K v Domestic Violence Crisis Service Inc (Act) [1998] HREOCA 2 (20 January 1998)

Human Rights and Equal Opportunity Commission

Sex Discrimination Act 1984 (Cth)

No.H95\49

BETWEEN:

K

Complainant

AND:

Domestic Violence Crisis Service Inc. (ACT)

Respondent

Reasons for Decision of Michael Dodson

Inquiry Commissioner

Place of Hearing: Canberra

Dates of Hearing: 1 and 2 September 1997 and 20 and 21 October 1997

Date of Decision: 20 January 1998

Appearances: Mr Ian Nash of Counsel instructed by Mr John

McMahon for the Complainant

Mr Richard Refshauge for the Respondent

1. INTRODUCTION

This is an inquiry by the Human Rights and Equal Opportunity Commission ("the Commission") pursuant to s.59(1) of the Sex Discrimination Act 1984 (Cth) ("the SDA").

The complainant, K, a male, lodged a complaint with the Commission on 22 February 1994 alleging that the respondent, the ACT Domestic Violence Crisis Service ("DVCS") had discriminated against him in respect of the provision of services. The complaint was referred on 29 March 1995 by the Sex Discrimination Commissioner to the Commission for inquiry pursuant to s.57(1) of the SDA.

On 14 December 1995, I handed down reasons for decision on the question of jurisdiction in

relation to this matter and found that the Commission had jurisdiction to hear this complaint pursuant to s.9(7)(a) of the SDA as it stood prior to its amendment by the Law and Justice Legislation Amendment Act 1990 (Cth). The respondent sought a review of that decision pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth). On 2 May 1997, Finn J of the Federal Court upheld the finding of jurisdiction but on different grounds: that is, by the application of ss.9(3) and (4) of the SDA. His Honour dismissed the appeal and remitted the matter to the Commission for further hearing.

The further inquiry into this matter was conducted in Canberra on 1 and 2 September 1997 and 20 and 21 October 1997. On 1 September 1997, I made an order pursuant to s.67(1) of the SDA that any information that might enable K, or his family, to be identified shall not be published. I also made orders pursuant to s.67(1) of the SDA that the last names of two DVCS workers be suppressed as I am of the view that the highly sensitive and private nature of their work requires that their confidentiality be preserved.

2. RELEVANT PROVISIONS

The relevant provisions of the SDA as it stood at the time of the alleged unlawful conduct are as follows:

"s.3. The objects of this Act are:

(a) to give effect to certain provisions of the Convention on the Elimination

of All Forms of Discrimination Against Women; and

(b) to eliminate, so far as is possible, discrimination against persons on the

ground of sex, marital status, pregnancy in the areas of work, accommodation, education, the provision of goods, facilities and services, the disposal of land, the activities of clubs and the administration of Commonwealth laws and programs; and

(c) to eliminate, so far as is possible, discrimination involving sexual

harassment in the workplace and in educational institutions; and

(d) to promote recognition and acceptance within the community of the

principle of the equality of men and women.

...

s.5(1) For the purposes of this Act, a person (in this subsection referred to

as the "discriminator") discriminates against another person (in this subsection

referred to as the "aggrieved person") on the ground of the sex of the aggrieved

person if, by reason of:

(a) the sex of the aggrieved person;

(b) a characteristic that appertains generally to persons of the sex of the

aggrieved person; or

(c) a characteristic that is generally imputed to persons of the sex of the

aggrieved person;

the discriminator treats the aggrieved person less favourably than, in

circumstances that are the same or are not materially different, the

discriminator treats or would treat a person of the opposite sex.

...

s.6. (1) For the purposes of this Act, a person (in this subsection referred to

as the "discriminator") discriminates against another person (in this subsection

referred to as the "aggrieved person") on the ground of the marital status of

the aggrieved person if, by reason of:

(a) the marital status of the aggrieved person; or

(b) a characteristic that appertains generally to persons of the marital

status of the aggrieved person; or

(c) a characteristic that is generally imputed to persons of the marital

status of the aggrieved person;

the discriminator treats the aggrieved person less favourably than, in

circumstances that are the same or are not materially different, the

discriminator treats or would treat a person of a different marital status.

...

s 22. (1) It is unlawful for a person who, whether for payment or not, provides

goods or services, or makes facilities available, to discriminate against

another person on the ground of the other person's sex, marital status,

pregnancy:

(a) by refusing to provide the other person with those goods or services or to

make those facilities available to the other person;

(b) in the terms or conditions on which the first-mentioned person provides

the other person with those goods or services or makes those facilities

available to the other person; or

(c) in the manner in which the first-mentioned person provides the other

person with those goods or services or makes those facilities available to the

other person.

(2) This section binds the Crown in right of a State."

3. THE EVIDENCE

K alleges that the DVCS unlawfully discriminated against him on two occasions being:

(a) when officers of the DVCS visited his home on 6 February 1990 in response to a request from the Australian Federal Police that there was a domestic dispute and allegedly treated him less favourably than they treated his wife in the same or not materially different circumstances; and

(b) when K telephoned the DVCS for assistance on 7 February 1990 and he was allegedly treated less favourably than his wife in the same or not materially different circumstances.

K alleges that each of these incidents constitutes unlawful sex discrimination pursuant to the SDA.

I shall consider below the evidence offered by K and the DVCS in relation to each of these incidents.

3.1 K's evidence in relation to the incident on 6 February 1990

K gave oral evidence in chief and in cross-examination and relied upon a written statement dated 8 August 1997 that was Exhibit C1 in the hearing.

K gave evidence that he and his wife, Dr A, were legally separated in 1976 prior to their arrival in Australia and were still legally separated when they arrived in Australia in 1983.

K alleges that at approximately 9.30pm on the night of 6 February 1990, he approached Dr A, who was reading in their son's bedroom, in relation to queries he had as to some business receipts that related to Dr A's medical practice which was conducted from a room in their house. Upon being questioned about the receipts, K alleges that his wife became "quite agitated and verbally abusive". K alleges that Dr A called him "an idiot" and "stupid" and said to their son "You don't know that he [K] wanted to kill you". K gave evidence in cross-examination that he did not yell or shout himself during this incident.

K gave evidence that Dr A had previously been violent and abusive to him and his son and that she had received psychiatric treatment for a personality disorder that manifested itself in her telling lies. K denied that he had ever been violent to his wife.

K alleges that he told his wife on the night of 6 February 1990 that he was not going to tolerate her behaviour anymore and said that they must separate. He proposed that they could have two rooms each in the house. K said that his wife did not reply and went into the master bedroom. K stated that he removed from his wife's surgery a desk chair, a couch and a small medical instrument and placed it in the master bedroom. He stated that he did this to show that he was serious about separating. K said that remaining in the surgery was an office desk, a filing cabinet, two chairs for patients, a toy box, a large bookcase, a small bookcase and a large cupboard.

In cross examination, K said that he believed that Dr A could conduct her practice out of the master bedroom if it was refurbished. K gave evidence that when he moved the various items from the surgery into the master bedroom, the master bedroom already had in it a queen size bed, bedhead, bedside table, a child's small school desk and an exercise treadmill. He said it was in a messy state with magazines over the bed. K also agreed in cross-examination that there was lock (consisting of a bolt that slid across into a catch) on the bedroom door that had been damaged over a year earlier when the catch came away from the door frame.

K alleges that at approximately 10.00pm two police officers knocked at the front door and he let them in and led them to see his wife. It appears to have been assumed by both K and his son that it was Dr A who rang the police. K stated that he spoke to Constable Peter Perkins and told him that he had a problem with his wife being abusive and violent towards him. He stated that Constable Perkins said that they would arrange for officers from the DVCS to attend and to assist both K and his wife. K gave evidence that the police made the call on a mobile telephone in his presence in the study.

K alleges that the police left and he gave evidence in cross-examination that the police had left the house and were past the driveway when the DVCS workers arrived and that he could hear female voices in the street. K gave evidence that shortly afterwards the door bell rang and he opened the door to two workers from the DVCS, who he now knows to be Ms Dennise Simpson and Ms Karla R. K gave evidence that when the door bell rang:

"I opened the door, said `Hello, please come in', they probably said `We are from DVCS..we want to see [your wife]'. I said `Yes, please' and led them to see my wife."

K stated that he was courteous and helpful to the workers and returned to his study. K said that he went down the corridor only once whilst the workers were with his wife so as to comfort his son and tell him to go to bed. He alleged that from his study he heard the door to the master bedroom open and close about every fifteen or twenty minutes.

K alleges that after one and a half hours, at 12.00am, he noticed two persons going down the corridor. He went after them and caught up with them on the verandah at the front of the house. He said to them "What about me? I would like to talk to you". K alleges that they stated "What do you want...we do not need to speak to you". K replied that they had spoken to his wife and he had some important things to say. K gave evidence that his tone was inquisitive, not angry and that he was not waving his arms around. K gave evidence that Ms Simpson and Ms R returned into the entrance hall and went into the living room where they remained standing about two metres from him at one end of a coffee table with K at the other. K alleges that he briefly complained that he had a problem with his wife and needed some help. K gave evidence that either Ms R or Ms Simpson replied that they did not have time to speak with him but gave him a DVCS business card with their names written on the back and said to ring at 1.00pm the next day for an appointment.

In cross-examination, Mr Refshauge for the DVCS put to K some matters that appear in his letter to Mr Terry Connolly of the ACT Legislative Assembly dated 14 January 1992 (Exhibit R6) and in his letters to the ACT Discrimination Commissioner dated 22 February 1994 and 22 June 1994 (Exhibits R4 and R5 respectively) that were inconsistent with his statement dated 8 August 1997 . I do not find that any inaccuracies that are present necessarily compromise the veracity of the evidence given orally or in writing by K.

3.2 The evidence of K's witnesses in relation to the incident on 6 February 1990

K called two witnesses; Detective Constable Perkins and, M, the complainant's son.

3.2.1 Detective Constable Perkins

Detective Constable Perkins gave oral evidence and his written report dated 1 October 1991 of the incident on 6 February 1990 was Exhibit C3.

Detective Constable Perkins' evidence was that he and a Constable Lamb attended the house of K and his wife on 6 February 1990 as a result of a complaint of a domestic dispute. Detective Constable Perkins stated in his report that they spoke to Dr A at length in the master bedroom and that it appeared that she had not suffered any violence though Detective Constable Perkins stated in his oral evidence that she was "upset". Detective Constable Perkins gave oral evidence in cross-examination that Dr A was making allegations of domestic violence against K and that he formed the view that the DVCS would be of assistance to her. He did not recall when asked any detail of the state of the master bedroom.

The police officers then spoke to K who Detective Constable Perkins stated in his report was "slightly agitated however did not show any signs of being violent..[he] appeared to be quite excited in his speech only". In his oral evidence, Detective Constable Perkins agreed that K was upset but not volatile. The police officers also spoke to M who did not appear to have suffered any violence.

Detective Constable Perkins states in his report that the DVCS was called at the request of both K and his wife. Furthermore, Detective Constable Perkins states that K was informed that he could also speak to the personnel from DVCS but that "DVCS were under no obligation to speak to any of the parties involved unless they wished to do so". Detective Constable Perkins gave oral evidence that he and Constable Lamb had departed the house and were between the house and the street when DVCS arrived.

3.2.2 M

M is the son of K and Dr A and is 23 years old. He gave evidence orally as well as providing the inquiry with a written statement dated 12 June 1997 that is Exhibit C2.

M gave evidence that he had never seen his father be "physical" toward his mother nor has his mother ever complained to him that his father had been "physical" toward her. He also stated that his father has never assaulted him nor been violent towards him. He gave evidence that on the night of 6 February 1990, he was studying in his room where his mother was reading a book when his father entered to speak about some business receipts. M gave evidence that his mother became agitated and abusive, her tone of voice being "high pitched and angry" and that his father stayed calm and spoke to her in a regular tone of voice. M gave evidence that after his mother raised her voice, he asked them to leave his room so he could do his homework to which his mother responded "[M] you don't know that he wanted to kill you". He states that his father "was outraged and calmly said, `...that's to (sic) much, I will not tolerate this anymore and I don't want to bring up [our son] this way'" and his parents left his room.

M stated that he noticed from his bedroom (the doorway of which was opposite the door of the master bedroom) that his father moved into the master bedroom some magazines, a fold up couch and a small acupuncture instrument. He said that he did not see a chair being moved into the master bedroom but later saw it in there. He said that in addition to these items the master bedroom had a piece of exercise equipment in it and magazines on the bed and in stacks around the room.

M gave evidence that at about 10.00pm there was a knock at the door and as he was coming down the corridor, his father opened the door to two police officer who said that they had received a call and wished to speak to Dr A. The officers spoke to Dr A, then to M and then K. M overheard the police officers talking to K in the study and they said that the DVCS will be here soon and see all of them. M gave evidence that the DVCS arrived after the police had left the house and that they introduced themselves as DVCS workers and asked to see Dr A. M said that his father was "co-operative and courteous" whilst the DVCS workers were "quite direct and abrupt". M stated that K led them to the master bedroom where they spoke to Dr A for about one and a half hours. M gave evidence that the master bedroom door may have opened once during this time and that he may have gone up and down the corridor during this time.

M stated that after one and a half hours he noticed the two DVCS workers leave the master bedroom and, as M looked out of his bedroom to see if they were going to speak to K, they walked past the open door to the study where K was and out the front door. M gave evidence that when they were just outside the front door, K caught up with them and said, "Can I speak with you now?". They replied, "No, we've seen Dr A, we do not need to see you". M says that K then said, "I'd like to tell you my story". The two workers then stepped back inside the house and into the lounge room. M overheard their conversation and K ask again if he could speak to them. They replied that they had to go but gave him a business card and said to call at 1.00pm the next day.

M was asked a series of questions in cross-examination relating to statements made by M dated 10 May 1996 and 4 June 1996 (that are Exhibits R7 and R8 respectively) to the police in relation to the incident on 6 February 1990. M agreed that there were some inaccuracies in his statement dated 10 May 1996, in particular the events of the night of 6 February 1990 are in parts confused with an incident on 5 February 1990. M stated that he tried to rectify these inaccuracies in his second statement dated 4 June 1996.

I do not find these inaccuracies to be particularly damaging to M's credibility as a witness. Furthermore, I note that there are some similarities in the composition in M's statement to the inquiry dated 12 June 1997 and K's statement dated 8 August 1997 with the almost identical recall of the conversation between K and Dr A in paragraph 2 including the misspelling of the same word. Again, I do not think that this is particularly damaging to M's credibility. I am of the view that M has tried to distance himself from a very unfortunate domestic situation that has no doubt had a profound effect upon him. I am of the view that any inconsistencies, inaccuracies or similarities in M's statements are more a reflection of his desire to put this incident behind him rather than evidence of an intention not to tell the truth to the police or this inquiry.

3.3 The evidence of DVCS in relation to the incident on 6 February 1990

The DVCS called two witnesses in relation to the incident on the night of 6 February 1990 being Ms Simpson and Ms R.

3.3.1 Evidence of Ms Simpson

Ms Simpson gave oral evidence and by way of a written statement dated 31 July 1997 that is Exhibit R9.

Ms Simpson is currently the Co-ordinator of the DVCS. Ms Simpson said in her statement that:

"DVCS is regarded as a unique and ground breaking service...DVCS is not funded as a women specific service, we are funded to work with the victims of domestic violence, regardless of gender, age, race, class or sexuality. Both men and women can be victims of domestic violence and abuse.

When men contact our service seeking support and advice because they are living with domestic violence, they are given the appropriate information regarding their options, including their legal options."

Some documents were introduced into evidence through Ms Simpson at the commencement of her examination in chief which were in existence or in circulation at the time of the alleged unlawful conduct. They are as follows:

(a) The Code of Practice of DVCS Staff (Exhibit R10) as at 6 February 1990 - paragraph 5 of the document provides that "DVCS staff offer professional services to anyone regardless of race, religion, sex, political affiliations, social or economic status or choice of lifestyle...".

(b) An advertisement from the Tuggeranong Valley View dated 12 October 1988 that states, "Violence in the home is a criminal offence. If you are an adult, young person or child living with violence in your home ring the Domestic Violence Crisis Service for Immediate Assistance in a Crisis, Confidential support - information - referral, 248 7800, 24 hours a day, 7 days per week".

Some additional advertising material, including advertisements that were used on milk cartons were not admitted as evidence given that it was not certain they existed at the time of the alleged unlawful conduct and they were Marked for Identification No. 4. Ms Simpson subsequently gave oral evidence that the advertising material did exist prior to February 1990.

Ms Simpson gave evidence as to the general nature of the DVCS. Ms Simpson also gave evidence that the DVCS received safety training from the Australian Federal Police including how to approach and knock on a door during a house call, how to sit or stand and how to talk to alleged offenders.

Ms Simpson gave evidence that on 6 February 1990, she was on the shift from 1.00pm to 11.30pm at DVCS with her co-worker, Ms R. Sometime between 10.00pm and 11.00pm, she received a call from Police Operations to attend a domestic violence incident at the house of K and Dr A. Ms Simpson gave evidence that she does not remember if she was told if either or both parties had requested that they attend. Ms Simpson gave evidence in cross-examination that it was not the role of DVCS to determine who the alleged perpetrator of the violence was and usually they were introduced by the police to someone to talk to when they arrived at an incident.

Ms Simpson gave evidence that the police were still in attendance when she and Ms R arrived. Ms Simpson could not recall if the police answered the door but gave evidence that it would have been too removed from the DVCS policy for her and Ms R to enter the house without the police being there. Ms Simpson agreed in cross-examination that if the police had not opened the door then it must have been K who did so. It was then her recollection that the police introduced her and Ms R to K though she cannot recall if K was agitated or not. Ms Simpson stated though that there was nothing in K's demeanour that indicated to her that he saw himself as the victim or that he was in danger.

Ms Simpson could not recall who showed them down the corridor to the master bedroom to where Dr A was. It is her belief, however, that after being shown to Dr A, the police left having considered the situation safe to do so.

Ms Simpson stated that Dr A was very distressed and that she appeared to have been crying. Ms Simpson said that the master bedroom was "a total shambles" with books, bottles, medications, containers and medical implements scattered everywhere. Ms Simpson disagreed in cross-examination that the room was simply untidy. Ms Simpson gave evidence that Dr A told her that K had thrown the contents of the medical surgery into the master bedroom and that Dr A showed them the empty surgery. Ms Simpson in cross-examination disagreed with the suggestion that most of the furniture, such as a desk, filing cabinet, bookcases and two chairs were still in the surgery. Ms Simpson also gave evidence that Dr A said that she and K had been married for sixteen years and that K had been violent and manipulative during this time.

Ms Simpson also gave evidence that Dr A showed them a broken and splintered lock on the bedroom door and said that K had done that on a previous occasion.

Ms Simpson gave evidence that whilst they were in the master bedroom they heard "pacing" in the corridor and thought about calling for police assistance on the mobile phone but thought it unlikely to work indoors. Ms Simpson said that at the end of their conversation they had advised Dr A of her options, including applying for a Domestic Violence Order ("DVO"), but Ms Simpson was of the opinion that they would not hear from Dr A again.

Ms Simpson gave evidence that when they opened the door to the master bedroom, K was standing outside and that he stood very close to them in the corridor and appeared very agitated.

Ms Simpson gave evidence that he said to them in an aggressive manner, "You spoke to my wife for one and a half hours, now please, into the lounge room and you will talk to me". Ms Simpson said that K was using aggressive body language and flinging his arms about. Ms Simpson said that she and Ms R edged their way up the corridor with K yelling at them to go into the lounge. Ms Simpson was of the view that they all moved into the foyer and that Ms R gave K one of the DVCS cards and told him that they could not stay now but to ring at 1.00pm the next day when they would be back on shift and he could speak to either of them then. Ms Simpson stated that it was not an option for them to stay to talk to K because she and Ms R felt unsafe. Ms Simpson gave evidence that the option was put to K that the police be called back and that he must have not requested that this be done given that they were not called back.

Ms Simpson identified her entry in an information sheet relating to the incident where she entered K as being the perpetrator and agreed in cross-examination that she came to this conclusion on the basis of being taken initially to Dr A, Dr A's narrative and seeing the items had been moved into the master bedroom from the surgery.

Ms Simpson disagreed in cross-examination with K and M's evidence that they spoke with K in the lounge room rather than the foyer and disagreed that K was polite to them. Ms Simpson agreed that they did not ask K if he was a victim of violence nor did they get his version of the incident as he had the option of telling them it the next day.

It was also put to Ms Simpson that in an affidavit dated 20 July 1990 in support of Dr A's application for a DVO, she made no reference to someone pacing outside the master bedroom door. Ms Simpson acknowledged this but said that it was a "succinct" affidavit.

3.3.2 Evidence of Ms R

Ms R gave oral evidence and a statement to the inquiry dated 22 July 1997 that is Exhibit R13.

Ms R said in her statement that when she and Ms Simpson were called to the incident at the house of K and Dr A, "we were informed that we had an invitation i.e one or both parties wished to speak with us". Ms R gave evidence that they were greeted at the front door by a police officer who gave them a brief description of what had happened. Ms R said in cross-examination that K may have been the person to open the door but that this would have been unusual. Ms R said that they were introduced by the police to K who appeared to be "nervous and agitated". Ms R said that she did not recall being told by the police that K was claiming to be the victim of domestic violence by Dr A. She stated that if they had been told this then she and Ms Simpson would have separated and talked to one party each.

In cross-examination, Ms R was asked if she or Ms Simpson would have asked who was the victim of the domestic violence. Ms R replied that they usually only have the police information to rely on and they would have told them who was the victim. In this instance, she cannot recall if the police said that both K and Dr A were saying that they were the victim. Ms R stated that she cannot remember if she or Ms Simpson ever ascertained that both parties wished to speak to them and cannot remember if K was asked if he was the victim but remembers that they did not inquire of K if he wanted to see them before they saw Dr A.

Ms R thought it was the police who led them to see Dr A but allowed for the possibility that it was not. She gave evidence that the police left soon after their arrival. Ms R said that Dr A looked like she had been crying and cried on several occasions while they were talking to her. She said that Dr A showed them her surgery which was "almost entirely empty" and that Dr A said that K had emptied its contents into the master bedroom. When asked in cross-examination if anything was left in the surgery, Ms R said she had a vague recollection that there may have been a filing cabinet in there. When asked if there was a large desk, she replied that there could have been but could not recall if the bookcases or two chairs were there but doubted if they were given that she said in her statement that the room was entirely empty.

Ms R said that there was a mess in the master bedroom that looked like the contents of the surgery were scattered throughout it. Ms R said that Dr A also said that K had damaged the lock of the door on a previous occasion. Ms R said that there were footsteps outside the door on what may or may not have been two or three occasions.

Ms R said that as they left the master bedroom and went into the corridor they were met by K who was in the corridor. Ms R gave evidence that he spoke loudly in an angry tone and said words to the effect, "You spent one and a half hours talking to my wife, now you must spend one and half hours talking to me. Please go into the lounge room now" and pointed with his forefinger. Ms R said that K was gesturing towards the lounge room and at one point his hand come close to touching her and she realised that there was the potential for danger if the situation deteriorated. It was her opinion that the situation had the potential for violence and she and Ms Simpson kept moving to the front of the house. Ms R said that they wanted to speak to him somewhere where there was an escape route. Ms R said they gave him the option of calling the police back and talking to him in their presence, ringing him when they returned to work and discussing the situation over the telephone or for him to ring them the next day at 1.00pm. Ms R was of the view that he declined calling the police back as it would have meant him talking to other DVCS workers as their shift had ended and it seemed important to him that he speak to the same workers who spoke to Dr A. Ms R gave evidence that she and Ms Simpson wrote on the DVCS card outside the house and gave it to K. She stated that they never went into the lounge room with K and to do so would have been against all their training.

Ms R agreed in cross-examination that she and Ms Simpson did not make enquiries of their own at the start of their visit as to whether K wanted to speak to them as they were led to see Dr A and when K made it clear on their way out that he did, they did not because of his manner and the potential for his manner to become violent. Ms R says that she cannot recall whether they spoke to M or not. In response to questioning by me that it would appear that the fact that they left M and Dr A in the house with K when they returned to the office contradicts her evidence as to K's demeanour, Ms R stated that it was her opinion that K was only likely to direct violence against them and not M or Dr A.

3.4 K's evidence in relation to the incident on 7 February 1990

K gave evidence that at approximately 8.15am on 7 February 1990, Dr A rang the DVCS office and K spoke to someone he believed was called Annie (who has since been identified as being Ms Annie M). He spoke to her for about five or seven minutes. In cross-examination, K denied that he spoke to Annie for about thirty minutes and denied that he was upset during the call. K gave evidence that he called again at 12.40pm or 12.45 pm and again made three or four calls up to 1.15pm or 1.20pm. K gave evidence that he never spoke to Ms Simpson or to Ms R and that in his last call to DVCS, he was told by Annie that they were not available and to see a solicitor.

K gave further evidence that he saw a solicitor at 2.00pm and was informed by his solicitor that a DVO had been issued by the Magistrate's Court against K on Dr A's application. The DVO was tendered into evidence at Exhibit R3 and as well as prohibiting K from assaulting, harassing or intimidating Dr A and M, it also prohibited him from being on the premises where the incident on 6 February 1990 occurred. K made an application for the DVO to be reviewed which was dismissed and at 9.00pm that evening K was escorted by two police officers back to his house to collect some personal effects. K gave evidence that he has never had returned to him personal and business papers that were at the house and after a period of renting a flat, he and his son (following an amendment to the DVO) moved into one of the rental properties that belonged to K and Dr A. K and Dr A have since divorced.

3.5 The evidence of DVCS in relation to the incident on 7 February 1990

DVCS relied upon the evidence of Ms M in relation to the incident on 7 February 1990. Ms M gave oral evidence as well as providing a written statement dated 21 July 1997 which is Exhibit R14.

Ms M said that she spoke to Dr A at approximately 8.30am on the morning of 7 February 1990 when Dr A called the DVCS crisis line alleging that K was turning her patients away. Ms M did not recall anything else that Dr A said other than she sounded distressed. Ms M stated that K then came on the line and "talked at me/earbashed me for at least 30 minutes". Ms M said in her statement that:

"...I do not recall everything that was said, given the nature of the conversation, however he did say that workers were at the house the previous night and that they had promised to send a crisis worker over to see him ` today'. He also said that [Dr A] was mad, and that he had looked after her for years despite her violence and abuse.

He sounded very agitated, angry and outraged. He persisted in trying to get me to agree that [Dr A] was violent, that she was a liar and that she was mad. He clearly wanted me to take sides and became very annoyed when I did not do so. This went on for some time. I tried to interrupt him - politely - on various occasions so that I could talk with him about what he wanted to do, but he did not seem interested. I was concerned that unless I could get through to him, that the situation may escalate.

I do not recall why the conversation ended, however, I do recall advising him to get a solicitor if he wanted to get out of the relationship. This is not the only thing that I would normally have done but because he did not appear to be listening or responding to anything I tried to say, that seemed the best thing for me to do in the circumstances.

I asked him if I could talk to [Dr A], however, I felt that it would be best for another crisis worker to talk to her - because it felt inappropriate for me to talk to her and because I was feeling quite exhausted after talking to [K]. I understand that it was during this latter conversation that [Dr A] indicated that she wanted to apply for a protection order.

I attended Court with [Dr A] sometime later that morning..."

Ms M gave oral evidence that she found it difficult to talk to K as she would have normally done as she could not "get a word in edgeways". Ms M said she formed the view that the issues that K was raising were more family law issues than domestic violence issues. Ms M said that she cannot remember if she asked K if he was concerned for his safety.

In cross-examination, Ms M was asked why she did not call K back and tell him that his wife was seeking a DVO against him once she was aware of it. Ms M responded that there were ethical restraints as it would be a breach of Dr A's confidentiality who was DVCS' client. Ms M disagreed that K was provided with no service at all by DVCS given that she had referred him to a solicitor as he appeared to be unwilling to permit Ms M to give him any other advice during their telephone call.

4. SUBMISSIONS

Both representatives made very thorough, thoughtful and helpful oral submissions to the inquiry as to the manner in which the above evidence should be interpreted. I am grateful for the assistance they have provided me.

4.1 Submissions for the complainant

Mr Nash for the complainant submitted that the evidence shows that the DVCS refused to provide K with the service that it provided to Dr A as it assumed that K was the perpetrator of domestic violence and that this was less favourable treatment because the DVCS did so by reason of a characteristic that appertains generally to male persons or that is generally imputed to male persons (that being, aggression) (s.5(1)(b)(c) of the SDA) and/or on the ground of K's marital status, that of being a husband (s.6(1) of the SDA).

Mr Nash relied upon the following factors in making the above submission:

(a) that Ms Simpson and Ms R never obtained K's version of the events on the evening of 6 February 1990 and appeared to decide from the beginning or at least during the interview with Dr A that K was the perpetrator;

(b) that Ms Simpson and Ms R spent one and a half hours with Dr A and only a few moments with K;

(c) that Ms Simpson and Ms R advised Dr A of the option of obtaining a DVO but did not discuss that option with K;

(d) that at no time did Ms Simpson and Ms R split up and give the same options to K as were given to Dr A;

(e) Ms Simpson and Ms R heard the version of events from the female member of the household and did not interview either K or M;

(f) that the police could have been recalled but they were not;

(g) that Ms Simpson and Ms R came to conclusions from the state of the master bedroom, the damaged lock and accepted the explanation of Dr A in relation to them;

(h) M's evidence of K not pacing in the corridor and the discrepancies between K and M's evidence and that of Ms Simpson and Ms R as to where the conversation with K took place;

(i) that Ms M did not provide K with appropriate assistance on 7 February 1990 in that she did not tell him of his options, did not refer him to another worker and did not tell K that Dr A was seeking a DVO against him; and

(j) statistical evidence shows that men are overwhelmingly the perpetrators of domestic violence - this submission relies upon the contents of Exhibit C4 that contains reports relating to domestic violence.

Mr Nash concludes that the above matters support the submission that the DVCS treated K less favourably that they treated Dr A because he was a male and they viewed him as being the perpetrator because aggression is a characteristic that appertains generally to men (and/or husbands) or that is generally imputed to men (and/or husbands) and that this is supported by statistical data (as in Exhibit C4).

Mr Nash also made submissions as to damages which I shall not consider at this stage.

4.2 Submissions for the respondent

Mr Refshauge submitted that the complaint had not been substantiated as the complainant had failed to show that if K had been treated less favourably then this was because of his gender. Mr Refshauge submitted that the DVCS are not the police and they do not have responsibility to determine who is right and who is wrong in a dispute. He submitted that the actions of Ms Simpson and Ms R on the night of 6 February 1990 were not the result of K being a male but rather a combination of the following matters:

(a) it is likely that Police Operations may have given information to DVCS that suggested that Dr A was the victim of domestic violence;

(b) the police had spent a lengthy period of time with Dr A;

(c) Ms Simpson and Ms R were taken to Dr A when they arrived at the house;

(d) Dr A was acting like a victim in that she was very distressed; and

(e) the state of the master bedroom and the broken lock on the master bedroom door.

In relation to the incident on 7 February 1990, Mr Refshauge submitted that Ms M provided advice to K but it was not what he wanted to hear and that the assistance given was appropriate to K's needs as he did not indicate that he feared for his safety. Mr Refshauge submitted that it was an obligation of confidentiality and not K's gender that prevented Ms M from telling K that Dr A was to apply for a DVO.

Furthermore, Mr Refshauge submitted that the issue of whether K was treated the way he was by the DVCS because he is a male was never put to any of the DVCS' witnesses in cross-examination.

5. FINDINGS

5.1 Findings of Fact

I make the following findings of fact based upon the evidence that was presented at the hearing:

5.1.1 on the night of 6 February 1990, the DVCS workers who attended the home of K and Dr A formed the view that K was the perpetrator of domestic violence and that Dr A was the victim of that violence. This was the result of Ms Simpson and Ms R being led to see Dr A first, the state of the master bedroom and the version of events given to Ms Simpson and Ms R by Dr A;

5.1.2 as a result of that belief, the DVCS workers spent a lengthy period of time with Dr A;

5.1.3 the workers did not spend time with K asking for his version of events nor interviewing him as they did not view him as being the victim of domestic violence as they were of the view that Dr A was the only victim;

5.1.4 it is unlikely that the DVCS workers gave K the option of calling back the police so that the workers could interview K. Furthermore, I find it difficult to believe on all the evidence that Ms Simpson and Ms R feared for their safety in relation to K given that they then left M and Dr A alone in the house with K. Rather I think it more likely that they had concluded that they had consulted with the only victim of domestic violence in the house, being Dr A, and that there was no need to interview K;

5.1.5 on 7 February 1990 when K spoke to Ms M on the telephone, K did not receive the same level of assistance and advice that Dr A received from DVCS by telephone that same day.

There are differences in the evidence of the complainant and the respondent in relation to the following matters:

5.1.6 where the police were located when Ms Simpson and Ms R arrived at the house;

5.1.7 who let Ms Simpson and Ms R into the house, the police or K;

5.1.8 where K was when Ms Simpson and Ms R left the master bedroom and where they were positioned when they spoke briefly to K and gave him a business card;

5.1.9 how long K spoke to Ms M on 7 February 1990.

I do not find these differences to be particularly damaging to the credit of any of the witnesses nor do they really touch upon the critical issue in this matter of whether K was unlawfully discriminated against. Furthermore, I am mindful that a significant period of time, that is seven years, has passed since these events and the giving of the statements and oral evidence in the inquiry.

I am of the view, however, that would appear from my findings in paragraphs 5.1.3 and 5.1.5 above that the DVCS treated K less favourably that they treated Dr A in the provision of their service on 6 and 7 February 1990.

5.2 Findings of law

In order for K's complaints in relation to DVCS to be substantiated under the SDA, it is not enough that I find that DVCS treated K less favourably. Rather, I must be satisfied that K was treated less favourably than his wife on 6 February 1990 and 7 February 1990 in circumstances that were the same or not materially different on the ground of his sex and/or his marital status. Furthermore, I must be satisfied that the complainant has satisfied the onus resting upon him to establish, on the balance of probabilities, he was so discriminated against.[1]

Sections 5(1) and 6(1) of the SDA describe what is known as "direct discrimination". This has been described as the section that "addresses acts involving differential treatment of men and women".[2] In Commonwealth of Australia and Another v Human Rights and Equal Opportunity Commission and Others, Sackville J held that:

"...the language of s.5(1) suggests that there is no discrimination on the ground of sex unless a causal relationship is established between the sex of the aggrieved person, or a characteristic pertaining generally to persons of that sex, and any less favourable treatment accorded to the aggrieved person...In other words, the evidence may establish that the reason for the less favourable treatment is not to be the characteristic appertaining generally to persons of one sex, but some factor (or factors) operating independently of that characteristic... the language of s.5(1) does not suggest the mere fact that a distinction is drawn, at least in part, by reference to a characteristic appertaining generally to persons of one sex of itself necessarily establishes the causal relationship contemplated by the subsection. The facts need to be examined to ascertain whether the less favourable treatment experienced by the aggrieved person was `by reason of' any of the matters specified in para (a), (b) or (c) of s.5(1). "[3]

The fact that the less favourable treatment has to by reason of one of the factors in s.5(1) or s.6(1) of the SDA for it to be unlawful discrimination "implies a relationship of cause and effect between the sex (or characteristic of the kind mentioned n s.5(1)(b) or (c)) of the aggrieved person and the less favourable treatment by the discriminator of that person".[4]

I have to conduct, therefore, a factual inquiry[5] as to whether the facts presented to me reveal that K was treated less favourably because of his gender or his marital status.

As I have stated above, the facts do reveal that K was treated less favourably. The failure of the DVCS workers to establish with certainty from both parties when they entered the home on 6 February 1990 who had requested their presence and who was alleging that they were the victim of violence was a significant omission and an indicator of hopelessly ineffective, unprofessional and inadequate procedures that I hope have now been replaced by more structured, professional and rigorous procedures being practised. These omissions led to K not receiving the same treatment as Dr A received. Furthermore, I would hope that clearer lines of communication now exist between Police Operations so that it is established as a matter of routine who has requested the attendance of DVCS and that this is noted by the DVCS workers prior to them attending the particular incident.

Furthermore, the contention by Ms M that K could not be told of the pending application for a DVO by his wife because Dr A was DVCS' client (which suggested that K was not) is simply lacking in commonsense and is incredibly misguided as it could surely lead to any person in a relationship who seeks help and guidance from DVCS after their partner has already done so to be similarly disadvantaged. Again, I trust that such a situation no longer exists at DVCS as it could result in their service being provided on a random and less favourable basis.

My difficulty with reconciling the test required by the operation of s.5(1) and s.6(1) of the SDA and the relevant case law with the evidence presented at the inquiry, is that I am not satisfied that the evidence shows that the complainant established that he was treated less favourably by the DVCS because of his gender or marital status. Whilst Mr Nash submitted that the "only consistent hypothesis" was that K was treated less favourably because he is a male and the perpetrator of the violence, I am of the view that the evidence does not on the balance of probabilities support this hypothesis.

Mr Refshauge submitted that none of the DVCS' witnesses were asked if they had treated K differently because he is a male and/or a husband. There is significant authority for the principle that the subjective intention of the alleged discriminator is not a determinative factor to establishing unlawful discrimination (indeed in some State anti-discrimination legislation a person's motive for discriminating is expressly said to be irrelevant).[6] As stated by Mason CJ and Gaudron J (with Deane J agreeing) in Waters v Public Transport Corporation in relation to s.17(1) of the Equal Opportunity Act 1984 (Vic), which is similar in wording to s.5(1) and s.6(1) of the SDA:

"It would, in our view, significantly impede or hinder the attainment of the object of the Act if s.17(1) were to be interpreted as requiring an intention or motive on the part of the alleged discriminator that is related to the status or private life of the person less favourably treated. It is enough that the material difference in treatment is based on the status or private life of that person, notwithstanding an absence of intention or motive on the part of the alleged discriminator relating to either of those considerations."[7]

Whilst, the authorities are against the intention or motive of the discriminator being a determinative factor, there is some authority that provides that the intention or motive may be one of many relevant considerations. Lockhart J in Human Rights and Equal Opportunity Commission v Mount Isa Mines stated that:

"... all relevant circumstances surrounding the alleged discriminatory conduct should be examined. The intention of the defendant is not necessarily irrelevant. the purpose and motive of the defendant may also be relevant...In some cases they may be central to the case. An obvious example is where a man refuses to employ women because he does not like women. In other cases...intention, motive or purpose may be of little, if any, relevance."[8]

It would follow that the fact that the DVCS' witnesses were not asked why they treated K differently, is not in itself fatal to the complainant's case nor does it mean that important evidence was not put before the Commission. It does highlight, however, the difficulty that the complainant had in establishing the ground for K's less favourable treatment. Mr Nash for the complainant sought to rely upon Exhibit C4 which is a document that appears to have been prepared by the DVCS (in that it appears on its letterhead) that has a series of extracts of statistics from various reports relating to domestic violence in Australia. Theextracts of the statistical data reveals that men are significantly more likely than women to perpetrate domestic violence and that men are perceived as being the main perpetrators of such violence. This material was permitted into evidence on the last day of hearing and, hence, was not tested by any witness nor is it likely that it could have been. Whilst, I may give this documentation some weight, it does not go to show that the DVCS workers were making this assumption when they attended the home of K and Dr A on the night of 6 February 1990. Furthermore, Mr Nash submitted that Ms Simpson and Ms R were treating K less favourably because of a characteristic that generally appertains or that is generally attributed men: namely, aggression. Mr Nash did not produce any evidence to show that aggression is such a characteristic and even if I accept that it is, it still does not establish on the balance of probabilities that it was the ground for the less favourable treatment.

I am unable, therefore, to find the cause and effect relationship between the less favourable treatment and K's gender or marital status that Lockhart J has spoken about.[9] It is my view on the evidence, that, rather than it being the result of K's gender or marital status, the reason for K's less favourable treatment were the pathetically ineffective and hopeless procedures used by DVCS in 1990. The DVCS workers treated Dr A as the victim as they were shown to her first (whether it was by the police or K) and once this occurred and they heard Dr A's version of events, Ms Simpson and Ms R proceeded on the assumption that there was only one victim and did not make enquiries of K or M. I am of the view that their refusal to stay and speak to K when he so requested was a result of them being of the view that there was only victim and that the victim was not K: rather he was viewed as being the perpetrator. Whilst the hypothesis can be put that the belief that Dr A was the victim and K the perpetrator arose because K was a male and that led to K being treated less favourably, I am of the view that it has not been proved on the balance of probabilities that the less favourable treatment was because K was a male and/or a husband. Rather I believe the less favourable treatment flowed from the failure to appreciate that more than one person may have been claiming to have been the victim of domestic violence and the failure to explore this possibility once the opinion was formed that Dr A was the victim.

Furthermore, I am of the view that K's less favourable treatment by Ms M on 7 February 1990 was the result of a seriously flawed policy that as Dr A had been seen by the DVCS workers the night before, she was now a client of DVCS and a conflict of interest may arise if K was also a client. I accept that K may have been in an agitated state on the telephone and that this may have made it difficult for Ms M to advise him but I do not believe that this excuses the lack of assistance provided to him. I do not find, however, that Ms M treated K less favourably because he is a male and/or but rather because of the assumption that since Dr A was their client (and the victim of domestic violence), K could not be also.

I am of the view, therefore, that whilst the practices of the DVCS on 6 and 7 February 1990 were ineffective, inadequate and singularly unimpressive, the DVCS did not treat K less favourably because he was a male and/or a husband but rather because DVCS, through its officers:

(a) assumed that the person they were led to see on 6 February 1990, that is Dr A, was the one and only person claiming to be a victim of domestic violence;

(b) believed that there was no need to establish independently if there were any other victims of domestic violence in the house; and

(c) was of the view that once Dr A had been accepted as being a client it was unable to provide assistance to K without a conflict of interest arising.

I have no doubt that K has experienced great distress as the result of the effect of the DVO granted to Dr A on the afternoon of 7 February 1990 but as I have stated above, I am unable to find that the complaint against DVCS is substantiated and, hence, there is no need to consider the submissions of the complainant or respondent as to damages.

6. CONCLUSION

Having considered the evidence presented to me, I am of the view that whilst K was treated less favourably by the DVCS, he was not so treated because of his gender or marital status.

I find, therefore, that the complaint of unlawful discrimination pursuant to s.5(1), s.6(1) and s.22 of the SDA has not been substantiated and I dismiss the complaint pursuant to s.81(1)(a) of the SDA.

DATED THIS DAY OF JANUARY 1998

.....................................................

Michael Dodson

Hearing Commissioner

[1] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

[2] Commonwealth of Australia & Anor v Human Rights and Equal Opportunity Commission & Ors (1997) 147 ALR 469 at 484 per Sackville J.

[3] ibid at p.485.

[4] Human Rights and Equal Opportunity Commission v Mount Isa Mines (1993) 46 FCR 301 at 321 to 322 per Lockhart J

[5] Commonwealth of Australia & Anor v Human Rights and Equal Opportunity Commission & Ors (1997) 147 ALR 469 at 486 per Sackville J. at p.486 and Human Rights and Equal Opportunity Commission v Mount Isa Mines (1993) 46 FCR 301 at 324 per Lockhart J. See also Waterhouse v Bell (1991) 25 NSWLR 99 at 105 to 106 per Clarke JA in relation to the wording of s.39(1) of the Anti-Discrimination Act 1977 (NSW) which is similar to s.5(1) of the SDA.

[6] See s.8(2)(a) of Equal Opportunity Act (Vic); s.10(3) of Anti-Discrimination Act (Qld); s.20(4) of Anti-Discrimination Act (NT) and s.14(3)(c) of Sex Discrimination Act (Tas).

[7] [1991] HCA 49; (1991) 173 CLR 349 at 359. See also Australian Iron and Steel Pty Ltd v Banovic & Anor (1987) 168 CLR at 176 per Deane and Gaudron JJ; R v Birmingham City Council:Ex parte Equal Opportunity Commission (1989) 2 WLR 520 at 525 to 526 per Lord Goff; James v Eastleigh Borough Council [1990] UKHL 6; [1990] 2 AC 751 and X v McHugh, Auditor General for the State of Tasmania (1994) EOC 92-623.

[8] (1993) 46 FCR 301 at 324 per Lockhart J. Supported by Commonwealth of Australia & Anor v Human Rights and Equal Opportunity Commission & Ors (1997) 147 ALR 469 at 488 per Sackville J.

[9] See footnote 4 above.