Williams v Department of Family and Community Services [2012] NSWADT 150

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Williams v Department of Family and Community Services [2012] NSWADT 150 Hearing dates: 5 June 2012 Decision date: 05 June 2012 Before: Magistrate N Hennessy, Deputy President Decision: Leave for the complaint to proceed is refused Catchwords: LEAVE - Whether fair and just for a complaint of disability discrimination to proceed Legislation Cited: Anti-Discrimination Act 1977 Children and Young Persons (Care and Protection) Act 1998 Cases Cited: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 IW v City of Perth [1997] HCA 30; 191 CLR 1; (1997) 94 LGERA 224; (1997) 146 ALR 696; (1997) 71 ALJR 943 Category: Principal judgment Parties: Peter Williams (Applicant) Department of Family and Community Services (Respondent) Representation: Applicant - In person Mr V Nguyen (Respondent) File Number(s): 121059

REASONS FOR DECISION 1HER HONOUR: This is an application from Mr Williams for a complaint of presumed disability discrimination against the Department of Family and Community Services to go ahead. The complaint was declined by the AntiDiscrimination Board as lacking in substance and Mr Williams exercised his right under the Anti-Discrimination Act 1977 (Anti-Discrimination Act) to have the complaint referred to the Tribunal. When determining whether or not to grant leave, the Tribunal must apply the criteria of whether or not it is fair and just in all the circumstances for the complaint to proceed and that test was set out in the case of Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 in the Supreme Court. 2The bases of Mr Williams' complaint are two reports that were prepared by Dr Mason and were relied on in proceedings in the Children's Court. The reports by Dr Mason the initial report was prepared pursuant to s 54 of the Children and Young Persons (Care and Protection) Act 1998 (Children and Young Persons (Care and Protection) Act). The Children's Court directed an assessment of Mr Williams' capacity for parental responsibility. Dr Mason was engaged by the Children's Court clinic in Parramatta and appointed as an independent expert witness to conduct an assessment of the circumstances in relation to the care and protection of Mr Williams' six children to assist the Children's Court to make a decision in care and protection proceedings from 2008 to 2011. The reports themselves, which are dated 21 May 2009 and 18 October 2010, are subject to legal professional privilege and cannot be disclosed without leave from the Children's Court. 3On 19 January 2011 the Children's Court made final orders allocating parental responsibility of Mr Williams' six children to the Minister for Community Services. The Court took into account the evidence of Dr Mason among others. The Director General also prepared a care plan for the Court pursuant to s 78 of the Children and Young Persons (Care and Protection) Act. In that document the department referred to Dr Mason's report and recommended: "Community Services recommends that there is no realistic possibility of restoration to Mr Williams at this time given his long history of cannabis and other drug use, mental health issues which have been assessed by the Children's Court clinician that include antisocial personality disorder, a long history of violence, particularly domestic violence, poor impulse control and controlling and intimidating behaviour." 4Mr Williams disagrees vehemently with that assessment. He says that Dr Mason only saw him for one hour and that during that time she made the incorrect assessment that he had an anti-social personality disorder. Mr Williams has since obtained other opinions, for example, from Cassandra Taylor, psychologist, which disagrees with the opinion that Dr Mason gave. Mr Williams maintains that the information in Dr Mason's report, which was repeated in the care plan, is false and misleading and is totally wrong and he says that those opinions have led the Court to make a decision about his suitability to look after his children. 5The matter was referred pursuant to s 49M of the AntiDiscrimination Act. Even though it was declined that was the provision that the President of the Board mentioned in the report prepared for the Tribunal. The provision states: "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." 6The first element of this provision is the existence of services that are being provided by the department. In IW v City of Perth [1997] HCA 30; 191 CLR 1; (1997) 94 LGERA 224; (1997) 146 ALR 696; (1997) 71 ALJR 943 (31 July 1997), a High Court decision in relation to the provision of services, the Court emphasised that the services must be defined precisely. Mr Williams was not able to articulate what the services were that the department was providing him within the context of s 49M. 7I mean that as no criticism of him as these are legal provisions which have been interpreted by courts over the years and I do not expect Mr Williams to be familiar with those decisions. However, in circumstances where the report of Dr Mason has been prepared pursuant to an order of the Children's Court under a statutory provision in the Children and Young Persons (Care and Protection) Act, and where that report was merely relied on by the department in those court proceedings, there is no service which has been provided to Mr Williams that would fit within the definition of "services" in s 49M. I also refer to the definition of "services" in s 4 of the AntiDiscrimination Act including services of any profession or trade, services provided by a council or public authority. 8While the department clearly provides services to members of the public in certain contexts, this is not a context in which services are provided. The matters about which Mr Williams complains all occurred in the context of judicial proceedings in the Children's Court, the provision of expert evidence by Dr Mason in those proceedings and recommendations made by the department relying on those reports. As there are no services provided, the issue of whether or not services have been refused in a discriminatory way or whether services have been provided on discriminatory terms does not arise. 9Nevertheless in case I am wrong and services have been provided I turn to the definition of "disability discrimination" in s 49B of the AntiDiscrimination Act. Mr Williams says that the disability about which he complains is a presumed disability; that is, that he has a personality disorder. "Disability" is defined in s 49A to include a disability that a person is thought to have whether or not the person in fact has the disability. In order to constitute discrimination the department would have had to treat Mr Williams less favourably than it treated a person who it did not presume to have a disability in the same circumstances or in circumstances which are not materially different. 10While Mr Williams may be able to make out that part of the test, the second part of the test requires that the presumed disability is the reason for the conduct or a reason for the conduct. All the department did was rely on a report prepared by an expert witness. That report was not relied on because of Mr Williams' presumed disability; consequently the causation element in s 49B cannot be made out. 11For those reasons it is not fair or just for Mr Williams' complaint to proceed and leave is refused.