Connor v State of Queensland (Department of Education and Training) (No 3)
[2020] FCA 455
•9 April 2020
FEDERAL COURT OF AUSTRALIA
Connor v State of Queensland (Department of Education and Training) (No 3) [2020] FCA 455
File number: NSD 875 of 2017 Judge: RANGIAH J Date of judgment: 9 April 2020 Catchwords: HUMAN RIGHTS – Disability discrimination in education – where school suspended, physically restrained and secluded student who exhibited disruptive and violent behaviour – where behaviour was consequence of disability – whether treatment of student less favourable than treatment of a non-disabled student in the same circumstances – whether student was discriminated against by limiting access to benefits, subjecting student to detriment and failing to provide student with reasonable adjustments – allegations of discrimination not made out – application dismissed Legislation: Disability Discrimination Act 1992 (Cth) ss 4, 5, 10, 11, 22(2), 29A, 34 and 45(1)
Disability Discrimination and other Human Rights Legislation Amendment Act 2009 (Cth)Evidence Act 1995 (Cth) ss 64(2) and 140
Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336
Kiefel v State of Victoria [2013] FCA 1398
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
Purvis v New South Wales (2003) 217 CLR 92
Qantas Airways Ltd v Gama (2008) 167 FCR 537
Sklavos v Australian College of Dermatologists (2017) 256 FCR 247
Tropoulos v Journey Lawyers Pty Ltd [2019] FCA 436
Varasdi v State of Victoria [2018] FCA 1655
Walker v State of Victoria [2011] FCA 258
Walker v State of Victoria [2012] FCAFC 38
Watts v Australian Postal Corporation [2014] FCA 370
Date of hearing: 21–31 October 2019 Date of last submissions: 18 November 2019 (Applicant)
29 November 2019 (Respondent)Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 355 Counsel for the Applicant: Peter Connor appeared in person as the litigation representative on behalf of the Applicant Counsel for the Respondent: Mr S Hamlyn-Harris Solicitor for the Respondent: Crown Law ORDERS
NSD 875 of 2017 BETWEEN: BEAU CONNOR (BY HIS LITIGATION REPRESENTATIVE PETER CONNOR)
Applicant
AND: STATE OF QUEENSLAND (DEPARTMENT OF EDUCATION AND TRAINING)
Respondent
JUDGE:
RANGIAH J
DATE OF ORDER:
9 APRIL 2020
THE COURT ORDERS THAT:
1.The proceeding is dismissed.
2.The applicant’s litigation representative, Peter Connor, pay the respondent’s costs of the proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
The legislation
[8]
The issues
[16]
The witnesses
[30]
The applicant’s witnesses
[30]
Beau Connor
[31]
Julie Connor
[42]
Peter Connor
[69]
Margaret Webb
[79]
Daniel Wendt
[100]
The State’s witnesses
[114]
Findings of fact
[123]
2011
[125]
2012
[140]
2013
[152]
2014
[175]
2015
[194]
Other relevant documents
[225]
Consideration
[228]
The First Allegation: Suspensions
[228]
The Second Allegation: Physical Restraint/Seclusion
[275]
The Third Allegation: Reasonable Adjustment—Functional Behaviour Assessment and Behaviour Plan
[297]
The Disability Standards for Education 2005
[338]
Damages
[351]
Conclusion
[354]
RANGIAH J:
In this proceeding, the applicant, Beau Connor, by his litigation representative, Peter Connor, alleges that the respondent, the State of Queensland (the State) discriminated against him in contravention of s 22(2) of the Disability Discrimination Act 1992 (Cth) (the DDA). He claims declarations, damages and other relief.
Beau Connor is presently 14 years of age, having been born on 30 November 2005. Peter Connor is Beau’s father.
Peter Connor objects to the use of the title “Mr”, as he asserts that it is a “military title”. I will refer to members of the Connor family by their first names or their full names and without the use of any title.
The proceeding concerns Beau’s treatment at Kawungan State School (the School) in Hervey Bay in Queensland. Beau was a student at the School from January 2011 to August 2015.
Beau has been diagnosed with Autism Spectrum Disorder (ASD), Pervasive Development Disorder (Not Otherwise Specified) (PDD-NOS), Oppositional Defiant Disorder (ODD), Attention Deficit Hyperactivity Disorder (ADHD) and other conditions.
Beau would frequently engage in disruptive behaviour at the School, which sometimes included physically assaulting teachers or students. On some of these occasions, he was physically restrained by staff members and confined in a room. He was frequently suspended from the School. Those actions, together with allegations that the School failed to provide Beau with reasonable adjustments, form the basis of the claim.
Beau was initially represented by lawyers, who drew the statement of claim. By the time of the trial, he was not legally represented and Peter Connor conducted the trial. It is appropriate to acknowledge that Peter Connor presented the case competently and with considerable courtesy to the Court.
The legislation
Section 22 of the DDA provides, relevantly:
22 Education
...
(2)It is unlawful for an educational authority to discriminate against a student on the ground of the student’s disability:
(a)by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority; or
(b)by expelling the student; or
(c)by subjecting the student to any other detriment.
…
Section 4 of the DDA defines “educational authority” to mean, “a body or person administering an educational institution”. The expression “educational institution” is defined to include a school. It is not in dispute that the State is an “educational authority”.
The applicant alleges direct discrimination within s 5 of the DDA. That section provides:
5 Direct disability discrimination
(1)For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.
(2)For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a)the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and
(b)the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.
(3)For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.
Section 4 defines the expression “reasonable adjustment” as follows:
Reasonable adjustment: an adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person.
Section 4 provides that “unjustifiable hardship” has a meaning affected by s 11. Section 11 provides:
11 Unjustifiable hardship
(1)For the purposes of this Act, in determining whether a hardship that would be imposed on a person (the first person) would be an unjustifiable hardship, all relevant circumstances of the particular case must be taken into account, including the following:
(a)the nature of the benefit or detriment likely to accrue to, or to be suffered by, any person concerned;
(b)the effect of the disability of any person concerned;
(c)the financial circumstances, and the estimated amount of expenditure required to be made, by the first person;
(d)the availability of financial and other assistance to the first person;
(e)any relevant action plans given to the Commission under section 64.
Example:One of the circumstances covered by paragraph (1)(a) is the nature of the benefit or detriment likely to accrue to, or to be suffered by, the community.
(2)For the purposes of this Act, the burden of proving that something would impose unjustifiable hardship lies on the person claiming unjustifiable hardship.
Section 4 of the DDA defines “disability” in relation to a person to include:
…
(f)a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
(g)a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
…
To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability.
Section 10 of the DDA provides:
10 Act done because of disability and for other reason
If:
(a) an act is done for 2 or more reasons; and
(b)one of the reasons is the disability of a person (whether or not it is the dominant or a substantial reason for doing the act);
then, for the purposes of this Act, the act is taken to be done for that reason.
The applicant bears the onus of proving his allegations of discrimination: Qantas Airways Ltd v Gama (2008) 167 FCR 537 at [65], [132]. The allegations must be proved on the balance of probabilities. The serious nature of the allegations must be borne in mind when assessing the evidence: s 140 of the Evidence Act 1995 (Cth); Briginshaw v Briginshaw (1938) 60 CLR 336 at 361–362.
The issues
The statement of claim alleges that the State discriminated against Beau in contravention of s 22(2)(a) and (c) of the DDA by limiting his access to benefits provided by the State, subjecting him to detriment and failing to provide him with reasonable adjustments. The allegations are of direct discrimination under s 5(1) and (2) of the DDA. There are no allegations of indirect discrimination.
The statement of claim makes three allegations of unlawful discrimination, described as “the First Allegation”, “the Second Allegation” and “the Third Allegation”.
The First Allegation is that Beau was suspended from the School on multiple occasions during the period from February 2011 to August 2015. These are described as “formal suspensions” and “informal suspensions”. The “informal suspensions” involved Beau’s parents being called to take him home from the School during normal teaching hours. The informal suspensions are alleged to have occurred on ten occasions. There are alleged to have been eleven formal suspensions totalling 88 days.
It is alleged that by suspending him, the State treated Beau less favourably than it would treat a student without disabilities, or without Beau’s disabilities, attending a government school. The formal and informal suspensions are alleged to have been imposed directly due to Beau’s disabilities. It is further alleged that the State failed to provide Beau with supports that students in government schools can receive, such as a formal social skills program, language and sensory programs, engaging an external expert to address Beau’s behaviours of concern and a comprehensive Individual Education Plan.
The Second Allegation is that Beau was subjected to physical restraint/violence and seclusion/isolation at the School on the basis of his disability. This is alleged to have occurred on at least 25 occasions. It is alleged that this treatment was directly due to Beau’s disabilities and was also inconsistent with the School’s policies, procedures and guidelines for the treatment of students. It is alleged that the State treated Beau less favourably than it would treat a student without disabilities, or without Beau’s disabilities, attending a government school.
The Third Allegation is that the State failed to provide Beau with a Functional Behaviour Assessment or a Behaviour Plan. It is alleged that a Functional Behaviour Assessment was required to determine the function of Beau’s behaviours of concern and mitigate or extinguish those behaviours. It is alleged that the Behaviour Plans that were developed by the School were inadequate and punitive. It is alleged that the failure to provide a formal Functional Behaviour Assessment and Behaviour Plan had the effect that Beau was, because of his disabilities, treated less favourably than a student without his disabilities would have been.
The State admits that Beau had at least ASD, PDD-NOS, ODD and ADHD and that he had a “disability” within the meaning of s 4 of the DDA.
As to the First Allegation, the State alleges in its defence that in 2014 and 2015, the School implemented Individual Behaviour Support Plans, agreed with one of Beau’s parents, which contained a range of behaviour de-escalation techniques, and if those failed, the possible consequences included Beau’s parents being called to take him home, withdrawal from the class or suspension from the School. The State denies that it provided less favourable treatment to Beau and asserts that it provided reasonable adjustments. It also pleads that it did not treat Beau less favourably than another student without a disability, who displayed the same aggressive and non-compliant behaviour would have been treated.
As to the Second Allegation, the State admits that its employees engaged in physical restraint of Beau on approximately nine occasions, but alleges that on each occasion, the restraint was carried out in response to highly disruptive, disobedient or aggressive behaviour which posed a threat of harm to Beau, other students or staff. The defence pleads that the employees physically restrained Beau in accordance with the Disability Standards for Education 2005 (the Education Standards), the Safe, Supportive and Disciplined School Environment Procedure (the Procedure), and the Kawungan State School 2012-15 Responsible Behaviour Plan for Students (the School Plan), and, further, the use of physical restraint was consented to and encouraged by Beau’s parents.
The State admits that its employees utilised a quiet area known as the “Withdrawal Room” to calm Beau on approximately 17 occasions and says that, on each occasion, the use of the Withdrawal Room was carried out in response to highly disruptive, disobedient or aggressive behaviour which posed a threat of harm to Beau, other students or staff. The State alleges that the use of the Withdrawal Room was in accordance with the Education Standards, the Procedure and the School Plan and was consented to and encouraged by Beau’s parents. The State’s actions are said to be reasonable measures taken to protect the health and safety of Beau, other students and staff.
The State pleads that by reason of the actions taken by the School, including implementing Individual Behaviour Support Plans, making individual adjustments to the curriculum, increasing targeted supervision and implementing flexible learning arrangements, it provided reasonable adjustments for Beau and did not treat Beau less favourably than another student without a disability, who displayed the same aggressive or non-compliant behaviours would have been treated.
As to the Third Allegation, the State asserts that it implemented Behaviour Support Plans and Individual Curriculum Plans in respect of Beau. It alleges that these plans were prepared in consultation with, and endorsed by, Beau’s parents. It asserts that these plans were in accordance with the Education Standards, the Procedure and the School Plan. The State alleges that it made reasonable adjustments to accommodate Beau, including provision of a quiet space for him to retreat to, targeted learning activities, one-on-one teacher aide support, modifications to the teaching environment, engagement of Beau’s parents within the classroom environment, diversion and de-escalation techniques and meetings with Beau’s parents and teachers and guidance officers. Further, the State alleges that the reasonable adjustments it took constituted “special measures” within s 45(1) of the DDA.
I note that while the State pleads unjustifiable hardship under s 29A of the DDA and special measures under s 45, it did not advance any submissions in support of these matters. I do not propose to consider them further.
On the seventh day of the nine day trial, Peter Connor sought leave to file an amended statement of claim. It sought to raise new allegations against staff of the School including attempted murder, abuse, deprivation of liberty, assault and battery, denial of medical attention, trespass, torts alleged against former lawyers and breaches of various regulatory provisions. I ruled that leave should not be granted, given that some of the new allegations were outside the jurisdiction of the Court or could not appropriately be brought within the present proceeding, and all were inadequately particularised and would cause prejudice to the State as they were raised too late. Accordingly, the proceeding must be determined on the basis of the allegations contained in the statement of claim filed by Beau Connor’s former lawyers.
The witnesses
The applicant’s witnesses
Five witnesses provided evidence in support of Beau’s case. They were Beau, Peter and Julie Connor, Margaret Webb (a behaviour and disability expert) and Daniel Wendt (a psychologist).
Beau Connor
Beau Connor affirmed two affidavits that have been admitted into evidence. He was not required for cross-examination.
Beau’s first affidavit annexes a statement handwritten by him dated 15 July 2019. He states he had trouble at school and used to get upset in class. He says sometimes his teacher would kick him out of class and he was suspended a lot. He says:
The teachers and SEP [Special Education Program] would hurt me and choke me, wedgie me, scratch me and drag me into the room.
Beau says that the teachers hated him. He says that one time he vomited to get out and that he would get locked up for two hours and he was scared. Beau states that he has trouble sleeping, that he wants to kill himself “because of it”, he does not like adults or people and he does not like school because of what happened to him.
Beau’s second affidavit annexes a statement handwritten by him dated 14 August 2019. He states that he remembers being locked in a room in the Special Education Program at the School. He says that there were loud noises, which he knows were the School’s fire drills. He states that he does not recall being removed from the room when the fire drills were on and he was sure that the teacher left the building and left him locked in the room. He says he remembers calling out, but no-one came.
Beau states that he was locked up for two hours at a time and he could not see anyone outside the door. He says that the room was blacked out and no-one could see him unless they were right up against the glass.
Beau states that Ms Green, a Special Education Program teacher, told him that she would tell his gymnastics teacher to stop him going if he was naughty at school. Beau says he told Ms Green that she could not do this. He says that the teachers all said it to him.
Beau states he got scratch marks when he was dragged into the room. He says he always told his mother about it each day and she would go to admin and yell at them about hurting him.
Beau remembers when his mother got locked in the room with him. His mother took him to the administration office and yelled at Ms English, Head of the Special Education Program at the School, and Mr Boss-Walker, the School Principal. Beau says that he talks to his dad about killing himself.
The Connor family were in conflict with another family. Beau states that on 29 January 2015, the children from the other family assaulted him and broke his right arm in the toilet block at the School.
Beau states that he never put himself in the Withdrawal Room and only went in there when the teachers put him there.
I accept that Beau’s affidavits reflect his perception of events and matters at the School, but consider that his perception is likely to be influenced by at least his age (he was between five and nine years old) and state of mind (he was plainly in a disturbed emotional state) at the time of the relevant events. I do not accept that Beau’s teachers deliberately hurt him, that they hated him, that the Withdrawal Room was blacked out, or that they left him in the room during fire drills.
Julie Connor
There were two affidavits of Julie Connor, Beau’s mother, admitted into evidence. She commenced giving oral evidence-in-chief, but collapsed in the witness box. It was evident that she could not continue. There is evidence that she has Post-Traumatic Stress Disorder (PTSD) arising from an incident in 1996. In that incident, Peter Connor’s mother was shot dead by his father. In the same incident, the father shot Julie Connor, wounding her, and shot at Peter Connor. As Julie Connor was plainly unfit for cross-examination, I ruled that her affidavits would be admitted into evidence pursuant to s 64(2) of the Evidence Act 1995 (Cth) without requiring her to attend for cross-examination.
Julie Connor deposes that Beau’s behaviour was problematic from an early age. He would have “meltdowns” where he would cry loudly and scream. These were precipitated by events such as changes in his routine, not liking how someone was behaving towards him, a disciplinary voice being used or an unfamiliar person directly interacting with him.
Julie Connor states that in 2011 in Beau’s Prep class at the School, his meltdowns caused problems. In the first week of school, she told Beau’s teacher that he had been diagnosed with ADHD and talked to her about Beau’s meltdowns and how she dealt with them by distracting him. She recalls on one occasion, probably on 2 March 2011 when Beau was suspended for three days, Beau told her another student had been stabbing him with a pencil. She says that the teacher stated that Beau had told her about the incident but that she did not believe him. Julie Connor states that from time to time she would get a phone call from the School to tell her that Beau had been suspended.
Julie Connor recalls meeting Ms Lisa Cooper, a regional Advisory Visiting Teacher (Early Years) and Behaviour Management Consultant, who provided support at the School, to discuss strategies for Beau including using “happy faces” and “sad faces” on stickers for Beau so he could indicate how he was feeling. They also discussed diversion tactics. She does not recall any other meeting she attended at the School that looked specifically at Beau’s behaviour management. She had discussions with Beau’s teachers and Ms English about discipline later on in his schooling.
Julie Connor states that she never consented to Beau receiving a bear hug when removing him from a classroom. She states that she never consented to Beau being restrained in any other way or for any other purpose. She does not recall the words “Withdrawal Room” being used with her. She states that the idea of Beau being withdrawn from the classroom to settle down or to have a “time out” was “completely acceptable” to her. However, she states that she never consented to Beau being isolated in a small locked room with a single bed and a wall fan and all of the windows blacked out.
Julie Connor has produced photographs showing scratches and marks on Beau said to have been caused when he was restrained (although she does not recall the exact dates of the incidents). She describes marks on Beau’s neck which she said looked like “choke” marks from when he was in about Year 4 in 2015, which Beau said were from Ms English placing him in the Withdrawal Room. Julie Connor states that until 13 March 2015, she had no idea that Beau was being placed in the Withdrawal Room.
Julie Connor states that she removed Beau from the School after his last “assault” in August 2015. This appears to be a reference to the allegation that Beau was assaulted by parents from the family that the Connor family was in conflict with. This incident was reported to the Queensland Police. A statement was provided by Ms English and Mr Bulger, a Deputy Principal at the School, to the police. She believes that they said they “didn’t see a thing” as a cover-up because Beau was not being fully supervised.
Julie Connor states that at the end of each year she asked the School to let her know who would take Beau’s class the following year, but that never occurred. She wanted Beau to meet the new teacher and spend some time in their classroom to transition for the following year.
Julie Connor states that the School did not want to acknowledge that Beau had a disability because on one occasion she was told by Ms Christie, a Deputy Principal at the School, that unless Beau was diagnosed with ASD he would not get assistance at the School. She said she did everything in her power to get that diagnosis.
Julie Connor states that towards the end of 2012 Beau was having some difficulties with his medication due to a growth spurt. This resulted in Beau being suspended numerous times. She said that she came to an agreement with the School that she would pick Beau up at 11 am every day, which ended in Term 3 of 2013, when Beau returned to full school days.
Julie Connor refers to an assessment being carried out by Ms Schloss, a Guidance Officer at the School, in a report she wrote dated 27 February 2013. She says that no proper assessment was carried out on Beau and that Ms Schloss was not properly qualified.
Julie Connor’s recollection is that almost every day throughout 2013, she and Peter Connor were called to attend the School to collect Beau because of a meltdown. In respect of the incident on 6 February 2013, Ms Christie and Mr Bulger told her that Beau had to be physically removed as he had a meltdown. She says that she did not receive any response or information about the cause of any of Beau’s meltdowns.
Julie Connor states that at one stage, she offered to sit in the classroom to help with Beau’s behaviour, but was told by a Deputy Principal at the School that this was not allowed by the School, even though she and Peter had done this previously. She states that she was never given any work by the School for Beau to do during his suspensions. She said she only ever collected “readers” from his class, but this was done on her own initiative.
Julie Connor states that in 2014, she attended the class most mornings and spoke with Ms Brookes, Beau’s Grade 3 teacher, every afternoon after class to see how Beau had been. Ms Brookes told her that her aim was to avoid Beau being further suspended by the School. Beau was only suspended once in 2014. Julie Connor states that during 2014, she would go into the classroom on most days and assist with Beau. She said that Beau felt more comfortable with her there. She states that in 2014, there was a school support person to assist Beau in class once a week for an hour and this continued into 2015.
Julie Connor states that in 2015, she told Beau’s teacher that she was able to come into the class and assist with Beau. The teacher said she did not want her in the classroom. She said she asked for Beau to be removed from that class, but was told that he could not be moved.
The Connor family were in conflict with another family, which spilled over into School. Julie Connor states that on 29 January 2015, Beau was “attacked” in the toilet block by the children from the other family and suffered a “green stick fracture” of his arm. She states that she and Peter Connor went to the office and spoke to the Principal, Mr Simon Boss-Walker, but he denied that the incident had occurred. Julie Connor states that she requested the School to arrange for Beau to be supervised during play time, breaks and around the toilet. Supervision was undertaken by Mr Bulger and Ms English.
On 13 March 2015, Julie Connor was called to the School because Beau was misbehaving. She saw that Beau was in a little room huddled over in the corner curled up in a little ball. She asked Beau what had happened and he mentioned that it was the bullying again. She said that as she had been crouched over and speaking to Beau, someone had walked past and closed the door. It was locked. The windows were painted black and some of the windows were boarded up. She said that she yelled for someone to let her out, but Beau said words to the effect, “Don’t do that, they won’t come and open the door”. Beau said he was locked in the room every day. After 20 minutes, she called the office using her mobile phone and someone unlocked the door. She said the woman who unlocked the door, said, “Oh we just thought it was Beau yelling”.
Julie Connor said that she went to see Mr Boss-Walker and Ms English. She was distressed and agitated. She told them they could not do this to children. Julie Connor states that this was the first time she knew the room existed. She called the Department of Education.
Julie Connor states that on 8 May 2015, she was told that Beau was going to be transferred to the SEP because the program could give Beau more support. She says that she complained to Ms Green, Beau’s teacher at the Special Education Program, that the work Beau was being given was not challenging him as it was only at Grade One and Two level. She says that Ms Green told her that she wanted all her students doing the same level work. She does not believe that this was adaptive to Beau’s needs.
Beau was again suspended on 12 August 2015. She attributes this to Beau being accused of lying about an incident involving an alleged assault by the parents from the other family the day before.
Julie and Peter Connor decided to move Beau to Urangan Point State School in August 2015. She states that Beau thrived at the new school and received merit cards for good behaviour. She said that Beau was never suspended from the new school. Julie Connor annexes a letter from Julie Phillips, a disability advocate in Victoria concerning a different child. The letter indicates that intensive psychological interventions or behaviour analytical interventions have a high rate of success. It indicates in the case of the other child that the school chose not to get any professional assistance even though it was their responsibility to do so.
In her oral evidence, Julie Connor said she suffers from PTSD and dyslexia. She did not explain the extent of her dyslexia. She did not give evidence that she was unable to understand any of the documents given to her by the School.
Julie Connor gave evidence that she never discussed the shooting incident or the injuries she sustained with her children. She said they did not need to know and she wanted to protect them.
My impression is that Julie Connor is a caring and devoted mother who has tried her utmost to provide Beau with opportunities for his education and social development. That is demonstrated by her frequent engagement with his teachers, her willingness to assist with Beau in class and her openness to various strategies suggested by the School. A number of the teachers state that they enjoyed a good relationship with Julie Connor. However, in 2015, her attitude to the School seems to have changed. As far I can tell, that seems to have been precipitated by the event of 13 March 2015 when she was accidently locked in the Withdrawal Room with Beau and by a belief that staff at the School were taking the side of the family that the Connor family was in conflict with.
There is some conflict between the evidence of Julie Connor and the evidence of witnesses called by the State. The evidence of the State’s witnesses tended to be supported by contemporary documents. Julie Connor’s affidavit evidence tends to be somewhat vague, her affidavits having been prepared some years after the relevant events. Further, the weight to be given to her evidence is affected by the State’s inability to cross-examine her. In addition, her evidence was far from objective, being coloured by her role as a mother. She too readily accepted the accounts provided to her by Beau and dismissed the observations of teachers to the contrary as fabrications. For example, where Beau alleged that the parents from the other family assaulted him at the School, but Ms English and Mr Bulger provided a statement to police that they had witnessed no such assault, Julie Connor concludes, quite unreasonably, that they were covering-up the assault. I accept that Ms English and Mr Bulger were telling the truth. Some parts of Julie Connor’s evidence were exaggerated. For example, she said she or Peter Connor were called to the School almost every day in 2013 to collect Beau, when the records do not support that assertion. I prefer the evidence of the State’s witnesses where there is conflict.
In her oral evidence, Julie Connor denied that Beau was aware of the incident in which his grandfather shot her. She was not able to be cross-examined about this evidence because of her breakdown in the witness box. However, I note that on 11 February 2014, Ms Brookes, a teacher at the School, made a record of a discussion in which Julie Connor said that she had been the victim of a crime in which she had been harmed by Beau’s grandfather. Ms Brookes recorded that Julie had discussed the details openly in front of her children. I accept the accuracy of Ms Brookes’ note, since she could not have known about the incident unless Julie told her. It follows that Beau was aware of the crime perpetrated against his mother.
There is also a note dated 11 February 2014 in the School’s records indicating that a password had to be given before anyone other than persons known to the School would be allowed to pick up the Connor children. This was because Julie Connor’s father was “at the jail” in Maryborough, and his girlfriend may have been following Julie and so may have been aware of where the children went to school. Julie Connor was unable to be questioned about whether Beau was aware of those issues.
Peter Connor
Peter Connor has affirmed four affidavits. He was cross-examined.
In his first affidavit, Peter Connor said he attended Beau’s classroom numerous times in 2012 to assist him. This was during a period when Beau was attending school only from 9 am to 11 am. He recalled various events where Beau was upset at the School and one when his arm was broken by the boys from the other family.
In his second affidavit, Peter Connor deposes that he did not consent to the School and its employees physically restraining Beau or depriving him of his liberty. He said that he was not aware that Beau was being restrained or deprived of his liberty. He states that he was never shown the “time out room”. He states that he believes the School took advantage of Julie Connor’s “intellectual impairments”. He did not explain what these impairments were or how they were taken advantage of.
Peter Connor’s third affidavit annexes a letter of instruction to Daniel Wendt, a clinical psychologist, and several medical reports.
Peter Connor affirmed a fourth affidavit, which is largely responsive to the affidavits of the State’s witnesses. In large part, it is simply argumentative, but, relevantly, he deposed:
I believe Beau suffers from Anger management issues, which is common in our family. I believe Beau gets so “worked” up he goes into “White rage” Where he cannot be controlled, and this is evident by his teachers saying it “takes two to hold him down or carry him”.
(Errors in the original.)
I accept that Peter Connor is a genuine and caring father. He is very protective and defensive of his family and angry about Beau’s treatment at the School. It is evident that his protective attitude stems in part from his own experiences of having a violent father and his perception of harassment by the police and ill treatment by the criminal justice system. He gave oral evidence of having been shot at by his father and of what he claimed was 20 years of police harassment and victimisation.
In his oral evidence, Peter Connor said he not been involved in the management and behaviour plans implemented by the School, as they took it upon themselves to implement these plans. It became apparent that Peter Connor had little involvement with the staff at the School, other than for a period in 2012 when he attended class with Beau, when he picked Beau up from time to time and when he attended about two meetings.
Peter Connor believes that Beau was treated very badly by the School. He is focussed, not only upon Beau’s suspensions and the use of the Withdrawal Room, but upon other perceived injustices. He seems particularly aggrieved by the incident where Beau claimed he had been assaulted at the School by the parents from the family the Connor family was in conflict with. Peter Connor also alleges that two teachers lied in a statement to police when they denied that they had seen the parents of the other family assaulting Beau.
A number of the allegations made by Peter Connor against teachers at the School are clearly fuelled by his anger and were not supported by any reasonable view of the circumstances disclosed by evidence. He made some outrageous, and no doubt hurtful, accusations against the teachers without evidence. For example, he asked one witness whether it was a regular occurrence at the School for senior staff members to, “try to intimidate small children while they were alone” and accused the witness of, “deliberately winding (Beau) up and then choosing to restrain him”. He accused a teacher aide of breaking Beau’s arm by dragging him and not recording it in OneSchool because she did not want a record of the event. He asked another teacher whether she looked down upon Beau because of his disabilities. She responded:
Mr Connor, I have two children with disabilities myself. I don’t believe in looking down on any child with a disability.
In my opinion, Peter Connor lacked perspective when giving his evidence and presenting the case. He displayed no understanding of the difficult circumstances and conflicting duties that the teachers who dealt with Beau were faced with. His evidence ultimately had limited bearing upon the issues to be decided because he had limited contact with the teachers and the School. Julie Connor had most of the dealings with the School regarding Beau.
Margaret Webb
Margaret Webb describes herself as an expert professional teacher and behaviour and disability expert. She has a Bachelor’s degree in Inclusive Education and Disability Studies, a Master’s degree in Education and a Master’s degree in Teaching from the Australian Catholic University. She is accredited as a teacher.
Ms Webb has prepared a report critiquing a Class Behaviour Management Plan dated 27 February 2013 and an Individual Curriculum Plan for Semester One, 2015 developed by the School, which Ms Webb refers to as the “Individual Education Plan”. Her comments are somewhat repetitive, so I will provide only a summary of them.
Ms Webb states that adjustments made for Beau by the School were extreme, using a withdrawal room which was often blacked out and used against his will. She states that it seems his diagnosed disability provided “justification” or “motivation” to use this form of behaviour management.
Ms Webb states that Beau’s teachers prevented him from accessing all opportunities in the classroom by locking him in the Withdrawal Room. The teachers did not meet Beau’s needs by failing to make modifications to their teaching methods. She says the Individual Education Plan fails to show evidence that the School made reasonable adjustments to the learning environment to support his sensory processing disorder or his diagnosis of autism.
Ms Webb said there was little evidence of curriculum modification and adaptations which would have allowed full access to learning opportunities for Beau. Ms Webb states that the School used punitive behaviour strategies such as locking Beau in the Withdrawal Room (at times in the dark).
Ms Webb states that Beau’s parents did not have significant input into the strategies the School was using. They were not consulted on aspects of behavioural management decisions. She states that the School’s failure to provide reasonable adjustments ultimately impacted upon Beau’s inclusion as a student and a valued member of the class. She says the impact on Beau included that his ability to achieve learning outcomes was reduced, that he was locked up, thus impacting on his social development and sense of belonging, and that he was devalued and viewed negatively by his peers as a result of his treatment by the School. Further, no adjustment was made to take into account the interests of the child (ie climbing trees) and no adjustments were made to learning based on his interests.
Ms Webb states that Beau was not provided with the right to participate in courses and programs designed to develop his skills, knowledge and understanding on the same basis as other students without disabilities. That was because his Individual Education Plan clearly showed that the focus of intervention was around him complying with staff, whereas it should have been to work collaboratively with his family to develop a plan to meet his individual needs with a strong focus on goals and strategies.
Ms Webb states that Beau was unable to access learning when he was locked away in an isolated room, which excluded him from class, impacting upon his opportunity to obtain learning outcomes and develop and maintain friendships. This created a negative perception of Beau and further marginalised him.
Ms Webb states that no Functional Behaviour Analysis was conducted to identify the triggers leading to Beau’s problematic behaviours. She explains that the School’s hypothesis for Beau’s problematic behaviours was that he wanted to avoid work and “be sent home”, but this suggests that the School did not have an understanding of the purpose or function of his behaviour. She further states that it shows that the School put the problem with the child rather than identifying some of the triggers that may have led to certain behaviours being presented. Additionally, one of the key points on the Individual Education Plan showed that “Beau wanted to be liked by others” and “wanted to have social connectedness”, yet he was placed in a situation where he was seen as devalued and problematic by his peers, which affected the way he formed or maintained relationships with them.
Ms Webb states that the Behaviour Plan showed little or no evidence of preventative, adaptive or reactive strategies that the School could use to support Beau. She further states that the Behaviour Plan showcased very little knowledge of certain characteristics and known strategies that would have supported a student with Autism or ADHD, including sensory learning, time positive reinforcements, social stories and peer support, etc.
Ms Webb states that it is evident that the School failed to make reasonable adjustments to meet Beau’s needs. The Individual Education Plan and Behaviour Plan show that the School had not considered Beau’s sensory processing disorder, his diagnoses of ASD, ADHD and anxiety, his sensory needs, adaptations and modifications, the environment, his communication skills, personal characteristics, learning needs or his social roles. She says that punitive measures to manage Beau’s behaviour were inappropriate and violated his human rights through victimisation and harassment while using exclusion and devaluation practices. Ms Webb states that the School failed Beau and his family and had not made the adjustments necessary for Beau to feel included and accepted or even able to participate at the School.
Ms Webb states that the Individual Education Plan shows many flaws in the School’s attempts to meet Beau’s needs. The Individual Education Plan states Beau’s triggers are difficult to define, but known triggers have been left out. She says that for example, it was shown that Beau liked to climb trees and furniture and that he wanted to fit in with others as a strength, but the School instead used an isolated room to manage his behaviour. She states that the use of the room was a trigger.
Ms Webb states that the Individual Education Plan placed Beau as the person responsible to action strategies and suggested that he self-regulate his responses, an expectation which went against his cognitive ability as a young child. She states that self-regulation is an unrealistic expectation of most young students and again places the problem with the child.
She states that the Individual Education Plan did not show any evidence of preventative strategies the School could have used to identify the function of Beau’s behaviours. There appeared to be a few strategies that would support a student with autism. She states that Beau could have benefited from preventative strategies including visual stimulus, communication aids, sensory fidgets, cushions for sensory stimulation, assistive technology, interests being included in his learning, adaptation and modification of learning tasks and constant positive reinforcements.
Ms Webb states that, as an expert in education and disability, she is disappointed that the School’s Behaviour Plan and Individual Education Plan showed little or no evidence of adaptation and modification to the curriculum, adaption or modification of environment, or adjustments made to support the triggers leading to problematic behaviours.
In its closing address, the State submitted that Ms Webb should be found not to be an expert in disability and education. However the State had not objected to the reception of her opinion evidence on such a basis. Further, there was only a very limited and indirect challenge to her expertise under cross-examination. In view of the limited nature of that challenge, I am unable to find that she is not an expert.
However, Ms Webb was not objective or dispassionate. At one stage she referred to herself as, “being a voice for Beau Connor”. Under cross-examination, Ms Webb was asked whether she saw herself as a disability advocate, but she denied that she was. When asked why she described herself on her Twitter account as an advocate for people with disabilities, she gave a confusing answer, the effect of which was that just because her Twitter account said she was an advocate did not mean that she was. Ms Webb’s evidence tended to consist of long rambling statements, much of which were not directly relevant to the issues in this case. She seemed to regard the opportunity to give evidence as a platform for her advocacy of the interests of people with disabilities.
The documents Ms Webb was initially provided with were an Individual Curriculum Plan for Semester 1, 2015 and the Class Behaviour Management Plan dated 27 February 2013. Ms Webb spoke to Ms Connor for a total of 15 to 30 minutes, predominantly about, “her own story of her being locked in the cage”. She did not see any of Beau’s other school records.
Ms Webb was not provided with the voluminous records about Beau kept on the State’s OneSchool database. Ms Webb had little information as to the level and nature of the behaviours that led to Beau’s exclusion from the classroom, the strategies that the teachers would use to manage his behaviour before excluding him from the classroom and the more general implementation of strategies to assist Beau with learning and behaviour. In view of the lack of salient information provided to Ms Webb, it is apparent that a number of the statements in Ms Webb’s report about Beau’s treatment and the absence of strategies to assist him were based upon assumptions, rather than factual information, about what had or had not happened. In light of the lack of information Ms Webb had access to, her opinions cannot be regarded as reliable.
Some of Ms Webb’s suggestions were simply unrealistic. For example, she repeatedly emphasised Beau’s interest in climbing trees as a tool for learning, but ignored the obvious physical dangers involved in allowing him to climb trees within the School grounds.
Ms Webb’s tendency to give her evidence as an advocate for Beau, together with the lack of an adequate factual basis for her opinions, makes her opinion evidence unreliable. I give little weight to her opinions.
Daniel Wendt
Mr Daniel Wendt is a Clinical Psychologist. He examined Beau on one occasion and provided a report dated 3 July 2019.
Mr Wendt states that Beau described being fearful and intensely distressed on multiple occasions at the School due to his direct exposure to being placed in seclusion, with the door locked, against his will.
Mr Wendt reports that Beau expresses ongoing fear for himself and his family. He refuses to sleep in the dark or enter small or confined rooms or spaces as they remind him of the incidents. He has negative thoughts about life and considers suicide at times. Beau regularly experiences irritability, anxiety, hypervigilance, difficulty concentrating and disrupted sleep.
Mr Wendt’s opinion is that the events at the School have had a lasting negative impact on Beau’s mental health and psychological wellbeing. While Beau’s ASD and ADHD were likely to impact upon him socially, it is Mr Wendt’s opinion that the incidents at the School further impaired his social skills. He is likely to require supported employment for the foreseeable future. Mr Wendt states that Beau’s ability to move freely in the community with independence is impaired, beyond what would be expected due to his ASD and ADHD.
Mr Wendt states that the events at the School appear to have taught Beau that he cannot trust other people. He was in the care of staff members at the School and they reportedly did not keep him safe. In fact they allegedly placed him in distressing situations directly against his will on multiple occasions. As a result, Beau has learnt that even individuals in positions of trust and authority do not necessarily provide security. This leaves him often doubting other people, questioning their motives or preparing for his own safety.
Mr Wendt states that without sustained and long term professional treatment, Beau’s presentation is unlikely to change. Even with professional support, it would be expected that progress would be slow.
Beau told Mr Wendt that if he was in trouble at the School, he was yelled at by teachers. When he refused to go to the Withdrawal Room, he was picked up/dragged and taken there. He would try to fight back and try to get away when they tried to put him in the Withdrawal Room. He said he never went in there when they told him to because he did not like it there. Beau says he thinks about this at times and it is scary. Beau noted that he was held down at times, which resulted in him vomiting. He was scratched by a staff member on one occasion and remembers being hurt when he was handled by the School staff. He said he could barely see when the lights were off in the room and this made it scarier.
Mr Wendt states that Beau’s signs and symptoms and reported history are consistent with PTSD. He said that the events as described at the School appear to have had a lasting and significant impact on Beau’s life.
Mr Wendt says that it is his understanding that the act of secluding someone with a disability against their will is considered a “restrictive practice”. He said he was not aware of what actions or approvals took place and was not aware of any positive behaviour supports that were put in place by the School or any Behaviour Management Plans developed for Beau. He said that it was best practice to implement positive behaviour management strategies when working with individuals with disabilities in order to avoid, reduce or eliminate the use of restrictive practices.
Mr Wendt’s report suffers from several deficiencies. He was provided with a letter of instruction and a number of occupational therapy, medical and other reports. Only three of these reports were prepared at a time when Beau was at the School. Mr Wendt was not provided with the School’s records containing accounts of the various incidents. Mr Wendt was not given access to accounts about the behaviours that resulted in Beau being restrained and placed into the Withdrawal Room. He was not given information that showed that Beau reacted in a similar way when he was removed to places other than the Withdrawal Room, such as to the Principal’s office.
Mr Wendt relied upon the reports of Beau and his parents as to the circumstances in which he was placed in the Withdrawal Room, the length of time he was placed there and the conditions in the room. Mr Wendt seems to have assumed that Beau did not become distressed until he was told to go into or threatened with being taken to the Withdrawal Room.
In addition, Mr Wendt was unaware of the trauma suffered by Julie Connor at the hands of Beau’s grandfather and was unaware that Beau knew of that trauma. As a result, Mr Wendt did not consider whether any of Beau’s symptoms could be attributable to that knowledge.
In my opinion, Mr Wendt’s lack of access to information from sources other than Beau and his parents makes his opinion unreliable.
Further, Mr Wendt’s diagnosis of PTSD appears to have been based on a view that Beau was exposed to trauma that was equivalent to being kidnapped. I cannot see that the analogy was appropriate in circumstances where Beau was taken only a short distance to the Withdrawal Room, within the School that he was familiar with, by people he was generally familiar with, and told that he could signal that he was ready to come out by sitting on the mat. I consider that there is an insufficient basis for Mr Wendt’s diagnosis of PTSD due to Beau being restrained and secluded in the Withdrawal Room.
The State’s witnesses
The State called 18 witnesses to give evidence. The evidence-in-chief of all the witnesses except one was given by affidavit. The witnesses were:
·Ms Ingrid Bradford (Grade 1 Teacher);
·Ms Tanya Jensen (Grade 2 Teacher);
·Ms Rachael Brookes (Grade 3 Teacher);
·Ms Lorna Clarry (Grade 4 Teacher);
·Ms Mieka English (Head of the Special Education Program);
·Ms Debbie Olsen (Teacher Aide, Special Education Program);
·Ms Tammy-Anne Stevens (Teacher Aide, Special Education Program);
·Ms Robyn Gorlick (Teacher Aide, Special Education Program);
·Ms Narelle Green (Special Education Teacher);
·Ms Barbara Christie (Deputy Principal);
·Ms Jan Pitt (Deputy Principal);
·Ms Leanne McNamara (Deputy Principal);
·Mr Matthew Bulger (Deputy Principal);
·Ms Janette Schloss (Guidance Officer);
·Ms Lisa Cooper (Regional Advisory Visiting Teacher (Early Years) and Behaviour Management Consultant);
·Mr Michael Fay (Principal);
·Mr Simon Boss-Walker (Principal);
·Ms Leisa Staunton (Head of the Special Education Program at Urangan Point State School).
Peter Connor vigorously cross-examined the witnesses. He sought to impugn their credibility. He accused most of them of deliberately targeting and discriminating against Beau because of his disabilities. In his submissions, he alleged that most of them were giving false evidence.
The witnesses called by the State had varying degrees of recollection of the relevant events. That is not surprising as the relevant events happened between four and eight years before the trial, and they had varying levels of involvement with Beau at the School.
A number of witnesses gave evidence that records kept in a database known as “OneSchool”, maintained by the Department of Education, were consistent with their recollections. In the database, a profile is created for each individual student. A profile may contain sections for records of contact with parents, achievement results, behaviour records, specific education requirements and attendance details. It was the practice at the School that all major behavioural incidents would be recorded. In Beau’s case, the database also contained medical and other reports that were provided to the School.
Beau’s OneSchool profile records dozens of behavioural incidents. The entries were created by one or more of the staff members involved in each incident. Each entry provides a contemporary record of what happened. Where evidence of the incidents was separately given by witnesses, that evidence was generally consistent with the entries. I accept the entries as being accurate accounts of each incident.
Peter Connor tended to pick up what he asserted to be discrepancies within or between the evidence of witnesses and attribute them to witnesses giving deliberately false evidence. However, the discrepancies he relied upon tended to be non-existent, trivial or explicable by lapses in memory.
Having heard and seen the State’s witnesses give evidence under cross-examination, I am satisfied that each of them gave their evidence honestly and generally reliably. While there may have been some minor lapses in the evidence of some of the witnesses, I am not satisfied their evidence was displaced or damaged by cross-examination. I reject the suggestion made by Peter Connor that witnesses were dishonest and had deliberately targeted Beau and did so because of his disabilities or animosity towards him. I reject the suggestion made by Peter Connor that the teachers acted unprofessionally or maliciously towards Beau. I accept that in their dealings with Beau, each of the State’s witnesses did their best to assist him while having regard to their obligations for the safety and education of other students. I consider that each of them carried out their duties in a professional and caring manner.
Peter Connor criticises the State for failing to call some witnesses who might have had relevant evidence to give. These include Ms Alison Ryan (Prep Teacher), Ms Katrina Linford (Relief Teacher) and Ms Sandra Hinton (Relief Teacher). The State did not offer any explanation for their absence: cf Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at [63]. Even so, these witnesses played a fairly minor role in the context of the case as a whole. In the case of Ms Linford and Ms Hinton, they each made a record of a behavioural incident in the OneSchool records. No specific challenge was made to those records and no evidence was led to the contrary, and I see no reason to doubt that they accurately recorded the relevant incidents.
Peter Connor’s final submissions included allegations of breach of duty of care, assault, breaches of workplace health and safety and fire regulations, and criminal conduct. As I have said, to the extent that these matters are relied on as separate causes of action they have not been pleaded and cannot be relied upon. However, some of the factual premises underlying these allegations may have relevance to the pleaded allegations of discrimination and, to that extent, will be considered in the course of these reasons.
Findings of fact
I will set out some of the evidence which I accept and consider to be directly relevant to the disposition of the allegations made in the statement of claim. It is not possible to fully describe all the behavioural incidents, strategies and interventions used by the teachers and communications with parents and outside agencies that bear upon the issues. There are literally hundreds of entries and documents in Beau’s OneSchool records. The limited amount of evidence I am able to set out cannot adequately describe the difficult issues in relation to Beau that the School dealt with, and the ways they were dealt with, on a daily and ongoing basis. The recitation of the incidents that follow should not be taken to suggest that they reflect only isolated events.
It should also be noted that on each occasion where a record of a behavioural incident was made in Beau’s OneSchool profile, the strategies used to manage Beau’s behaviour were also recorded, apparently by selecting options from a drop-down menu. I accept that the strategies recorded were employed, but, for the sake of brevity, do not propose to include them in the extracts from the OneSchool records that I will set out.
2011
In January 2011, Beau commenced his Prep year at the School. His teacher was Ms Alison Ryan.
Ms Leanne McNamara was one of three Deputy Principals at the School in 2011. She was aware that Ms Ryan, and teacher aide, Ms Janet Walker, were experiencing physical aggression from Beau.
On 2 March 2011, there was an incident recorded in OneSchool by Ms Katrina Linford, a relief teacher, and Ms McNamara:
Report from Katrina Linford (Relief Teacher).
“When I Arrived at Prep W at 9.30, Beau was having time-out on the “thinking mat.” As he continued to be anti-social, I decided to tactically ignore him and focus on my lesson. At one stage during the lesson Beau rolled/crawled over to the sliding door. While lying there he began to move the door back and forwards. I asked him to stop because it was too hot and I didn’t want him hurt. He ignored me so I stood and held the door. He immediately punched me in the leg and when I didn’t move he kicked me twice in the leg. I moved away and rang the office”
Report fro Deputy
Beau was sitting by the door when I arrived. I asked him to come with me. When he did not move. I took him by the hand. He reacted by pulling away, swinging his arms wildly, knocking my spectacles off. I took Beau outside, with him yelling at me, resisting and trying to grab onto the rails etc.
We proceeded a short way along the walkway and then I sat him down on a gymnastic mat that was there. He kicked me, scratched me and spat at me. He also frequently tried to bite me. I restrained him on the mat for approximately 10-15 minutes before he calmed enough to indicate that he would like to go for a drink. I took him by the hand and walked to the taps. We then proceeded to my office. Beau continued to wail at the top of his voice. The principal heard Beau approaching and met us in my office. When he was spoken to by the principal, Beau again began knocking things off my desk and then kicked, punched and spat at the principal. The principal had to restrain him for some time before he settled enough to remain sitting on the floor by himself. Parents were contacted and his father came to collect him.
(Errors in the original.)
Following this incident, the Principal, Mr Michael Fay, decided to suspend Beau for two days.
In early 2011, Ms McNamara started to increase the frequency with which she saw Beau to provide him with positive encouragement. She said she realised that it was necessary to set firm boundaries so that Beau knew that he was not always going to be sent home if he misbehaved. She said that the teachers tried to persevere through Beau’s outbursts to set those boundaries, and these strategies were effective, together with positive reinforcement of good behaviour. Ms McNamara said that she had a good relationship with Julie Connor. Their discussions were constructive.
Ms McNamara recorded an incident that occurred on 22 March 2011:
When beau was dropped off to school he immediately kicked his teacher in the shin. As Mum left Beau commenced an angry display of wanting to destroy everything around him. He commenced screaming. Beau was restrained by teacher and removed to a quiet private location and Beau commenced kicking, biting, pinching and spitting at both the teacher and aide. Beau did not stop screaming. Beau was carried by DP to the office (restrained) where he continued to scream, pinch DP’s hands and require restraining to prevent him from destroying the environment.
Beau continued to spit with DP and child totally covered in spit. When Mum arrived (after nearly 50min) Beau immediately stopped screaming and stood silently beside his mother. Once he knew he was going home, he stopped his angry behaviour. Mum advised that any aggressive behaviour towards staff would mean he would be sent home.
Ms McNamara specifically recalls the incident because Beau’s pinching of her hand was painful and he was spitting at her. Ms McNamara stated it was “quite remarkable that once his mother arrived, he just switched his behaviour off”.
Ms McNamara made a record of an incident that occurred on 25 March 2011:
Beau was brought to office under the pretense of sharing good work to speak with DP regarding previous physical outburst that resulted in him being sent home.
Beau was shown the significant physical marks left by his continuous pinching of DPs hands and whilst being told this behaviour was not aceptable anywhere (voice was low but firm) Beau started to scream and hit at DP and the environment around him.
Beau was removed immediately into the principal’s office where both the principal and upper school DP assisted in restraining Beau.
During this time distraction attempts were made, attempts for Beau to stay within a given space and not be restrained etc however Beau made purposeful choices to be defiant. He was NOT ‘not in control’ of his rage. He turned it on and off at various times through the 1hr 15min outburst.
Beau made grunting and growling sounds when spoken to and continually tried to destroy the environment around him. He was particularly focused on a coffee cup on the desk and made numerous attempts to whack it off the desk.
He stood with his arms crossed and refused to talk when being encouraged to either sit on the floor or a chair. He was not going to be told to move. It was only when he was told he would have to stay after school that he turned off the screaming and physical aggression and moved himself to the chair.
Beau was then told he would be staying unless he responded verbally to principal with “yes Mr Fay” and “good afternoon Mr fay/Mr Suter etc”.
Beau chose to comply and calmly walked back to his class with DP.
An interview with mum followed to complete a functional behaviour assessment checklist.
(Errors in the original.)
Ms McNamara states that the incident on 25 March 2011 was particularly significant for her because she had to do more restraining than usual to keep Beau safe. She said that Beau was very strong and loud (using his voice at a piercing volume) and the pinching of her hands and arms was quite severe. Ms McNamara says that restraining a child in that way was extremely distressing for her, but there were no other options. Ms McNamara went home after the incident with open wounds on her hands and arms and covered in spit. The pinching of her arms caused scars, which lasted for quite some time. After the incident, she was shaking and felt nauseous. She needed a shower to cleanse herself and help her to calm down.
On 29 March 2011, Ms Janette Schloss, a Guidance Officer, and Ms McNamara conducted a Functional Behaviour Assessment interview with Julie Connor, who described problems that Beau had since he was about two years of age. This included spitting, biting, pulling hair, pinching hands and swearing when angry. She noted that sharp knives had to be taken out of the drawers at home. She said that there were no real triggers for the behaviour and it was unpredictable, but they occurred when he felt like he was in trouble. It was noted that Beau’s behaviour could be affected by loud noises, big groups of people and change.
Ms McNamara said that all the occasions when Beau had to be removed from the classroom and restrained were in direct response to his behaviour and were necessary to keep him safe. She said that there was also a high risk of him harming other children and staff when he became violent and aggressive.
Ms Lisa Cooper, a Behaviour Management Consultant, attended the School in June 2011, following a request for support. The School’s concerns were with Beau’s tantrums when he was asked to do tasks he did not want to do and wilful destruction of property.
Ms Cooper observed Beau in the classroom and provided strategies to Ms Ryan. The strategies included a need to establish routines, rules and consequences, the need to connect with Beau and the importance of using visual aids and encouraging Beau to communicate his feelings in an appropriate way. The support provided by Ms Cooper continued during 2011.
On 24 June 2011, Ms Schloss wrote a letter to Dr Gillian Watterson, a paediatrician, in response to her request for information about Beau. In that letter, Ms Schloss said:
Beau’s behaviours at school show a tendency to be physically violent towards people and his environment when he does not get his own way. The violence is in the form of kicking, punching, biting, pinching and spitting on people who are not allowing him to be in control. Beau also tries to destroy and damage other people’s property…Staff at Kawungan State School have observed Beau making conscious choices about his behaviour. His actions for not getting his own way are controlled and deliberate. At this stage there is not enough evidence of Beau displaying autistic characteristics to warrant conducting an official checklist. However, staff continue to monitor Beau’s behaviour on a daily basis. Should we feel that autism would account for Beau’s difficulties then a checklist will be completed.
On 30 November 2011, Dr Watterson wrote to Dr Gilliland, who appears to be a general practitioner, and the report was provided to the School. Dr Watterson referred Beau to a psychologist, as she felt that Julie Connor desperately needed some support to manage Beau’s very difficult and challenging behaviour.
2012
In January 2012, Beau commenced Grade 1. His teacher was Ms Ingrid Bradford. Ms Bradford does not recall Beau being disruptive or non-compliant in the first three terms. Occasionally he would have separation issues where he would try to follow his mother when she dropped him off at the classroom. Ms Bradford would hold Beau in a calming bear hug until his mother left. It would take two to three minutes for Beau to settle and then she would have no problem with him for the rest of the day. She recalls that Julie Connor agreed that she should give him a bear hug to keep him in the room.
Dr Watterson wrote to Dr Gilliland on 15 June 2012, referring to Beau as being medicated for ADHD and ODD. She noted that Julie Connor was also pursuing a possible diagnosis of ASD with a psychologist and a paediatric occupational therapist.
Ms Kate McCarthy, an occupational therapist, provided a report dated 12 July 2012 to Julie Connor, and a copy was given to the School. Ms McCarthy said that Beau had attention difficulties, and suggested trialling a number of adjustments in the classroom such as playing background music, varying where Beau sat in the classroom and allowing Beau to hold a fidget toy. Ms McCarthy observed that Beau missed a lot of auditory cues, and suggested that a number of adjustments could be trialled, including teaching Beau to ask others to slow down, speak up or repeat what they said, using visual cues to support movement activities, having Beau repeat or explain information, providing feedback to Beau when it looked like he was mentally drifting, providing information in a picture format and using scented markers or pens. Ms McCarthy concluded that Beau’s results indicated he had a pervasive developmental disorder consistent with possible Asperger’s Syndrome.
Ms Bradford recalls that there was a marked change in Beau when he returned to school in Term 4. Ms Bradford recorded an incident on 8 October 2012, the first day of Term 4:
Beau was dropped off to the classroom by his mother, Julie just after the start bell. Mum left quickly and Beau wanted to follow so I had to restrain him in a bear hug so he would not run after her. I held him for a moment thinking he would settle but he did not. When I took him to his desk to sit him down he just walked and grabbed whatever he could and threw it across the room/floor. He tried to kick and walk on the things he threw around the room, I restrained him again in a bear hug but he continued to fight me. Each time I thought I could get him seated he would throw something else. I tried to get him to a time out area (safe area) in the back room but he continued to destruct the things around him so I had to hold him again until help came. This went on for 5 or so minutes. Jeff Harper and Wes came in to take him out of the room and to try and settle him. Eventually Jan Pitt and Brent H came to take him to the office. Mum and Dad came and took him home.
The whole class witnessed this behaviour this morning.
Throughout the year Beau has had moments where I have had to restrain him while Mum leaves. Beau has always settled within 3 to 5 minutes of Mum leaving and I would have no problems with him but today was very different. This is the first time l have seen him being destructive.
Ms Bradford states that the school cleaner and one of the groundsmen came in to help her with Beau. They were able to take Beau out of the side door of the classroom and sit with him in the covered area until the Deputy Principal Jan Pitt and Brent Heinigar arrived and took Beau to the office. She had never previously encountered this type of behaviour from Beau.
Ms Bradford recalls that Beau was very unsettled and disruptive for the first week of Term 4. She recorded an incident on 15 October 2012 as follows:
Beau arrived to school with his mother Julie. We both directed Beau to his desk but he wanted to hold onto Julie so I took his hand as she left. Once again I directed him to his table and gave him a choice and also told him that he if left the classroom I would need to call Mrs Pitt. He choose to walk around a little before sitting at his desk. I praised him quietly once he settled himself at his desk and asked him to take out his book ready for spelling. Beau refused to do this and just played with his pencils in his tidy tray. (I noticed last week and today that he would straighten out his pencils and rubbers on his washer in his desk and would spend some moments doing this) I let him be and continued to teach giving him some time to have a think and hoping he would join in with the activity. A few moments later I quietly walked over to his desk and helped him find his book. I wrote the spelling words in his book for him to copy and as I walked away he began to scribble over [name redacted]’s spelling book. I told him this was not a nice thing to do and with that he began to scribble over his desk, [name redacted]’s desk and [name redacted]’s desk. I took his pencils off him and then he just found more in his tidy tray to use. He then began to try and rip off the alphabet charts from his desk. I gave him a choice to stop his behaviour however he decided to continue with the scribbling on the furniture. Another child [name redacted] also said that he threw a pencil in his direction. I sent two children to go and get Jan Pitt as I could see he was not going to settle down. Jan and Brent came in and tried to calm him and get him back on task as I taught the class. Beau refused to listen and he began to kick and become non compliant. He was then taken out of the room by Brent and Jan.
(Errors in the original.)
Ms Pitt decided to suspend Beau for 10 days as a result of this incident. Ms Pitt deposes that she did so because of Beau’s physical violence, destructive behaviour and non-compliance, as well as for the safety of other students.
Ms Cleo Eshum-Wilson, a psychologist, provided a report to Dr Gilliland dated 15 October 2012, which was provided to the School. She noted that Beau was described by his mother as being aggressive and showing no remorse. The psychologist concluded that Beau had ADHD traits, but did not display typical ASD traits.
On 31 October 2012, Ms Pitt and Mr Fay completed a “Request for Support” addressed to Guidance and Counselling Services—North Coast Region. This was signed by Julie Connor. Ms Pitt also completed a “Referral For Behaviour Support Consultant” at the same time. She thought additional support was required because of Beau’s difficult and aggressive behaviour.
On 6 November 2012, Beau again engaged in disruptive behaviour, recorded by Ms Bradford as follows:
Beau arrived to school in a good mood. He participated in the start of the day activities, he spoke quietly to me and I thought we were off to a good start until we started to do our writing activity (9:30). Beau refused to start writing even when I offered to help him begin his writing. I left him and continued to work with the other children hoping he might begin his task. I roamed the room and made my way back to Beau and quietly offered my help again. He refused. He then began to move [name redacted]’s desk, thinking he was going to take it outside through the side door. I walked over and slowly dragged it back to it’s spot and then Beau opened [name redacted]’s tidy tray and began emptying all his belongings onto the floor. He grabbed a of pair scissors and was going to cut [name redacted]’s drink bottle holder. I had to peel his fingers off the scissors and take them off him. He then tried to spill water from [name redacted]’s drink bottle all over the desk. I took this off him. He then started tipping his desk over and started to try and pull the charts off the other children’s desks around him. (note all children sitting around him had been moved to other desks for their safety) I quietly asked him to make the right choices but he continued to move furniture around him. I then called for Jan Pitt to come and help. Jan and myself monitored Beau and gave him time to make a right choice. Beau continued to mess things up and he then tried to tip up the whiteboard and refused to do as he was asked. Michael Fay was then called to come and help Jan. Beau kicked Jan in the leg as we took him out of the room. He was taken to the office.
(Errors in the original.)
On 7 November 2012, Mr Fay decided to suspend Beau for 16 days because of his behaviour, including kicking, scratching, spitting at and attempting to bite staff members and throwing property.
On 9 November 2012, a meeting was held between Ms Schloss, Ms Cooper and Peter and Julie Connor to discuss Beau’s behaviour and gather information concerning his medical history and background information. Ms Schloss prepared a report on the same day. Ms Schloss noted that both parents had said that he had tantrums which could last from 5 minutes to 3½ hours at home, consisting of violent and destructive behaviours. They said that the tantrums were becoming more intense, more frequent and longer in duration. Sometimes Beau was given “time out” when naughty and told to stay in his room, but would jump out of the window. Ms Schloss recommended that Beau attend a further paediatric appointment to review his medication and that his parents investigate a parenting program.
2013
Beau commenced Grade 2 in January 2013. His teacher was Ms Tanya Jensen.
Over a period of about six to ten weeks, Ms Jensen developed a Learning Support Plan to modify her teaching for different students in her class. For Beau, this included modification of teaching methods and the curriculum.
On 29 January 2013, Ms Sandra Hinton, a relief teacher, recorded the following entry in the OneSchool records:
Four supply teachers were in the classroom next door as the teacher was unable to attend due to floods. Numerous times the male teacher had to take Beau Connor outside due to harrassment, aggressive behaviour, disruptions and defiant behaviour. Once I (Ms Hinton), tried to intervene to assist and Beau tried to break my fingers, spit on me, bite me and kick my shins. When I got out of the way, he started throwing things around (number board - breaking the numbers, books and any objects in his way). We just tried to contain him until help arrived. Two able adults had to physically hold him (kicking and screaming) away.
(Errors in the original.)
On some occasions, the restraint consisted of Ms Bradford, Beau’s Grade 1 teacher, holding Beau in what she described as a “comforting bear hug”. Julie Connor states that she never consented to Beau receiving a bear hug when removing him from a classroom and never consented to Beau being restrained in any other way or for any other purpose. I reject that aspect of Julie Connor’s evidence. I accept that it was a regular practice that Ms Bradford would hold Beau in a bear hug until his mother had left and Beau calmed down. I find that this was done with Julie Connor’s knowledge and agreement.
I also find that Julie Connor was aware of, and agreed to, Beau being restrained at other times. For example, Ms Stevens recorded on 30 January 2013, that Julie Connor said she was happy if staff restrained Beau, but would rather that Special Education Program staff did it because a normal teacher could hurt themselves trying to pick Beau up. In her appeal against Beau’s suspension made on 15 February 2013, Julie Connor noted that staff had restrained Beau, but he felt threatened when he was restrained and responded by lashing out. She said that she had explained this to the School, but they continued to restrain him. In the School’s response to her submission, it was indicated that restraining Beau was certainly not the preferred option of School staff and was only ever used as a last resort and when other students, staff or Beau himself were at risk. In its letter to Julie Connor rejecting the appeal, that was reiterated by the Department of Education. I do not accept that Julie Connor ever sought to forbid the practice of restraining Beau.
I find that Beau was physically restrained as a last resort in circumstances where he had hit, kicked or otherwise physically harmed students or staff or where his behaviour posed a risk of harm to students, staff or Beau himself. Importantly, for the purposes of s 5(1) of the DDA, I accept that each time Beau was physically restrained, it was because of the behaviour that Beau was engaging in. I reject the submission that Beau was restrained because of his disabilities. It may be accepted that his behaviours were part of his disabilities. However, as Purvis makes clear, the appropriate comparison is between Beau and a student without Beau’s disabilities who engaged in the same behaviour. I find that if a student without Beau’s disabilities had engaged in behaviour which similarly harmed or placed at risk of harm the student, other students or staff, then that student would also have been restrained.
Beau was secluded on a number of occasions in the Withdrawal Room. There were external louvre windows to the Withdrawal Room. These were partially boarded up because Beau had tried to climb the lower louvres. I accept that the lights were not always on and the natural light in the room was somewhat dim. That was done deliberately, together with the absence of stimulus in the room and the use of bland colours, to create a calming atmosphere. The Withdrawal Room was in the Special Education Unit and was, as Ms Christie described it, “a calm place where the students could go” to withdraw or take a break. She states that some students with ASD liked to go into the room. I reject Julie Connor’s evidence that the room was in darkness.
Ms Green deposes, and I accept, that the Withdrawal Room was used as a place of safety for any child whose behaviour posed a risk to the safety of themselves or anyone else. There was a glass window in the door to the Withdrawal Room. It was one-way glass, which allowed staff to observe the student. The evidence of Ms English and Ms Green, which I accept, is that students in the Withdrawal Room were supervised at all times.
The Withdrawal Room had an external lock. The lock was placed there as a safety measure because Beau had opened and slammed the door shut continually, creating the risk of injury to himself or other people. That was an appropriate safety measure and was not punitive.
Julie Connor deposes that until 13 March 2015, she had no idea that Beau was being placed in the Withdrawal Room. However, the Individual Behaviour Support Plan that Julie Connor signed on 29 April 2014 specifically states that part of the plan for escalated behaviour was that Beau could be placed in the Withdrawal Room until he was calm enough to go back to class, and that if he had not calmed down within 30 minutes of being in the Withdrawal Room, his mother would be called to collect him. In another Individual Behaviour Support Plan signed by Julie Connor on 13 February 2015, it was again indicated that Beau could be placed in the Withdrawal Room if aggressive, and that he could signal that he was ready to come out when he sat quietly against the wall or on the mat, and that if he had not calmed down after 40 minutes, his mother would be called to collect him. On 28 January 2015, Ms Clarry recorded that she told Julie Connor that she wanted to extend Beau’s time in the SEP and that she had concerns for his safety as she did not have a Withdrawal Room, and that Julie was supportive of that proposal. Ms Schloss deposes that she understood that Julie was aware that Beau was being taken to the Withdrawal Room and she never seemed to be alarmed or distressed that Beau was in the room. Therefore, I do not accept Julie Connor’s evidence that she was not aware until 13 March 2015 that Beau was being placed in the Withdrawal Room.
There was an incident on 13 March 2015, when Julie Connor picked Beau up from the Withdrawal Room. While she was in the room with Beau, the door was locked from the outside. She banged on the door and shouted for 20 minutes without anyone letting them out. She eventually phoned the School by telephone and was let out. The particular relevance of this incident to the present case is that it may suggest that there were occasions when Beau was in the Withdrawal Room, but was left unsupervised. I do not accept that this was so. Ms Green deposes that Julie Connor went into the Withdrawal Room and was talking to Beau. Ms Green walked away from the Withdrawal Room to give Julie and Beau some privacy, there no longer being any need to remain there once she had arrived. I accept that Beau had been supervised until Julie Connor arrived. The incident of Julie Connor being locked in the Withdrawal Room was an unfortunate accident but does not indicate any practice of simply leaving Beau unsupervised in the Withdrawal Room.
On each occasion when Beau was placed in the Withdrawal Room, it was done because Beau’s behaviour posed a risk of harm to himself, other students or other staff. I find that Beau was not placed in the Withdrawal Room because he had a disability, but because of his behaviours. At those times, Beau could not simply be left free in his classroom or outside his classroom—there were dangers involved with either course of action. In view of these dangers, it was necessary that he be restrained either by being physically held or left in a room from which he could not escape. A decision was taken to use the Withdrawal Room because of the danger posed to staff in trying to physically restrain Beau—the evidence of Ms McNamara of being covered in scratches and spit after trying to restrain him for an extended period providing a particularly graphic example. I infer that a student without Beau’s disability who engaged in the same behaviours that created the same risk of harm to themselves, other students or staff, would have been placed in the Withdrawal Room. I reject the allegation that by being placed in the Withdrawal room, Beau was treated less favourably than a student without Beau’s disability would have been treated in circumstances that were the same or not materially different.
Section 5(1) of the DDA is not satisfied in relation to Beau’s physical restraint and seclusion at the School. There was no contravention of s 22(2)(a) and (c) of the DDA as alleged in the Second Allegation.
The Third Allegation: Reasonable Adjustment—Functional Behaviour Assessment and Behaviour Plan
The statement of claim alleges that the State failed to provide Beau with a Functional Behaviour Assessment and a Behaviour Plan. This is alleged to result in a failure to comply with s 5(2), resulting in contravention of s 22(a) and (c) of the DDA.
The statement of claim alleges that a Functional Behaviour Assessment is an assessment designed, in summary, to:
(a) identify and define target behaviour through data collection and analysis;
(b) identify when challenging behaviours occur, and the associated events or states;
(c) generate and test hypotheses concerning events that preceded and maintained the behaviour and the characteristics and patterns of the behaviour itself (a Functional Analysis); and
(d) inform the development of a Treatment/Behaviour Support Plan which is then monitored, evaluated and altered for its effectiveness.
The statement of claim alleges that a Functional Behavioural Assessment must be provided by someone qualified to undertake such an assessment. It alleges that a Functional Behaviour Assessment was required to determine the function of Beau’s behaviours of concern and ultimately mitigate and/or extinguish those behaviours in order to ensure the physical health and safety of Beau, staff and students, to avoid suspension, expulsion and violence at the hands of the State, allow Beau to retain his dignity at school and to allow him to reach his academic and social potential.
The statement of claim alleges that the respondent failed to provide Beau with a Functional Behaviour Assessment or a Behaviour Plan because it organised behavioural assessments and plans from people who did not have the qualifications to properly undertake them. Further, it is alleged that behaviour plans were developed without an understanding of the function of Beau’s behaviours, and they did not have measurable outcomes, were not formally monitored or reviewed, provided Beau with no structured assistance to learn pro-social behaviours, failed but were not altered, and were punitive.
The statement of claim alleges that the failure of the State to provide a Functional Behaviour Assessment and Behaviour Plan deprived Beau of the opportunity to have the function of his behaviours assessed and determined, have a Treatment/Behaviour Support Plan informed by such an assessment developed by an appropriately qualified person and implemented, have fewer, or no behaviours of concern, attend school without being suspended and be protected from practices which “subjected him to injury and death”.
The statement of claim alleges that the provision of a Functional Behaviour Assessment and Behaviour Intervention Plan was a reasonable adjustment and that the failure to provide those adjustments had the effect that Beau was, because of his disabilities, treated less favourably than students without his disabilities would be treated in circumstances not materially different. It alleges that the failure to provide Beau with a Functional Behavioural Assessment and Behaviour Intervention Plan resulted in him being suspended and experiencing physical and psychological harm.
The School developed a formal Class Behaviour Management Plan dated 27 February 2013 and formal Individual Behaviour Support Plans dated 6 February 2014, 29 April 2014 and 13 February 2015. Therefore, the allegation pleaded in the statement of claim does not, in reality, seem to be that no Functional Behaviour Assessment was carried out or that no Behaviour Plan was developed, but that those that were carried out or developed were inadequate.
Evidence was led from Ms Webb in support of the Third Allegation. Ms Webb’s evidence was that she was only provided with the Class Behaviour Management Plan dated 27 February 2013 and the Individual Curriculum Plan for Semester One, 2015. She may in fact have been provided with some other documents, but it is not apparent from her report that she had regard to any other documents. She also had a short interview with Julie Connor.
Ms Webb’s criticisms of the 2013 Class Behaviour Management Plan and the 2015 Individual Curriculum Plan can be summarised as follows:
·They failed to show that the School made adjustments to the learning environment to support Beau’s sensory processing disorder and his diagnosis of autism.
·There is little evidence of curriculum modifications and adaptations to allow full access to learning opportunities.
·The School used punitive strategies, such as locking Beau in a room.
·Beau’s parents did not have significant input into strategies that the School were using and were not consulted on aspects of behavioural management decisions.
·No adjustment was made to take into account Beau’s interests (eg climbing trees) and adjustments to learning based on his interests.
·The focus of intervention was around Beau being compliant with staff whereas it should have been to work collaboratively with his family to develop a plan to meet his individual needs with a strong focus on goals and strategies.
·There was no Functional Behaviour Analysis conducted to identify the triggers leading to problematic behaviours.
·The School’s hypothesis that Beau wanted to avoid work and be sent home suggested that the School did not have an understanding of the purpose or function of his behaviours, and shows that the School placed the problem with the child.
·While Beau wanted to be liked by others and have social connectedness, he was placed in a situation where he was seen as devalued and seen as problematic by his peers, which affected the way he formed or maintained relationships with them.
·The 2013 Class Behaviour Management Plan showed little or no evidence of preventative, adaptive or reactive strategies that the School could use to support Beau.
·The 2013 Class Behaviour Management Plan showcased very little knowledge of certain characteristics and known strategies that would have supported a student with autism or ADHD including sensory learning, positive reinforcements, social stories, peer support, etc.
·The use of the Withdrawal Room was itself a trigger for Beau’s behaviours.
·Beau could have benefited from preventative strategies including visual stimulus, communication aids, sensory fidgets, cushions for sensory stimulation, assisted technology, inclusion of interests in his learning, adaptation and modification of learning tasks and constant positive reinforcement.
It does not appear from her report that Ms Webb had regard to the Individual Behaviour Support Plans of 6 February 2014, 29 April 2014 and 13 February 2015. She did not interview Beau in order to conduct any assessment of his abilities and needs. She was not given the OneSchool records concerning Beau’s behaviour at the School and the investigations and measures undertaken to help Beau. Ms Webb was unaware of the full range of strategies which the School deployed.
Ms Webb seems to regard the strategies to manage Beau’s behaviour as being purely punitive, but fails to recognise that managing Beau’s behaviour was integral to his ability to engage with the curriculum and learn. It was common for Beau to refuse to comply with directions by teachers to engage in school work, or even to remain at his desk during class. Beau frequently engaged in disruptive behaviour or had “meltdowns” during which he apparently lost control. It is true to say that in the School’s strategies, there was an emphasis upon management of Beau’s behaviour. Given the frequency, nature and severity of Beau’s disturbed behaviours, that is entirely unsurprising. The first step towards allowing Beau to engage with the curriculum was management of his behaviour. Without management of his behaviour, Beau could not possibly focus upon formal learning in areas such as reading, writing and mathematics.
One of the difficulties with Ms Webb’s report is that she assumes that the only strategies to manage Beau’s behaviours over the time he was at the School were those recorded in the 2013 Class Behaviour Management Plan and the 2015 Individual Curriculum Plan. She also wrongly assumes that there was little engagement with Julie Connor about these strategies. However, the adequacy of the 2013 and 2015 Plans cannot be assessed in isolation from the whole range of strategies that the School had used, nor from the nature, frequency, severity and consequences of Beau’s disturbed behaviours.
The staff at the School went to considerable efforts to find, develop and adapt strategies that would both manage Beau’s behaviour and engage him in learning. For example, in 2011, Beau’s teachers adopted a strategy of persevering through Beau’s outbursts in order to set boundaries so that Beau knew he would not always be sent home if he misbehaved, together with positive reinforcement of good behaviour. Ms McNamara would specifically meet with Beau to offer positive reinforcement. Those strategies appeared to be effective for a time.
Julie Connor was consulted about plans for the management of Beau’s behaviour. This included Ms Schloss and Ms McNamara conducting a Functional Behaviour Assessment interview with her on 7 April 2011, which was then provided to Ms Cooper. Ms Cooper then observed Beau in the classroom on 20 June 2011 and provided strategies to his teacher. Ms Cooper provided continuing support during 2011. Ms Schloss provided information to Beau’s paediatrician to assist in his diagnosis and treatment.
In 2012, the strategies included Ms Bradford holding Beau in a bear hug, with Julie Connor’s approval, to allow her to leave. This was successful, as Beau would settle down after a few minutes, and he would then be able to remain at School for the rest of the day, although Beau’s behaviour deteriorated significantly in Term 4. On each occasion when Beau’s behaviour was documented in the OneSchool records, the teacher also documented the strategies that had been taken to attempt to manage Beau’s behaviour. For example, on 12 October 2012, the strategies were recorded as:
Eye contact ESCM, Verbal cues/instruction ESCM, Redirection to appropriate behaviour, Individual close talk, Give choice/warning ESCM
On many occasions, the strategies employed by the teachers allowed Beau to settle down enough that he could remain in the classroom, rather than his parents being called to pick him up early or being removed from the classroom. However, when Beau’s behaviour could not be adequately managed, his parents were called or he was removed.
One of the strategies used was that for a period in 2012, Peter Connor would attend the classroom with Beau for a period of time. Julie Connor attended the class with Beau at times in at least 2012 and 2013.
In 2013, Ms Cooper and Ms Schloss developed the Class Behaviour Management Plan. The Plan indicated that its goals were for Beau to engage in learning in a compliant manner, interact appropriately and communicate how he was feeling. The Plan included classroom expectations and strategies including praise, positive reinforcement and rewards. It also included strategies for dealing with minor incidents and major incidents. Ms Webb’s criticisms tend to focus upon the strategies to deal with Beau’s behaviours when they became unsafe or unmanageable. They do not pay appropriate regard to the strategies that were designed to keep him in the classroom and encourage him to engage with the curriculum, and to the fact that withdrawal from the classroom was the last resort.
Also in 2013, Ms Brookes, Beau’s teacher, had many discussions with Julie Connor about management of Beau’s behaviour. It is true that there were few discussions, if any, with Peter Connor, but, as he said in his evidence, he was very busy with his work. It is evident that within the Connor family, Julie Connor undertook the vast bulk of the liaison with the School. Some passages from the evidence of Ms Brookes demonstrate the lengths she went to assist Beau and engage with Julie:
Beau was a very difficult child in the classroom. He was extremely disruptive. I believe that, as an educator and as his classroom teacher – that I met his needs the best way that I knew how. And I also followed the practices that were encouraged by the administration team. Within my classroom environment, Beau was given every opportunity to learn. And I modified his tasks continually. I gave him one-on-one attention constantly. Yet I do firmly believe that all the children in the classroom should be allowed to learn. And unfortunately there were times when Beau was in the classroom and he made it very, very difficult for others to learn.
…
Yes, I spent hours – in the morning before school with his mother, when she would drop him off, and then in the afternoons there would be hours we would stand on the outside stairs of my classroom and I would talk and talk and talk to her while the children would play or they would vie for her attention or my attention. And we would talk about parenting strategies. We would talk about things that were happening in the home. We would talk about the stresses that she had. Not everything was documented in OneSchool. I believe in making a rapport – a rapport with that family so that I can meet the needs of that child. But you know – and I did spend that whole year building that rapport.
But there were times in my classroom where I would have that little boy running around the classroom and, you know, he would go to water taps at the front of the classroom – I had containers filled with water for filling up drink bottles – and he would literally just stand there and turn them on. And he would look at me and wait for me to react. I didn’t react. I would end up with a classroom full of water and I would just let it happen. I would sit there and have my cup of tea. And I would say to him, “When you are ready to come and sit down and talk to me about what is wrong with you, then I am ready to have that discussion.” I did try very hard. But whatever was going on impacted him significantly within the house – within the classroom.
…
So when Julie would turn up with Beau, if she was there early enough, then I would stop and speak to her, because most days, she would hang around, wanting me to. There was – not uncommon for me to put the class on task in the mornings in order to speak to her privately outside so that I could set Beau up for the day and have an understanding of what – what I needed to do in order to meet his needs. So her coming in in the mornings was not always just before school. It was likely that it would carry over. The bulk of the time was in the afternoons after school, so obviously, all of the children are relieved from the classroom at 3 o’clock and I would then – when she would come to collect him, we would stop and speak. And when I say “hours”, it’s an accumulation across a week. We would be talking about at least an hour every day. So she would be hanging around until close on 4 o’clock and we would have a chat about what was going on.
Later in 2013, Beau entered a flexible arrangement which reduced his hours of attendance at the School. From early 2014, he also attended the Hervey Bay Positive Learning Centre two days a week, while attending the School on the other three days.
In 2014, the strategies included Beau spending part of his school days in the Special Education Unit. That followed a meeting between Ms Christie, Ms Jensen and Julie Connor. Beau was referred to the Bay Safety Mates Program, with Julie Connor’s consent.
The Individual Behaviour Support Plans for Beau dated 6 February and 29 April 2014 were developed by Ms English, the Head of the Special Education Unit, in consultation with Beau’s classroom teachers and other staff. The triggers for Beau’s behaviour were noted to be hard to define, but included writing, events at home, being touched, authority figures (especially women), lack of food, wanting to be at home and work avoidance. A hypothesis was stated that Beau engages in behaviour aimed at meeting his needs, such as work avoidance or time at home. The Individual Behaviour Support Plans listed proactive strategies and reactive strategies. Proactive strategies included planning for Beau to take part in a gardening program, modification of subjects, Beau’s mother attending class for an hour a day, using a timer, relationship building, positive reinforcement and rewards. The reactive strategies included plans to deal with minor or moderate behaviours, as well as an Escalated Behaviour Plan, which included Beau being removed from the class and being placed in the Withdrawal Room until he was calm enough to return to class, or if he did not settle down, to be taken home by his mother. I accept that Julie Connor agreed to the Plan dated 6 February 2014, although a signed copy is not available. She indicated her agreement to the 29 April 2014 Plan by signing it. I reject her assertion that she was unaware of the use of the Withdrawal Room.
Again, Ms Webb focusses upon the Escalated Behaviour part of the Plans, without paying appropriate regard to the strategies designed to keep Beau in the classroom and to allow him to engage with the curriculum.
In 2015, Beau’s time was divided between the Special Education Program and his mainstream class. The curriculum was modified for Beau so that he worked to a Grade 1/2 level. Beau was able to be provided with more individualised support in the Special Education Program, through one-on-one teaching and teaching in small groups.
The Individual Behaviour Support Plan dated 13 February 2015 made changes to the proactive/reactive strategies. Beau was offered work in the garden. He was offered social skills lessons in the SEP and was seated with students he liked. There were strategies engaged including positive input from staff, rewards and time on the computer. The Escalated Behaviour Plan included, but did not necessarily require, Beau to be removed from the classroom and placed in the Withdrawal Room when aggressive. He was to be permitted to return to the classroom if he calmed down within 40 minutes. There was a meeting between Ms English, Ms Clarry, Ms Green and Julie Connor to discuss the Individual Behaviour Support Plan. Julie Connor agreed to the Plan, as is indicated by her signature on the document.
I find that Beau’s parents, particularly Julie Connor, were engaged in the development of strategies to both manage Beau’s behaviour and engage him in learning. This both occurred through formal and informal meetings.
Beau’s teachers had their own documented and undocumented plans for Beau and other students. For example, in 2012, Ms Jensen developed written strategies for Beau which included: ensuring she had Beau’s attention before speaking; asking simple questions; providing cues and prompts; providing feedback during independent work; breaking up work into small step-by-step tasks; negotiating how much work was to be completed; and reducing the amount of spelling or giving alternative spelling words. In 2014, Ms Brookes wrote a detailed note for support staff which, inter alia, outlined Beau’s strengths and weaknesses, interests, triggers, interventions, rewards and requirements. In 2015, Ms Green prepared a detailed list of Beau’s likes and dislikes and teaching and behavioural strategies to apply, but she gave evidence that she also adopted undocumented strategies such as non-verbal cues, one-on-one time and tactical ignoring.
I reject Ms Webb’s opinion that there was no Functional Behaviour Analysis conducted to identify the triggers leading to problematic behaviours. She was unaware that a Functional Behaviour Assessment was carried out in 2011. Further, Beau’s teachers and other staff were acutely interested in identifying the triggers for Beau’s behaviours, as is indicated by, inter alia, the 2013 Class Behaviour Management Plan and the 2014 and 2015 Individual Behaviour Support Plans. They engaged formally and informally with Julie Connor in trying to identify triggers for, and strategies to deal with, Beau’s behaviours.
Ms Webb criticises the hypothesis found in the Individual Behaviour Support Plans that Beau wanted to avoid work and be sent home on the basis that it suggested that the School did not have an understanding of the purpose or function of his behaviours, and shows that the School placed the problem with the child. However, the hypothesis was a reasonable one, based, as it was, on Julie Connor’s views and the observations of his teachers. At times, Beau seemed to be able to control his behaviour to the extent that he would calm down when his parents came to pick him up from the School.
Ms Webb offers the criticism that, while Beau wanted to be liked by others and have social connectedness, he was placed in a situation where he was seen as devalued and problematic by his peers. However, that view fails to recognise that Beau was only physically restrained or secluded when his behaviours, which included punching and kicking his peers at times, had escalated to a point where they had overtaken any desire he had to be liked or for social connectedness.
The evidence demonstrates that the School was aware of and developed strategies to deal with Beau’s sensory processing difficulties. For example, fidget toys were available to him and teachers would look him in the eye and use non-verbal cues. The strategies included attempting to engage Beau’s interests, such as gardening, timber model constructions and time on the computer. While Ms Webb suggests that Beau should have been allowed to climb trees, that was plainly not feasible because of the physical dangers involved.
I reject Ms Webb’s opinion that there is little evidence of curriculum modifications and adaptations to allow Beau full access to learning opportunities. The Individual Behaviour Support Plans and other strategies, including time at the Special Education Unit and the provision of teacher-aides for Beau indicate the contrary. The curriculum was modified for Beau in the Special Education Unit.
I reject Ms Webb’s opinion that the School used punitive strategies against Beau by locking him in a room. The Withdrawal Room was used as a last resort. It was used when no other methods had worked for Beau to calm down and only when he posed a risk of injury to himself or others. It was used to give Beau an opportunity to calm down to the stage where he could return to the class, rather than facing his parents being called to take him home and the risk of suspension. On a number of occasions, the strategy worked and Beau was able to return to the class. On other occasions it failed. The fact that it failed on occasions does not mean that it was an unreasonable or unwise strategy, given that the alternative was to physically restrain Beau until his parents could come in to collect him. He could not simply be left unrestrained or unconfined when he lost control because of the danger involved in Beau running away or engaging in other dangerous acts.
It was suggested that locking the door of the Withdrawal Room indicated that the room was used as a form of punishment, but I do not accept that. It was a safety measure to avoid the risk involved with Beau repeatedly opening and slamming the door shut. Whenever Beau was in the Withdrawal Room, he was observed by staff through the glass pane in the door. Staff could intervene when he failed to calm down or engaged in dangerous behaviour in the room. The use of the Withdrawal Room was protective of Beau rather than punitive.
I reject the suggestion that the Withdrawal Room was kept in darkness as a form of punishment. I accept that the light was kept somewhat dim as a calming measure, but it was not dark.
Ms Webb suggests that the use of the Withdrawal Room was itself a trigger for Beau’s behaviours. On each occasion when Beau was taken to the Withdrawal Room he was already displaying significantly disturbed behaviours. On some occasions, he calmed down when he was in the room. The evidence does not support Ms Webb’s suggestion.
Importantly, Ms Webb was unaware of the nature, frequency and severity of the behaviours engaged in by Beau. Without being aware of these matters, she was not in any adequate position to judge the appropriateness of the behaviour management plans developed by the School. Nor was she in any position to suggest what alternative strategies, if any, might have been effective given the actual circumstances facing the staff. Ms Webb’s evidence smacks of a theoretical, academic analysis without adequate regard to the particular circumstances facing the School and its staff.
Ms Webb states that the 2013 Class Behaviour Management Plan and the 2015 Individual Curriculum Plan showed little or no evidence of preventative, adaptive or reactive strategies that the School could use to support Beau. That is plainly wrong, as may be seen by simply reading those plans and the Individual Behaviour Support Plans implemented by the School.
In my opinion, the various criticisms made by Ms Webb of the 2013 Class Behaviour Management Plan and the 2015 Individual Curriculum Plan are unfounded. The statement of claim defines a Functional Behaviour Assessment in the way summarised at [298]. I am satisfied that the 2013 Class Behaviour Management Plan and the 2014 and 2015 Individual Behaviour Support Plans, informed by and taken in conjunction with all the other strategies and investigations undertaken, met that description. The statement of claim alleges that a Functional Behavioural Assessment is required to be provided by someone qualified to undertake such an assessment. I am satisfied that the staff at the School, together with Ms Cooper, as educators with practical experience (particularly given their knowledge and observations of Beau), were appropriately qualified.
The statement of claim alleges that the School failed to provide Beau with the reasonable adjustment of a Functional Behaviour Assessment and Behaviour Plan. I am not satisfied that they were not provided. Further, to the extent that the statement of claim alleges that the State failed to provide Beau with an adequate or suitable Functional Behaviour Assessment and Behaviour Plan, I am not satisfied of that matter.
Further, for the purpose of s 5(2) of the DDA, it is necessary for the applicant to show that the failure to provide reasonable adjustments had the effect that the applicant was, because of his or her disabilities, treated less favourably than persons without those disabilities would be treated in circumstances that are not materially different. It may be noted that in Kiefel v State of Victoria [2013] FCA 1398, Tracey J dealt with similar factual circumstances and said at [91]–[92]:
91There can be no doubt that behaviour management plans of varying forms were prepared by and implemented in the three schools which James attended prior to August 2009. What was put in issue by James was the effectiveness of the various plans. Even if it be assumed in his favour that offending conduct can be identified in this way (a matter to which I will return in the context of his indirect discrimination claims), direct discrimination can only be found if James established that the shortcomings of the plans which were adopted can be attributed to his disabilities.
92The plans, such as they were, were adopted in order to deal with James’ disabilities. Any deficiencies in those plans (if there be any) were caused by errors of judgment or inadequacy of resources or other causes unrelated to his disability. James failed to establish that the deficiencies about which he complained occurred because of his disabilities.
I respectfully adopt and apply Tracey J’s reasoning. Any deficiencies in the Functional Behaviour Assessments and Behaviour Plans were caused by errors of judgment, or inadequacy of resources, or other causes unrelated to Beau’s disability. Accordingly, the Third Allegation cannot succeed.
The Disability Standards for Education 2005
The statement of claim does not plead that the State did not comply with the Disability Standards for Education 2005 (the Standards). The State pleads a defence under s 34 of the DDA that it complied with the Standards. The State’s submission on this issue is limited to a single sentence simply asserting that it did so comply. In view of the inadequacy of the State’s submission, I do not propose to consider this aspect of the State’s defence.
However, I will consider whether the applicant has established any contravention of the Standards, even though that issue was not pleaded. That is because Ms Webb’s report, which was admitted into evidence without objection, does provide a critique of whether the State complied with the Standards. I will consider this issue briefly since I have already indicated my reasons for rejecting almost every aspect of Ms Webb’s evidence.
Parts 4 to 8 of the Standards specifies how education and training are to be made accessible to students with disabilities in: enrolment; participation; curriculum development, accreditation and delivery; student support services; and elimination of harassment and victimisation. Parts 1 to 3 are largely definitional.
Part 5 deals with standards for participation. Clause 5.2(1) provides that an education provider must take reasonable steps to ensure that the student is able to participate in the courses or programs provided, and use the facilities and services provided by it, on the same basis as a student without a disability, and without experiencing discrimination. Clause 5.2(2) requires, relevantly, consultation with an associate of the student, a decision as to whether adjustments are necessary and the making of reasonable adjustments in accordance with Part 3.
Ms Webb seems to assert that cl 5 was contravened because Beau was locked in a room and because the adjustments in the 2013 Class Behaviour Management Plan and the 2015 Individual Curriculum Plan suggest that Beau was not actively participating in all aspects of school life. Further, there were few measures to ensure Beau had the opportunity to participate in class. In addition, she says there were few measures such as flexibility and adjusting activities to enable Beau to obtain the benefits of education at the School. I reject these criticisms for reasons I have already given.
Part 6 deals with standards for curriculum development, accreditation and delivery. Clause 6.2(1) requires an education provider to take reasonable steps to ensure that a course or program is designed in such a way that the student is able to participate in the learning experiences of the course or program on the same basis as a student without a disability, and without experiencing discrimination.
Ms Webb asserts that cl 6 was not complied with because the 2013 Class Behaviour Management Plan and the 2015 Individual Curriculum Plan show the focus of the intervention was around Beau complying with staff, when it should have been around working collaboratively with families to develop a plan to meet individual needs. She says there was little evidence of adjustments or modifications applied to Beau’s learning and that he was excluded through being locked in a room and suspensions. She says that Beau’s family was not consulted about modifications of the curriculum. I have already rejected these criticisms.
Part 7 of the Standards deals with standards for student support services. Clause 7.2(1) provides that an education provider must take reasonable steps to ensure that the student is able to use support services used by the students of the institution in general on the same basis as a student without a disability, and without experiencing discrimination.
Ms Webb asserts that the School failed to comply with cl 7.2(1) by removing him from the learning environment, restraining him in a room and with bear hugs and not using appropriate support methods. I have already rejected these criticisms.
Part 8 of the Standards deals with standards for harassment and victimisation. Clause 8.3(1) provides that an education provider must develop and implement strategies and programs to prevent harassment or victimisation of a student with a disability in relation to the disability.
Ms Webb alleges that cl 8.3 was breached because Beau was harassed by being put in the Withdrawal Room and sent home, and that the School did not provide an inclusive learning environment/support. I reject these allegations for reasons I have already given.
Ms Webb also seems to raise an assertion that when Julie Connor was (accidently) locked in the Withdrawal Room, it constituted a contravention of the Standards. That cannot be accepted.
I reject the assertions made in Ms Webb’s report that the State contravened the Standards.
Damages
It would usually be appropriate to undertake an assessment of damages upon the premise that I may be wrong in my conclusion that the State did not contravene the DDA. In this case, it is not practicable to undertake such an assessment.
There are some 58 separate allegations of discrimination in respect of the formal and informal suspensions and applications of physical restraint and seclusion. It would be unrealistic to proceed to assess damages on the basis that every allegation succeeds, and it is not practicable to assess damages on some other basis.
In these circumstances, I consider that it is too impractical and artificial to attempt any quantification of damages.
Conclusion
The statement of claim makes three allegations that the State discriminated against Beau Connor because of his disability contrary to s 22(2)(a) and (c) of the DDA. For the reasons that I have given, each of those allegations must be rejected.
The proceeding must be dismissed. The usual course is that costs should follow the event. In a case where an applicant has sued by a litigation guardian and fails, the usual order is that the litigation guardian pay the respondent’s costs. I see no reason to depart from the usual course. I will order that Peter Connor pay the State’s costs of the proceeding.
I certify that the preceding three hundred and fifty-five (355) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate:
Dated: 9 April 2020
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