Costa by her litigation guardian Costa v Sydney Catholic Schools Limited as trustee for Sydney Catholic Schools Trust

It owns and operates several mainstream and specialist schools within the Sydney Diocese;

it has established procedures for supporting students with complex social and emotional needs; and

In June 2020 an application was submitted on behalf of the applicant to enrol as a student at the School.

Admitted, but also says on 18 May 2020 Ms McDonald Costa contacted the respondent to inquire about enrolling the applicant at the School.

Between 17 June 2020 and 14 August 2020 a series of meetings occurred between the applicant's parents and representatives of the School in relation to the applicant's prospective enrolment.

In accordance with Part 4 of the Disability Standards for Education 2005 (DSE), the Respondent was required to take all reasonable steps to explore whether the Applicant was able to be enrolled on the same basis as a prospective student without the applicant's disability.

In taking those required steps, the respondent: (i) collected medical reports regarding the applicant's disability; (ii) engaged in consultation with other educational providers that the applicant was previously enrolled at; and (iii) consulted with the applicant's parents.

On review of the medical reports available and information provided by the applicant's parents, prior teachers and others, the respondent cancelled the meeting with the applicant on 3 and 6 August 2020 to avoid re-traumatising her by prematurely exposing her to a new school setting.

On 24 August 2020 the applicant's parents attended separate meetings with the School, and were verbally notified the applicant's application to enrol was refused.

Admitted only to the extent that the respondent held separate meetings with the applicant's parents, and otherwise denies.

Representatives of SCS met with Ms McDonald Costa on 17 June 2020 and 24 August 2020.

Representatives of SCS met with Mr Costa on 29 July 2020 and 24 August 2020.

The purpose of the meetings was to allow the applicant's parents a further opportunity to consult on the applicant's learning and schooling needs and assist the respondent in ascertaining whether there were reasonable adjustments that could be made to facilitate the applicant's enrolment.

The meetings on 24 August 2020 allowed Mr Costa and Ms McDonald Costa a further opportunity to consult on Olivia's learning and schooling needs and assist the respondent in ascertaining whether there were reasonable adjustments that could be made to facilitate Olivia's enrolment.

The meetings of 17 June 2020 and 29 July 2020 with Ms McDonald Costa, were consultations with them regarding the applicant's learning and schooling needs to assist the respondent in ascertaining whether there were reasonable adjustments that could be made to facilitate the applicant's enrolment.

In late August 2020 the respondent sent letters to the applicant's parents refusing the applicant's application to enrol at the School.

Admitted, and further says that by separate letters sent to each of the applicant's parents on or about 28 August 2020, the respondent communicated an offer to support the applicant to apply for enrolment in an "ASPECT school", but Ms McDonald Costa rejected "[t]his proposed adjustment". The respondent further says that:

• the school and diverse learning team considered that the applicant's needs were such that she needed to be informed in advance of any changes to routine and structure;
• any disruptions to these would likely put the applicant in a state of emotional distress; and
• at the time of the enrolment application the applicant had been enrolled in home schooling as from 8 March 2020, after her parents had withdrawn her from a public school kindergarten.

At the time the application to enrol was made there were reasonable adjustments the respondent could have implemented to admit the applicant as a student, these being:

a senior student assisting the applicant to transition to and from school each day;

participating in a reading recovery program the School offered; and

allowing the applicant to sit at the end of the pew during church services and next to an older student or assistance teacher who would be able to escort her outside to a quiet area is she required a sensory break.

The adjustments set out in paragraph 9 (a) to (c) would not have been adequate to support the applicant's social and emotional needs in a classroom setting; and the adjustments would not have enabled Olivia to achieve learning outcomes and/or participate in the courses and programs offered and/or enabled her independence in the mainstream setting at the School.

• The adjustments would not have addressed the core anxious and avoidant behaviours Olivia would have likely demonstrated when being placed into the mainstream setting at the School nor would they comprehensively provide the support Olivia would have needed in order for her to feel emotionally safe across the school day.
• Placing the Olivia into a mainstream setting at the School would have, more likely than not, exacerbated her trauma and anxiety in educational settings including because of the many transitions throughout the day, nonpreferred tasks and scheduled and unscheduled interruptions to the school day.
• These adjustments would not have addressed the Olivia's ability to learn independently in the classroom or act independently in the social dynamics of the playground, which is largely an unstructured and oftentimes chaotic environment.

The adjustments set out in paragraph 9 (a) to (c) were not reasonable, having regard to the respondent's duties to other students and the risk to their health and safety:

• Students are enrolled at the School to receive an education, not to be employed or utilised as persons with a responsibility to assist another student to transition to and from school each day; or to assist them in church services;
• environment in which to receive their education. Olivia's parents put SCS on notice that the behaviours Olivia has exhibited in the past and would be likely to exhibit when transitioning to a new school included heightened anxiety, 'meltdowns' due to separation from her parents, particularly her mother; being triggered to dysregulate by a tone of voice and being resistant or emotionally affected by unexpected changes in routine. The Respondent says that having been made aware of those behaviours, SCS could not place other students in a role monitoring and assisting Olivia because the SCS is required to take all reasonable steps (as far as is practicable) not to place other students at risk to their psychological, emotional or physical health and safety. In the event of Olivia having dysregulated behaviour or a heightened emotional episode, a student allocated to assist Olivia would be exposed to the risk of emotional distress, frustration and anxiety, or perhaps physical injury.

The respondent's conduct as alleged above constituted direct discrimination against the applicant on the basis of the applicant's disability, contrary to s 5(1) and s 22 of the DD Act in that:

the respondent refused to accept the applicant' application to enrol because of her disability; and

in refusing to accept her enrolment the respondent treated the applicant less favourably than it would have treated a person with a disability in circumstances that were not materially different.

the proper comparator is a student without the applicant's disability, displaying similar behaviours, seeking enrolment in year 1 at the School; and

the respondent would have treated the Comparator in the same way in circumstances that are not materially different.

Further, the respondent's conduct referred to above constituted direct discrimination against the applicant on the basis of her disability, contrary to s 5(2) and s 22 of the DD Act, in that:

the respondent refused to consider reasonable adjustments for the applicant; and

for that reason, the applicant was treated less favourably than a person without that disability would be treated in circumstances that were not materially different.

The reasonable adjustment was a gradual transition from home-schooling to a mainstream setting. SCS proposed that adjustment by offering to assist Oliviato apply for enrolment at an ASPECT school. This proposed adjustment was rejected by Ms McDonald Costa.

Further, the respondent's conduct referred to above contravened s 32 of the DD Act.

Denied; and further says that at all material times, SCS acted consistently with the DSE and took all reasonable steps to explore whether the applicant was able to be enrolled on the same basis as a prospective student without the applicant's disability.

The respondent's conduct referred to above is unlawful pursuant to ss 5, 22, and 32 of the DD Act.

(a) Olivia is a person with a disability within the meaning of s 4(1) of the DD Act,[24] having been diagnosed with Autism Spectrum Disorder (Level 2 severity), and with a number of other disorders.[25]

(b) Ms McDonald Costa, being the carer of Olivia, is an "associate" in relation to Olivia "within the meaning of s 7 of the" DD Act.[26]

(c) SCS, as trustee of the Sydney Catholic Schools Trust:[27]

(i) is the "Proprietor with Catholic Schools NSW" and, as such, is the approved authority for the registration system formed pursuant to s 39 of the Education Act 1990 (NSW);

(ii) manages a school known as "Holy Innocents Catholic Primary School" located at Croydon (School) which was registered by the NSW Education Standards Authority;

(iii) is liable to being sued in its own name as trustee of Sydney Catholic Schools Trust;

(iv) is an education authority administering an education institution for the purposes of s 22(1) of the DD Act; and

(v) the School is an education institution for the purposes of s 22(1) of the DD Act, and education provider for the purpose of paragraph 2.1 of the DSE.

(d) Between 2021 and 2022 SCS employed at the School:

(i) Mrs Deborah Bestulic as Principal;[28]

(ii) Ms Catherine Forrester as Acting School Principal;[29]

(iii) Mr "Brain" (sic; should be "Brian") Anderson as Acting School Principal;[30]

(iv) Ms Veronica Burgess as "Diverse Learning Support Complex Case Management";[31] and

(v) Ms Veronica Adams as "Interim Specialist Diverse Learning".

(e) On or about 3 June 2022 Ms McDonald Costa completed an application to enrol Olivia as a student at the School;[32] in response to which Ms McDonald Costa and Olivia were invited to meet, and on 17 June 2020 did meet Ms Bestulic, at the School.[33]

(f) On 29 July 2022, Olivia's father met with Ms Forrester and Ms Adams, and was informed that the delay was due to the School being fully booked for the term, and was also informed Ms Bestulic was not at the School at the moment.[34]

(g) In a telephone conversation on 30 July 2020 the School invited Olivia and Ms McDonald Costa to attend the School on 3 and 6 August 2020 as the next step on the School's enrolment policy. On the first of the two days Olivia was to be taken to the classroom for a short period, and on the second of the two days she was to get to have lunch in the playground. The School informed Ms McDonald Costa that Ms Forrester would use those times to discuss reasonable adjustments, and the next steps in Olivia's application to enrol at the School.[35]

(h) On 31 July 2020 the School contacted Ms McDonald Costa and abruptly cancelled the two planned visits.[36]

(i) On 24 August 2020, at a meeting held between Ms McDonald Costa, Mr Costa, Ms Anderson, and Ms Adams, SCS informed Ms McDonald Costa and Mr Costa that Olivia's application for enrolment with the School had been refused;[37] and the refusal was confirmed in a letter dated 31 August 2020.[38]

1. Based on these alleged facts, the PASC claims that SCS engaged in unlawful discrimination in a number of ways. First, it is claimed that SCS engaged in unlawful discrimination within the meaning of s 22 of the DD Act[39] The basis of that allegation is the following:[40]

At all material times for the Applicant's Application to Enrol at Sydney Catholic Schools, there were reasonable adjustments to learning and assessment activities Holy Innocents' Catholic Primary School Croydon could have implemented, Sydney Catholic Schools ('SCS Ltd'), failed in their obligation to ensure all relevant circumstances must be taken into account to admit a student with a disability at their school. For the purpose of the Act in determining whether a hardship that would be imposed on Sydney Catholic Schools ('SCS Ltd'), would be an 'unjustifiable hardship' The Disability Standards for Education 2005 ('DSE') clarify the legal obligations of all education providers to comply with the Disability Discrimination Act 1992 ('DDA') and they failed to ensure Miss Olivia Costa, a student with a disability could access and participate in education on the same basis as students without a disability.

Particulars

(a) Sydney Catholic Schools ('SCS Ltd') and Holy Innocents' Catholic Primary School Croydon could have offered the following reasonable adjustment to Miss Olivia Costa;

(i) providing her with specific seating in the classroom.

(ii) providing her with noise - reducing earphones.

(iii) providing her with assistive technology in the classroom and use of a reader and or scribe in exams.

(iv) providing her with additional time to complete exams.

(v) providing her with choice of assessments type ie oral presentation to a smaller group or teacher only instead of whole class.

(vi) providing her with seating at school assemblies and school mass at the end of the row/ church pew.

(vii) providing her with an Individual/ Personalised Learning and support Plan with her parents, other professionals, input working together to identify Miss Olivia Costa a student with a disability reasonable adjustments and supports.

1. Second, SCS engaged in unlawful discrimination against Miss Olivia Costa on the basis of her disability, contrary to s 5(1), s 6, s 7, s 22, and s 32 of the DD Act, by refusing to accept Olivia's application for enrolment at the School; and by refusing to accept her enrolment, SCS treated, or proposed to treat, Olivia less favourably that SCS would have treated a student without the disability Olivia has in circumstances that were not materially different.[41]
2. Third, further and in the alternative, SCS's conduct constituted direct discrimination against Olivia, contrary to s 5(2), s 6, s 7, s 11, s 22, and s 32 of the DD Act. The PASC relies on the following particulars:[42]

(a) Sydney Catholic Schools ('SCS Ltd') and Holy Innocents' Catholic Primary School Croydon required or proposed to require Miss Olivia Costa to comply with a requirement and or condition and because of her disability she was not able or would not be able to comply with the requirement or condition and the this requirement or condition was likely to have the effect of disadvantaging Miss Olivia Costa a person with a disability which is indirect discrimination.

(b) Sydney Catholic Schools ('SCS Ltd') and Holy Innocents' Catholic Primary School Croydon did not make or propose to make, reasonable adjustments for Miss Olivia Costa, and the failure to make the reasonable adjustments has and would have the effect that as a student with a disability, because of the disability, was treated less favourably than a person without the disability would have been treated in circumstances that are not materially different.

(c) Sydney Catholic Schools ('SCS Ltd') and Holy Innocents' Catholic Primary School Croydon did not comply with section 7 of the Disability Discrimination Act 1992 ('DOA') as Miss Olivia Costa has a carer, her Mother and the act applies in the same way as it applies in relation to the person with a disability.

1. Fourth, SCS and the School did not determine whether there would have been any unjustifiable hardship to SCS and the School if they were to accept Olivia as a student, it being the case that s 11 of the DD Act imposes on SCS the burden of so proving.[43]
2. Fifth, SCS and the School contravened the DSE by failing to make reasonable adjustments to assists Olivia to apply, enrol, and participate as a student of the School on the same basis as a student without a disability. In particular, SCS and the School failed to determine the reasonableness of:

(i) Miss Olivia Costa's disability;

(ii) the views of Miss Olivia Costa on what she required;

(iii) the effect the reasonable adjustments will have on others, including academic staff and other students at their mainstream school;

(iv) seeking any expert assessment required to guide the process of determining reasonable adjustments especially important in the area of Miss Olivia Costa known specific learning disability as each student's learning profile is unique to them,

(v) understanding their legal obligations and ensure all employees participate in e-learning modules and professional learning to meet their legal obligations under the Disability Standards for Education, reasonable adjustments and ensure all Sydney Catholic Schools are inclusive and have an accessible school culture for students with a disability.

(vi) taking reasonable steps to ensure the Sydney Catholic Schools Diverse Learning team meet actually with Miss Olivia Costa, her parents and her NDIS therapists to assist the Principal to comply with its legal obligations by identifying all reasonable adjustments that could have been offered to Miss Olivia Costa, whom was because of her disability, was treated less favourably than a person without the disability in circumstances that are not materially different seeking enrolment.

1. In the particulars to this allegation, the PASC refers to SCS and the School's failure to reply to Ms McDonald Costa's email sent on 4 August 2020 requesting their cooperation to consult with Miss Olivia Costa and her associates.
2. Sixth, SCS and the School failed to have regard to all relevant circumstances and the best interest of Miss Olivia Costa when assessing whether any disability adjustments being sought on her behalf were reasonable pursuant to s 3.4 of the DSE.[44]
3. Seventh, SCS and the School knew or ought to have known, or it was reasonably foreseeable that there "exists in and are transmitted throughout Australian society stereotypical and or prejudicial views about students with a disability that they should be enrolled and attend segregated "special disability, Autism schools" and not be educated alongside their peers in a mainstream school setting"; but SCS and the School failed to protect Miss Oliva Costa against the harm or adverse effects of discrimination by failing to provide any alternative, inclusive, education, or teacher training on unlawful disability discrimination.[45]
4. Eighth, SCS and the School owed Miss Olivia Costa a non-delegable duty of care, and failed in exercising such care, to avoid exposing her to unnecessary risk of injury; to avoid creating or exposing her to reasonably foreseeable risk of psychiatric injury, or to protect "her mental integrity from the unreasonable infliction of serious harm".[46]

1. In its written submissions SCS submits the PASC makes allegations that:

(a) are "irrelevant to any issue in the proceedings" (this criticism is made in relation to paragraphs 1(c), (d), (e), 2, 6, 7);

(b) are outside the scope of the claim (this criticism is made in relation to paragraphs 8, 9,10,11 and 12);

(c) are vague (this criticism is made in relation to paragraphs 8, 9, 10, 11, and 12);

(d) contain typographical errors (this criticism is made in relation to paragraphs 18 and 20);

(e) are submissions (this criticism is made in relation to paragraph 18);

(f) are rolled up (this criticism is made in relation to paragraph 22);

(g) save for one exception, plead reasonable adjustments wholly different from the existing statement of claim, and do not form part of the allegations in the AHRC Complaint (this complaint is made in relation to paragraphs 22 and 24);

(h) lack material facts (this criticism is made in relation to paragraphs 23, 24, and 36(a) to the extent those paragraphs allege a contravention of s 6 of the DD Act);

(i) impermissibly seek to expand the claim (this criticism is made in relation to paragraph 7 to the extent it pleads Ms McDonald Costa is an "associate");

(j) do not make sense (this criticism is made in relation to paragraph 25);

(k) are otiose in that they repeat earlier allegations (this criticism is made in relation to paragraphs 26 and 29); and

(l) pleads an unsustainable and in any event, statute barred cause of action purportedly based on negligence (this criticism is made in relation to paragraphs 30-35, 37, and 38)

1. SCS characterised the PASC as a "wholesale re-pleading and attempted expansion of the claims" which should be rejected.[47]
2. In her oral submissions, Ms McDonald Costa, who was not legally represented, appeared to accept as fatal the criticism counsel for SCS made that the PASC was prepared using a Federal Court form. After I asked Ms McDonald Costa to assume that this was not the case, I asked her to explain why leave should be granted. In broad terms Ms McDonald Costa said that the current statement of claim did not reflect what she wanted to say in support of Olivia's case. At that point, I asked Ms McDonald Costa whether, when she had given her former lawyers instructions to file the statement of claim, she did not satisfy herself that it contained what she believed should be contained. Ms McDonald Costa made submissions I had difficulty understanding; and she said that "at this stage . . . I'm happy to walk away from it and just go on" the statement of claim that was drafted on her behalf.[48] I am not satisfied that Ms McDonald Costa abandoned her application for leave to file the PASC.

1. Some of SCS's criticisms of the PASC have merit. In particular, I am satisfied that:

(a) paragraphs 32-35 of the PASC do not plead a reasonable cause of action based on negligence, and do not plead any other reasonable cause of action;

(b) given the allegations of fact made in the PASC, and the evidence before me, I am satisfied there is no reasonable basis for alleging SCS engaged in indirect discrimination within the meaning of s 6 of the DD Act;

(c) paragraph 38 of the PASC is redundant because, to the extent it is relevant to alleging damage, that subject is dealt with by paragraph 37 of the PASC; and

(d) paragraph 25 of the PASC is incapable of being a material fact in support of any of the causes of action pleaded in the PASC, and that is because unjustifiable hardship will only become an issue if SCS raises it, in which case, under s 11 of the DD Act, SCS would bear the burden of proving that it would suffer unjustifiable hardship if it were required to make the adjustments Olivia claims SCS ought to have made.

1. I am not satisfied that paragraphs 26 and 29 of the PASC are otiose. Both are conclusory allegations making it clear that the conduct alleged in the paragraphs preceding paragraphs 26 and 29 are claimed to constitute breaches of the provisions of the DD Act each of paragraphs 26 and 29 identifies. I am also not satisfied that by the PASC, in paragraph 4, alleging that Ms McDonald Costa is an "associate" of Olivia she is seeking to allege that the discriminatory conduct in relation to Olivia should be taken to be discriminatory conduct against Ms McDonald Costa. Being an "associate" is relevant to paragraph 27(vi) of the PASC which, when read with the particulars to paragraph 27, alleges that SCS breached cl 4.2(a) of the DSE by not consulting with Ms McDonald Costa, Olivia's associate, before deciding not to enrol Olivia. As I have already set out, s 4.2(3)(a) of the DSE obliges an education authority to "consult the prospective student, or an associate of the prospective student, about whether the disability affects the prospective student's ability to seek admission to, or apply for enrolment in the institution".
2. Although SCS submits that the reasonable adjustments the PASC alleges SCS failed or refused to make were not alleged in the AHRC Complaint, SCS does not, in its written submissions, submit that Olivia is barred by s 46PO(3) of the AHRC Act from alleging the reasonable adjustments she seeks to raise in the PASC. Subsection 46PO(3) provides:

The unlawful discrimination alleged in the application:

(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.

1. In oral address, however, counsel for SCS submitted that the additional reasonable adjustments the PASC alleges are "outside the AHRC complaint, but we're probably on softer ground there".[49] It is open to find, however, and I find, that the additional reasonable adjustments alleged in the PASC arise out of the same, or substantially the same, acts, omissions, or practices that are identified in the AHRC Complaint.
2. I also do not accept SCS's submission that the PASC constitutes a "wholesale re-pleading and attempted expansion of the claims". The matters the PASC alleges arise out of the same, or substantially the same, acts, omissions, or practices that are identified in detailed in the AHRC Complaint and in the current statement of claim.
3. Whether I should grant Ms McDonald Costa leave to file the PASC, however, does not turn on whether the criticisms SCS makes of it are correct; it turns on whether, first, my permitting Ms McDonald Costa to file the PASC would better identify the real issues in dispute between the parties and, if that question is answered in the affirmative, whether my granting Ms McDonald Costa leave to file the PASC will result in prejudice to SCS in particular, and the administration of justice in general, which cannot be ameliorated by some other order, such as an order for costs. These questions are to be determined, in the first instance, by considering whether the PASC seeks to articulate causes of action that are supportable by the evidence before me that are not articulated in the current statement of claim.
4. The PASC alleges more facts than does the current statement of claim. That is particularly the case with paragraph 27 of the PASC which pleads matters which appear to be specifically directed at s 3.4 of the DSE. The generality of the allegation made in paragraph 12 of the current statement of claim, however, would entitle Ms McDonald Costa to rely on the matters stated in paragraph 27 of the PASC, and the particulars to that paragraph. The additional reasonable adjustments in paragraph 22 of the PASC, however, would not be covered by paragraph 9 of the statement of claim, because the generality of paragraph 9 is limited by the particulars to paragraph 9 of the statement of claim that are currently stated in the statement of claim.
5. Subject to one qualification, I am satisfied the PASC does not articulate any reasonable cause of action that is not pleaded in the current statement of claim. The exception concerns the reasonable adjustments alleged in the particulars to paragraph 22 of the PASC. Thus, if SCS were to fail in its application for an order dismissing the proceeding, I would order that Ms McDonald Costa's application for leave to file the PASC be dismissed, but order that the particulars of reasonable adjustments alleged in paragraph 22 of the PASC be treated as additional particulars of reasonable adjustments alleged in paragraph 9 of the current statement of claim.

1. In its counsel's written submissions SCS submits Ms McDonald Costa is in default of orders of the Court, and she has failed to prosecute Olivia's claims with due diligence. SCS submits Ms McDonald Costa:

(a) made serious and unfounded allegations against her former legal representatives;

(b) made serious allegations of impropriety against the AHRC;

(c) communicated directly with the Registry and the Court;

(d) made multiple applications for requests in respect of a number of matters, including multiple requests for a genuine steps statement, multiple requests made to SCS's lawyer for the appropriate person to contact, and multiple requests for the matter to be transferred to the Federal Court;

(e) made two applications that I recuse myself, and alleged that SCS's lawyers and I have acted unethically;

(f) continually defaulted on orders to progress the matter;

(g) indicated on numerous occasions she would file, but taking no action to file, an amended statement of claim, but waiting until the directions hearing on 13 December 2024 to inform the Court that Ms McDonald Costa proposed to apply for leave to amend the statement of claim, "meaning that the proceeding will revert back to the pleadings phase and that the time, cost and effort of the pleadings (and particulars) done to date will have been thrown away by reason of the Applicant's default";[50] and

(h) failed to file her evidence by 28 February 2025, contrary to the orders I made on 13 December 2024.

1. SCS further submits that the proceeding has been before the Court 8 times, and, on each occasion, the proceeding has been "lengthy with constant and difficult interjections by" Ms McDonald Costa.
2. SCS completed this part of its written submissions in paragraph 27, which is as follows:

Accordingly, this is a significant issue of credit for the Applicant's litigation guardian because she has engaged in conduct impugning the professional ethics and conduct of her former lawyers, which is a very serious matter, in order to further her own agenda of trying to explain away her own defaults and poor conduct. It constitutes an abuse of process and the false assertions should be admonished by this Court by dismissing the proceeding.

1. In oral submissions counsel for SCS repeated the substance of SCS's written submissions. In addition, however, and without having cross-examined her, counsel delivered a sustained attack on Ms McDonald Costa's character and credit. Counsel submitted Ms McDonald Costa "is stuck because the litigation itself has become the purpose rather than the determination of the argument";[51] Ms McDonald Costa "cannot move forward";[52] Ms McDonald Costa "has taken no steps to prepare the matter, but instead engaged in a shifting sands moment";[53] Ms McDonald Costa "now comes along to this court and tells you, falsely and dishonestly", that she did not give her former lawyers instructions to file the statement of claim; [54] Ms McDonald Costa "has knowingly given false and wholly unfounded reasons for the defaults in progressing the matter and wanting to run a different case and has consistently argued, improperly, that her previous representatives acted without instructions";[55] and Ms McDonald Costa has made "scurrilous and untruthful allegations against her prior legal representatives".[56]
2. When it was Ms McDonald Costa's turn to make submissions, I asked what she wished to say. Ms McDonald Costa began as follows:

Sorry. This is obviously incredibly difficult, because reading through their submission, they're attacking my credit and that's really difficult for me to hear. I mean, I am autistic, I'm a victim of crime, I have PTSD, so perhaps when I write things, it may not come out the way that it's meant, but I hopefully can go through - I'm just very conscious about what I can say and what I can't say, and I would love to have witnesses appear from Wotton + Kearney and Moray & Agnew so they can put their version of events ‑ ‑ ‑

1. There then followed extensive submissions from Ms McDonald Costa about her dealings with the previous lawyers, which it is unnecessary to set out. I later attempted to direct Ms McDonald Costa's attention to the submission counsel for SCS made that she has demonstrated an inability to progress the matter. It would be convenient to reproduce my exchange with Ms McDonald Costa:[57]

HIS HONOUR: So, the second thing - and by all means, I'm not trying to stop you, but I'm just trying to direct your attention to things. The second thing is - or perhaps the primary thing - is the submission that, given the history of this matter, you have demonstrated an inability to progress the matter. I think I'm putting it broadly. What do you say about that?

MS McDONALD COSTA: Again, people who are autistic are very fixated and rule followers, and the rules are that, you know, you file - in fact, can I draw you to a case of NSD28/2024, that's a human rights case with Deborah Boyd as litigation guardian for Elise Boyd v the state of New South Wales ‑ ‑ ‑

HIS HONOUR: Well, before you do that, what's your answer to the submission that - and I will repeat what I think the essence of the submission is - given the history of this matter, you have demonstrated an inability to prosecute the matter, and now is time. And whatever I do, you will continue to manifest that inability.

MS McDONALD COSTA: No, I don't ‑ ‑ ‑

HIS HONOUR: That's the submission. So, what's your short answer to that ‑ ‑ ‑

MS McDONALD COSTA: I don't agree with that, your Honour.

HIS HONOUR: ‑ ‑ ‑ before you take me ‑ ‑ ‑

MS McDONALD COSTA: I - that ‑ ‑ ‑

HIS HONOUR: And why is that?

MS McDONALD COSTA: ‑ ‑ ‑ 1300-page affidavit is all my evidence. I'm done. I don't think I have any other evidence to give. I'm willing today - based on what Ms Nomchong has said - to walk away from amending my statement of claim and my originating application. I might need to just have Sian's there. I've asked so many times to send this matter back to mediation to settle, because I don't want to be here anymore. It's just taking too much of my time, and it's taking me away from homeschooling Olivia. Or alternatively ‑ ‑ ‑

HIS HONOUR: So, can I ‑ ‑ ‑

MS McDONALD COSTA: ‑ ‑ ‑ alternatively for you setting a date for trial ‑ ‑ ‑

1. When responding to her submissions, counsel for SCS renewed the attack on Ms McDonald Costa's character and credit. Counsel referred to Ms McDonald Costa's having stated "yet another untruth",[58] "another untruth",[59] "another falsehood";[60] and counsel submitted that "what you have is Ms McDonald Costa telling you a lie", and that, when Ms McDonald Costa "bald-facedly said to you, I don't recall, that's a lie".[61] Counsel further submitted there was no evidence Ms McDonald Costa herself suffered from any condition:[62]

You asked, your Honour, Ms McDonald Costa, do you dispute that you said anything that was incorrect to me? And Ms McDonald admitted that she did. She sought to say that she may have done that, but it was because of her PTSD or her autism, of course, which we have no evidence of at all. But your Honour would not accept that contention, or accept that Ms McDonald Costa's disabilities - if she has them - have affected the way that she could run this.

1. It was not open to counsel for SCS to submit Ms McDonald Costa had been untruthful, or had told lies, or had uttered falsehoods, being allegations of dishonesty and, therefore, of fraud. First, SCS did not give, or did not give proper, notice to Ms McDonald Costa that SCS would be making these allegations. It is a fundamental and long-established principle that, in all cases based on fraud, "particulars of the fraud claimed must be exactly given and the allegations must be established by the strict proof which such charge requires";[63] and "if a case of fraud is to be mounted, it should be pleaded specifically and with particularity".[64] The "mere labelling of an allegation as fraud amounts to little",[65] because "[n]obody can be expected to meet a case . . . upon mere allegations of fraud without any definite character being given to those charges by stating the facts upon which they rest".[66] In Three Rivers District Council v Bank of England (No 3) Lord Millett said:[67]

[A]n allegation of fraud or dishonesty must be sufficiently particularised, and that particulars of facts which are consistent with honesty are not sufficient. This is only partly a matter of pleading. It is also a matter of substance. As I have said, the defendant is entitled to know the case he has to meet. But since dishonesty is usually a matter of inference from primary facts, this involves knowledge not only that he is alleged to have acted dishonestly, but also the primary facts which will be relied upon at trial to justify the inference. At trial the court will not normally allow proof of primary facts which have not been pleaded, and will not do so in a case of fraud. It is not open to the court to infer dishonesty from facts which have not been pleaded, or from facts which have been pleaded but are consistent with honesty. There must be some fact which tilts the balance and justifies an inference of dishonesty, and this fact must be both pleaded and proved.

1. These principles are not restricted to pleaded actions. Lord Buckmaster made that point in Jonesco v Beard.[68] In that case the judgment of the primary judge was sought to be set aside in the appeal court on the ground of fraud based on new evidence given by affidavit that was read in the appeal court. Lord Buckmaster said:[69]

If, however, for any special reason departure from the established practice is permitted, the necessity for stating the particulars of the fraud and the burden of proof [is] no whit abated and all the strict rules of evidence apply. The affidavits used must, therefore, be examined as on final trial; every particle of hearsay evidence and reference to documents, not produced, must be excluded, and it must be kept constantly in mind that the rules which permit on interlocutory proceedings, hearsay evidence, where the exact source of the information is afforded, have no more application than they would possess were the deponent a witness in the box speaking at the trial.

1. The High Court similarly held in Commissioner for Government Tram & Omnibus Services v Vickery.[70] In that case, on a motion for a new trial, the defendant sought to contend that the plaintiff obtained the large assessment of damages by deception. The High Court said:[71]

So far as the appellant-defendant bases the application for a new trial on an allegation that the plaintiff obtained the large assessment of damages by deception it is enough to say that such a ground must be distinctly alleged and satisfactorily proved. In Jonesco v. Beard . . . Lord Buckmaster is emphatic in stating that if the procedure is by motion for a new trial based upon such an allegation as opposed to the established procedure of an independent action "the necessity for stating the particulars of the fraud and the burden of proof [is] no whit abated and all the strict rules of evidence apply."

1. This passage is particularly relevant to SCS's application to dismiss the proceeding. As I have already noted, in paragraph 27 of its written submissions SCS says that "the false assertions" SCS asserts Ms McDonald Costa made "should be admonished by this Court by dismissing the proceeding". In other words, SCS relies on the asserted dishonesty of Ms McDonald Costa as a ground for dismissing the proceeding. Even when read with SCS's written submissions as a whole, however, paragraph 27 is incapable of constituting proper notice of dishonesty.
2. Second, counsel for SCS did not cross-examine Ms McDonald Costa, and therefore did not confront her with the imputations of dishonesty counsel made in oral address. Counsel's not cross-examining Ms McDonald Costa disentitled counsel from submitting that Ms McDonald Costa had been untruthful, or had told lies, or had uttered falsehoods. That follows from the principle Lord Herschell L.C stated in Browne v Dunn:[72]

Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross‑examination showing that that imputation is intended to be made. . . . I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of the case, but is essential to fair play and fair dealing with witnesses.

1. It is the case that in her oral submissions, counsel for SCS identified particular statements Ms McDonald Costa made, and evidence which on its face appeared to contradict those statements. These are matters, however, of which SCS ought to have given notice to Ms McDonald Costa well before the hearing of 24 April 2025. If SCS intended to allege at the hearing on 24 April 2025 that Ms McDonald Costa made dishonest or false statements, SCS was required to inform Ms McDonald Costa that it intended to so submit; identify with precision each statement SCS intended to claim Ms McDonald Costa dishonestly and falsely made; and in relation to each statement identify the matters on which SCS intended to rely for claiming Ms McDonald Costa falsely and dishonestly made the statement. Further, and in any event, counsel for SCS did not cross-examine Ms McDonald Costa.
2. The question of Ms McDonald Costa's asserted dishonesty, therefore, was not properly raised and, for that reason, no question of Ms McDonald Costa's asserted dishonesty arises for my consideration and determination. That means there is no foundation for SCS's submission that Ms McDonald Costa has abused the process of the Court, and that Ms McDonald Costa "should be admonished" by my ordering that Olivia's application be dismissed.
3. Even if, by the application of some principle foreign to any notion of fairness, it could be said the issue of Ms McDonald Costa's honesty was properly raised, I could not be satisfied that Ms McDonald Costa made any dishonest or false statement to me, or otherwise acted dishonestly in the course of this proceeding. The mere fact that counsel for SCS identified passages from documents that appeared to contradict statements Ms McDonald Costa had made would not by itself be sufficient to prove that the statement Ms McDonald Costa made was false, and that she knew it to be false; at least not where Ms McDonald Costa had not given evidence on that subject because she did not have the opportunity to do so.

1. It was also not open to counsel for SCS to submit or suggest there is no evidence that Ms McDonald Costa had been diagnosed with, or has PTSD or autism, or any other disabilities. There is evidence, and it is contained in what appears to be a comprehensive report dated 13 February 2023 prepared by Ms Karen Gould, a clinical psychologist, and which is annexed to the March affidavit.[73] In the section appearing under "Diagnostic conclusions", the following is recorded (italics in original):[74]

Vanessa's presentation is complex, and a number of potential diagnoses with overlapping symptoms must be considered. On clinical interview, Vanessa does appear to meet criteria for her previous diagnoses of PTSD and ADHD. Her previously reported symptoms of OCPD do overlap with criterion B2 (DSM-5) of autism spectrum disorder: insistence on sameness, inflexible adherence to routines, or ritualized patterns of verbal or nonverbal behavior (e.g., extreme distress at small changes, difficulties with transitions, rigid thinking patterns, greeting rituals, need to take same route or eat same food every day). Differential diagnosis should therefore take into consideration age of onset, with personality disorders generally having onset in adulthood whereas diagnosis of ASD requires onset in early childhood. Vanessa and her mother do report rigidity with childhood onset, and she also meets criteria for social/communication deficits and sensory sensitivities not explained by an OCPD diagnosis. It is my impression that the diagnosis of ASD better accounts for Vanessa's rigid personality features than OCPD, however these personality features are particularly prominent and warrant diagnostic specification.

Vanessa's co-occurring PTSD has been previously assessed but not specifically treated, and it is possible that her presentation will shift once she has undertaken consistent psychological therapy. However, while her symptoms are reported to contribute to irritability and increased rigidity, they are not sufficient to account for the full constellation of pervasive social cognition differences and specific sensory sensitivities indicated during this assessment. Therefore, my impression is that PTSD is a co-occurring diagnosis rather than a differential account for Vanessa's ASD symptoms.

1. Ms Gould's report then identifies the current diagnoses as follows:

299.00 (F84.0) Autism Spectrum Disorder

without intellectual or language impairment with obsessive compulsive personality features

Level 1 - "requiring substantial support" for Social Communication

Level 1 - "requiring substantial support" for Restricted, repetitive behaviours"

314.00 (F90.2) Attention Deficit Disorder

combined presentation

309.81 (F43. 10) Posttraumatic Stress Disorder

300.00 (F41.9) Unspecified Anxiety Disorder (related to neurodevelopmental profile: change in routines, social situations, sensory stimuli)

1. This evidence is relevant to assessing and characterising the manner in which Ms McDonald Costa has conducted this proceeding as litigation guardian for Olivia; the statements she has made to me and to SCS's lawyers in the course of the proceeding; and any other statements counsel for SCS alleged Ms McDonald Costa falsely made. SCS, however, not only made its submissions without reference to Ms McDonald Costa's medical conditions, as disclosed in Ms Gould's report; counsel for SCS, when responding to Ms McDonald Costa's submission that "I am autistic, I'm a victim of crime, I have PTSD", positively, but incorrectly, submitted there was no evidence that Ms McDonald Costa had those conditions.

1. In its written submissions, SCS submits that Ms McDonald Costa "has repeatedly failed to comply with the Court's orders";[75] and referred to Ms McDonald Costa's "extensive defaults".[76] SCS does not, however, in its written submissions, identify the defaults. In oral address counsel for SCS submitted that Ms McDonald Costa "does not comply with orders that your Honour makes",[77] there "is no doubt that there has been default",[78] and counsel referred to Ms McDonald Costa's "continuing default".[79] But counsel, too, did not identify the defaults.
2. These are significant omissions. Without identifying the precise default or defaults, it is impossible to apply the discretionary factors the Full Federal Court in Professional Administration Service Centres Pty Limited v Commissioner of Taxation considered to be relevant to the exercise of the power to dismiss a proceeding for an applicant's default.[80] In that case, the Full Federal Court considered the judgments in the earlier Full Federal Court decision in Lenijamar Pty Ltd & Ors v AGC (Advances) Limited,[81] and said as follows:[82]

[39] Their Honours [Wilcox and Gummow JJ] stated that it was undesirable to attempt any exhaustive statement of the circumstances under which the power will appropriately be exercised: at 396.6. However, their Honours identified two situations where the use of the power will generally be warranted, namely, (a) where a history of non-compliance indicates an inability or unwillingness to co-operate with the Court and the other party in having the matter ready for trial within an acceptable period, and (b) where there is significant continuing default giving rise to undue prejudice and expense to the other party: at 396.7-396.8.

[40] Their Honours at 396.9 stated that although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations:

Even though the most recent non-compliance may be minor, the cumulative effect of an applicant's defaults may be such as to satisfy the judge that the applicant is either subjectively unwilling to co-operate or, for some reason, is unable to do so. Such a conclusion would not readily be reached; but, where it was, fairness to the respondent would normally require the summary dismissal of the proceeding.

In the second situation, their Honours at 397.1 said:

[T]he continuance of the non-compliance is of the essence of this situation. If, when the Court looks at the matter, the direction has already been complied with, the defaulting applicant may be ordered to pay any wasted costs; but it would be difficult to justify the dismissal of the proceeding solely because of that default.

[42] The third member of the Court in Lenijamar, Pincus J, agreed with Wilcox and Gummow JJ that attempts by the Court to prescribe exhaustive criteria and indicate their weight in relation to the exercise of the power granted under O 10 r 7 are not likely to be helpful. At 402.7, his Honour said:

In some circumstances, the Court may, in my opinion, take into account such matters as whether the claim or defence of the party in default appears to have substance, whether the case is one in which delay in hearing is likely to be particularly damaging to prospects of correctly deciding the dispute, whether the party applying for dismissal has itself transgressed, whether the party in default has gained some advantage by delay (for example, where it has had the benefit of an interlocutory injunction), whether credible assurances (supported, perhaps, by arrangements to commit the conduct of the matter to another firm or other counsel) have been given as to the prompt carrying out of future steps and whether the delay has been such as to induce the party not in default to think that the matter has probably gone to sleep.

1. In the earlier reasons I set out the procedural history of the matter from 4 April 2024 to 10 October 2024. The earlier reasons show that Ms McDonald Costa did not file a reply to the amended defence by 19 August 2024 as she had been directed to do. That, however, cannot be characterised as a default; or, if it is a default, it cannot be one that is capable of causing any prejudice to SCS or to the course of the proceeding. Subrule 16.11(1) of the Federal Court Rules 2011 (Cth) provides that, if "no reply to a defence is filed, a joinder of issue is implied in relation to any allegation of fact in the defence and each allegation of fact is taken to be denied". Thus, the effect of Ms McDonald Costa's not filing a reply was that the affirmative allegations SCS made in its defence are deemed to be denied; and there came into effect a deemed joinder of issue and, consequently, the close of pleadings. The earlier reasons also show that Ms McDonald Costa did not provide to my Associate by 6 September 2024, as I had ordered her to do, a sealed copy of any application, statement of claim, or affidavit she may by that date have filed with the Federal Court of Australia; but that did not constitute any failure by Ms McDonald Costa to comply with any order. My order was predicated on Ms McDonald filing an application with the Federal Court of Australia, something that did not occur.
2. Finally, there is the order I made on 13 December 2024 that Ms McDonald Costa file her evidence by 24 February 2025. Ms McDonald Costa did not do so; she instead filed the application in a proceeding, being one of the two applications that is the subject of these reasons, together with the February affidavit. There are two things, however, that may be said about this. First, as I set out earlier in these reasons, at the directions hearing on 13 December 2024, Ms McDonald Costa indicated she intended to apply for leave to file an amended statement of claim. Given Ms McDonald Costa did not have any draft amended statement of claim I ordered that Ms McDonald Costa file all her evidence by 24 February 2025, noting that if she wished to apply for leave to file an amended statement of claim, she could do so by filing an application in a proceeding. That is what Ms McDonald Costa did.
3. Second, and more importantly, to the extent Ms McDonald Costa was in default of the orders I made on 13 December 2024 by not filing by 24 February 2025 the affidavits on which she intended Olivia to rely, Ms McDonald Costa cured that default by filing the March affidavit on 20 March 2025. As I have already noted, at the hearing on 24 April 2025 Ms McDonald Costa said in relation to the March affidavit that the "1300-page affidavit is all my evidence. I'm done. I don't think I have any other evidence to give".[83] It did not, however, require Ms McDonald Costa to state that the March affidavit constituted all the evidence she could give in support of Olivia's claims; it is obvious from its contents, and the documents annexed to it, that the March affidavit constitutes the evidence on which Ms McDonald Costa intends to rely at trial in support of Olivia's claims. That is so, even though the March affidavit contains extensive evidence of events after 30 August 2020 which appears to be irrelevant to Olivia's claims.
4. Ms McDonald Costa, therefore, has not "repeatedly failed to comply with the Court's orders";[84] and has not made "extensive defaults".[85] To the extent Ms McDonald Costa defaulted in complying with the orders I made on 13 December 2024, Ms McDonald Costa remedied the default by filing and serving the March affidavit.
5. These conclusions do not deny the fact that there has been significant delay and complexity in the proceeding. But these features of the proceeding have not arisen from Ms McDonald Costa's repeatedly failing to comply with my orders, or from any extensive defaults; the features have arisen out of the orders I made in the course of case managing the proceeding in response to applications and submissions Ms McDonald Costa has made.
6. There is one other thing that merits attention. In paragraph 24 of its written submissions, SCS submitted that Ms McDonald Costa failed to provide any evidence "as to the purported reason for her many defaults"; rather, Ms McDonald Costa "predominantly, if not wholly asserted that the delays in progressing the matter have been because the prior legal representatives have failed to give her advice and/or have acted against or without instructions". The factual premise of this submission is incorrect; Ms McDonald Costa did not commit "many defaults". Further, SCS's submission does not identify any evidence that supports the submission that Ms McDonald Costa made the assertion SCS submits she made.

Is Ms McDonald Costa incapable of prosecuting Olivia's case?

1. SCS submitted that Ms McDonald Costa "is stuck because the litigation itself has become the purpose rather than the determination of the argument",[86] Ms McDonald Costa "cannot move forward",[87] and Ms McDonald Costa "has taken no steps to prepare the matter, but instead engaged in a shifting sands moment".[88] SCS made these submissions, however, without reference to the contents of the March affidavit. As I have already noted, it is obvious from the contents of the March affidavit, and the documents annexed to it, that it constitutes the evidence on which Ms McDonald Costa intends to rely at trial in support of Olivia's claims. That being the case, and contrary to SCS's submissions, the March affidavit demonstrates that Ms McDonald Costa is not "stuck"; the litigation has not "become the purpose rather than the determination of the argument"; Ms McDonald Costa can "move forward", and Ms McDonald Costa has taken steps to prepare the matter for hearing. By 20 March 2025, just under four weeks after the date by which she was directed to do so, Ms McDonald Costa filed Olivia's evidence in chief.
2. It is true that at the time Ms McDonald Costa filed the March affidavit her application for leave to file the PASC was pending; but it is clear that the fate of that application would not alter the evidence in chief on which Ms McDonald Costa intends to rely at trial. The facts on which the PASC relies are the same, or substantially the same, as the alleged facts on which the current statement of claim relies. If I were to have granted Ms McDonald Costa leave to file the PASC, the next step would have been to direct SCS to file a defence to the PASC, provide time for Ms McDonald Costa to file a reply to the defence, if any, and direct SCS to file its evidence in chief.

1. SCS does not submit the current statement of claim does not disclose a reasonable cause of action; and SCS has not submitted that the March affidavit, at least to the extent it covers events up to 30 August 2020, is incapable of supporting the material facts pleaded in the statement of claim.

1. Ms McDonald Costa's prosecution of Olivia's claims is not vexatious or an abuse of the process of the Court; and to the extent Ms McDonald Costa has failed to comply with any orders of the Court, such defaults do not warrant my making an order dismissing the proceeding. SCS's application in a proceeding, therefore, must be dismissed.

1. Ms McDonald Costa seeks an order that the matter be transferred to the Federal Court of Australia. In the earlier reasons I considered and dismissed Ms McDonald Costa's application that the matter be transferred to the Federal Court of Australia. Ms McDonald Costa also seeks an order that the names of the parties be amended. I am not satisfied it is necessary to amend the names of the parties, as recorded on the Court file.

(a) Olivia's application for leave to file the PASC be dismissed, subject to ordering that the particulars specified in paragraph 22 of the PASC shall be taken to constitute additional particulars to paragraph 9 of the current statement of claim;

(b) SCS's application in a proceeding be dismissed;

(c) SCS file its evidence in chief by 27 February 2026;

(d) the matter be listed for directions at 9:30 am on Thursday 13 March 2026; and

(e) by no later than 4:30 pm on Tuesday 11 March 2026, Ms McDonald Costa and SCS must provide to the Court and to each other a short communication in which Ms McDonald Costa and SCS each specify the orders she or it will submit the Court should make at the directions hearing, and the grounds on which she or it says such orders should be made.

I certify that the preceding one hundred and fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

MS MCDONALD COSTA'S AFFIDAVIT OF 20 MARCH 2025

1. Ms McDonald Costa was born in 1976; and she has been diagnosed with Autism Spectrum Disorder (level 1), Attention Deficit Disorder, post-traumatic stress disorder, and unspecified anxiety disorder [8].[89]
2. Ms McDonald Costa married in December 1999, and that marriage resulted in two children [13]. Ms McDonald Costa and her husband divorced in September 2006 [14].
3. In February 2012 Ms McDonald Costa met Mr Costa with whom she commenced a relationship. In November 2013 Ms McDonald Costa and Mr Costa had a child, Miss Olivia Costa (Olivia) [17]. Ms McDonald Costa and Mr Costa separated in May 2014 [19]; and in June 2022 this Court granted Ms McDonald Costa sole parental responsibility for Olivia [23].

1. In January 2018 Olivia was diagnosed with Autism Spectrum Disorder [26], and has been diagnosed with other conditions [25].[90] The extent and nature of Olivia's disabilities are set out later in this schedule.

2018 - orientation at Russell Lea Public School Kindergarten

1. On about 3 June 2018 Olivia was accepted as a student in kindergarten at Russell Lea Public School (RLP School) [39]. On 6 September 2018 RLP School invited Ms McDonald Costa and Olivia to attend two orientation sessions on 8 and 15 November 2018 [40].[91]
2. Ms McDonald Costa and Olivia, together with Ms Wilson, from Deborah Wilson and PBS Specialist Aspect therapy, attended the first of the two scheduled orientation days [41]; and Ms McDonald Costa and Olivia attended the second of the two orientation days. On 15 November 2018, Olivia's kindergarten teacher physically restrained Olivia, which caused her trauma, hurt, and fear [42]. On "15 and 16 November 2018" Ms McDonald Costa sent an email in which she expressed significant concerns in relation to Olivia's restraint [43].[92] On 17 November 2018 Ms McDonald Costa lodged a complaint with the Director of Education Leadership in the Department of Education (Department), and she and Mr Costa decided not to proceed with Olivia's enrolment with RLP School [44].

27 November 2018 - advice about strategies available to Olivia at school

1. On 21 November 2018 St Columba School, Leichhardt offered Olivia enrolment at its Autism Satellite class.[93] St Columba is part of Autism Spectrum Australia, and was one of eleven sites that make up Aspect South East Sydney School. There were two classes at St Columba supporting 14 students.[94] On 23 November 2018 Ms McDonald Costa sent an email to Mr Chris Parry-Okeden of St Columba, noting that she had just met two people at that school, one of which was the teacher, and that Olivia was looking forward to visiting the school the following week.[95]
2. On 27 November 2018 Ms Sandra Graudins, a clinical psychologist attached to the "Literacy and Learning Centre", sent the following email to "Team Olivia", which included Ms McDonald Costa [52] (errors in original):[96]

I am sure that everyone is excited that Olivia has such a well-suited placement at Aspect's Satellite class at St Columbas' School next year.

In the lead up to starting Kindergarten next year, we have been talking in our sessions about strategies that Olivia could use to handle stressful situation.

Olivia was able to identify and clearly articulate a number of strategies to use if feeing upset. These included:

• Draw a picture

• Run around and get my mind off it

• Have a snack

• Take a break

• Find a quiet place

• Take deep breaths

• Play a game

Olivia was also able to identify a number of things she would like her teacher to know before starting school. These included:

• Take me to a quiet place if I am upset

• Tell me to take deep breaths

• Talk to me in a quiet voice

• Show me where things are at school (eg, the bathroom)

• Be aware how I am feeling

The fact that Olivia can so clearly identify and articulate these strategies is a testament to all the hard work that Olivia and Team Olivia have put in to supporting her. The fact that Olivia will now be actively encouraged and supported to actually use these strategies at her new school will really help her have the smoothest start to school possible. There will still be bumps in the road but we can be confident that these will be managed in the best possible way.

1. In January 2019 Ms Amy Gruskin, an occupational therapist, and Ms Deborah Wilson, a speech pathologist and positive behaviour support therapist, both of whom form part of a practice known as "Aspect Therapy", issued a report on Olivia's progress and goals since January 2018 (January Report).[97] The January Report noted that Olivia had been accessing Aspect Therapy Services programs since January 2018 to build foundations in the areas of communication, social skills behaviour, play, self-help, sensory processing, and community access. The January Report then identified a number of goals or objectives, and in relation to each goal and objective identified the progress that has been made in achieving that goal or objective, the strategies that should be implemented, and continued to be implemented, and the next steps.
2. The first of goal the January Report identified was titled "NDIS goal 1: 'For Olivia to improve her emotional development - To regulate emotions and manage transitions'"; and this goal was divided into six particular objectives. These were to be able to: follow visual and other environmental supports; identify when she is feeling distressed; communicate to others when she is feeling distressed; regulate with support using various strategies; regulate when specific triggers are present, including disagreeing with a peer, lots of noise and noise movement, another child being told off in her hearing, sharing toys and attention, losing games, being bumped into; and self-regulate with minimal adult support.
3. The January Report identified progress since 18 January 2018. In January 2018 Olivia was unable to follow a schedule, or identify her feelings, or explain what upset her, or be able to engage in self-regulated activities to being able to identify and label consistently her emotions, with emotional regulation being identified as an important category of skills Olivia required, to avoid challenging behaviours such as absconding, refusal, yelling, and hitting. By January 2019, however, Olivia progressed to being able consistently to identify and label her emotions, and be able to explain what made her feel that way at home. Olivia also started to cope with more triggers within structured play situations, and was gradually increasing her flexibility of thinking. The January Report noted, however, that Olivia needed "significant support around social thinking and specific triggers for her as she enters school"; and that she continued to need "significant support to ask for help and express her feeling outside the home environment". The January Report further noted that Olivia "continues to mask her emotions outside the home environment, which often leads to her not getting the support she needs at the time resulting in delayed meltdowns at home". The January Report concluded this part of the report as follows:

Strategies:

Completing tier 1 (individual autism profile) and tier 2 behaviour plans. Supporting implementation of these plans across home and preschool.

Implementing visual schedule at home and preschool.

Using visual supports to support choice of regulating activity.

Providing age-appropriate choice and control throughout the day across environments.

Allowing down time with limited sensory input.

Using Zones of Regulation program to assist Olivia to understand her emotions, and to find and use emotion regulation strategies. Also using this program to begin working on the concepts of 'expected' and 'unexpected' behaviour.

Writing social strips and using role-play to assist in problem solving, preparing for transitions and tolerating triggers.

Writing 'All About Me' book for school to give Olivia input on what she wants others to know about her.

Next Steps:

For Olivia to be able to regulate her emotions and ask for help at school.

For Olivia to tolerate triggers within her school environment and to seek support as needed.

For Olivia to understand that other children have different thoughts and feelings to her.

For Olivia to understand 'expected' and 'unexpected behaviours.

For Olivia to use the above skills to develop and maintain friendships with peers at school.

1. The January Report addressed two other objectives, these being further improvement of fine motor planning skills, and improvement of Olivia's ability to follow an adult agenda.

31 January 2019 - Olivia commences kindergarten at St Columba Satellite Autism Class

1. On 31 January 2019 Oliva attended her first day at St Columba [58]. On 1 February 2019, when Ms McDonald Costa collected Olivia from school, Olivia burst into tears in the car; she told Ms McDonald Costa that she wanted to play with the kindergarten girls at lunch time who were situated in a separate playground with a locked gate, but there was no teacher to take her there. During dinner on the same day, Olivia informed Ms McDonald Costa that another boy in her class wanted the fairy wings Olivia had, and pulled them off her, causing the elastic from the wings to stick to her neck, thus scaring her [59].

2 February 2019 - Ms McDonald Costa and Mr Costa decide to withdraw Olivia from St Columba

1. On 2 February 2019 Ms McDonald Costa and Mr Costa decided to withdraw Olivia from St Columba. Ms McDonald Costa made the decision because she believed St Columba was not a suitably inclusive school setting, as it was located on the grounds of the host mainstream Catholic school [60]. On 4 February 2019 Ms McDonald Costa sent an email to Ms Karin Sussman, of Autism Spectrum, stating, among other things, that Ms McDonald Costa and Mr Costa had decided to transfer Olivia to a mainstream public school that week.[98] In an email sent to Ms Karen Tippett, from "Family Advocacy", Ms McDonald Costa said Olivia should start in mainstream school from Monday next week, and that Ms McDonald Costa was "confident I've made the best decision for her".[99]

1. On 4 February 2019 Ms McDonald Costa sent an email to Ms Amanda Dawkins, the principal of Five Dock Public School (FDP School), thanking her for having met with Ms McDonald Costa, and noting that Ms McDonald Costa realised that Olivia's "returning into a mainstream public school with her friends in her local community is the best school for her to achieve her best".[100] Ms Dawkins responded by email sent to Ms McDonald Costa on 5 February 2019 stating she looked forward to welcoming Olivia into her local school community, and meeting Ms McDonald Costa at 9.30 on Friday "to plan for a smooth start to kindergarten for Olivia" [67].[101]
2. Olivia commenced kindergarten at FDP School on 11 February 2019 [68]. On 20 February 2019 and 8 March 2019 Ms McDonald Costa received reports from Ms Wilson, and on 26 February 2019 and 12 March 2019 from Ms Gruskin, about Olivia's progress at school [69]-[71].[102] Ms McDonald Costa annexes a document titled "Personal Learning Plan 2019" for Olivia (PLP).[103] This document identified a number of matters. Next to the words "Areas of Concern" there appear "Emotional Regulation" when transitioning at drop off at 9 am; when Olivia finds an activity challenging, or thinks an activity is too difficult, writing activities, and lining up in the morning with her class and waiting for the teacher. The PLP identified targets, strategies for their achievement, and success criteria. Among the targets was Olivia's improving her ability to regulate her emotions when things are disrupted, or when she is overwhelmed with something.
3. Olivia completed a successful kindergarten at FDP School on 12 December 2019.

January 2020 - preparing for year 1 at Five Dock Public School

1. On 9 January 2020, in preparation for commencing year 1, Ms Wilson prepared a book about Olivia [77].[104] The book identified the things with which Olivia was good, and the things with which she needed help, these being reading, managing her feelings, time, and sitting still. The book also identified the things with which Olivia sometimes needed help, these being asking for help, being gentle, and being brave. The book also identified the things that upset Olivia (people breaking rules, things changing, making mistakes, yelling, new people, getting in trouble), and things that calm her down (talking to adult, problem solving, taking a break, going for a walk, eating crunchy food, quiet space, headphones, and playing on the equipment).
2. On 23 January 2020, Ms McDonald Costa sent an email to Ms Dawkins and to Ms Koula Mavrakis in which she asked whether it would be possible for Ms McDonald Costa and Olivia to come into school for a quick visit on 28 January 2020 to see Olivia's new classroom, and to meet Ms Mavrakis. Ms McDonald Costa said that Olivia told her she did not want to return to school, and that she will miss Ms McDonald Costa.[105] On 28 January 2020 Ms McDonald Costa received a call from the FDP School office informing her that she and Olivia could see the classroom and Ms Mavrakis at 3.45 that afternoon.[106]
3. On 30 January 2020 Dr Berlinda Yeoh provided a report concerning Olivia after reviewing Olivia on 23 January 2020 day.[107] Dr Yeoh, who is part of a practice known as "Child Development Clinic", said Olivia continues to present with separation anxiety, as well as generalised anxiety disorder features, but there certainly had been some improvement with the strategies in place and intervention. Olivia struggles particularly with reading and understanding the context of what she reads; and she would benefit from ongoing support around that. Dr Yeoh ended her report as follows:

SUMMARY

Olivia is a six-year-old girl who is generally very well supported with speech pathology, occupational therapy and psychology intervention. She has made some good progress with her learning and attendance at school and has good social interactions and positive behaviour. She did have a good response to stimulant medication but has struggled with side effects with the longer acting formulation. Her anxiety continues to be present but again has been improving and the family continued to work on this.

RECOMMENDATIONS

I have suggested returning to Ritalin 10 mg short-acting tablet given the side effects noted when we moved to a longer acting formulation and her family will revert to this and give me feedback around her progress.

With regards to anxiety, they will continue to engage a psychologist on a regular basis and also access trauma counselling as recommended by a psychiatrist.

Speech pathology and occupational therapy intervention will be continued on a fortnightly basis and this would be very beneficial and required for Olivia to reach her potential.

The family have engaged with a child and adolescent psychiatrist but did not have a future appointment planned at this stage and again will be guided by the family.

I look forward to following up with Olivia again in 6 months time.

February 2020 - Olivia withdrawn from Five Dock Public School

1. On 29 January 2020 Ms McDonald Costa sent an email to "Team Olivia" in which she reported a day of "high emotions" at school. Ms McDonald Costa said the principal used a loud voice at Olivia before morning assembly when Olivia started to cry. Olivia was feeling very anxious, and was worried about separating from Ms McDonald Costa; it was very loud; and there were lots of parents and children around. The principal "said very sternly to Olivia to STOP". This did not help Olivia, but her teacher took Olivia to the side to calm her down. Olivia told Ms McDonald Costa that she was very angry about what the principal said.
2. On 5 February 2020 Ms McDonald Costa sent an email to FDP School in which she said that Olivia had "come home traumatised by the actions of Ms Dawkins over the past week". Ms McDonald Costa recounted the events of 29 January 2020. Ms McDonald Costa also referred to an incident that occurred that morning in which she said that "Ms Dawkins prized Livi off my leg and walked her away from me and I was asked to leave".[108] Ms McDonald Costa continued as follows (errors in original):

Clearly these 2 very serious incidents have deeply traumatised our daughter and she is refusing to go back to school.

We have begged and pleaded with the school for additional support for Olivia. We have asked many times last year to be a part of and complete an Individual Learning Plan to support our daughter which sadly never happened.

Each of our many request have either been ignored or dismissed despite Olivia and myself informing the school that we desperately need additional assistance.

Olivia as a 6 year old student with a disability and multiple diagnosis deserves to be supported with reasonable and necessary adjustments to support her at school in her local community.

Anthony and I have never given the principal permission to yell at our daughter nor to physically touch our daughter when she is clearly very distressed and needs assistance.

Olivia at no time was a danger to herself or anyone else.

1. Ms McDonald Costa stated she had many meetings with Ms Dawkins, she had called the Department for assistance and intervention, and she had term meetings with the school and Olivia's therapist. Ms McDonald Costa completed her email as follows:

The last of which meetings a Department Representative was present for. Sadly Livi still wasn't given the support she needed leading to ongoing school refusal and significant anxiety.

Sadly we find ourselves 2 weeks into what we were truly hoping to be a better school year for our daughter. Livi is refusing to return back to school and as her parents we support this decision until we can reach a resolution in the best interests of our daughter.

If you could please reply to this email with a date to attend this meeting. I would like the Director of Schools to be present at this meeting please.

1. On 7 February 2020 Ms McDonald Costa applied to the New South Wales Education Standards Authority (NESA) for initial home-schooling registration. Ms McDonald Costa says she did this "after discussing this with Olivia Costa's Father writing to our life start family support worker that if the Department cannot resolve this issue for us which has been ongoing for 3 long years now, despite my best efforts to advocate for Livi, I may have to look at home schooling Livi" [83].

Attempts to have Olivia return to Five Dock Public School

1. On 13 February 2020, Mr Adam Dickes, Olivia's trauma psychologist, sent an email to Ms McDonald Costa in which he said he had spoken to a Ms Lee, who had been tasked by the Department to chair an upcoming meeting with the aim "towards resolving the issues in Olivia's care at" FDP School. Mr Dickes said he suggested the possibility that Mr Dickes attend the meeting without Ms McDonald Costa or Mr Costa, as he may be able to give a clearer summary "of your and Olivia's needs at this time".[109]
2. Also on 13 February 2020, Ms McDonald Costa arranged to obtain the following medical certificate from Dr Turner:[110]

This is to certify that

Miss Olivia Costa

Has not been at school since Wednesday 5th February 2020.

There are currently no plans to return to school due to parental concerns surrounding two alleged incidents at school involving the school principal. Olivia has been distressed by the incidents and reports being too scared to go to school. Olivia has also not received the extra help from a teachers aid which has been applied for several times.

1. On 20 February 2020 Mr Dickes sent an email to Ms McDonald Costa in which he set out a draft meeting for the meeting that was schedule for the following day with Ms Lee.[111] By email sent to Ms McDonald Costa on 24 February 2020 Mr Dickes provide a brief summary of his meeting with Ms Lee and three other people on 21 February 2020.[112] Mr Dickes said (errors in original):

In the main, I did my best to follow the agenda as much as possible and communicate what I understand to be her current needs: First, that it was important that Olivia's needs were acknowledged by the school and the department. Second that the school needed to show a greater willingness to work with and take advice from Olivia's parents and care team in meeting Olivia's needs. Third that a detailed plan needs to be established in collaboration with you and the care team in the near future before Olivia can return to school. Fourth that a regular (at least once a term) meeting involving the dept, take place to monitor progress and manage any difficulties.

Also mentioned: that Nicole would be the main liaison between the school and parents, due to breakdown of trust between Mandy and you.

Also mentioned: that moving Olivia to another school was an option, but would be considered 'extraordinary circumstances' and therefore a similar process to establish needs would be essential before Olivia transitions. Additionally, as this would cause some disruption for Olivia, it should be kept as a last resort.

Can the two of you discuss how you feel about the outcome of this meeting and how you would like to proceed? I understand that you are both skeptical about the willingness of the school to create real change, and would be interested how far the department's response goes towards meeting your concerns.

As I'm sure you know, the department is very keen to get Olivia back to school and are hoping for another meeting as soon as possible to resolve the issues that you are currently experiencing at Five Dock Public.

I'm more than happy to relay any information to Helen Lee, who has been tasked with organising and chairing future meetings.

1. In an email sent on 24 February 2020, Ms McDonald Costa requested Mr Dickes to email Ms Lee with the information contained in Ms McDonald Costa's email. This included that Ms McDonald Costa's and Mr Costa's position is the same as that stated in the medical certificate that was issued on 13 February 2020, namely, that "Olivia is not attending school and this is indefinite at this stage, as per the previous certificate". Ms McDonald Costa stated that it was her and Mr Costa's "clear opinion that Olivia has suffered significant Trauma and fear from the 2 very serious incidents with the Principal at FDPS"; and that she and Mr Costa would like the school to acknowledge that. Ms McDonald Costa further stated:

The very real impacts of this is that Olivia will not be able to reach her full potential and also affect her development.

We wish to await the outcome of the 2 complaints made to The Departments EPAC.

We also would like to ask for The Departments support and understanding during this most traumatic and difficult time for our family.

We would like to have clear written instructions from The Department as to how they propose to re establish the trust broken, before we attend any meetings with the school.

We would like The Department to understand that trust is re built over time. With consistency, honesty, transparency and accountability.

1. On 27 February Mr Dickes sent an email to Ms Lee in which he said that Ms McDonald Costa and Mr Costa "continue to have significant concerns about whether Olivia's needs" can be met and her wellbeing insured at FDP School. Further meetings, therefore, would be necessary "to ensure Olivia's needs are recognised and met before it will be possible for her to return to school". Mr Dickes said that Ms Genna Johns, Olivia's Family Support Care, had offered to chair a meeting between Olivia's care team and the Department to establish a plan to meet Olivia's future needs.[113]
2. On 5 March 2023 Ms McDonald Costa sent an email to "Team Olivia" in which she referred to Ms Genna Johns having called Ms McDonald Costa and informing her that Ms Lee had arranged a meeting with the Department next Friday to "meet with some of you".[114] Ms Nicole McGee, an Assistant Principal, will also attend the meeting. Ms McDonald Costa said that Ms Genna Johns said that the school would like to discuss and put in place an "ILP" for Olivia to facilitate her return to school Ms McDonald Costa continued (errors in original):

This is fantastic and I appreciate this, however Livi should never have been put in this position in the first place to have been so traumatised and is now so scared to return to school.

I just wanted to be clear with you all that Anthony and I are supportive of Olivia if approved next week to continue to learn at home at least for the rest of 2020.

So if this meeting next Friday was to proceed, at the meeting if it went ahead.... it would have to be made clear to The Department that any supports would need to be put in place and revisited before 2021 if we decide to return Livi to FDPS then.

Unfortunately this matter is not as simplistic as putting an ILP in place and returning our daughter to school.

The Department need to clearly understand, acknowledge and address that Livi has suffered significant trauma.

That this needs to be addressed by The Department and supports offered, which to date no one one has reached out to us regarding Livi's Trauma.

The Department also have to understand that Trauma takes time to heal and rebuilding of trust also takes a very long time to re establish.

Livi wouldn't be ready to return to school this year. We could look at the possibility of a transition late November this year for a return in 2021. However we must see that The Department is accountable in acknowledging what our daughters needs are. They need to ensure that our daughters well being can be guaranteed before we can return.

My hope Is if this meeting proceeds with next Friday. That the Department in addition to the ILP, can put concrete plans In place to show us how they can ensure our daughters wellbeing and safety at school.

Most importantly if and I say it as I'm not sure if we will return Livi to FDPS. We need to know 100% that what happened to our daughter on the 29 January and the 5 February (this has yet to be addressed by The Department, our complaint is still being investigated and we haven't been given a resolution ) will never ever happen to our daughter again and that her safety and wellbeing is the schools and The Departments number 1 priority.

1. By letter dated 10 March 2020 the Department notified Ms McDonald Costa of its response to the complaint she made on 5 February 2020.[115] The Department said that "the incident does not meet the threshold of misconduct and there is no evidence Ms Dawkins acted inappropriately", although it noted that Ms Dawkins "has been reminded of the Department's guidelines regarding unnecessary physical contact with students". The letter further stated:

It is important that we all work together to return Olivia to school. I am advised that Ms Helen Lee, Learning and Wellbeing Advisor and Ms Dawkins are continuing to work with Olivia's therapist to put in place any additional support that is required to assist Olivia at school. I note that Ms Dawkins has always agreed to make adjustments to how Olivia is dropped off to school in the morning to minimise any distress. The school is also able to involve you more actively in the development and implementation of Learning Plans for Olivia. The care and support for Olivia at school is important to everyone.

I understand that Ms McGee is still able to be your main contact with the school when you are ready to make contact. I remain concerned about the amount of schooling and important learning that Olivia has missed out this year as well as opportunities to interact with other students.

1. In the meantime, on 2 March 2020 Ms McDonald Costa sent an email to "Team Olivia" informing them that she had booked an "Authorised Person" from NESA to "come out on Monday 9 March at 2 pm"; and that she will have a person from Home Education Australia to support her.[116] On 12 March 2020 the Department informed Ms McDonald Costa that NESA has accepted the recommendation of the "Authorised Person" who conducted Ms McDonald Costa's home schooling assessment to approve registration for Olivia; and that Olivia was registered for home schooling up to and including 8 March 2021.[117]

3 June 2020 - Ms McDonald Costa decides to apply to have Olivia enrolled with Holy Innocents Catholic Primary School

1. On 3 June 2020, after around four months of home schooling during the Covid pandemic, Olivia expressed an interest in returning to a mainstream school setting [105]. Ms McDonald Costa and Mr Costa decided to commence the enrolment process at Holy Innocents Catholic Primary School Croydon (School) [107].
2. In an email Ms McDonald Costa sent to "Team Olivia" on 3 June 2020, Ms McDonald Costa explained in more detail the reasons for which Ms McDonald Costa considered to enrol Olivia into a mainstream school:[118]

Things at home have been very challenging. Livi is refusing most days to do any school work with me. It's very difficult, if we can find a school that can help Livi. Returning her to school would be ideal in 2021.1 am not even considering a Public School so I'm hoping a Catholic School can assist us.

I'm getting a lot of aggressive behaviour and Livi is throwing things, hitting me, yelling.

We have trialed 2 days of her Dex medication for ADHD and currently not taking it and talking to the Paediatrician. As around 5pm each day Livi's behaviour explodes and she has been very aggressive on Dex.

I've read this is a side effect of this medication. That kids coming off it at the end of the day find that they become very angry.

So there is so much going on. As you have all seen in your Zoom session with Livi.

Can I ask Deb if we can look at more behaviour and anger management strategies with Livi in your sessions. Adam, can we look at the Trauma around school, to see if we can help Livi if we did transition back to school next year. Like I said she said to me she thinks the school will betray her like Russell Lea did and Ms Dawkins.

If we find that a Catholic School talk the talk but cannot meet her needs then even considering a return to school will be futile and I'll have to see how I can make Home Schooling work for our family.

However Livi really needs that social interaction that school provides. I'm hoping we can find a suitable school for Livi.

17 June 2020 - Ms McDonald Costa and Olivia meet with Ms Bestulic

1. On 17 June 2020 Ms McDonald Costa and Olivia met with Ms Bestulic, the principal of the School [110]. Ms McDonald Costa spoke about Olivia's successful time for the whole year at FDP School, that "we are Catholic", and that "we were seeking an enrolment at her beautiful inclusive mainstream school" [111]. Ms McDonald Costa also showed Ms Bestulic some of Olivia's work samples [112]. Ms McDonald Costa set out what she discussed with Ms Bestulic in an email she sent to at least Mr Dickes.[119] In particular:

(a) Ms Bestulic asked how Olivia would go attending mass. Ms McDonald Costa said: "if she was able to sit on the end of the pews with the teacher". Ms Bestulic said the School had some sensory items it could provide if Olivia required these.

(b) Ms McDonald Costa asked whether she could be given some notification if Olivia was very upset at school, in response to which Ms Bestulic said she would be told before Ms McDonald Costa picked her up.

(c) Ms Bestulic said she would be happy to have "Deb" (Deborah Wilson) come in once a month to observe Olivia, and offer the teacher any feedback or suggestions that could help Olivia.

(d) Ms McDonald Costa said: "They were very impressed by Livi and offered her enrolment at their school".

(e) Mr Costa would meet the principal the following week to sign the enrolment form.

(f) The School would work out a slow transition plan "of 1/2 a morning building up to a whole day and another day etc working towards Livi attending all week". That would occur in term 3; and by term 4 Olivia would attend school full time.

1. Later on 17 June 2020, Ms McDonald Costa sent an email to Ms Tamara Mouawad, an administration officer with the School, confirming that she had just handed in to the Assistant Principal Olivia's enrolment form, and all of the supporting documents the School required.[120] Ms McDonald Costa said that Mr Costa would make an appointment next week to meet with the Principal. Ms McDonald Costa also says that she included some more supporting documents regarding Olivia's medical diagnosis.
2. On 18 June 2020 Ms McDonald Costa sent another email to Ms Mouawad, in which she made some inquiries and requests. Ms Mouawad responded by email sent on 18 June 2020, noting that she would look into all of her requests with Ms Bestulic.[121]

Further communications and meetings after 18 June 2020

1. On 25 June 2020 Ms McDonald Costa sent a follow up email to the School requesting she be updated as to whether Mr Costa had met with the Principal and sign the enrolment forms.[122] Ms McDonald Costa added that, once that is done, Olivia's psychologist, Ms Sandra Graudins, would like to arrange a time to meet with Ms Bestulic. Ms Mouawad responded by email sent on 25 June 2020, stating that a meeting had been scheduled for the first week of term on 22 July 2020 "as we are fully booked for the rest of the term".[123]
2. Ms McDonald Costa sent an email to the School on 21 July 2020 attaching a court order, and also enquiring whether it was still the case that "you will be meeting with Olivia's Father tomorrow".[124] Ms Mouawad responded by email on 21 July 2020 stating that Ms Bestulic "is not at school at the moment. We have to move Anthony Costa's appointment to next Wednesday".[125]
3. On 30 July 2020 Ms McDonald Costa sent an email to "Team Olivia" in which she reported that, on the previous day, Mr Costa met with the relieving Principal and the Diverse Learning Teacher from Catholic Schools.[126] It appears that Ms McDonald Costa was given this information in a telephone conversation with someone from the School. Ms McDonald Costa was told that the delay "with all this" was due to Ms Bestulic being sick, and the relieving Principal was looking into the matter as a matter of priority. The relieving Principal said that "they are still in the data collecting stage"; they wished to invite Olivia to come to School at 9 am on Monday to meet her classmates and teachers to observe her; and the School also wanted Olivia to come to the School on Thursday with a packed lunch, and then go out to the playground and play. Ms McDonald Costa further said:

I said that Livi's Psychologist is really keen to meet with you to discuss Livi's needs and they said that this would be something they would look at a bit further down the track.

With these orientation days. I said Livi has her Speech Therapist Deb, whom has accompanied Livi on other orientations just to support Livi in the background. They said that this may also happen later down the track but didn't require this support for Livi next week.

I seem to get the impression they want to observe Livi to get a feel for what her needs might be. She also said something to the effect of that we don't want a therapist there as we don't want Livi to become too dependent on this person.

So it seems that the idea of having an aid potentially for some support during the day may not be an option the school may consider. Which isn't a deal breaker. However as we all know Livi does require support especially in the morning with separation from me and during writing and reading activities throughout the day. Also for assemblies and for attending Church.

1. Ms McDonald Costa said she was interested to see if the School was willing to seek the input of Ms Sandra Graudins, noting that she did not "want to sign an offer of enrolment until they have met with Sandra". Ms McDonald Costa also identified a number of her concerns:

My concern is we know Livi will possibly mask her behaviour and they will say wow, she is just like any other child. I do hope they are willing to meet with Sandra and seek information and allow Deb to come in to pass on feedback.

I have this fear that they could minimise Livi's needs or not have a Personalised Learning Plan for her. Or worst just ignore everything and have Livi just fit in without any support. This could cause further trauma.

I said to the Principal that Livi's therapist and our family are really working hard on helping Livi with the concept with things will go wrong but that's ok.

We can only take this one day at a time. I know all going well Livi will shine at the orientations / observations other than perhaps being a little shy / anxious as she is going into very unfamiliar spaces.

1. On 31 July 2020, the School informed Ms McDonald Costa that it needed more time to assess Olivia's enrolment, and so requested that Ms McDonald Costa not bring Olivia to the School the following week.[127] Ms McDonald Costa asked the person from the School who had telephoned her with the news whether the idea was to reschedule the orientation later in the term or at the start of the new term, but the person said she could not answer that question. In an email she sent on 31 July 2020 to "Team Olivia", Ms McDonald Costa said:[128]

I was of the opinion that I didn't want Livi to go in for orientations until the School could meet with Sandra and tell us exactly what supports they can offer Livi. But was happy to go next week.

So they have actually made that call for me. My biggest worry for Livi was that they have her come in next week. She is super excited and the School may not offer an enrolment or not be able to meet her needs.

I feel a little disappointed that they have cancelled Monday at the 11th hour. I feel sad for Livi. However I'll tell you that it's unexpected that the school can't show her around next week.

My biggest worry is that this school feel they can't meet her needs. Yes we have Home Schooling, but Livi does deserves to be go to school and get support.

1. On 1 August 2020 Ms McDonald Costa sent an email to the School in which she said that Olivia felt sad on learning on late Friday afternoon that she was unable to attend the School on Monday.[129] Ms McDonald Costa said she understood the reason the School needed more time "was due to some further information" Ms McDonald Costa emailed to the School which Sydney Catholic School needed to look at; and that she understood the School "would have to go through a Mandatory Planning resource Procedure which is used to assist and support the enrolment of students with disability and complex social and emotional needs". The School responded with an email sent on 5 August 2020, stating that the School "will contact you in due course".
2. On or shortly before 20 August 2020 the School arranged a meeting with Ms McDonald Costa at the School on 24 August 2020. In an email she sent to "Team Olivia" on 20 August 2020, Ms McDonald Costa said she had telephoned the School to ask what was on the agenda for the meeting on Monday.[130] The School said the meeting would be for half an hour, and would be attended by a male relieving principal, a diverse learning representative, and a case worker from Sydney Catholic Schools.
3. Ms McDonald Costa also reported on a conversation she had with Olivia's psychiatrist, Dr Wick, who appears to have seen Olivia that day. Dr Wick said that Olivia recounted to him what happened at FDP School. Dr Wick said Olivia grabbed a wrapping paper roll, and started hitting the couch with it, saying the couch was the Principal at FDP School. Dr Wick mentioned asking the School for a partial enrolment to build up to full time, "given she has experienced trauma and hasn't been to school since February". Ms McDonald Costa said she had asked FDP School for that "so I'm not conceived [sic] this school will consider this", but she said she "will absolutely propose this on Monday to Holy Innocents". Ms McDonald Costa further said that, given what Olivia was experiencing, she will commence taking Clonidine; that she was "hopeful it will take some of the edge off Livi feeling triggered"; and that she hoped Olivia would feel "less of the fight or flight she experiences on almost a daily basis".

24 August 2020 - Ms McDonald Costa meets with School

1. On 24 August 2020 Ms McDonald Costa attended a meeting at the School with the acting Principal, Mr Brian Anderson, and Ms Kerrie Adams, who occupied the position of diverse learning, Sydney Catholic Schools [146]. Ms McDonald Costa says she was advised of the outcome of Olivia's application, and the School made no offer to enrol Olivia at the School, or at any other mainstream school [149]. Ms McDonald Costa said that Olivia did not belong in a segregated school setting; she belonged in a mainstream school setting with reasonable and necessary supports. Ms McDonald Costa also said that "we didn't want Olivia being at a segregated Aspect School and that's why we had withdrawn her in 2019 after only 2 days" [155].
2. Ms McDonald Costa sent two emails on 24 August 2020 in which she related what occurred at the meeting. One is an email Ms McDonald Costa sent to "Team Olivia" at 11:00 am on 24 August 2020, in which she said that the School said that Olivia needs to return to an Aspect Satellite School "given the disruption to her learning and Trauma she has experienced", and that "we can look at an eventual transition into a mainstream Catholic School".[131] Ms McDonald Costa said this was a little disappointing "as getting into an Aspect Satellite School is almost impossible". Ms McDonald Costa was told that "spending 2 days in the Satellite school was not enough time to make the decision to pull Livi out and enrol her in a mainstream school". Ms McDonald Costa added:

At the end of the day it's very clear that the Catholic school doesn't allow Therapists into the school. They said today there is no AID's in the classroom.

So their opinion is to get Livi to a point where she doesn't need supports at School.

1. Ms McDonald Costa said she placed a call with Aspect Satellite School, but she was told there is no availability.
2. The second of the two emails Ms McDonald Costa sent on 24 August 2020 was to "Maria".[132] Ms McDonald Costa said:

Also I want Livi to be in a mainstream school one which can give her the support she requires and deserves.

Sadly this is now not the Public School system as she has been significantly traumatised there and the Catholic System have chosen not to enrol Olivia. It seems no school wishes to give Livi the opportunity to learn at school and be safe.

So we continue to home school Livi. It simply is what it is sadly, despite my best attempts to advocate for Livi to get an education and feel safe at school.

1. At 18:12 on 24 August 2020 Ms McDonald Costa sent an email to the School in which she requested further explanation for which she was unable to ask at the meeting earlier that day. Ms McDonald Costa said that when she first met with Ms Bestulic, she was very supportive of Olivia being enrolled at the School, but she then became sick. Ms McDonald Costa asked why, if Ms Bestulic said that she would love to enrol Olivia had the decision been made not to enrol Olivia. Ms McDonald Costa also asked whether she could get something in writing from the School why Olivia's enrolment had been declined, and the recommendations that had been given in relation to Aspect Enrolment.[133] By letter dated 31 August 2020, the School informed Ms McDonald Costa that the School would not be proceeding with the application for Olivia, and that the School is able to provide Ms McDonald Costa with support in an application to ASPECT educational settings.[134]

Reasonable adjustments Ms McDonald Costa claims she sought

1. In her affidavit Ms McDonald Costa says she told the School Olivia has a disability; she provided evidence of Olivia's disability and requested reasonable adjustments be provided at school; and provided documentary evidence in the form of medical reports, and invited the School to contact Olivia's "allied health therapists"; informed the Principal that Olivia has already been provided with reasonable adjustments at FDP School in kindergarten, including a teachers aid to assist her with transition the morning from Ms McDonald Costa; and requested reasonable adjustments, providing details of some other suggested adjustments to Ms Bestulic [182]. Ms McDonald Costa says that a copy of "these documents, correspondence and photos" comprise Exhibit VMC-7. That exhibit contains documents that include the following:

(a) photographs of Olivia and friends at an early learning centre in 2018;[135]

(b) the email Ms McDonald Costa sent to Ms Wilson, to which I have already referred;[136]

(c) a document titled "Individual Autism Profile" in relation to Olivia;[137]

(d) a form of application to enrol at Sydney Catholic Schools;[138]

(e) the email Ms McDonald Costa sent to the School on 17 June 2020 to which I have already referred;[139]

(f) the email Ms McDonald Costa sent to "Team Olivia" on 17 June 2020 to which I have already referred;[140]

(g) the email Ms McDonald Costa sent to the School on 18 June 2020, to which I have already referred;[141]

(h) a letter dated 9 July 2020 address to "To Whom It May Concern" from Ms Maria Moodi, a case worker attached to the Burwood Community Centre, which was written in support of an application by Ms McDonald Costa for NDIS funding to alleviate her stress arising from the matters set out in the letter;[142]

(i) a letter dated 10 July 2020 from the "After The Storm Facilitator" to "To Whom It May Concern" supporting Ms McDonald Costa participation on the "After The Storm Program" run by the Burwood Community Centre;[143] and

(j) the email Ms McDonald Costa sent to the School sent to "Team Olivia" on 30 July 2020.[144]

1. It would be convenient at this point to set out some of the contents of the "Individual Autism Profile" (IAP) I refer to in the previous paragraph. The document comprises two columns, one tiled "Individual autism abilities & support needs", and the other "Matched Support Strategies"; and the document contains a number of rows in which information relevant to the title of each row is required to be included. The IAP includes the following:

Need prompting to tell people what is wrong/ask for help

Literacy difficulties around phonological awareness, sight-word recognitions and hand writing

Check to see how Olivia is feeling or if something is bothering her. Listen and respond to Olivia's concerns

Use visual alongside written text when teaching new concepts

Able to engage in pretend play and social games with peers

Needs support at times to problem solve with peers and manage change/flexibility in play

Provide opportunities for supported structured play to build social skills

Give regular breaks from demands for Olivia to rest

Finds change in routine or unclear expectations difficult

At home likes to be in control of the environment and at times others' actions

Negotiate and explain expectations before starting new tasks. Answer any questions she has

Dislikes mess/being dirty & loud noise. Has some specific phobias

Allow regular short breaks throughout the day for movement

Allow Olivia to sit at the side/back of very noisy environments and allow break from these

(Theory of Mind, Executive Functioning, Weak Central Coherence)

Finds flexibility of thinking and problem solving difficult

Finds it difficult to understand that other's point of view and apply this during interactions (theory of mind)

Use thought bubbles to show Olivia's thoughts and other people's thoughts

1. The remainder of Ms McDonald Costa's affidavit deals with events after August 2020. The affidavit covers the following subjects:

(a) the complaint Ms McDonald Costa about the School Ms McDonald Costa made to the AHRC and the course of proceeding before that body [183]-[249];

(b) Ms McDonald Costa's engagements of and dealings with Wotton + Kearney in relation to the proceeding before this Court [250]-[306];

(c) the DDA and the Disabilities Standards for Education [307];

(d) Ms McDonald Costa's attempts to obtain pro bono legal representation [308]-[323];

(e) the final report of the Royal Commission into Violence, Abuse, Neglect, and Exploitation of People with Disability [324]-[326];

(f) a section headed "Inclusive Education for people with Disability" [327]-[336]; and

(g) a section headed "Breach of duty of care, vicarious liability, loss, damage and ongoing harm" [337]-[439]

SCHEDULE 2 - MS MCDONALD COSTA'S AFFIDAVIT OF 24 FEBRUARY 2025

1. Ms McDonald Costa's affidavit made on 24 February 2025 comprises the following documents that are annexed to it:

(a) A document addressed to "To Whom it my [sic] concern: May 2024 apparently authored by a "a psychologist, private consultant and Adjunct Associate Professor at Curtin University in Perth" which comments on statements apparently made by Ms McDonald Costa's affidavit. The subject the document is the effect of refusing to enrol students with disabilities into mainstream schools.

(b) A certificate of baptism of Miss Olivia Costa.

(c) Emails from the principal of All Hallows School sent on 10 April and 11 May 2018 to Ms McDonald Costa and Mr Costa reading to Miss Olivia Costa's application to be enrolled in kindergarten.

(d) A number of documents relating to Miss Olivia Costa.

(e) Documents in relation to an application Ms McDonald Costa made on 1 May 2019 for victim support under the Victims Rights and Support Act 2013 (NSW).

(f) Order of this Court made on 8 June 2022 granting to Ms McDonald Costa sole parental responsibility for Miss Olivia Costa.

(g) Psychological reports in relation to Miss Olivia Costa dated 24 April and 6 June 2024.

(h) A letter dated 18 December 2024 in support of Miss Olivia Costa's ongoing enrolment in the home-schooling programme.

(i) An email Ms McDonald Costa sent to Team Olivia on 17 June 2020 with the subject "Livi is going back to School". The email reports on Ms McDonald Costa's having met with the principal of the School and the matters discussed with the principal.

(j) An email from Mr Harry Rutner, from "Australian Centre for Disability Law", to Ms McDonald Costa sent on 11 May 2023, attaching a response filed by SCS, apparently in the Australian Human Rights Commission (AHRC).[145]

(k) An email Ms Anastacia Totoeva of Australian Centre for Disability Law sent to Ms McDonald Costa on 24 August 2023, referring to, among other things, an appointment with Sian Gilbert of Wooten Kearney.[146]

(l) An email Ms Magee sent to Ms McDonald Costa on 24 October 2023 confirming that proceedings were filed in this Court, and attaching a copy of the statement of claim. Ms Magee further stated that the Court listed the matter for a case management hearing at 9.30 am on 14 November 2023.[147]

(m) An email Ms Magee sent to Ms McDonald Costa on 10 November 2023.[148]

As discussed, Tuesday's court date is a case management hearing and will involve the parties running through the proposed timetable for the matter. Sian, Atticus and myself will be attending to signal our intent to prosecute the matter. The listing is administrative in nature so no need for you to appear.

We have proposed the below orders for the Judge to make. The Court is closed in January so we have asked for a mediation date after it re-opens in the new year.

1. The name of the Applicant in these proceedings is amended to Olivia Costa, by her litigation guardian, Vanessa McDonald Costa pursuant to Rules 7.01 and 11.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.

2. The Respondent file and serve its Response and a Defence by 4pm on 8 December 2023.

3. The Applicant file and serve a Reply by 4pm on 22 December 2023.

1. The matter be referred to a Registrar of the Court for mediation on a date to be fixed by the Registrar after 29 January 2024.
2. Costs are reserved.
3. The parties have liberty to apply.

(n) An email Ms Magee sent to Ms McDonald Costa on 14 November 2023 reporting on the orders I made in chambers:[149]

(o) An email Ms Gilbert sent to Ms McDonald Costa on 19 February 2024 referring to the unsuccessful mediation, and suggesting times for telephone conference to explain where the matter currently stood.[150]

(p) An email Ms McDonald Costa sent on 16 December 2023 to "Renee, Sian & Atticus", in which she makes detailed comments to the defence SCS filed on 8 December 2023.[151]

(q) An email Ms McDonald Costa sent on 17 January 2024 to Ms Magee of Wotton Kearney, Lawyers (copied to Sian Gilbert and Atticus Saunders, both also of Wotton Kearney) in which she also appears to refer to the defence SCS filed on 8 December 2023.

1. The following correspondence between Ms McDonald Costa and the AHRC: [152]

(a) A letter dated 7 May 2024 from the AHRC to Ms McDonald Costa declining her request that the Disability Discrimination Commissions seek leave to appear in this proceeding as an amicus curiae pursuant to s 46PV of the Australian Human Rights Commission Act 1986 (Cth).

(b) An email Ms McDonald Costa sent to the AHRC on 24 May 2024 requesting a report pursuant to s 46PS of the AHRC Act, and in which she raised a number of concerns.

(c) A letter dated 18 June 2024 from the AHRC to my Associate, being a report pursuant to s 46PS of the AHRC Act.

(d) A letter dated 29 August 2024 from the AHRC responding to concerns Ms McDonald Costa raised in correspondence sent on 23 and 27 August 2024 "about the name of the Respondent which" appeared on the Notice of Termination the AHRC issued on 23 August 2023. The AHRC said it had no power to amend the name of the respondent named in the Termination.

(e) A letter dated 17 September 2024 from the AHRC to Ms McDonald Costa responding to a number of concerns Ms McDonald Costa had raised.

[1] SCS in fact applied for the orders it seeks pursuant to 13.05(1)(a) and 13.3(1)(b) and/or (c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Those rules have been replaced by the GFL Rules and the equivalent rules are contained in r 5.10 and r 23.08(1) of those rules.

[2] At the hearing Ms McDonald Costa said in relation to the March affidavit that the "1300-page affidavit is all my evidence. I'm done. I don't think I have any other evidence to give." - T28.20.

[3] JVR24 v Trustee for Sydney Catholic Schools Trust (No 2) [2024] FedCFamC2G 1220.

[5] They provided the "January Report" to which I refer in Schedule 1, [11].

[13] Purvis v State of New South Wales (Department of Education & Training) [2003] HCA 62; (2003) 217 CLR 92, at [114] (McHugh and Kirby JJ).

[14] Purvis v State of New South Wales (Department of Education & Training) [2003] HCA 62; (2003) 217 CLR 92.

[15] Purvis v State of New South Wales (Department of Education & Training) [2003] HCA 62; (2003) 217 CLR 92, at [273].

[16] Purvis v State of New South Wales (Department of Education & Training) [2003] HCA 62; (2003) 217 CLR 92, at [223]-[224].

[17] Purvis v State of New South Wales (Department of Education & Training) [2003] HCA 62; (2003) 217 CLR 92, at [224].

[18] Purvis v State of New South Wales (Department of Education & Training) [2003] HCA 62; (2003) 217 CLR 92, at [11].

[19] Purvis v State of New South Wales (Department of Education & Training) [2003] HCA 62; (2003) 217 CLR 92, at [11].

[20] See Tropoulos v Journey Lawyers Pty Ltd [2019] FCA 436, at [152] (Collier J): "Section 5(2) of the DD Act contemplates a positive action on the part of the alleged discriminator, with knowledge of the circumstances of the person with the disability. If the alleged discriminator makes inquiries of the disabled person as to his or her needs in the workplace, but is not put into possession of knowledge of the nature of the disability, and the needs of the disabled person, can it be said that in not implementing reasonable adjustments required by that person, they had failed to make, or proposed not to make, those reasonable adjustments? I would have thought the answer must be "no" - practically, the alleged discriminator must be given some knowledge of the nature of the disability and the needs of the disabled person in order to make reasonable adjustments to their conditions" (emphasis in original).

[21] Oxford English Dictionary online edition.

[22] Watts v Australian Postal Corporation [2014] FCA 370, at [23].

[23] Winters v Fogarty [2017] FCA 51, at [66].

[24] PASC, [3]. The paragraph in fact alleges that Olivia "is a person within the meaning of" s 4 of the DDA; but I will assume that the PASC intends to allege that Olivia is a person who has a disability.

[63] Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, at page 538 (Kirby P). The quote was made in the context of actions to set aside judgments for fraud, but it was prefaced by the words: "As in all actions based on fraud".

[64] Forrest v Australian Securities and Investments Commission ( 2012) 247 CLR 486; [2012] HCA 39 at [26].

[65] Banque Commerciale S.A. v Akhil Holdings Limited (1990) 169 CLR 279, at pages 294-295 (Dawson J).

[66] Wallingford v Mutual Society (1880) 5 App. Cas. 685, at page 701, being part of the passage set out in the judgment of Dawson J in Banque Commerciale S.A. v Akhil Holdings Limited (1990) 169 CLR 279, at page 295.

[67] Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1, at [186].

[68] Jonesco v Beard [1930] AC 298.

[69] Jonesco v Beard [1930] AC 298, at page 301.

[70] Commissioner for Government Tram & Omnibus Services v Vickery [1952] HCA 44; (1952) 85 CLR 635.

[71] Commissioner for Government Tram & Omnibus Services v Vickery [1952] HCA 44, at [15]; [1952] HCA 44; (1952) 85 CLR 635, at page 645.

[72] Browne v Dunn (1893) 6 R 67, at pages 70-71.

[80] Professional Administration Service Centres Pty Limited v Commissioner of Taxation [2012] FCAFC 180.

[81] Lenijamar Pty Ltd & Ors v AGC (Advances) Limited [1990] FCA 520.

[82] Professional Administration Service Centres Pty Limited v Commissioner of Taxation [2012] FCAFC 180, at [39]-[42].

[90] CB416, CB425, CB427, CB429, CB431, CB433, CB524, CB578.