Gentley v State of Queensland
[2015] QCAT 542
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- Unreported Judgment
- Gentley v State of Queensland[2015] QCAT 542
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Gentley v State of Queensland[2015] QCAT 542
Gentley v State of Queensland[2015] QCAT 542
CITATION: | Gentley v State of Queensland [2015] QCAT 542 |
PARTIES: | George and Isabella Gentley |
| v |
| State of Queensland |
APPLICATION NUMBER: | ADL039-14 |
MATTER TYPE: | Anti-discrimination |
HEARING DATE: | 11 March 2015 to 13 March 2015 |
HEARD AT: | Cairns |
DECISION OF: | Member Favell |
DELIVERED ON: | 3 November 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Application dismissed.
|
CATCHWORDS: | ANTI-DISCRIMINATION – where disabled child the subject of an application for a protection order in the Childrens Court – where discrimination alleged against parents by State – whether discrimination. Anti-Discrimination Act 1991 (Qld) ss 7-10, 101, 103-104, 130, 133, 191 Johnston v The State of Queensland [2013] FCCA 175 James v Rasmussen and State of Queensland [2014] QCAT 375 Purvis v New South Wales (2003) 217 CLR 92 Lyons v State of Queensland (No 2) [2013] QCAT 731 |
APPEARANCES and REPRESENTATION:
APPLICANT: | George and Isabella Gentley
|
RESPONDENT: | State of Queensland represented by Mr D. Kelly of Counsel instructed by The Crown Solicitor |
REASONS FOR DECISION
- [1]Finn Gentley is profoundly disabled. He has Autistic Spectrum Disorder and an intellectual impairment. He is 18 years old and of large stature. He has the mental age of a much younger child.
- [2]He was raised by his parents who, while Finn was younger, both had jobs and were able to sustain their family.
- [3]That changed as Finn got older and became violent to his siblings and carers.
- [4]A time came when both parents gave up their jobs to become full time carers of Finn.
- [5]As carers of Finn they received funding to allow them to be Finn’s carers.
- [6]As Finn aged and become bigger in stature he required greater supervision and help. He attacked his siblings and external carers and persons engaged to transport him to hospital.
- [7]Mr and Mrs Gentley were understandably frustrated and concerned by Finn’s conduct.
- [8]Mr Gentley alerted the Department of Communities, Child Safety and Disability Services (the Department) of the conduct of Finn.
- [9]Upon receipt of that information, the Department made an application to the Children’s Court for a protection order.
- [10]For a numbers of reasons that application was adjourned ten times before an order was made placing Finn into the custody of the Chief Executive of Child Safety.
- [11]Mr and Mrs Gentley allege that the Department discriminated against them because the Department subjected them to a prolonged process within the court system.
- [12]Section 7 of the Anti-Discrimination Act 1991 (Qld) (ADA) prohibits discrimination on the basis of certain attributes and these attributes include relevantly, for present purposes, disability.
- [13]Section 10 of the ADA provides the definition of direct discrimination on the basis of an attribute. The attributes include, relevantly for present purposes, association with or relation to a person identified on the basis of any of the above attributes which includes the attribute of impairment. Relevantly, impairment includes in its definition “a condition, illness or disease that impairs a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.”
- [14]Section 10 of the ADA provides the definition of direct discrimination on the basis of an attribute. It provides as follows:
“Meaning of direct discrimination
- (1)Direct discrimination on the basis of an attribute happens if a person treats or proposes to treat a person with an attribute less favourably than any other person without the attribute is or would be treated in circumstances that are the same or not materially different
- (2)It is not necessary that the person who discriminates considers the treatment is less favourable.
- (3)The person’s motive of discriminating is irrelevant.
- (4)If there are two or more reasons why a person treats or proposes to treat another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.
- (5)In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant.”
- [15]It is well established that the applicant bears the onus of proof of discrimination. The question that must be answered affirmably. Here, if the claim is to succeed, it is whether the particular conduct which is complained of has been shown to be on the basis of an attribute within the meaning of ss 8 and 10 of the ADA.
- [16]Section 8 of the ADA provides:
“Meaning of discrimination on the basis of an attribute
Discrimination on the basis of an attribute includes direct and indirect discrimination of the basis of:
- (a)A characteristic that a person with any of the attributes generally has; or
- (b)A characteristic that is often imputed to a person with any of the attributes; or
- (c)An attribute that a person is presume to have, or to have had at any time, by the person discriminating; or
- (d)An attribute that the person had even if the person did not have it all the time of the discrimination.”
- [17]Section 101 of the ADA deals with discrimination in administration of State Laws and programs area. It provides:
“A person who –
- (a)Performs any function or exercises any power under State Law or for the purposes of State Government program; or
- (b)Has any other responsibility for the administration of State Law or the conduct of the State Government program;
Must not discriminate in –
- (c)The performance of the function; or
- (d)The exercise of the power; or
- (e)The carrying out of the responsibility.”
- [18]Section 103 provides that it is not unlawful to discriminate with respect to a matter that is otherwise prohibited under Part IV if an exemption in ss 104 to 113 applies.
- [19]The issues that the Tribunal must consider are:
- (a)What is an appropriate comparator;[1]
- (b)whether there has been discrimination in processing an application in the Court; and
- (c)If there is discrimination what if any are the appropriate orders.
- (a)
- [20]The Applicants allege that the Department required them to defend repeated applications for child protection orders instead of providing adequate support to enable them to care for Finn at home.
- [21]Mr and Mrs Gentley contend that they have been discriminated against because of their association with a person with an attribute of an impairment, namely their son, in the area of the administration of State laws and programs.
- [22]They contend that the only reason for the action of the Department was that Finn has a severe disability and requires extensive support to be able to be cared for at home. They said that there were no protective concerns and the reason that Child Safety sought custody of Finn was because Disability Services would not fund the necessary support for Finn and they could not cope without an adequate level of support to care for Finn themselves.
- [23]They were seeking orders including the giving of an apology for their trauma, a fully budgeted plan to implement a support plan, the allocation of recurrent funds to provide support for Finn to be cared at home, a transition of care and compensation “for the distress…suffered as a result of the lack of support by Disability services and the discriminatory Child Protection process over the last two years.”
- [24]The State contended that there was no direct discrimination of the Respondent because there was no differential treatment on the basis of the impairment of Finn.
- [25]The State says it is required by the Child Protection Act 1999 (Qld) (the CP Act) to act as it did and that the requirements of that Act is paramount and there was no discrimination in the determination of Finn’s position or his funding.
- [26]If required, the State contends that in the Department acting in the way it did it is entitled to an exemption under s 106 of the ADA, which provides that a person may do an act that is necessary to comply with or is specifically authorised by an existing provision of another Act.
- [27]By far the majority of the factual matters that have been the subject of evidence are not contentious.
- [28]In support of the Respondent’s submission that it did not breach ss 9 and 10 of the ADA as it did not discriminate against the Applicants directly on the basis of their son Finn, the respondent says:
- (i)The Respondent did not seek a child protection order pursuant to the CP Act with respect to Finn because of Finn’s aggressive and violent behaviours.
- (ii)The Respondent sought a child protection order with respect to Finn as it was required to by the CP Act because the Applicants were assessed as unwilling and unable to care for Finn at home.
- (iii)The Applicants admit that they informed the officers of the Respondent that they were unable to care for Finn at home.
- (iv)The Respondent was successful in its application and the Children’s Court granted the child protection order on 14 March 2013.
- (v)The Applicants were treated in the same manner as other parents who were unwilling and unable to care for their children and whose children were under a risk of harm and in need of protection.
- (vi)The Applicants were not treated unfavourably by the Respondent in the circumstances that are the same or not materially different.
- (vii)The Respondent denies the assertion made on behalf of the Applicants that it would have been appropriate to deal with Finn through the justice system given Finn’s complex needs and requirement for high level for care.
- [29]I accept the submissions made by the Respondent and in my view they are supported by the evidence provided.
- [30]In my view, given the legislative regime in the CPA and the circumstances which pertain here, it would not have been appropriate to deal with Finn through the justice system. The orders being sought were not because of Finn’s aggressive and violent behaviours but rather because of the particular circumstances which engaged the operation of the CPA.
- [31]The Respondent denies the allegation that it breached s 101 of the ADA in the way it exercised its power under the CPA. It positively asserts that it assessed Finn for funding and the provision of adequate and appropriate support and provided funding and support at all relevant times whilst having regard to its finite resources available for provision of services to people with a disability. Again, the factual circumstances surrounding those matters seems not to be contentious.
- [32]Whilst it is apparent that the Applicants wanted greater funding and differing support for Finn, in my view there is no evidence to support a contention that there was indirect or direct discrimination against them in the provision of funding and support.
- [33]The affidavit material filed on behalf of the Department acknowledged that Finn’s situation was very complicated and complex and that his disabilities required a high level of ongoing support. That material also acknowledged that the Applicants have consistently expressed their love and concern for their son, however, they feel that they are unable to care for Finn without the support of Child Safety of Disability Services and that as of August 2013, the Department had not finalised or committed final funding and a support package for Finn and his family and that the Department was continuing to remain involved to ensure they received the required ongoing support.
- [34]In their allegation of direct discrimination, the Applicants alleged that if any other youth had acted as Finn had (periodically escalating aggression and violence so that others feared for their own safety) and did not have impairment, he would have been dealt with through the justice system, which provides for youth detention and youth justice conferencing. He would not have been dealt with through the child protection system and parents of such children would not have been subjected to repeated hearings in the Children’s Court to defend child protection proceedings as the Applicants have been subjected to.
- [35]In my opinion, that allegation proceeds on the basis that the applications had been made because others feared for their own safety. In my view, on the evidence that is incorrect.
- [36]As to the allegation that the State breached s 101 of the ADA in the way it exercised its power under the CPA and carried out its responsibility to fund disability support for Finn, including the assessment of eligibility for funding and provision of adequate and appropriate support, I find that the evidence does not support such an allegation.
- [37]Since the hearing, the Applicants have sought to rely on further material and make further submissions. They were allowed to do so on the basis that the Respondent could make submissions about that further material.
- [38]In response to that material, the Respondent submitted that the material confirmed that the Applicants had reached a point where they felt that they were not being supported sufficiently in their care of Finn and therefore abandon him. The submission is made that the then position of the Applicants was not as a result of any discrimination but merely a position which the Applicants adopted because of the situation that arose with their son.
- [39]The Respondent submits that the further complaints and material does not address any issue where they indicate any discrimination which they were subjected to as a result of Finn’s disability. It says that any complaints about the Department’s inability to fund what the Applicants required for their son in a timeframe which they thought was appropriate was not discrimination but merely the process by which the Department made decisions regarding the allegation of its finite and limited resources.
- [40]A timeline was provided to the Tribunal which demonstrated the progress of the applications. The reasons for the various appearances were explained in the various affidavits tendered and the evidence given. Those reasons were not really challenged and in my view were reasonable explanations of what occurred.
- [41]Each of the Department officers swore that they did not discriminate against Finn and his parents and swore that they acted in the best interests of Finn, a child who they formed the view was in need of protection and who was at an unacceptable risk of physical and emotional harm.
- [42]Each relevant decision-maker gave evidence, which I accept, that Finn and his parents would have been treated the same as any other child and their parents in similar circumstances without Finns impairment.
- [43]The application for a child protection order was made under s 54 of the CPA. The rational for the application was set out in the application and in my view it is supported by the evidence given at the hearing.
- [44]Much of the evidence given by Finn’s parents supported the evidence given on behalf of the Department. The parents were frustrated, worried, concerned and I think exhausted with coping with and caring for their son. Understandably, at times, they reached stages where they could not cope. An example of that is the instance in November 2011 as explained in the affidavit of the then acting team leader.
- [45]In my view, the Department is constrained in what can be done in cases such as Finn’s case by the CPA. The purpose of a child protection order is to ensure the protection of a child that the Childrens Court decides is a child in need of protection. I do not see any evidence that the Department acted otherwise than in accordance with the requirements of the Act. In any event, if there was discrimination as alleged by the Applicants, the Department would in my view be entitled on the evidence and the operation of the CPA to an exemption.
- [46]Much of the evidence presented was concerned with the treatment of Finn and the history of his and his parents contact with the Department. In my view, it does not show that the Department or any of its officers had discriminated against Finn’s parents as alleged or at all.
- [47]Further, much of the evidence was concerned with funding or lack of an appropriate amount. Again, I am unable to identify any discrimination as alleged. The individuals who gave evidence and were the subject of evidence were not shown to be decision-makers in that regard.
- [48]Once the application was made for custody, the Childrens Court plays a role in what happens with the application. In my view, there is nothing to indicate that the court process amounted to discrimination against Finn’s parents.
- [49]Finn’s parent may have been dissatisfied with various aspects of the Department or its officers from time to time. The evidence supports such a conclusion. The frustration shown in the documentation and the submissions made was clear. However, any discrimination as alleged has not in my view been shown.
- [50]The application is dismissed.
- [51]Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act
2009 (Qld) and s 191 of the Anti-Discrimination Act 1991 (Qld), it is ordered that:
i) The publication of any information concerning the subject complaint of the Applicants such that the Applicants and the individual Respondent could be identified is prohibited;
ii) The disclosure of the identities of the Applicants and the individual Respondent is prohibited; and
iii) Any identification of the Applicants and the individual Respondent to this proceeding, subject to other order of the Tribunal, shall adopt the pseudonyms for the Applicants of George and Isabella Gentley.
Footnotes
[1] Johnston v The State of Queensland [2013] FCCA 175; James v Rasmussen and State of Queensland [2014] QCAT 375; Purvis v New South Wales (2003) 217 CLR 92; Lyons v State of Queensland (No 2) [2013] QCAT 731.