The month of May brings out the best of the bench … Shifty agency running the NDIS scheme … Breakthrough … The Full Feds say that a sex worker/therapist should be funded for a woman with a serious disability … In NSW the CA makes adoption orders affecting a young Aboriginal woman … Justice Leeming writes to her directly … From judges’ associate, Ginger Snatch
The Full Feds in National Disability Insurance Agency v WRMF ordered the agency to provide a woman in her 40s suffering multiple sclerosis with the services of a sex worker.
This later was more gingerly clarified as a “sex therapist”.
Geoffrey Flick, Debbie Mortimer and Katrina Banks-Smith all decided to uphold an AAT direction that the disability agency provide WRMF with the support she claimed.
She had submitted a plan in a workbook as required by NDIS, identifying the people who help her with “interactions and relationships” – a psychologist and a sex worker from who she received occasional visits.
The workbook also included a section for the participant to identify matters relating to community and social participation for which she needs assistance and the level of required assistance by checking items in a list.
Next to the item “Engaging in loving and intimate relationships”, the respondent checked that she “always” needed assistance.
In April 2017 the National Disability Insurance Agency released a statement saying it does not cover “sexual services, sexual therapy or sex workers in NIDS plans.
“A plan may include psychological counselling or physical therapy to help someone understand and overcome a physical impediment to intercourse but does not fund sexual services.”
This put into play section 34(1)(e) of the National Disability Insurance Scheme Act, which requires that funding reflects what is “reasonable to expect families, carers and the community to provide”.
The Full Feds said:
“It was not relevantly in issue on the appeal that the respondent suffers from significant medical conditions that prevent her from participation in a mutually fulfilling sexual relationship and that otherwise prevent her from obtaining sexual release in any unassisted manner.”
The agency contended that throughout the tribunal proceedings the respondent was seeking a “sex worker”. Apparently, this was a big misunderstanding and “sex therapist” may have been a better description. The Federal Court said what was required was consideration of the “substance of the service” for which funding was sought.
The agency was on notice over a considerable period of the hearing of the “true nature of the claimed support”.
“… it is abundantly clear from the matters referred to … that the respondent was not seeking services that might be sought by a non‑disabled person for transactional sexual activity or release (however described).”
In any event, the Act does not expressly exclude these services from being funded and there is no exclusion under the NIDS rules.
To wrap-up, the court delivered the agency a resounding whack on the backside:
“As is apparent from the manner in which the agency sought to draft its grounds of appeal and the submissions advanced before this court, there was a considerable shifting of position on the part of the agency as to the manner in which it conducted its case before the tribunal as opposed to the issues it sought to have resolved on appeal.
Much of the appeal was directed to submissions which were either not advanced before the tribunal or a reinvention of the submissions which were advanced. Many of the submissions advanced by the agency before this court, moreover, sought to either construe the reasons provided by the tribunal in an impermissibly pedantic manner or to construe those reasons by reference to submissions not previously made and as resolving submissions to which the reasons were not directed.”
It was a largely unsuccessful appeal by the biological father of an Aboriginal girl against Justice James Stevenson orders for adoption.
Leeming kicked-off his reasons with this:
“The most important person in this appeal is a young teenaged girl. Because she was assumed into care when she was about six months old, I may not name her or anything that identifies her. ‘Belinda’ is not her real name, but it seems better than calling her ‘the child’ or by a letter. She is a real person who has been the subject of litigation for much of her life, including these proceedings for the past two years. Belinda may attempt to read these reasons, now or in the future. They explain why I have concluded that the adoption order made on 16 July 2019 and the order changing her name should remain in place.
Belinda’s biological father has argued that those orders should be set aside, but I have not accepted most of his arguments. The arguments and the law are technical and lengthy, and are not readily comprehensible by someone who is not a lawyer.
However, if there is one thing I would wish Belinda to understand in addition to the outcome of the appeal, it is that her biological father should not be criticised for making the arguments he has made. He was entitled as a matter of law to do so, he made it plain that he accepted that the adoptive mother had ‘done a good job in raising [his daughter]’, and did not seek any order that would result in her ceasing to reside with her. I do not doubt the conclusion reached by the judge who made the adoption order last year, which was that the father was trying to re-establish a relationship with his daughter.”
In response to the judgment, there was a comment on LinkedIn from former Financial Review journalist, Katie Walsh:
“Empathy is among the most important attributes in a lawyer and a judge, in my view.
Have you seen an increase in empathy in the legal profession? In courtroom proceedings? In judgments? Do you agree that it’s vital; or am I on a frolic of my own?
Is there a body of jurisprudence which seeks to ‘humanise’ those at the centre of proceedings?”
The appeal court found that Belinda was an Aboriginal and so special procedures under the Adoption Act had to be followed. She was Aboriginal by reason of her biological mother. Neither her biological father, nor her adoptive mother were Aboriginal.
Instead of an adoption order the biological father “Hackett” wanted an order giving to the adoptive mother “parental responsibility” for Belinda, arguing that it had not been shown that adoption was “clearly preferable” in the child’s best interests (section 90(3) Adoption Act).
This submission was rejected by the court appeal.
There was one curious wrinkle. Belinda’s biological father could not be named and Leeming explained the choice of name for the applicant:
“Hackett was the next on a list of 5,000 pseudonyms prepared years ago in my chambers.”
It’s intriguing to think of the judge’s associate compiling thousands of pseudonyms to be wheeled out as required.
John Basten JA explained why Leeming’s reasons went first:
“Because it was important that the opening paragraphs of his reasons should commence the judgment of the court, his reasons are published first. (That is not to say that, as occurs in the United Kingdom Supreme Court, the lead judgment should not usually go first).”
Hackett (a pseudonym) v Secretary, Department of Communities and Justice