CITATION: Mr and Mrs A on behalf of their four children -v- State of New South Wales and Department of Education and Training [2003] NSWADT 71 DIVISION: Equal Opportunity Division APPLICANT Mr and Mrs A on behalf of their four children PARTIES: RESPONDENT State of New South Wales Department of Education and Training FILE NUMBER: 021114 HEARING DATES: 03/03/2003 SUBMISSIONS CLOSED: 03/03/2003 DATE OF DECISION: 04/07/2003 BEFORE: Hennessy N - Magistrate (Deputy President); Weule B - Member; Pun A - Member APPLICATION: Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance MATTER FOR DECISION: Preliminary matter Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 LEGISLATION CITED : Children (Care and Protection) Act 1987 Inclosed Lands Act 1901 Mental Health Act 1990 CASES CITED: Walsh and Gabell v Australian Postal Corporation [1997] NSWEOT Langley v Niland [1981] 2 NSWLR 104 APPLICANT REPRESENTATION: In person RESPONDENT C Ronalds, barrister ORDERS: 1. The complaint is dismissed. Introduction 1 These proceedings relate to a complaint referred to the Tribunal by the President of the Anti-Discrimination Board (ADB) on 22 May 2001. The complaint alleges that the State of NSW (the Department of Education) discriminated against each of Mr and Mrs A's four children on the ground of disability. Since the complaint was referred to the Tribunal, the Minister for Community Services has removed the children from the care of their parents. 2 We have chosen to anonymise the names of the parties in this case due to the sensitive nature of the information in these reasons. 3 Two applications by the respondent are before the Tribunal. The first is an application under s 111(1) of the Anti-Discrimination Act 1977 (AD Act) that the complaint be dismissed "for any other reason" that is, that it is not in the best interests of the children for these proceedings to continue. 4 The second application, which is made in the alternative, is that the Tribunal should make an order pursuant to s 71(4) of the Administrative Decisions Tribunal Act 1977 (ADT Act) that the Minister for Community Services be appointed to represent the four children. That application is made on the basis that it is not in their best interests for their natural parents to be permitted to continue to represent them in this litigation. Legislative provisions 5 Section 111 of the AD Act states that: (1) Where, at any stage of an inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, it may dismiss the complaint. (1A) The Tribunal may dismiss a complaint if satisfied that the person or (in the case of a complaint made on behalf of more than one person) each person on whose behalf the complaint was made does not wish to proceed with the complaint. (1B) The Tribunal may amend a complaint made on behalf of more than one person to remove a person as a person on whose behalf the complaint was made if the Tribunal is satisfied that the person does not wish to proceed with the complaint. (2) Where the Tribunal dismisses a complaint under this section, it may order the complainant to pay the costs of the inquiry. (3) Nothing in this section limits the generality of the powers conferred on the Tribunal by Chapter 6 of the Administrative Decisions Tribunal Act 1997. (Emphasis added) 6 The phrase "for any other reason" in s 111(1) is not limited in any way by the preceding reasons for dismissal, namely that the complaint is "frivolous, vexatious, misconceived or lacking in substance." In Walsh and Gabell v Australian Postal Corporation [1997] NSWEOT, Patten J said: The Tribunal in the context of Section 111 sees no reason why the phrase "for any other reason the complaint should not be entertained" should be read down by application of the ejusdem generis rule or otherwise. Rather the Tribunal is of the opinion that the phrase should be given weight as an independent basis for the dismissal of a compliant whether or not the "reason" bears relationship to the specific categorisations of "frivolous, vexatious, misconceived or lacking in substance." Accordingly the Tribunal holds that it is appropriate to deal with this matter under Section 111. 7 This approach was also taken by Hunt J in Langley v Niland [1981] 2 NSWLR 104. Being a Supreme Court decision, that case is binding authority for this Tribunal. Hunt J considered the meaning of the same phrase "for any other reason the complaint should not be entertained" in s 90(1) of the AD Act. That provisions mirrors s 111(1) but relates to the power of the President of the ADB (formerly the Counsellor of Equal Opportunity) to decline a complaint. Hunt J said, at p 107 that: The counsellor may also decline to entertain a complaint where she is satisfied that it should not be entertained "for any other reason". Normally, such a phrase would be construed ejusdem generis with the four adjectives which preceded it so as to exclude the application of s 90 where the complaint is considered to be outside the provisions of the Act rather than one for which there is an insufficient or unmeritorious factual basis. The ejusdem generis rule must nevertheless give way to an indication that the words are to be read in the general sense in which they are expressed: R v Regos (1947) 74 CLR 613, at pp 623, 624; Cody v J H Nelson Pty Ltd (1947) 74 CLR 629 at p 639. There is, in my opinion, a strong indication in this statute that the words in question should not be read ejusdem generis. 8 This passage makes it clear that there may be other reasons, independent of the factual basis or merit of the complaint, which would justify the complaint being dismissed. The independent reason suggested in this case is that the complaint should be dismissed because it is not in the best interests of the children that the complaint be continued. There is no restriction in relation to the kinds of reasons that may constitute "any other reason" for the purposes of s 111. We are of the view that this reason may be a valid reason for dismissing a complaint, depending on the evidence. Evidence 9 Summary of the complaints. Mr A gave evidence from the bar table that his children wished him good luck in pursuing the complaints and want him to pursue the complaints on their behalf. The complaints, as summarised in the President's report, are as follows: Child 1 (DOB: 18/7/90) has asthma, epilepsy, learning problems and wears glasses. The alleged discrimination is that child 1 was constantly abused and assaulted in 2000 by year 6 boys and that he was denied lunch and toilet access as a punishment. There is a further allegation that during one incident child 1 lost his asthma spray and that the school did not try to find the spray nor did they call an ambulance when he had an asthma attack. Finally, Mr and Mrs A state that they were not contacted after any incidents involving child 1. Child 2 (DOB: 15/8/91) has a speech impediment. The allegation is that he was discriminated against because he was assaulted and abused, mainly by year 6 boys. Mr and Mrs A state that they were not contacted after any incidents involving Child 2. Child 3 (DOB: 27/5/93) has a lazy eye, wears glasses, is a slow learner, has school phobia and nightmares. The allegation is that Child 3 has been discriminated against because she was habitually abused and assaulted at school, including being sexually assaulted in the school toilets. Child 4 (DOB: 7/3/94) has Attention Deficit Disorder (ADD). The allegation is that he has been discriminated against because: - he was assaulted all the time by year 6 boys; - he was suspended on three occasions following incidents with other children, but that nothing happened to the other children; - the school refused to ring Mrs A for medical assistance when child 4 had a bloody nose following an incident; and - the school failed to assist when Child 4 was bashed at the school gates by year 6 children. 10 Mr A said that he would get the children to give evidence to the Tribunal and say how the alleged incidents have affected them. In support of the complaints, Mr A produced several doctors' reports relating to incidents where one of his children had been injured. In addition, Mr A produced doctors' certificates in relation to three of the children, saying that they were unable to attend school because of "fear of bullying." 11 The respondent's response to the complaint was that all complaints have been investigated, and where they were substantiated, appropriate action in accordance with school and departmental policy, was taken. On 27 November 2000, the principal of the school which the children had been attending, restricted Mr and Mrs A's access to the school under the Inclosed Lands Act 1901 because Mr A verbally threatened and abused the principal. 12 None of the children attended school from September 2000 to August 2002. According to the Department of Education, several attempts to support the children returning to school have been made, but Mr and Mrs A have refused that support. 13 History of the children's removal from the care of Mr and Mrs A. Officers from the Department of Community Services (DOCS) had increasing concerns about the welfare of the children and the apparently deteriorating mental health of Mr and Mrs A during the early part of 2000. On 1 March 2002 the children were taken into the care of officers of DOCS and Mr and Mrs A were involuntarily detained as mental health patients under the Mental Health Act 1990. 14 The Department of Community Services applied to the Children's Court for orders under the Children and Young Persons (Care and Protection) Act 1998. Ms Kymm Wardrop, a case worker with the Department of Community Services, prepared an affidavit dated 28 March 2002 for the Children's Court. That affidavit sets out the basis for her view that the children were at risk of serious harm when they were removed. One of the matters referred to in that affidavit is the children's non-attendance at school since September 2000. Ms Wardrop noted that "This appears to be related to the natural mother's belief that the children are unsafe and will be harmed if the parents are not present." The Department of Community Services' Care Plan summarises their reasons for the children not being able to continue to reside at home: Natural parents escalating mental health issues; Refusal of the natural parents to engage with mental health services; Increased transience of the family due to natural parents' belief of being stalked; Children's exposure to the natural parents' paranoia and the impact this has on the children's emotional and mental state evidenced in the children's belief that unknown persons are 'stalking' them and the keeping of a record of number plates by the children in accordance with the natural parents' records; Health and educational levels requiring concentrated development. There have been no attempts by the parents to seek out support or services to assist in dealing with issues that may be arising for them in such an emotionally charged time for them. 15 On 7 July 2002, the Children's Court made a finding, by consent and without admissions, that the children were in need of care. The children are currently under the interim parental responsibility of the Minister for Community Services. The Department of Community Services has recommended that each of the children be placed in the parental responsibility of the Minister for Community Services until they are 18 years of age. The Children's Court will consider that application in due course. 16 All four children are currently attending school. Child 4 is not attending for the full day at this stage. 17 Complaints to the police. In February 2002, a sergeant of police produced a summary of the contact between the family and the police. This document records numerous complaints made by Mr and Mrs A to the police in relation to the treatment of their children at school and in the neighbourhood during the period April 2000 to January 2001. 18 Medical evidence of Mr A's mental health. The discharge records from the St John of God Hospital from 1998 to 2001 show that Mr A has a history of numerous admissions to psychiatric hospitals. He was diagnosed as having chronic depression, chronic Post Traumatic Stress Disorder (PTSD), substance abuse in the past and a panic disorder with agoraphobia. 19 For the period of 8 to 22 May 2000 a diagnosis of PTSD was made and Dr Timney noted that Mr A "finds it difficult to cope with stressful situations and he had struggled over several weeks in his dealings with his children's school and then the Catholic Education Office in relation to episodes of bullying affecting his children." 20 For the period 23 October 2000 to 1 November 2000 a diagnosis of PTSD is again made and Paranoid Personality traits are also recorded as part of the diagnosis. Dr Timney noted that Mr A is "now in his usual pattern of escalating his complaints from the school through to the school inspection, the Department of Education, the Premier's office, the Independent Commission against Corruption, the Public Advocacy officer and any other major public body which he feels maybe of some help. This pattern of dealing with conflict is obviously having a difficult impact on (Mr A) and his family. There has been similar issues in the past with other government organisations and this follows (Mr A's) increasingly common pattern of feeling persecuted and treated badly by various government and non-government organisations." 21 For the period 8 January 2001 to 22 January 2001 the diagnosis was PTSD and paranoid personality traits. Dr Timney noted that Mr A "has particular issues in dealing with authority in what he considers to be human rights. He has taken on the case of his children's bullying with great gusto and now this dominates his life." 22 A report from Dr Pepora from the Western Sydney Area Mental Health Service dated 27 March 2002 states that Mr A "is currently an involuntary patient" and that "on admission Mr A believed that he was the victim of a conspiracy involving the Police, DOCS, school principal and others. He insisted that his family and he himself were under surveillance. He also believed that his children were unsafe at school because they were subjected to violence and police and DOCS were deliberately not intervening . . . In our view he is suffering from a paranoid disorder." 23 Mr A presented evidence from his general practitioner, Dr King that while he and Mrs A suffer from anxiety and depression, they show no signs of psychosis or other mental illness. Dr King referred Mr A to a psychiatrist, Dr Napper. In his report dated 30 September 2002, Dr Napper concluded that "The weight of evidence is tending to support a diagnosis of delusional disorder in (Mr A) and Folie a deux in (Mrs A). The story that all his four children were abused and mistreated in school is indeed an extraordinary one and in my mind it defies reasonable belief. I agree that (Mr and Mrs A) are devoted and caring parents who have their children's interests at heart. If (Mr A) does have a delusional disorder as it seems likely, it is unfortunate that he has no insight." 24 Mr A drew the Tribunal's attention to a report from Dr Naidoo, consultant psychiatrist, dated 30 September 2002. Dr Naidoo concluded that Mr A "presents with no evidence of acute psychosis. Whether his views on cars following him represents overvalued ideation or delusion is difficult to ascertain." 25 Medical evidence of Mrs A's mental health. The discharge summary from Mrs A for the admission from 1 March 2002 to 19 April 2002 record her diagnosis as "Delusional disorder – Folie a deux" and her present problem as "paranoid ideas/delusions and erratic behaviour." Folie a deux is a term that refers to two people who share the same delusional idea or fantasy. The discharge notes record that Mrs A has "shared paranoid delusions with husband. The delusions involved the school which their children attended and the education department." 26 Mr A drew the Tribunal's attention to a report from Dr Naidoo, consultant psychiatrist, dated 30 September 2002 relating to Mrs A. Dr Naidoo expressed the opinion that "there currently appeared to be no obvious signs of psychosis in the patient's presentation." Applicant's submissions 27 Mr and Mrs A submitted that neither of them are suffering from any mental illness and that their only mental health problem is anxiety and depression. In those circumstances they say that they should not have been subject to community treatment orders. They believe that the complaints on behalf of their children should be pursued because that is the right way to address the issues. Respondent's submissions 28 The respondent submitted that the complaint is part of Mr and Mrs A's delusional and paranoid pattern of behaviour. According to the respondent, the children's best interests are served by being permitted to recover from the traumatic period they have been through which resulted, in part, in their social and educational isolation and disadvantage. According to the respondent, to require them to take part in any proceedings is not in the interests of their psychological recovery. Tribunal's approach 29 We have taken into account all the evidence in the proceedings. The only significant area of conflict in that evidence (apart from the conflicts relating to the complaint itself) is in relation to the diagnosis of Mr and Mrs A's mental health. For the purposes of these proceedings, we accept the evidence of Dr Naidoo that Mr A has no evidence of "acute psychosis" and that Mrs A has no obvious signs of psychosis. Both Mr and Mrs A are suffering from anxiety and depression. 30 We also find that each of Mr and Mrs A's four children has been removed from their parents' care because of concerns including their mental health, increased transience of the family, the children's non-attendance at school for a considerable period and the impact on the children of the parents' fear of being stalked. We note the opinion of Ms Wardrop that the non-attendance of the children at school appears to be related to Mrs A's belief that the children are unsafe and will be harmed if the parents are not present. 31 Dr Timney's observations are also significant. He found that Mr A's way of dealing with conflict by escalating his complaints was having a difficult impact on himself and his family. In Dr Timney's view, Mr A's querulous behaviour is related to his diagnosis of PTSD which makes it difficult for him to cope with stressful situations. Tribunal's reasoning and conclusions 32 Mr and Mrs A's mental health issues was one of the reasons for the removal of the children from their care. Although there is no doubt that Mr and Mrs A perceive that they are acting in their children's best interests by pursuing these complaints, it is clear despite the hearsay evidence that the children want the matters to proceed, that the children may be significantly adversely affected if this complaint proceeds. It was partly Mr and Mrs A's querulous conduct and their insistence that their children had been unfairly victimised that led to the children being removed in the first place. If Mr A was to arrange for his children to give evidence, they would again be exposed to their parents' problematic method of coping with stress and conflict. Even if the matter was able to be resolved without any evidence from the children, the fact that the Tribunal had decided to entertain the complaint would reinforce the behaviours which have contributed to the children being removed. 33 In these circumstances the complaint is dismissed under s 111(1) for "any other reason" and there is no need to consider the respondent's alternative application. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.