Hudson v State of South Australia - [2008] SAEOT 8

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
HUDSON v STATE OF SOUTH AUSTRALIA
[2008] SAEOT 8
Judgment of Her Honour Judge Trenorden, Member Ms A Bachmann and Member Ms H Jasinski
22 May 2008
HUMAN RIGHTS - DISCRIMINATION - GROUNDS OF DISCRIMINATION - SEX DISCRIMINATION - FAMILY RESPONSIBILITIES AND PARENTAL STATUS
Complaint and discrimination on ground of sex - parents living separately had joint custody of child - complaint of discrimination against father by child's school.
HELD: No discrimination on ground of sex.
Equal Opportunity Act 1994; Crown Proceedings Act 1992; Family Law Act 1975; Education Regulations 1997, referred to.

HUDSON v STATE OF SOUTH AUSTRALIA
[2008] SAEOT 8
THE TRIBUNAL DELIVERED THE FOLLOWING JUDGMENT:

In about January 2007 the complainant (Dr Hudson) lodged with the Commissioner for Equal Opportunity, a complaint against the Department for Education and Children’s Services (DECS) being the agency that operates the school attended by his child. The complaint was in respect of events over a 4 year period from 2002 to December 2006. The complaint alleged discrimination on the ground of sex.
In October 2007 the Commissioner for Equal Opportunity, having declined the complaint against Dr Hudson and having been requested by him to refer the matter to this Tribunal, did refer the complaint to this Tribunal, pursuant to her obligation under s 95(8)(c) of the Equal Opportunity Act 1994.
The complaint having been made against an agency of the Crown, the respondent is properly the State of South Australia: see Crown Proceedings Act 1992, s 5.
There are 16 particulars of complaint, each particular being in respect of a separate alleged event.
With the exception of the first particular or “Complaint 1” as it is identified in the Particulars of Complaint, the particulars all relate to an event alleged concerning the principal or teachers at the school attended during the relevant period by Dr Hudson’s child. Dr Hudson and the child’s mother have lived in separate locations since well before the child began to attend school, but are jointly responsible for the child’s care, welfare and development. Dr Hudson informed the Tribunal that he has been before the Federal Magistrates Court or the Family Court on 44 occasions. There have been a number of orders made by these Courts under the provisions of the Family Law Act 1975 and some of them were provided to the Tribunal, by Dr Hudson.
Dr Hudson claims he has been discriminated against by DECS primarily, but not in all cases, through the principal of the school under the aegis of DECS. The Equal Opportunity Act 1994 proscribes discrimination on the ground of sex. Section 29(2) provides as follows:
(2) For the purposes of this Act, a person discriminates on the ground of sex –
(a)if he or she treats another unfavourably because the other does not comply, or is not able to comply, with a particular requirement and –
(i)the nature of the requirement is such that a substantially higher proportion of persons of the opposite sex complies, or is able to comply, with the requirements than of those of the other’s sex; and
(ii)the requirement is not reasonable in the circumstances of the case; or
(b)if he or she treats another person unfavourably on the basis of a characteristic that appertains generally to persons of the other’s sex, or on the basis of a presumed characteristic that is generally imputed to persons of that sex.
It is alleged that DECS discriminated against Dr Hudson on the ground of sex because DECS treated Dr Hudson unfavourably because of his sex (s 29(2)(b)). The interpretive provisions of the Act provide in s 6(3) as follows:
…
(3) For the purposes of this Act, a person (the discriminator) treats another unfavourably on the basis of a particular attribute or circumstance if the discriminator treats that other person less favourably than in identical or similar circumstances the discriminator treats, or would treat, a person who does not have that attribute or is not affected by that circumstance.
It follows that to show that the respondent discriminated against Dr Hudson on the ground of his sex, he needed to show that DECS treated him less favourably that it would have treated a woman in identical or similar circumstances. It is not a simple matter to prove, even on the balance of probabilities, that a respondent has treated a male person or a female person differently from, respectively, a female person or a male person, solely on the basis of their sex.
In essence, with the exception of Complaint 1, Dr Hudson considers he has been discriminated against on the ground of his sex, and thus caused distress, as a result of the failure by the DECS school attended by his child to apply fully, relevant orders of the Federal Magistrates Court and the Family Court concerning his child. Dr Hudson considers that the school treated the child’s mother more favourably than him. In addition, Dr Hudson’s complaint of discrimination on the ground of sex is based on the following:
That the school discussed issues regarding the child with the child’s mother prior to discussing them with him (Dr Hudson);
Enrolling the child in a course or courses without consulting one of the parents of the child, namely Dr Hudson;
Allowing teachers at the school to swear affidavits in Federal Magistrates or Family Court proceedings regarding the responsibility for and care of the child.
That there has been systemic discrimination by DECS against males and male children in the material on its website and produced by the Department.
Particulars of Complaint
We propose specifically to address each of the particulars of complaint, which were styled as individually numbered complaints in Dr Hudson’s document Particulars of Complaint filed in the Tribunal on 19 October 2007.
Complaint 1
This is in relation to a document that appears to be a statutory declaration by Ms Sharilee Russell, made on 17 July 2002, that may have been used in support of the mother’s application in relation to the child, in Federal Magistrates Court proceedings in or about that year.
As it is clear from the evidence that was before the Tribunal that Ms Russell was not an employee of DECS at the relevant time, there is no case against the respondent. This complaint must be dismissed.
Complaint 2
This complaint relates to the enrolment of the child at the relevant school on 30 January 2005. It is alleged that DECS through the school principal, failed to check the adequacy or correctness of the child’s enrolment details, by not ensuring that Dr Hudson, as father of the child, was listed as the second emergency contact, when DECS knew that there was a Federal Magistrates Court order relevant to this.
At the time, the relevant Federal Magistrates Court order dated 30 October 2003 was in force. That order required, in paragraph 11 thereof, as follows:
That the mother do forthwith enter the father’s name, address and telephone contact details as the second person to be contacted in the case of emergency to the said child on any Kindergarten or School Enrolment Form.
From the evidence before us, the order was not adhered to strictly upon enrolment at the relevant school.
While we accept that it is unfortunate that the correct telephone number for Dr Hudson was not noted on the school enrolment form for the child, we do not accept that this amounted to discrimination against Dr Hudson. That particular paragraph of the order was directed to the mother and we do not accept that it poses an obligation upon the school to ensure that the order is complied with by the mother and that the phone number supplied, was correct. The school is not an enforcement agency for orders of the Federal Magistrates Court.
We do not accept that this amounted to discrimination on the ground of sex against Dr Hudson as the child’s father.
Complaint 3
This complaint relates to a request made on 16 June 2005 by Dr Hudson to the school principal concerning the matter canvassed in Complaint 2, namely Dr Hudson being listed as the second emergency contact on the enrolment form with the correct mobile phone number. Again, this related to paragraph 11 of the order of the Federal Magistrates Court made on 30 October 2003. Dr Hudson’s letter of 16 June 2005 followed further proceedings in the Federal Magistrates Court where an order had been made on 1 June 2005, that did not in any way alter the effect of paragraph 11 of the earlier order.
Again, the complaint alleged that the school should have ensured that the terms of paragraph 11 of the Federal Magistrates Court order of 30 October 2003 were properly and fully complied with.
As with Complaint 2, we do not accept that the school’s failure to ensure that the mother had observed paragraph 11 of the said order amounted to discrimination of Dr Hudson by DECS on the ground of sex.
Complaint 4
This complaint relates to the mother’s work as a volunteer and Special Services Officer (SSO) at the child’s school in 2006. In essence, this complaint alleges that the school discriminated against Dr Hudson as the child’s father, by enabling the mother to “bypass the intent of the Injunction granted by the Federal Magistrates Court” on 1 June 2005, “knowing that this was detrimental to the father”.
It is true that the injunction obtained on 1 June 2005 restrained the mother from attending at the child’s school on any days on which Dr Hudson was due to take contact with the child (save for delivering the child to school at the commencement of the school day and collecting the child therefrom following upon the conclusion of the father’s contact) “other than for the purpose of attending for events on which parents are normally invited to participate including but not limited to Sports Day, concert days, plays, quiz nights, fundraisers, sporting events, classroom visits, classroom reading, parent/teacher interviews, excursions and camps”.
The evidence of the school principal, which we accept, was that the child’s mother was not specifically invited to be a volunteer at the school. With 475 families involved at the school and many of them “blended families”, or “split families”, the latter relied to a degree on the goodwill of the parents, their sensitivity to the well-being of their child in relation to volunteering and to some degree, their respect for any applicable court order. That is understandable. We say “to a degree”, because the school did require a parent who volunteered in a regular capacity, such as a sports coach, to sign a declaration that he or she is of good character and has no criminal record.
The school principal stated that she was aware of the Federal Magistrates Court orders, but admitted she was probably not aware to the degree that she should have been, of the order of 17 August 2001 and Annexure “A” thereto.
We are unable to find that the school’s acceptance of the child’s mother as a regular volunteer at the school amounted to discrimination against Dr Hudson on the ground of sex. It might or might not have led to a contravention of the Federal Magistrates Court order, but that is not a matter for this Tribunal.
Complaint 5
This complaint concerns the failure of the school to place an advertisement for Father’s Day in the school newsletter at the relevant time, equally significant in size and prominence to that placed in the school newsletter for Mother’s Day. Further, it is alleged that the said newsletter (of 31 August 2006) advertised courses organised by Relationships SA but allegedly painted an unfavourable picture of males in general and therefore Dr Hudson as a father, both to his child and the school community.
The respondent admits that the failure was an oversight.
The allegation of discrimination on the ground of sex fails, as Dr Hudson has not shown that personally he was treated unfavourably. Even if these events give rise to a finding of discrimination against male persons in favour of female persons and against fathers in favour of mothers, this is no basis for discrimination against Dr Hudson personally on the ground of sex.
Complaint 6
This complaint is an allegation that on 24 September 2006 the school principal failed to respond to the father’s notification to the school, or make a relevant inquiry in relation to the allegation by Dr Hudson that the child’s mother, who was a school sports coach, pulled the child away from the father at a sporting function, which action was alleged to be to the father’s detriment.
The evidence revealed that the incident had occurred at a school sports presentation ceremony. The child’s mother had been the volunteer coach of a soccer team for the school that year and the child had played in the team. The school principal had made enquiries of the child’s mother and had concluded that the incident had been between the child’s father, and the child’s mother in the parental role, and did not involve the school.
We cannot find that Dr Hudson suffered discrimination on the ground of sex in consequence of the school’s response to him. Dr Hudson had written to the child’s mother following the sports presentation ceremony on 24 September 2006 seeking a reply from her. He had forwarded a copy of that letter to the school principal. Although nothing was required to be done by the school principal, she had made an enquiry of the child’s mother. As it was not necessary for the school principal to respond to Dr Hudson, there can have been no discrimination.
Complaint 7
It was accepted by Dr Hudson that this complaint could be dismissed.
Complaint 8
This complaint relates to a meeting held between Dr Hudson and the school principal on 27 November 2006. Dr Hudson has alleged that the school principal failed to provide information to the father concerning the child’s attendance at the school and the reasons for the non-attendance, and concern with the school’s policy on the selection of volunteers.
Dr Hudson alleges that the school knew that the father was authorised to request this information pursuant to an order of the Federal Magistrates Court and that failure to provide him with the information would be to his detriment.
The evidence indicated that a meeting had indeed been held between the school principal and Dr Hudson on 27 November 2006. It lasted for approximately 10 minutes. A number of items were discussed and some information was provided with further information to be provided in writing subsequently.
There was some suggestion by Dr Hudson that the school was siding with the child’s mother in that it had invited her to become a volunteer at the school and to take on the role of SSO. The evidence showed this not to be the case. Through the school newsletter, a general invitation was periodically issued to all parents of children at the school. It was for a parent to volunteer his or her services to the school and this is what the child’s mother had done. The child’s mother was employed as an SSO for a period of time in 2006. This was a position for which she had applied and been selected on merit. It involved her being employed in a part of the school quite physically and geographically separate from that part of the school where the child’s classroom and play area was located.
We do not accept that Dr Hudson suffered discrimination on the ground of sex at the hands of the school or the school principal.
Complaint 9
This complaint alleges that on 5 December 2006 DECS failed to implement or instruct the school principal to implement advice received in a ministerial response from the Minister for Education and Children’s Services to the father’s concerns of allegations of sex discrimination within DECS.
Dr Hudson had written a letter in email form to the Minister on 18 October 2006 in relation to an editorial that had appeared in the Advertiser on Friday 13 October 2006. The Minister responded by letter dated 5 December 2006, advising, inter alia, that fathers who wish to be involved with their children’s education would not be faced with any form of sex discrimination in schools and that those exceptions applied regardless of the sex of the parent. The exceptions were; the power under the Education Regulations 1997, to control trespass and misbehaviour on school premises and secondly, where a court order applied specifying particular days and times for a parent and child to spend time together. The letter advised that in the latter case the school principal must respect the court orders and could not allow extra time to a parent by permitting that parent to visit and/or volunteer at the school.
We cannot conclude that this response of the Minister itself amounted to discrimination against Dr Hudson. Even if DECS or the Office of Chief Executive of DECS failed to adhere, implement, or instruct subordinate staff within DECS of the advice contained in the Ministerial letter, there is nothing to show that such failure (if it occurred) did amount to discrimination against Dr Hudson personally.
Complaints 10 & 11
These complaints can be addressed together. It is alleged by Dr Hudson that on 10 December 2006 the school principal failed to provide information to the father concerning the child’s attendance records at the school and the school’s policy on the selection of volunteers. In complaint 11 it is alleged that on 12 December 2006 the school principal failed to provide the said information to the father in a correct form, failed to provide information on the school’s policy on the selection of volunteers and had not provided the school report and newsletter to Dr Hudson separately, in addition to providing the same to the child’s mother.
Dr Hudson had written to the school principal by letter dated 10 December 2006. By email dated 12 December 2006, the school principal had provided information concerning the child’s attendance records and the number of days that the child had not attended school. There was an error in the latter information that made it incorrect. That was subsequently corrected. In evidence, Dr Hudson accepted that the incorrect figure supplied was merely a typographical error.
The child’s school report had been provided for Dr Hudson, but regrettably did not reach him as it had been sent in the child’s school bag on a day when the child went from school to his mother’s home. On this matter, the principal informed the Tribunal that the school does not automatically send reports and other school documents to both parents, even where it is aware that the parents are separated but have joint responsibility for the child, unless that has been arranged with the school. It is for a parent to request information or a copy of documents that have already been provided to the other parent.
The principal thoughtfully conceded that the school needed to review and improve its provision of information to all parents. Even though the exercise of providing a copy to each parent, of each document relevant to each child, could be expensive, the principal conceded that there were ways to achieve a better outcome for parents.
The information concerning the DECS volunteer policy was provided to Dr Hudson verbally by the school principal, and discussed with him at the meeting on 27 November.
There is no basis on which the Tribunal can find that Dr Hudson suffered discrimination at the hands of DECS on the ground of sex.
Complaints 12 & 13
These complaints concern a failure on the part of two teachers at the school to respond to emails sent to them individually by Dr Hudson on 13 December 2006 wherein, in each email, Dr Hudson requested information pertaining to the child’s schooling.

The evidence from both teachers was to the effect that they had discussed the emails received from Dr Hudson with their line manager, namely the school principal, who had indicated she would respond to the emails on behalf of the school, in the new year. That decision was made in light of the fact that the emails had been received either on the last day of the school year or very close to the last day.
The decision was made by both teachers in consultation with the school principal, not on the basis of the father’s sex but because of the complexity of the requests and the time that would have been involved in collecting the information sought, given the proximity to the end of the school year. While it might be considered discourteous for the teachers concerned not to have replied at all to the emails addressed to them, we find that there was no discrimination suffered by Dr Hudson on the ground of sex.
Complaints 14, 15 & 16
All 3 complaints are in relation to events or incidents that occurred subsequent to the complaint of Dr Hudson being made with the Equal Opportunity Commissioner. Strictly speaking, they cannot be considered by this Tribunal, as they were not part of the complaint referred to the Tribunal at the request of Dr Hudson.
In case we are wrong and these complaints can be considered by the Tribunal, we will address them.
Complaint 14 alleged that the school principal failed to provide a school newsletter to the father on 22 February 2007, knowing that the father had a Federal Magistrates Court order to obtain the newsletter and that a failure or delay in so providing it would be to the father’s detriment.
The evidence was that the father knew how to access the newsletter on the school website. While material inserted into the newsletter (inserts), which we were informed was mostly advertising material, was not available on the website, we have concluded that any failure to provide a hard copy of the newsletter, with inserts, did not amount to discrimination against Dr Hudson on the ground of his sex.
In relation to Complaint 15, the child’s mother was the Kanga Cricket coach, having volunteered to take on that role at the school. The child’s mother was present on 3 March 2007 in the role of the coach. The father was also present that day as the father of a child participating in the sporting event. Any interaction between the child’s parents on the day cannot amount to discrimination against Dr Hudson as the child’s father, on the ground of his sex. It cannot be the case that the school is responsible for the content of any remarks made by one parent to the other parent on school grounds, even if one parent is in attendance not merely as a parent but as a school sports coach.
Complaint 16 related to a request made by Dr Hudson in a letter to the school principal dated 5 March 2007. The request related to the incident at a school sporting event on 3 March 2007 the subject of Complaint 15 and sought a response with 7 days.
The principal was not able to respond within the 7 days as requested by Dr Hudson. There is no evidence that her failure to respond within the period stipulated by Dr Hudson amounted to discrimination against him on the ground of his sex. We accept the evidence of the school principal that she was busy at that time with other matters that had greater priority. There was no evidence of discrimination on the ground of sex.
We are satisfied that no case has been made out to show that Dr Hudson suffered discrimination by DECS on the ground of his sex as alleged in Complaints 14, 15 and 16. However, as we have said, these complaints were not properly before this Tribunal and therefore we were not required to address them.
Other Allegations
Dr Hudson also claimed in his Complaint that he had suffered victimisation or sexual harassment. These claims were not pursued at the hearing. There is no evidence before us that establishes either victimisation or sexual harassment in terms of the Equal Opportunity Act. We find that they are not made out.
Concluding Remarks
We recognise and understand that Dr Hudson has a loving relationship with his child and in the interests of being a good parent and guiding his child, he wants to be involved in his child’s education, as does the child’s mother, it would seem. To that end, one or more Federal Magistrates Court or Family Court orders have referred to information that should be provided to the child’s school and information that both parents have a right to be given by the child’s school.
We understand that Dr Hudson is concerned to see that the orders of the Federal Magistrates Court and the Family Court are taken seriously by the parties, as should be the case for any order of any court. Speaking generally, court orders are issued after much consideration and direct the parties before the court in a matter as to what they must do and what they must refrain from doing.
It is the case that the orders of the court are binding on the parties to the dispute in relation to which the orders were made. However, it is the case that others persons, in this case, the relevant agency of the respondent (DECS) and particularly the child’s school, must be made aware of the court orders and should refrain from putting obstacles in the way of compliance by the parties with the orders. In addition, it seems that the child’s school was bound to facilitate Dr Hudson’s access to certain information and material concerning his child, having regard to his right to a copy of documents and other material direct from his child’s school, under paragraph 10 of the Federal Magistrates Court order of 30 October 2003.
Compliance with the orders is an obligation for the parents, to whom the orders are directed. Even though the school seemed to be obliged to act to facilitate the rights of parents under aspects of the Federal Magistrates Court order or orders, it is not the role of the school to oversee compliance with any order of the Federal Magistrates Court or Family Court, by the parents concerned. DECS, and in particular the school principal, has no authority from either the Federal Magistrates Court or the Family Court to oversee either parent’s compliance with the orders, or to enforce the orders.
Although DECS and the particular school or school principal are not obliged to enforce any order or even oversee the implementation of any order of the court (Federal Magistrates Court or Family Court) the Minister for Education and Children’s Services has said, in a letter to Dr Hudson dated 5 December 2006, that “where a court order applies, the school principal must respect the order” (the letter referred specifically to the specification of particular days and times for the parent and the child to spend time together), and “the school concerned will endeavour to ensure that a parent is engaged with the child’s education as fully as court orders will allow, even where that order prevents a parent from spending time with a child, subject to the content of the court order.” Thus, on the basis of the Minister’s letter a school under the auspices of the relevant agency of the respondent (DECS) will endeavour to respect any relevant court order and to facilitate a parent’s access to information about the child’s education, so far as the court order allows.
It is clear generally, from the evidence of the school principal, that the respondent, through the school principal, endeavoured to provide information concerning the child of Dr Hudson and the child’s mother, to both parents and to involve them in the education of the child, mindful and endeavouring to be respectful of, the court orders. Perhaps in some respects their efforts could have been improved, but we are mindful that the school population was at the time more than 500 students from 475 families.
As we have intimated earlier, we do not accept that DECS, through the school principal, had a duty to ensure that court orders were complied with, or to oversee compliance with the court orders by the parents. While it is expected that the respondent and thus the school would respect the court orders, it cannot be the case that wherever there has been a failure to comply with the order by one of the parties to whom a court order is directed, resulting in a detriment or possible detriment to the other party to whom the court order is directed, the child’s school is guilty of discrimination on the ground of sex, against one of the parties.
Determination
For the reasons herein, we do not accept that Dr Hudson’s Complaint has been made out. We would dismiss the Complaint. There will be an order accordingly.