FGW v Department of Communities and Justice

[2022] NSWCATAD 291

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FGW v Department of Communities and Justice [2022] NSWCATAD 291

Hearing dates:

17 March 2022 and 26 April 2022

Date of orders:

29 August 2022

Decision date:

29 August 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member

Decision:

Leave for the complaint against the Department of Communities and Justice to proceed is refused.

Catchwords:

HUMAN RIGHTS — equal opportunity — whether leave required for complaint to proceed — principles applying to grant of leave

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Children and Young Persons (Care and Protection) Act 1988 (NSW)

Cases Cited:

Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143

Jones & Anor v Ekermawi [2009] NSWCA 388

Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWAST 73

Category:

Principal judgment

Parties:

FGW (Applicant)
Department of Communities and Justice (Respondent)

Representation:

Applicant (Self-represented)
Crown Solicitor (Respondent)

File Number(s):

2022/00016203

Publication restriction:

Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 the publication or broadcast of the name of the Applicant in these proceedings is prohibited. Note: A reference to the name of the Applicant includes a reference to any information, picture or other material that identifies the Applicant or is likely to lead to the identification of the Applicant.

REASONS FOR DECISION

1. FGW is the mother of two children who have been removed from her care pursuant to s 43(1) of the Children and Young Persons (Care and Protection) Act 1988 (NSW) (the “Care Act”) following a decision made by the respondent and later the Children’s Court. FGW alleged that in doing so, she has been discriminated against on the grounds of a disability, being a diagnosis of borderline personality disorder (BPD) and a drug addiction.

2. At the request of FGW, the hearing which was first listed on 17 March 2022 was adjourned. These reasons for decision relate to the adjourned hearing of the leave application which proceeded on 26 April 2022.

The complaint

3. On 6 April 2021, FGW lodged with Anti-discrimination New South Wales (“ADNSW”) a complaint, alleging that she had experienced discrimination on the grounds of her disability, by the respondent. The complaint is made pursuant to the provisions of the Anti-discrimination Act 1977 (NSW) (“the Act”). The complaint is as follows:

I have a previous mental health diagnosis of borderline personality disorder that I was diagnosed in 2015, In June 2020 I experienced domestic violence and the perpetrator would always use my mental health diagnosis against me. I've previously addressed my mental health and i'm coping well. My ex partner told lies to his family to get back at me for calling the police and putting on an ADVO. His family has been putting in false DCJ child protection concerns because of what my ex has said. DCJ believed my ex's family with no proof just that I have a history and previous kids that were removed due to my mental health and they removed my children. Without even assessing them, my 2 boys are residing with my ex's family. I feel like I have been victiised [sic] as nothing my ex said was true, however my caseworker [AA] believed it straight away making an assumption based on my past.

4. The complaint can be summarised as follows:

1. FGW's disability arose from a diagnosis of BPD, first made in 2015. However, she has addressed the diagnosis and is coping well.

2. FGW experienced domestic violence in June 2020. The perpetrator of the violence used her BPD diagnosis against her, telling lies about her to her family, calling the police, and taking out an apprehended domestic violence order against her.

3. The ex-partner's family, in turn, lodged with the respondent concocted child protection reports. Without any proof of these allegations and based solely on FGW's history (including the removal of her two oldest children), the respondent removed the children, and placed them in the care of her ex-partner's family.

5. FGW sought, by way of remedy, the return of the children to her care. I pause at this juncture and note the Tribunal has no jurisdiction to grant the relief sought.

6. The President of ADNSW accepted the complaint for investigation. The investigation revealed that the complaint was lacking in substance and dismissed it. FGW now seeks leave from this Tribunal to proceed with her complaint.

Statutory framework and principles governing the grant of leave

7. Where the President decides to accept a complaint under s 89B of the Act, he or she must investigate that complaint: s 90(1) of the Act. If at any stage during the investigation of a complaint, the President is satisfied that it is lacking in substance, the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint (s 92(1)(a)(i)) of the Act. It is this decision which I have jurisdiction to review.

8. Where, as here, the President declines a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so: s 93A of the Act.

9. Where a complaint is referred to the Tribunal at the request of a complainant under s 93A(1) of the Act, that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1) of the Act.

10. Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at [58] (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25] (Ekermawi). That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant’s rights under that scheme: Jones at [57]; Ekermawi at [32]. The question of leave involves evaluating whether it is “fair and just” to grant, or refuse leave in the particular circumstances of the case: Ekermawi at [36], [37]; Jones at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones at [60].

Background facts 

11. FGW lodged the following documents with ADNSW and relies on them and the documents referred from the President in support of her application for leave:

1. The referred complaint.

2. A copy of the removal notice provided by the respondent upon the removal of the children;

3. An application, initiating care proceedings under s.61 of the Care Act in respect of the children, filed by the Secretary of the respondent in Parramatta Children's Court on 8 March 2021 (Children's Court proceedings);

4. A proposed plan filed on 24 March 2021 by the Secretary for the respondent in the Children's Court proceedings;

5. An amended summons, filed in the Supreme Court of New South Wales on 13 September 2021, seeking judicial review of the decision of the Children's Court on 11 June 2021 (Supreme Court proceedings);

6. A chronology filed on 4 July 2021 by FGW in the Supreme Court proceedings;

7. A bundle of documents, comprising 45 pages, produced by the respondent in the Supreme Court proceedings on 12 July 2021, in answer to a subpoena issued at the request of FGW;

8. A bundle of documents, exceeding 500 pages, evidence of FGW’s previous treatment for her mental health;

9. A care plan for child 1 dated 28 July 2021; and

10. A care plan for child 2, dated 28 July 2021.

12. The complaint essentially revolves around FGW being discriminated against by the respondent in making a decision to remove her children on that basis of her having a disability, namely, a diagnosis of BPD and drug addiction.

13. The respondent refutes that she in any way discriminated against FGW on the basis of her having a disability. Rather, the respondent contends that the decision to remove FGW’s two children arose out of a statutory obligation following the respondent receiving risk of serious harm reports (“ROSH reports”) concerning the children. After investigating the ROSH reports, the decision was made to remove the children and seek orders in the Children’s Court for the parental responsibility of the children to be removed from FGW.

My consideration

14. It is not in contest that FGW has been diagnosed with BPD, which, as the respondent submits constitutes a disability within the meaning s 4 of the Act. FGW in oral submissions contended that her previous drug addiction could also be considered as a ‘disability’ as defined by s 4 of the Act. I accept that her drug addiction would also likely fall within the definition of disability within s 4 (a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour). It is implied that FGW had a drug addiction during the period of the complaint.

15. Discrimination on the basis of disability under s 49B of the Act provides:

(1) A person ( "the perpetrator" ) discriminates against another person ( "the aggrieved person" ) on the ground of disability if the perpetrator-- 

(a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or 

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. 

(2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. 

(3) For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog. 

(3A) For the purposes of, but without limiting, this section, the fact that a person who has a disability-- 

(a) is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or 

(b) is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to that fact, 

is taken to be a characteristic that appertains generally to persons who have that disability. 

(4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

16. Relevantly, discrimination on the ground of disability in goods and services is prescribed by s49M as:

(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability--

(a) by refusing to provide the person with those goods or services, or

(b) in the terms on which he or she provides the person with those goods or services.

(2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.

17. The Act extends liability to an employer where an employee contravenes the Act. I have taken the complaint against the respondent to include this provision.

53 LIABILITY OF PRINCIPALS AND EMPLOYERS

(1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.

(2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability.

(3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.

(4) For the purposes of subsection (1), the principal or employer of a volunteer

or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services.

18. To establish a claim of discrimination, FGW must first establish that she was treated less favourably than another person in the same or similar position (differential treatment), and secondly that at least one of the reasons for that less favourable treatment was “on the grounds of” her disability. FGW bears the onus of proof in establishing these factors on the balance of probabilities. Where there is no actual comparator, a hypothetical comparator may be considered. That hypothetical comparator should be a person without the stated disability, but otherwise in the same position of FGW in all other respects (see Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92).

19. In deciding an application for leave, the Tribunal must take FGW’s case at its highest (see Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]).

20. FGW’s complaint is one of direct discrimination. The discrimination is the respondent’s act of removing her two children.

21. The respondent contends that the application for leave should be refused for the following reasons, which I adopt and accept:

1. There is no evidence to suggest that FGW was discriminated against on the grounds of disability;

2. FGW was not the recipient of a service provided by the respondent;

3. Any action undertaken by the respondent in removing the children from FGW was in the execution of a statutory duty; and

4. The Tribunal cannot grant the relief sought.

There is no evidence to suggest that FGW was discriminated against on the grounds of disability

22. I do not accept it follows that FGW was discriminated against because of her stated disability. It is evident that FGW’s mental health and prior drug use were considerations taken into account by the respondent in removing the two children.

23. In oral submissions FGW said: “Because of my disability they have labelled me as an unfit parent. Someone that does not have that disability would not have been treated the same”. I do not accept that FGW’s disability was the reason why the respondent decided to remove FGW’s children having considered the following.

24. The reasons for removal of FGW’s children are recorded in the decision and notice setting out a removal order pursuant to s 43(1) of the Care Act:

The children have been removed because the Secretary is satisfied on reasonable grounds that the children are at immediate risk of serious harm, and the making of an apprehended violence order would not be sufficient to protect the children.

Reasons why the children are being removed from the premises or place:

- The mother's current Methamphetamine use impacts on her ability to keep the children safe.

- The mother is not willing to engage and accept support from services DCJ is wanting to provide the family, [child 1] is not having his medical needs met, as he has missed Paediatrician appointments and follow up.

- Concern the mother is allowing unsafe people in the home around [child 1 and 2], who are using Methamphetamines in the home.

- Concerns that mother has not addressed concerns for mental health and is reluctant to accept support intervention.

[bold my emphasis]

25. The following is a summary and extract from the bundle of documents filed by the respondent. FGW had been engaged in treatment for her mental heath since 2007. The earliest diagnosis of BPD appeared to be in 2017.

26. In October 2019, the respondent became aware of domestic violence and physical abuse towards the children. FGW was also suspected of being a victim of that abuse. From June 2020 the respondent received a number of complaints of possible abuse where the children were subjected to physical and psychological harm. In October 2020, the respondent received four complaints that the children were at risk of harm. FGW experienced physical injuries at the hand of her ex-partner. On 24 October 2020, the respondent received a video of adults, including FGW’s ex-partner and FGW using methamphetamine in the presence of children.

27. On 14 November 2020, the respondent received a further report of risk of harm and physical abuse to the children. One of the children said he was “scared to go home with his mother”.

28. Following further reports of alleged abuse and attempts to engage with FGW in attending support services and enacting a Family Action Plan, FGW declined to engage.

29. In an interview with the children, the respondent was informed that FGW would leave the children unattended at home, when visiting neighbours. Despite attempts to arrange a meeting with FGW, she did not attend.

30. On 24 February and 2 March 2001, FGW tested positive for amphetamines and methamphetamines.

31. On 3 March 2021, the respondent received a report that FGW used methamphetamines at a neighbour’s property leaving the children unattended. Reports were made that FGW used drugs in her home whilst the children were sleeping and in the company of a stranger. The respondent attempted to implement a Family Action and a Safety Plan, including FGW participating in a detox program. FGW refused. FGW was later involved in a motor vehicle accident. Case officers transported FGW’s children home and observed when attending the home: an unpleasant smell in the apartment, bowls of old food and cutlery on the floor, broken blinds and an older (unidentified) man in the home. A Care Pathway Panel was convened and the respondent on 3 March 2021, decided to remove the two children from FGW’s care.

32. On the available evidence, it is not possible to make findings about the extent FGW’s disability might have caused her behaviour.

33. Where FGW’s behaviour is not attributable to her disability, she has not been treated differently to a hypothetical comparator, who engaged in similar behaviour and drug use, concerns of neglect of her children and the presence of unsafe persons in her home, that would have led to the same action taken by the respondent.

34. If FGW’s behaviour was attributable to her disability, it appears from the respondent’s evidence, summarised above, that the catalyst for the removal of the children was due to FGW’s unwillingness to engage with, and accept support from, the respondent to provide for her family and ensure their welfare. It is clear in the reasons extracted above and the summary of the respondent’s evidence that was the reason for the removal of the children related to an unacceptable risk of harm to the children and a lack of FGW willingness to engage with the respondent. I accept the respondent’s submission that the evidence reveals it was these circumstance that led to the decision to remove the children, and not, because of FGW’s disability.

FGW was not the recipient of a service provided by the respondent

35. I am not satisfied that the exercise of a power under s 43 of the Care Act could be understood in any way to mean that the respondent was providing a service to FGW in terms of the definition of s 49M. The respondent was exercising a statutory power of removal of children and in doing so protecting the safety and welling of the children in accordance with the objects of the Care Act. I find that the respondents conduct was not conduct which could be determined to be offering a service to FGW within the terms of the Act.

Any action undertaken by the respondent in removing the children from FGW was in the execution of a statutory duty

36. For the reasons set out above, I have found that the respondent was exercising a statutory power of removal of the children under s 43 of the Care Act.

37. Acts done under statutory authority are dealt with in s 54 of the Act:

54 ACTS DONE UNDER STATUTORY AUTHORITY

(1) Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of--

(a) any other Act, whether passed before or after this Act,

(b) any regulation, ordinance, by-law, rule or other instrument made under any such other Act,

(c) an order of the Tribunal,

(d) an order of any court, not including an order or award of a court or tribunal having power to fix minimum wages and other terms and conditions of employment, or

(3) Except as provided in this section, this Act has effect notwithstanding anything contained in--

(c1) the Co-operatives (Adoption of National Law) Act 2012 and the Co-operatives National Law (NSW) ,

(f) the Registered Clubs Act 1976 ,

or any instrument of whatever nature made or approved thereunder.

38. Where the respondent made a decision to remove the children under s 43 of the Care Act, it did so in exercising a statutory function, which, I find, is protected by the operation of s 54 of the Act. I find the respondent in making the decision under s 43 of the Care Act, was one furthering the objects in the Care Act concerning the children, namely, the “… care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them… ”. Therefore, the conduct of the respondent acting on this basis does not render it unlawful, in terms of the Act, even if I had concluded that the conduct of the respondent fell within the provisions of ss 49B and 49M of the Act.

The Tribunal cannot grant the relief sought

39. The Tribunal can order the following relief where, a complaint is successful pursuant to s 108(2) of the Act which, provides:

(2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following—

(a) except in respect of a matter referred to the Tribunal under section 95 (2), order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct,

(b) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations,

(c) except in respect of a representative complaint or a matter referred to the Tribunal under section 95 (2), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant,

(d) order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both),

(e) in respect of a vilification complaint, order the respondent to develop and implement a program or policy aimed at eliminating unlawful discrimination,

(f) make an order declaring void in whole or in part and either ab initio or from such time as is specified in the order any contract or agreement made in contravention of this Act or the regulations,

(g) decline to take any further action in the matter.

40. FGW seeks an order that the children be returned to her care. Unlike the Children’s Court or the Supreme Court, the Tribunal does not have jurisdiction to grant such relief.

Conclusion

41. In my view the claim and the available evidence is lacking in substance. It does not establish that FGW has an arguable case to establish that the respondent discriminated against her on the grounds of his disability.

42. FGW has not demonstrated any factual basis to support a finding that she has been treated less favourably, than another parent/carer who does not have that disability in the same circumstances, nor that her disability was a basis for such treatment. Indeed, all parents or carers, where there is evidence of significant risk of harm to children, are on balance, subjected to the same treatment as FGW was. The respondent was exercising a statutory function under the Care Act in protecting the safety and welfare of FGW’s children. Whether that was the correct decision is a matter for the Children’s Court, or the Supreme Court. There is no discrimination.

43. I consider it fair and just to refuse leave because the claim is lacking in substance.

44. Leave to proceed is refused.

Order

1. Leave for the complaint against the Department of Communities and Justice to proceed is refused.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 29 August 2022