Nowak (a pseudonym) v Walsh (a pseudonym); (Discrimination)

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

NOWAK (a pseudonym) v WALSH (a pseudonym)
(Discrimination) [2023] ACAT 3

DT 72/2022

Catchwords:               DISCRIMINATION – complaint about indirect discrimination by a psychologist allegedly imposing three conditions on the provision of ongoing therapy to an autistic child – where complainant was directed to file evidence to establish a rebuttable presumption that indirect discrimination has occurred before respondent required to provide their response to the complaint – where after hearing from the parties each part of the complaint was found to be lacking in substance – complaint dismissed under section 32(2)(b) of the ACAT Act

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 ss 7, 32

Discrimination Act 1991 ss 4A, 5AA, 7, 8, 20, 70
Human Rights Commission Act 2005 ss 53A, 53CA

Cases cited:Melway Publishing Pty Ltd v Robert Hicks Pty Ltd [2001] HCA 13

Pojohishgar v University of Canberra [2022] ACAT 53

Tribunal:Senior Member M Orlov

Date of Orders:  12 January 2023

Date of Reasons for Decision:      12 January 2023

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          DT 72/2022

BETWEEN:

EVE NOWAK (a pseudonym)
Applicant

AND:

DR ANNABEL WALSH (a pseudonym)
Respondent

TRIBUNAL:Senior Member M Orlov

DATE:12 January 2023

ORDER

The Tribunal orders that:

1. The complaint is dismissed pursuant to section 32(2)(b) of the ACT Civil and Administrative Tribunal Act 2008.

Pursuant to section 39 of the ACT Civil and Administrative Tribunal Act 2008, until further order of the Tribunal:

1. There is to be no public access to the file.

2. The publication or disclosure of the following, that may identify the parties, is prohibited:

   (a)         evidence given at any hearing of this matter;

   (b)         matters contained in documents filed with the Tribunal; and

   (c)         matters contained in documents received by the Tribunal.

………………………………..
Senior Member M Orlov

REASONS FOR DECISION

Introduction

1. The complainant, to whom I will refer as Ms Eve Nowak,[1] made a complaint to the Human Rights Commission (HRC) about a psychologist, to whom I will refer as Dr Annabel Walsh,[2] alleging unlawful discrimination in the provision of services against Ms Nowak’s then 9 year old son, who has autism and a severe communication disorder. He is also unvaccinated against COVID-19, as is his mother.

   [1] ‘Eve Nowak’ bears no resemblance to the applicant’s real name. We have adopted a pseudonym to preserve her privacy and the privacy of her child.

   [2] ‘Annabel Walsh’ bears no resemblance to the psychologist’s real name. We have adopted a pseudonym to preserve her privacy.

2. The gist of the complaint is that Dr Walsh is alleged to have imposed conditions on the provision of ongoing therapy for the child which were unsuited to his needs and delayed his access to appropriate psychological support. The final straw from Ms Nowak’s perspective is that after initially contacting Dr Walsh in late March 2021 and attending an initial consultation in early August, where she was informed for the first time that Dr Walsh could offer appointments on…