Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ekblad v Warringah Council [2015] NSWCATAD 186 Hearing dates: 14 July 2015 Date of orders: 07 September 2015 Decision date: 07 September 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: N Hennessy LCM, Deputy President Decision: Leave for the complaint of sex discrimination to proceed is refused. Catchwords: PRACTICE AND PROCEDURE – leave sought for complaint declined under the Anti-Discrimination Act 1977 to proceed – whether fair and just for leave to be granted- Legislation Cited: Education and Care Services National Regulations 2011 (Cth) Anti-Discrimination Act 1977 (NSW), s 24, 33, 54, 92 Cases Cited: Dutt v Central Area Health Services [2002] NSWADT 133 Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 Category: Procedural and other rulings Parties: Hans Ekblad (Applicant) Warringah Council (Respondent) Representation: Solicitors: Applicant (in person) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 1510298 reasons for decision 1. Mr Ekblad has complained that Warringah Council discriminated against him on the ground of his sex by banning him from visiting the child care centre in which his child is enrolled. 2. The President of the Anti-Discrimination Board declined the complaint because it was lacking in substance: Anti-Discrimination Act 1977 (NSW), s 92(1)(a). When that happens, the complainant must apply to the Tribunal for permission or 'leave' for the complaint to go ahead: Anti-Discrimination Act, s 96. 3. I have refused leave in this case. If this complaint were to proceed to a hearing, it is highly unlikely Mr Ekblad would be able to prove that the alleged conduct constitutes a breach of the Anti-Discrimination Act. Principles for granting leave – whether "fair and just" 1. The Supreme Court set out the principles to be applied when determining whether to grant leave in Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [28] – [38]. In that case Schmidt J: (1) emphasised that a cautious approach should be adopted because a refusal of leave will "finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights"; (2) found that the Tribunal's discretion is unfettered and is not confined to the grounds on which the President of the Anti-Discrimination Board may decline a complaint; (3) concluded that leave must be granted or refused "depending on what (is) fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted; and (4) noted that where it is apparent that the complaint lacks substance leave may be refused, if that is what justice dictates. 1. The issue to be determined is whether it is fair and just in all the circumstances for the complaints to proceed. Family Court orders 1. Mr Ekblad is divorced from his wife. On 11 March 2013, the Family Court made an order, by consent, that the parties "have equal shared parental responsibility" for (their child) and that the child spend 3 hours with Mr Ekblad on Wednesday and Sunday mornings. On 31 May 2013 the Family Court ordered that: The parties shall do all acts and things necessary to ensure that any day care centre or pre school that the child attends has both parties' contact details on their records and both parties shall be at liberty to attend all events at the day care centre or pre school that the child attends to which parents are normally invited and both parties shall ensure any day care centre or pre school is requested to send all information and communication about the child to each of the parents. (Emphasis added) 1. On 26 July 2013 the Directors of the Centre wrote to Mr Ekblad saying that: It is Council's view that: Pursuant to Order 2 (b) [the child] is to spend each Wednesday and Saturday from 9 am to 12 noon with you. [The child] is not at the Centre on these days. Pursuant to Order 11, both you and [the child's mother] are entitled to attend "all events" at the Centre to which parents are normally invited. The term "all events" in order 11 is to be construed as a reference to specific occurrences, especially those of some importance (e.g. Easter hat Parade) The term does not mean all and any attendances by [the child] at the Centre and the mere attendance by [the child] at the Centre is not considered to be an "event' within the meaning of the Order. The term "all events" would not have been included in Order 11 if the Order was intended to permit you to attend the Centre to visit [the child] whenever she is there. 1. On 26 July 2013 Mr Ekblad met with the Director of the child care centre. He says that after that meeting he was told that he was banned from the centre. Mr Ekblad has not been advised in writing of the ban, but his understanding from the letter of the same date is that he is not to attend the centre except when invited to events to which all parents are normally invited. Mr Ekblad acknowledged that he does not need to attend the Centre to drop off or pick up his child. He is aggrieved because he cannot access the centre to say hello or talk to the teachers about his child. That has been the situation for 2 years. He says he just wants to drop in from time to time. 2. According to Warringah Council, Mr Ekblad is not banned from attending the Centre but nor can he drop in whenever he pleases. The days his child attends the centre are not days on which he has access to her under the terms of the Family Court orders. 3. I did not admit into evidence the affidavits from the applicant dated 14 July 2015 or that from his colleague, Emanuel Papadakis dated 10 July 2015. Those affidavits were filed on 14 July, the day of the hearing. The solicitor for Council participated by phone so did not have an opportunity to see them. Relevant provisions 1. In order to substantiate his complaint, Mr Ekblad would have to prove that Warringah Council has breached s 33 of the Anti-Discrimination Act. That provision states that: Provision of goods and services (1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of sex: (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) Where a skill is commonly exercised in a different way in relation to men and women, a person does not contravene subsection (1) by exercising the skill in relation to men only, or women only, in accordance with the person's normal practice. 1. The first step in determining whether a person has been refused a service or provided with a service on certain terms is to identify the relevant service: Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 404-405 per McHugh J, IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 16-17 per Brennan CJ and McHugh J. The term "services" is defined by s 4 of the Anti-Discrimination Act to include "services provided by a council or public authority." Mr Ekblad did not identify precisely the service that the Council has refused or provided on certain terms but it clearly relates to his access to the Centre when his child in there. He says that Council has changed its "open door policy" because that phrase has been removed from the website. In a letter dated 15 February 2015 the Council claims that there is no "formal" open door policy. 2. Mr Ekblad drew the Tribunal's attention to a provision of the Education and Care Services National Regulations 2011 under the Education and Care Services National Law. Clause 157 provides that: (1) The approved provider of an education and care service must ensure that a parent of a child being educated and cared for by the service may enter the education and care service premises at any time that the child is being educated and cared for by the service. Penalty: $1000. 1. There is an exception under cl 157(4)(b) if the provider reasonably believes that permitting the parent's entry would contravene a court order. 2. These proceedings are not a prosecution under clause 157 for an offence under that provision The only question which this Tribunal has jurisdiction to determine is whether to grant leave for Mr Ekblad's complaint under the Anti-Discrimination Act to go ahead. Even so, cl 157 is helpful in defining the relevant service the Warringah Council is providing to parents at the Centre. One aspect of that service is access to the Centre when the child is in attendance. But, whether or not Council had an "open door" policy, that access is not unqualified. If the Centre reasonably believes that permitting a parent access would contravene a court order, the Centre will not have committed an offence under the Care Services National Regulations if it refuses access. 3. In all the circumstances, the service provided by the Council may be described as providing access to the Centre when the child is being cared for by the service except in circumstances where the Centre reasonably believes that permitting access would contravene a court order. There may be other qualifications on access which are not relevant to these proceedings. 4. In my view, if this matter proceeded to a hearing, Mr Ekblad would not be able to prove that the Warringah Council has refused to provide him with that service or that the service has been provided on certain terms as required by s 33(1). The order of the Family Court is that Mr Ekblad have access to his child for three hours on Wednesday and Sunday mornings and that he is able to attend events at the Centre "to which parents are normally invited". Despite the fact that Mr Ekblad and his former wife "have equal shared parental responsibility", Mr Ekblad is not entitled to have access to his child other than in accordance with those orders. In particular, he does not have access at the times his child attends the Centre. 5. Even if Mr Ekblad could prove that Warringah Council has refused to provide him a service or provided a service on certain terms, he would also have to prove that the Council's conduct was discriminatory. Sex discrimination is defined in s 24: (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of sex if, on the ground of the aggrieved person's sex or the sex of a relative or associate of the aggrieved person, the perpetrator: (a) 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 of the opposite sex or who does not have such a relative or associate of that sex, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex, or who do not have such a relative or associate of that sex, 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. 1. Although Mr Ekblad did not rely on indirect discrimination I will consider his complaint both as a complaint of direct discrimination as defined in s 24(1)(a) and as a complaint of indirect discrimination as defined in s 24(1)(b). 2. The first component of the test for direct sex discrimination in s 24 of the Anti-Discrimination Act is the "differential treatment" test. The treatment afforded to Mr Ekblad must be compared with the treatment that would have been afforded to a woman in the same or similar circumstances. In the absence of an actual person whose treatment can be validly compared with the treatment given to Mr Ekblad, a decision maker would have to rely on a hypothetical person in a comparable situation. Would the Council have treated a woman who was subject to the same Family Court orders as Mr Ekblad in the same way? There is no direct evidence that the Council treated Mr Ekblad differently from the way they treated or would have treated a woman in the same situation. 3. To establish causation, Mr Ekblad would have to prove that at least one of the reasons for being refused access to the Centre at any time when his child is there, is his sex. According to the Centre, their decision about Mr Ekblad's access to his child is based on their understanding of the Family Court orders, not on his sex. Mr Ekblad could attempt to establish a connection between the Council's treatment of him and his gender by identifying other primary facts which would allow the Tribunal to draw an inference to that effect. An inference must be logical, reasonable and establish a "probable connection" with his sex. An inference cannot be made where more probable and innocent explanations are available on the evidence: Dutt v Central Area Health Services [2002] NSWADT 133 at [70]. 4. The explanation offered by the Council is that Mr Ekblad's access to the Centre complies with Family Court orders. They assert that they have not not determined his access on the basis of his sex. In my view, the existence of the Family Court orders is a "more probable and innocent explanation" for the Council's decision and one which a Tribunal hearing this matter would be likely to accept. 5. In relation to indirect discrimination, Mr Ekblad would have to prove that: 1. the Council has imposed a requirement or condition on parents at the Centre; 2. he cannot comply with that requirement or condition; 3. a substantially higher proportion of women than men can comply; and 4. the requirement or condition is not reasonable in all the circumstances. 1. The requirement which the Council appears to have imposed on all parents is that they may access the Centre at any time their child is in attendance subject to any contrary legal requirement. Mr Ekblad can comply with that requirement in the sense that he can confine his attendance to the times when all parents are invited to attend events. But even if he cannot comply in a practical sense, and a higher proportion of women than men can comply, the requirement is likely to be regarded as reasonable because it reflects the law in cl 157 of the Education and Care Services National Regulations 2011 under the Education and Care Services National Law. 2. If Mr Ekblad were able to prove a claim of either direct or indirect sex discrimination, the Council could rely on a defence or exception. It is their contention that the restrictions on Mr Ekblad's access arise from the fact that the Family Court has not given him access to his child on the days she attends child care. Section 54(1)(d) of the Anti-Discrimination Act states that: (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: … (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 1. In my view, if this matter were to proceed to hearing, it is likely that the Tribunal would find that the Council has a defence under s 54(d). Council is required to comply with an order of the Family Court. That order is that Mr Ekblad has access to his child on certain days. Apart from events to which parents are normally invited, the Court orders do not allow Mr Ekblad to have access to his child while she is at the Centre. 2. Mr Ekblad's complaint lacks substance and it would not be fair or just to grant leave for the complaint to proceed. Orders Leave for the complaint of sex discrimination to proceed is refused. ********** 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 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. Decision last updated: 07 September 2015