education needs of Rhys’ sister, Belinda, at the School. She had assessed Belinda as being gifted and had recommended that she skip a grade.

47 The Higgins Report was unable to shed any light on the School’s failure to consult Ms Ravens. The Report noted:

Ms J Ravens district school counsellor for Seaforth Public School informed the investigation that she was surprised that she had not been requested to provide intervention and support to Rhys, his parents and the school in the management of the situation. Ms Ravens reported that she knew the family well, had provided support with the education of Rhys’ sister when she was at Seaforth and had an excellent working relationship with the Chinchen family.

48 Ms Hawkes conceded that with the benefit of hindsight, she should have involved the school counsellor. She said that the counsellor would have guided her in what to do by suggesting the kinds of strategies that needed to be put in place for his disability. She said that she would not have perceived him as being lazy and unmotivated if she had known that he had a disability. She conceded in cross-examination that the expert in assessing learning difficulties was the school counsellor.

49 Both Ms Hawkes and Mr Ogilvie felt that the extension class ran ‘too fast’ for Rhys and that he needed to be in an environment that was less pressured. They maintain that he made good progress in Mr Lane’s class. Although the Applicants had no concerns with Mr Lane as a teacher, they felt that his class held Rhys back educationally because he did not have access to the G&T program and because he was not able to learn from ‘like minds’. They concede however that Rhys did various ad hoc extension projects and had access to the Balgowlah Boys’ High School extension program (one day per week for a semester).

50 By the time Rhys had moved into Mr Lane’s class, it was known that Rhys was both gifted and had a learning disability (as identified by Mr Meyer). Ms Ravens had also become actively involved and there was regular communication with Mrs Chinchen. The minutes of the meeting held between Mrs Chinchen, Mr Lane and Ms Ravens on 3 February 2000 set out the strategies that Mr Lane agreed to implement so as to cater for Rhys’ giftedness as well as his disability. The strategies included use of a laptop, a diary to note incomplete work and regular feedback.

51 In their letter of complaint dated 20 March 2000 to Dr Laughlin, the Applicants stated that, in contrast to the District Office, Ms Ravens and Mr Lane had been highly professional. They said Mr Lane was helpful and decisive in meeting Rhys’ needs. They said:

In contrast to our struggle through all of 1999 for Rhys’ specific learning needs to be considered, Charlie immediately, and in a low key manner, flexibly dealt with them. Rhys’ confidence is being rebuilt.

52 The various articles tendered by the Applicants suggest that simply understanding that a child has a disability enables the child to realise that he/she is not ‘being lazy’ or ‘misbehaving’. The result is that the stress and pressure is substantially removed. Ms Hawkes never told Rhys that she considered him to be lazy. However Mr Meyer’s report states that Rhys felt that she had this perception. (We accept that the Applicants did not tell Rhys that Ms Hawkes had described him in this way.)

53 The Respondent submits there is no direct evidence of how Rhys felt about his education, or indeed anything else, during the period from 1999 to 2000. Given that Rhys did not give evidence, the only direct evidence of what occurred in the classroom, and the assistance provided to Rhys, came from Ms Hawkes and Mr Ogilvie. This evidence provides us with little insight into what Rhys actually experienced. The Applicants rely on conversations they had with Rhys about his experiences in the classroom. However because the evidence was hearsay it could not be tested. As can be seen from our findings, the failure to call Rhys or any other students made it difficult for the Applicants to contradict the Respondent’s account of what occurred in the classroom.

54 Throughout 1999 and 2000 numerous meetings were held between the School and the Applicants. In 1999, minutes of these meetings were prepared by the Applicants and forwarded to the School. In many instances, the School did not forward any comments on the correctness or otherwise of the minutes. The minutes were relied on by the Applicants as being an accurate account of what had been said. For the most part, neither Mr Ogilvie nor Ms Hawkes made any notes of the various meetings with the Applicants. In 2000, aside from the meeting on 8 September, the minutes were recorded by Ms Ravens.

55 We do not wish our findings in this case to be construed as a criticism of Ms Hawkes’ ability as a teacher. On the contrary, the evidence given by both Mr Ogilvie and the Applicants suggested that she was highly skilled, dedicated and enthusiastic. Mr Ogilvie described her as ‘a wonderful teacher’. We accept that her students, including Rhys, loved being in her class. The matters she was called upon to deal with in 1999 were clearly foreign to her. We accept that she felt vulnerable and intimidated in Mrs Chinchen’s presence. However we do not know how clearly she communicated her concerns to Mr Ogilvie or whether (up until the mediation on 10 November 1999) he understood the full extent of them.

Credibility of witnesses

56 With the exception of Mr Stonehouse, the witnesses were required to recall events which occurred a long time ago and which evoked strong emotional responses.

57 Mrs Chinchen’s statement sets out details of the numerous meetings, phone calls and conversations which occurred throughout 1999 and 2000. Some of these details were accepted by the Respondent’s witnesses while others were denied. Where the relevant conversations have been documented in minutes (either by the Applicants or the Respondent) we have generally accepted that the minutes are an accurate account of what occurred.

58 The Applicants submit that the witnesses called by the Respondent deliberately fabricated their evidence. We do not accept this submission. While we did not find that the Respondent’s witnesses were deliberately trying to mislead the Tribunal, we found that some of their evidence could not safely be relied on.

59 Mr Flanigan contends that the Applicants’ submission that the Respondent’s witnesses fabricated their evidence highlights the Applicants’ unwillingness to accept any deviation from their own outline of the relevant events. He submits that the evidence given by the Applicants revealed a slavish reading of pre-prepared statements which had been reconstructed with the use of contemporaneous documents and extensive conversations between the Chinchens. He submits that Mr Chinchen in particular found it difficult to give a direct answer.

60 We found the evidence given by all the witnesses was coloured by their perception of what was in Rhys’ best interests. This lack of objectivity made it difficult for us to assess the reliability and credibility of their evidence. As the tension escalated between the Applicants and the School, the differing opinions became even more polarised. Both the School and the District Office found Mrs Chinchen in particular increasingly difficult to deal with.

61 Ms Hawkes, Mr Ogilvie and Ms Nielsen were cross-examined extensively. They all had difficulty recalling particular incidents and meetings. We do not accept the submission that they deliberately fabricated their evidence. It was clear that they found the events in question distressing. In combination with the lapse of time between the events and the hearing before the Tribunal, it was not surprising that they had difficulty recalling the exact detail of the various conversations they had with the Applicants. However, on some occasions, we found the answers they gave in cross-examination were either not responsive to the questions or were inconsistent with answers they had already given in their evidence. On other occasions, we found their evidence was inconsistent with the documentary evidence.

62 In relation to Ms Hawkes, we accept that her recall may well have been affected by the feelings of anxiety and insecurity she experienced when she spoke with Mrs Chinchen. The Tribunal observed Mrs Chinchen to be a highly intelligent, well-educated and forceful woman. Ms Hawkes said she had found her to be harsh and aggressive and very strong and forthright. She said that it ‘wasn’t the requests’ that were so difficult for her but ‘the way that she demanded things’ and the ‘words that she used’.

63 In relation to the various meetings that were held throughout 1999, where there was a conflict between the evidence given by the Applicants and the evidence given by the Respondent’s witnesses, subject to some exceptions, we generally preferred the evidence given by the Applicants. Mrs Chinchen, in particular, was not shaken in cross-examination. She displayed an extraordinary ability to recall the details of the various meetings she had with Ms Hawkes throughout 1999. When pressed in cross-examination, Ms Hawkes conceded that she could not dispute Mrs Chinchen’s account of these meetings.

64 In relation to the alleged incidents of harassment and humiliation which occurred in the classroom, the Applicants rely on the conversations they had with Rhys. Although the allegations were denied, the Applicants chose not to call either Rhys or any of the other children in the extension class to give evidence of these alleged incidents. In these circumstances, it was not possible for the Respondent to test the reliability and credibility of the allegations. Although we had some reservations about Ms Hawkes’ evidence, we have generally accepted her account of what occurred in the classroom (see para 310).

Chronology of Events

65 We set out below a chronology of the relevant events. The summary below has primarily been taken from the documents tendered by the Applicants as well as their own evidence. It also refers to evidence given by the Respondent’s witnesses. Where necessary, we have noted the conflicting accounts given by the Applicants and the Respondent’s witnesses. Where the evidence conflicts, unless stated otherwise and subject to the comments made in para 64, we have accepted the evidence of the Applicants in preference to that given by the Respondent’s witnesses.

Year 1999

66 In 1999 the class teacher for the Year 5/6 extension class was Ms Hawkes. Unlike the mainstream classes, the extension class ran a G&T program for the students. The program focused on the model of multiple intelligences advocated by Howard Gardner. Although she possessed excellent teaching skills, Ms Hawkes was not specially trained as a G&T teacher. Nor had she undergone special training in the identification of students (whether gifted or not) with learning difficulties.

67 On 17 February Mrs Chinchen and Rhys had a brief discussion with Ms Hawkes about the G&T program and homework expectations.

68 Within the first three weeks of the year, Ms Hawkes said she noticed that Rhys was able to copy mathematical problems from the blackboard but that he would not attempt to do any other written work. She observed that he would sit and play with his pens, paper clips, elastic bands or anything else he could find.

69 According to Mrs Chinchen, Rhys told her each afternoon in the week preceding 17 March that Ms Hawkes had made comments about him not completing his work. Mrs Chinchen said he was in tears when he told her.

70 Ms Hawkes subsequently met with Mrs Chinchen on 17 March 1999. There is a dispute between the parties as to what was said at this meeting. The meeting did not go well. Ms Hawkes said that she told Mrs Chinchen that Rhys ‘seemed to be lazy and unmotivated’ because he could do his maths but would not do anything else in class and that it would be better for Rhys to move to a mainstream class. In cross-examination she conceded that she had said that Rhys ‘was lazy and unmotivated’ (our emphasis). When Mrs Chinchen asked her to describe this in behavioral terms, Ms Hawkes said that he did not complete his tasks, he daydreamed and he was just not interested in doing the work. Mrs Chinchen said she expressed concern to Ms Hawkes that moves were being made to take Rhys out of the class without any attempt to help him overcome his problems. Ms Hawkes denied this was said. Mrs Chinchen said she told Ms Hawkes that it was known that Rhys had a significant difficulty with writing but he was a bright child who ‘fired’ on six of the eight intelligences described in Gardner’s model of multiple intelligences. Ms Hawkes denied this. According to Ms Hawkes, she told Mrs Chinchen that she could provide the extension program to the mainstream class teacher for Rhys to complete at his own pace. Mrs Chinchen said this was not discussed until the meeting on 2 July.

71 Understandably, Mrs Chinchen reacted strongly to Ms Hawkes’ comment that Rhys was lazy and unmotivated, particularly as she had always observed him to have a passion for learning. She said he read scientific encyclopaedias in his spare time.

72 According to the Higgins Report, in March 1999 the Applicants were advised by both Ms Hawkes and Mr Ogilvie that Rhys was ‘not coping with, or fitting in to the extension class’. The Report states that Ms Hawkes was concerned about Rhys’ ability to complete written work and to remain on task.

73 The Report summarised the dispute that arose this way:

Mr Ogilvie and Ms Hawkes advised the Chinchens that Rhys would benefit from placement in one of the other 5/6 classes which would offer him a more ‘structured’ learning environment.

The Chinchens disagreed with this advice and decision.

This disagreement led to a dispute between the Chinchens and the School as to what would be the best educational environment for Rhys and what teaching methodology best suits Rhys’ needs.

74 Shortly after the meeting on 17 March, Mrs Chinchen spoke with Mr Ogilvie. She agreed with his advice not to have any face to face contact with Ms Hawkes until things settled down. At Mrs Chinchen’s suggestion, he agreed that some support needed to be put in place for Rhys.

75 Rhys advised the Applicants that he wanted to stay in the extension class because he loved the work and his ‘best mate’ was in the class. He said he was prepared to complete all unfinished work in his free time. The Applicants in turn advised Mr Ogilvie that they wanted Rhys to stay in the class but said he needed support.

76 In due course the Applicants submitted a one-page support plan (described in the Higgins Report as an Individualised Education Plan) to Ms Hawkes and forwarded a copy to Mr Ogilvie. In essence, the plan specified that the Applicants would work with Rhys at home to complete unfinished schoolwork to an acceptable standard. In accordance with the plan, drafts of the G&T work were to be submitted by Rhys at the beginning of each week so that Ms Hawkes could give him feedback on his drafts. The Applicants made it clear in the document that they needed to know ‘in a written form’ of any unfinished work requirements, preferably by the end of the week.

77 Ms Hawkes said she was not consulted before the plan was drawn up. (In his evidence, Mr Ogilvie described the plan as ‘presumptuous’.) Nonetheless she rang Mr Chinchen on 24 March and advised him that she agreed to the plan.

78 On 25 March Mrs Chinchen advised Mr Ogilvie that Ms Hawkes had agreed to the support plan.

79 On 26 March Rhys allegedly told his mother that Ms Hawkes had told him that he was not allowed to take his books home, that she would not mark work he completed at home and that he did not need to worry about the incomplete work. Ms Hawkes denied she had said this. She described her comments to Rhys a little differently (see para 381).

80 On or about 7 April Mrs Chinchen told Mr Ogilvie what Rhys had told her (as outlined above). Mr Ogilvie said he would investigate the matter.

81 On or about 14 April Mrs Chinchen gave Mr Ogilvie a copy of Gardner’s model of multiple intelligences and an article on under-performing gifted children which she thought highlighted the withdrawal strategy that Rhys appeared to be exhibiting.

82 On or about 28 May Mrs Chinchen rang Mr Ogilvie and told him that Mrs Hawkes had not provided any feedback to them and that she was blocking Rhys from taking work home. Mr Ogilvie suggested that a meeting be held with Ms Hawkes.

83 The meeting was held on or about 8 June 1999. According to Mrs Chinchen, there was no discussion about the lack of feedback. She said that instead Ms Hawkes and Mr Ogilvie ‘imposed’ a plan whereby Rhys would be given two weeks to complete everything in class, failing which he would be removed from the extension class. She said that Rhys was called into the room after the meeting and Mr Ogilvie explained the plan to him. Ms Hawkes and Mr Ogilvie emphatically denied Mrs Chinchen’s evidence that Rhys was told by Mr Ogilvie that he would be moved out of the class if he did not complete his work in class in the two week period. Our findings are set out in para 338.

84 At Mrs Chinchen’s suggestion, a meeting was later held between the Applicants, Mr Ogilvie and Ms Hawkes on 2 July 1999. At that meeting Mr Ogilvie and Ms Hawkes said that Rhys was doing nothing in class. They stated their view that he needed to move to a more structured class. The Applicants did not agree. Nothing was resolved.

85 After the meeting, the Applicants sent a fax to Mr Ogilvie requesting that they be advised promptly of incomplete tasks and any unsatisfactory progress so that any unfinished tasks could be completed at home. They also proposed as a starting point that Mrs Chinchen meet Ms Hawkes at the classroom on Monday to Thursday.

86 On about 19 July 1999 Mr Ogilvie advised Mrs Chinchen that the proposed support plan was acceptable.

87 On 11 August 1999 Mrs Chinchen spoke with Ms Hawkes to ascertain why the feedback had not commenced. Ms Hawkes said that she told Mrs Chinchen that she had done everything for Rhys but it was still not working. According to Mrs Chinchen, Ms Hawkes said that Mr Ogilvie had discussed the plan with her but she was not going to provide anymore feedback. Ms Hawkes said she could not recall saying this. It is agreed that Mrs Chinchen became agitated and raised her voice. Mrs Chinchen said she felt that Ms Hawkes was intentionally provoking and mocking her. She said she told Ms Hawkes that she would take up the failure to provide any feedback with Mr Ogilvie. Ms Hawkes said she was physically shaking because Mrs Chinchen was aggressive towards her. They each went to see Mr Ogilvie separately.

88 Mrs Chinchen said she told Mr Ogilvie that Ms Hawkes had refused to provide the agreed feedback. He agreed to sort it out. Mr Ogilvie subsequently rang Mrs Chinchen later in the day. He told her that Ms Hawkes had been upset because she (Mrs Chinchen) had raised her voice. Ms Hawkes said that she had felt threatened by Mrs Chinchen’s behaviour.

89 The feedback system which was agreed to on 11 August required Ms Hawkes to identify on a daily basis the tasks that Rhys had not completed in class.

90 Mrs Chinchen sent a letter to Ms Hawkes on 12 August apologising for raising her voice.

91 On 16 August Mrs Chinchen spoke to Mr Ogilvie and requested that a meeting be held with both him and Ms Hawkes. She forwarded a written agenda to him on 18 August.

92 The meeting was held on 23 August. Mrs Chichen said she was advised at the meeting that Rhys was doing nothing in class, that Ms Hawkes found the demands of the feedback system onerous and that Rhys needed to move out of the class. According to the minutes, it was agreed that Rhys had completed all unfinished work at home in the preceding two weeks since the implementation of the feedback system.

93 Two days after the meeting the feedback system was simplified. Ms Hawkes agreed to provide a weekly list of incomplete tasks.

94 From the Applicants’ perspective, the feedback system was a success. Rhys completed all tasks at home. From the School’s perspective, the system was counterproductive. It considered that Rhys was manipulating the situation by doing minimal work in class because he knew he could complete the tasks at home.

95 Sometime in September the Applicants arranged for a private psychometric assessment of Rhys to be done by Mr Meyer. Although his report was given to the Applicants in early October, the School did not become aware of its existence until the parties met at a mediation on 10 November.

96 On 16 September 1999 an incident occurred in the classroom. Rhys told his mother that Ms Hawkes had humiliated him by shouting at him across the classroom that he had not brought his English book to School and that he never brought anything to School. This was disputed by Ms Hawkes (see para 355).

97 The following day Mrs Chinchen advised Mr Ogilvie that she needed to speak to him about Ms Hawkes and that she would take Rhys home with her until something could be sorted out. She and Rhys met with Mr Ogilvie later in the day. Mrs Chinchen told him that she was complaining about Ms Hawkes because of her ongoing mistreatment of Rhys. According to Mrs Chinchen, Mr Ogilvie told her that he was not prepared to deal with any more complaints about Ms Hawkes. Mrs Chinchen told Mr Ogilvie that she would be lodging a formal complaint.

98 By letter dated 21 September 1999, the Applicants lodged a formal written complaint with Ms Carol Carrigan, the Superintendent of the District Office (‘the District Office’). The complaint related to Rhys’ alleged unfair treatment throughout the year. The Applicants requested a preference for the matter to be conciliated with the assistance of an independent party. They also asked that the matter be expedited for the benefit of all parties involved.

99 Mrs Chinchen advised Mr Ogilvie, by letter dated 22 September, that they (ie. the Applicants) could see no path forward to resolving the dispute within the School and that they would be lodging a formal complaint.

100 On 21 October the Applicants arranged for Rhys to be assessed by a physiotherapist, Ms Perks. Exercises were recommended to assist Rhys with his handwriting difficulty.

101 Ms Hawkes subsequently stopped the agreed feedback. Mr Ogilvie told Mrs Chinchen on 1 November that the feedback had been suspended in response to the lodging of the formal complaint with the District Office.

102 On 1 November the Applicants sent a facsimile to the School advising that the suspension of feedback was victimisation under the Respondent’s guidelines.

103 In an endeavour to resolve the conflict, the Respondent arranged for a mediation to be held between the Applicants, Mr Ogilvie and Ms Hawkes. The mediation was facilitated by Ms Nielsen. At the time, she was employed as the Student Services and Equity Coordinator at the District Office.

104 According to Mr Chinchen, Ms Nielsen rang him the day before the scheduled mediation to say that Mr Ogilvie had total authority over Rhys’ class placement. Ms Nielsen did not dispute this. She said that it was usual practice for school personnel, under the supervision or direction of the Principal, to be the one to make decisions on how best to meet the educational needs of students enrolled at their school.

105 The mediation was held on 10 November. A summary of Mr Meyer’s report was handed out by Mrs Chinchen. It is agreed that Ms Hawkes said she refused to teach Rhys, that she refused to work with the Applicants, and that she offered to be taken off the class. According to Mrs Chinchen, Mr Ogilvie said that Rhys would not be in the class. Ms Nielsen said that Mr Ogilvie had the authority to place students in a class which would best suit their needs. Needless to say, the mediation did not resolve the complaint. Instead it further exacerbated the conflict between the parties.

106 Mrs Chinchen met privately with Ms Nielsen on or about 15 November to discuss the formal complaint and the undesirability of moving Rhys out of the extension class immediately.

107 On 16 November the Applicants wrote to Ms Nielsen and Ms Carrigan asking for a written response to nine matters. Of particular note, they sought to ascertain first, whether Rhys had now been accepted by the School as both gifted and learning disabled and second, how Rhys’ special learning needs would be met in 2000. A copy of Mr Meyer’s full psychometric assessment report was also forwarded to Ms Nielsen and Ms Carrigan.

108 Rhys told his mother on 1 December that Ms Hawkes had humiliated him again by making another ‘public announcement’ in front of other class members.

109 Mr Chinchen reported the incident to Ms Nielsen by telephone on 2 December. He also told her that the feedback-based support had been withdrawn in response to the lodging of the formal complaint.

110 On or about 6 December Ms Nielsen rang Mr Chinchen to let him know that the School had denied the incident of alleged humiliation. According to Mr Chinchen, she said that she would not be investigating the matter any further.

111 By letter dated 10 December 1999, Ms Carrigan responded to the Applicants’ correspondence of 16 November and advised them that Mr Meyer’s report had been forwarded to the School. According to the Applicants, this letter did not address their concerns. They wrote to Ms Carrigan on 16 December detailing their concerns about the management of the matter and Rhys’ education at the School.

112 On or about 13 December Mrs Chinchen rang Ms Nielsen to ascertain when she could expect a response to the letter sent to Ms Carrigan on 16 November. At Mrs Chinchen’s suggestion, Ms Nielsen arranged a meeting with Mrs Chinchen and the school counsellor, Ms Ravens.

113 The meeting with Ms Ravens was held on 16 December. According to Ms Ravens’ minutes, the meeting was held to address the matters set out in the Applicants’ letter of 16 November 1999 to the District Office. Agreement was reached that the new class teacher for 2000 should be briefed on Rhys’ two co-existing needs, namely his giftedness and his learning disability. Ms Ravens told Mrs Chinchen that she would fax a copy of an article by Dr Linda Silverman on learning disabled gifted students to both her and Rhys’ new class teacher for Year 5/6 (see para 184). At that stage the class teacher for the year 2000 had not been selected.

114 By letter dated 16 December 1999, the Applicants wrote to Ms Carrigan requesting a prompt response to their letters of 21 September and 16 November.

115 Ms Carrigan wrote to the Applicants on 20 December informing them that she had appointed a senior school psychologist to review the issues raised by them and to make recommendations about Rhys’ class placement and educational program in 2000. Ms Powell was the senior psychologist appointed.

116 Ms Powell’s investigation involved a review of the written material about the matter, a meeting with Mr Meyer, liaising with Ms Ravens, and a brief discussion with Mrs Chinchen.

Year 2000

117 Ms Powell completed her review in early February 2000. According to the letter written by Ms Carrigan to the Honourable Mr David Barr MP on 30 March 2000, Ms Powell recommended that Rhys be moved from the extension class as it was not meeting his needs and that he be given extension opportunities through an individualised program in a regular classroom setting. In effect, she endorsed the School’s decision.

118 As part of her investigation, Ms Powell spoke to Mr Meyer. We do not know what was discussed. It is clear though that she did not agree with Mr Meyer’s recommendations. An unsigned document, presumably written by someone from Dr Laughlin ‘s office in May 2000, tendered by the Applicants states:

I [ie Dr Laughlin] have had two discussions with Joy Nielsen at Northern Beaches DO. There is disagreement about the claim of a physical disability since the assessment is a psychological one not medical.

The DGO [District Guidance Officer] at Northern Beaches has expressed concerns in the past about Mr Meyer’s recommendations, and does not support those made by Mr Meyer in this case.

Both Joy and the DGO have met with Mr Meyer about his assessment of Rhys Chinchen and still have reservations about the credibility/legitimacy of what he has said.

There is therefore disagreement between Mrs Chinchen, the school and DO about the boy being regarded as ‘gifted and talented’.

119 Ms Powell recommended that the School put in place a system to ensure that school counsellor intervention and assessment occur should any discrepancies arise between parents and teachers about a child’s educational needs and performance. She recommended the involvement of Ms Ravens and asked her to personally monitor and support Rhys with his education. Ms Ravens appears to have accepted that Rhys was a gifted child with a disability.

120 Ms Powell also recommended that Rhys’ class teacher for 2000, Mr Charlie Lane, be fully briefed on Rhys’ needs and that he develop his class program taking these needs into account. She recommended that Rhys be included in the extension program at Balgowlah Boys’ High School.

121 Following a meeting between the Applicants and Ms Ravens, arrangements were made for Rhys to be placed in the Year 5/6 mainstream class to be taught by Mr Lane in 2000. It appears that Mr Lane was chosen as it was considered that he could both extend and support Rhys as well as match his kinaesthetic learning style. Mr Lane was not one of the year 5/6 teachers in 1999.

122 Rhys commenced the year in Mr Lane’s class. Ms Ravens set up a number of meetings between the class teacher, herself and Mrs Chinchen. At the meeting held on 3 February, a feedback system was agreed to whereby any incomplete schoolwork would be done by Rhys at home. Mr Lane indicated that he would not mark or monitor any G&T work as it was not his program. However he agreed to extend Rhys in other ways. He also said he would ensure that Rhys had the use of a laptop.

123 By letter dated 17 February 2000, Ms Carrigan advised the Applicants of Ms Powell’s recommendations.

124 On 17 February Mrs Chinchen received a phone call from Ms Powell. She said that she had been asked by Ms Carrigan to review Rhys’ case. Mrs Chinchen told her that Ms Ravens and Mr Lane were both supportive of Rhys and that she was pleased that he finally had some support, particularly from the class teacher. Although Mrs Chinchen did not dispute that she had said this, she said that it did not mean that she was happy with his placement in the class. According to the minutes of the meeting held on 8 September 2000, Mr Chinchen shared this view. The Applicants were concerned that Rhys was not being challenged in the mainstream class.

125 When Mrs Chinchen rang Ms Nielsen on 9 March 2000 to find out why there had been no response to her letter of 16 November, she was told that the investigation was over and that she was not prepared to do anything more about the complaint.

126 On 20 March the Applicants wrote to Dr Laughlin seeking a resolution of their formal complaint. They attached to their letter a summary of the School’s alleged discrimination against Rhys.

127 At Dr Laughlin’s request, Mr Higgins conducted an investigation into the Applicants’ complaint. Dr Laughlin advised the Applicants of this by letter dated 18 May 2000.

128 In about the middle of the year Mr Lane was replaced by a casual teacher, Mr Michael Sullivan.

129 On 18 August the Applicants sent a facsimile to Dr Laughlin (with a copy to the Honourable John Aquilina MP, Minister for Education and Training) complaining that Rhys’ placement in the mainstream class was disadvantaging his education because he was not able to access the G&T program. They made it clear that they had objected to Rhys’ original placement in the mainstream class.

130 On 8 September the Applicants met with Ms Ravens and Mr Ogilvie to discuss the options for Rhys’ schooling for the rest of the year. One of the options put forward by Mr Ogilvie was for Rhys to return to the extension class as Ms Hawkes would not be taking the class for the final term.

131 By letter dated 13 September 2000, Dr Laughlin, replying on the Minister’s behalf, forwarded a copy of the Higgins Report to the Applicants and advised them that he had accepted the major findings of the investigation. The findings particularly relevant to our inquiry are as follows:

(1) The School did not knowingly victimise or vilify Rhys.

(2) At the time the teacher and the Principal became aware of some problems Rhys had in assimilating into the class, they did not ensure appropriate intervention by the district school counsellor to assess Rhys’ ability and to support him with individualised strategies to maximise his learning needs.

(3) There was no agreement between the School and the Chinchens regarding the nature of Rhys’ ability or disability.

471 Mrs Chinchen is a trained therapist. She said that Rhys had some therapy from one of her colleagues. Aside from this, the Applicants did not seek professional assistance for Rhys’ emotional distress.

472 We find that Rhys’ self confidence was substantially rebuilt in the year 2000 and that he made good progress in Mr Lane’s class. There is no evidence to suggest that he experienced any difficulties upon re-entering the extension class in October 2000.

473 There is no evidence that the Respondent’s unlawful conduct has had any adverse long term effect on Rhys’ psychological well being or his motivation and ability to learn. This may in part be attributable to Rhys’ resilient and adaptable nature.

474 When Dr Selikowitz saw Rhys in November 2002 he had just turned 14 and was in year 8. He ascertained that Rhys was not prone to anxiety or depression, that his concentration was generally good, that he got on well with other children, and that he slept well. (See Dr Selikowitcz’s report dated 29 November 2002.)

Loss of expected learning outcomes and a challenging and enriching education

475 We find that as a consequence of the Respondent’s unlawful conduct, Rhys did not achieve the expected learning outcomes for the 1999 school year and that he lost the opportunity to be educated to his full potential. However, there is no evidence that this has had any significant long term effect on Rhys’ subsequent learning outcomes.

Loss of opportunity to learn to manage disability

476 We find that as a consequence of the Respondent’s unlawful conduct, Rhys lost the opportunity in 1999 to learn to manage his disability in a primary school setting. However, given that he is managing his disability well at Mosman High, we are unable to conclude that this loss has had any significant long term effect upon him.

Loss of access to a safe education

477 We are not satisfied that Rhys was denied access to a safe education. We do not accept that the Applicants are entitled to claim the cost of sending Rhys to a private school in the year 2001.

Loss of future earning capacity

478 There is no evidence to substantiate this claim.

Conclusion

479 In relation to the three substantiated allegations of unlawful discrimination and the substantiated allegation of victimisation, we propose to award damages to Rhys in the amounts set out below. Since the complaints were brought on behalf of Rhys, it is appropriate to award damages to the Chinchens to hold in trust for Rhys until he attains the age of 18. The total amount we have awarded is $15,000.

ORDERS

Unlawful Discrimination

Allegation (1)

1. That part of the complaint that relates to the allegation that Rhys was denied access to support for his disability is substantiated.

2. Within 28 days of the date of this order, the Respondent is to pay the Applicants the sum of $7,000 to be held in trust for Rhys until he attains the age of 18.

3. That part of the complaint that relates to the allegation that Rhys was placed under threat of removal from the extension class is substantiated.

4. Within 28 days of the date of this order, the Respondent is to pay the Applicants the sum of $2,000 to be held in trust for Rhys until he attains the age of 18.

5. That part of the complaint that relates to the allegation that the School’s decision to exclude Rhys from the extension class was unlawful is substantiated.

6. Within 28 days of the date of this order, the Respondent is to pay the Applicants the sum of $5,000 to be held in trust for Rhys until he attains the age of 18.

7. That part of the complaint that relates to the remainder of the allegations of unlawful discrimination is dismissed.

Allegation (9)

8. That part of the complaint that relates to the allegation that the School’s withdrawal of the home support plan constituted victimisation is substantiated.

9. Within 28 days of the date of this order, the Respondent is to pay the Applicants the sum of $1,000 to be held in trust for Rhys until he attains the age of 18.

10. That part of the complaint that relates to the remainder of the allegations of victimisation is dismissed.