St Patrick’s College pursued the mother of a child with Down Syndrome for at least $10,000 in court costs after she was unable to continue a Federal Court proceeding against the school due to COVID restrictions and because her child became seriously unwell.
Melinda Talbot took the Prospect school to the Human Rights Commission and then the Federal Court in December last year alleging that her daughter Abigail, then 15, was discriminated against based on her disability.
Ms Talbot alleged that Abigail, in year 8 last year, was segregated from her peers in the class and in the playground, and was made to do work inappropriate for her year level, including pre-school and early primary school work.
Other allegations included being unnecessarily escorted around the St Patrick’s grounds, and the school requiring Abigail to undergo psychological testing, which Ms Talbot refused to allow. Her enrollment was terminated this year when Ms Talbot refused to sign off on the learning plan.
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The school claimed in court that this was a “reasonable adjustment” to ensure she was not treated less favourably, and the court outlined that the school intended to subject Abigail to questioning, or testing, as part of the legal proceedings.
Lawyer Clayton Utz, based in Perth, WA, took on the Talbot’s case pro bono, but in March he withdrew due to COVID travel restrictions.
The Talbots were self-represented in the Federal Court until July, when they decided to discontinue as they could not find new pro bono legal representation. Abigail, who also lives with Raynaud’s syndrome, had become seriously unwell.
St Patrick’s College agreed to discontinue the matter, but sought court costs from Ms Talbot, believe to be “in the low-to-mid tens of thousands”.
Last week, Justice Duncan Kerr ruled that it was impossible to say whether the Talbot’s case would have succeeded, so it was reasonable to relieve Ms Talbot of having to pay the school’s court costs.
“Notwithstanding that this will leave the [school] having to meet the relatively limited costs they have incurred to date in consequence of the [Talbots] having initiated these proceedings,” he said.
Talbots ‘shocked’ to learn of school’s intention to pursue costs
Ms Talbot said the school had lacked compassion in its attempt to make her pay its court costs for the proceedings.
“We were shocked to hear that the school was going to pursue us for costs, and very stressed about how we could pay. We were surprised by the lack of compassion given they knew about Abi’s health issues,” she said.
“This whole process has been very long and stressful as we first raised our concerns within the school in early 2018. We now just want to focus on Abi’s health and education again.”
Ms Talbot said she only wanted her daughter to receive “best practice” education, as recommended by Down Syndrome Australia.
“We felt it was important that Abi have access to a quality inclusive education. This includes access to age appropriate work and the relevant year curriculum with her peers with appropriate accommodations as necessary,” she said.
The court accepted that Ms Talbot “lacks the financial means” to find private legal representation.
Catholic Education Tasmania did not respond to a query regarding its decision to seek court costs from Ms Talbot, nor did it answer a question regarding whether policies at St Patrick’s would be reviewed or updated in light of the experience of Abigail.
“Catholic Education Tasmania and St Patrick’s College do not have a case to answer in the matter pertaining to former student Abigail Talbot,” the organisation said in a statement.
It pointed to Justice Kerr’s comments that “neither side has been responsible for imposing unnecessary costs on the other”.
She was represented by the Public Interest Advocacy Centre in the costs hearings.
PIAC senior solicitor Chadwick Wong said it was disappointing that St Patrick’s took the course of pursuing costs.
“It’s unfortunate that in a human rights case like this, when Abigail was demonstrably unwell and needed a lot of medical support, the college decided to press Melinda and Abigail for their legal costs,” he said.
Disability discrimination complaints process criticised
Parents wishing to raise issues regarding discrimination based on disability must either go to Equal Opportunity Tasmania or the Human Rights Commission for mediation, but if that is unsuccessful, then legal action is the only other option.
The Children’s Commissioner can handle systemic issues.
Ms Talbot said having to seek potentially costly legal advice, with the risk of losing a case and having to pay costs, showed that the system was not working properly.
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“There needs to be a more effective complaints process to address issues related to the education of students with a disability. The complaints process needs to be timely and accessible to parents. It also needs to be free of financial risks,” she said.
NSW is believed to be the only state or territory that has a disability commissioner, which also covers matters relating to aged care.
Tasmanian disability rights advocate Kristen Desmond said having a separate disability commissioner in Tasmania would provide a platform without ending up in an adversarial situation.
“The state really should have an independent disability commissioner, or at least a disability complaints commissioner, to go to that allows for mediation or a way forward without having to get lawyers involved,” she said.
“At the moment, if you can’t resolve it through the school system, you have nowhere to go but to an adversarial situation.
“Parents are incredibly stressed by the time you make that complaint, and there’s many that don’t. They either don’t know how, or they don’t have the strength or energy to continue to fight for a better outcome for their child.”