The Victorian Civil and Administrative Tribunal is providing these written reasons with the names of certain persons anonymised. Section 121 of the Family Court Act 1975 (Cth) prohibits the publication of an account of proceedings or any part of proceedings that identifies a party to those proceedings, a person related to or associated with a party to the proceedings or a witness in the proceedings.**

1 CZZ filed an application dated 5 August 2018 under the Equal Opportunity Act 2010 (EO Act) against Sandra Bourne, Michael Fitzgerald and Carlo Ticchi.

2 On 28 May 2019, the Department of Education and Training (DET), upon application by the State of Victoria, was added as a respondent.

3 CZZ alleges that the respondents discriminated against him in relation to a request he made for school reports relating to his daughter, YWK. The allegations of discrimination are based upon the attributes of sex, marital status, and parental status in the area of education. He also alleged failure to make reasonable adjustments for a parent in the area of education, victimisation, and authorising or assisting discrimination.

4 The matter was the subject of a compulsory conference on 11 September 2020. There was no resolution at the conference.

5 Orders were made for the delivery of witness statements prior to any hearing.

6 The proceeding was heard by me on 21 and 22 September 2020 and 15 October 2020.

7 At the conclusion of the hearing, I made orders for delivery of written submissions. I otherwise reserved my decision.

9 The onus of proving a breach under the EO Act is upon CZZ, the applicant. Given the serious nature of the allegations, the standard is on the balance of probabilities to my comfortable satisfaction under the Briginshaw standard[1].

10 In relation to legislation, all references are to sections or Parts of the EO Act.

11 Section 6 identifies the attributes on the basis of which discrimination is prohibited in the areas of activity set out in Part 4 of the EO Act. Included in those attributes are sex, marital status and parental status.

12 Under section 4 ('Definitions'), 'marital status' includes a person's status of being married, or of being married but living separately and apart from his or her spouse, or of being divorced. 'Parental status' means the status of being a parent or not being a parent. 'Disability' includes physical or mental impairment, disease or disorder, condition or malfunction, malformation or bodily disfigurement. 'Educational authority' means the person or body administering an educational institution. An 'educational institution' includes a school. 'Services' includes, without limiting the generality of the word -

(a) access to and use of any place that members of the public are permitted to enter;

(b) banking services, the provision of loans or finance, financial accommodation, credit guarantees and insurance;

(c) provision of entertainment, recreation, or refreshment;

(d) services connected with transportation or travel;

(e) services of any profession, trade or business, including those of an employment agent;

(f) services provided by a government department, public authority, State owned enterprise or municipal council -

but does not include education or training in an educational institution.

13 'Discrimination' under section 7(1)(a) means direct or indirect discrimination on the basis of an attribute.

14 Under section 8, 'direct discrimination' occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute. Section 8(2) provides that in determining whether a person directly discriminates it is irrelevant whether or not that person is aware of the discrimination or considers the treatment to be unfavourable or whether or not the attribute is the only or dominant reason for the treatment, provided that it is a substantial reason.

15 Section 9 provides that 'indirect discrimination' occurs if a person imposes, or proposes to impose, a requirement, condition, or practice that has, or is likely to have, the effect of disadvantaging persons with an attribute and that is not reasonable. The person who imposes, or proposes to impose, the requirement, condition or practice has the burden of proving that the requirement, condition or practice is reasonable.

16 Section 10 states that in determining whether a person discriminates, the person's motive is irrelevant.

17 Section 38 provides in relation to discrimination by educational authorities:

(1) An educational authority must not discriminate against a person -

(a) in deciding who should be admitted as a student; or

(b) by refusing, or failing to accept, the person's application for admission as a student; or

(c) in the terms on which the authority admits the person as a student.

(2) An educational authority must not discriminate against a student -

(a) by denying or limiting access to any benefit provided by the authority; or

(c) by subjecting the student to any other detriment.

18 Section 40 provides that educational authorities must make reasonable adjustments for persons with a disability.

19 Under section 103, a person must not victimise another person.

20 Section 104 sets out what is victimisation. Essentially, it provides that a person victimises another person if the person subjects or threatens to subject the other person to any detriment because the other person, or a person associated with the other person, has made a complaint against any person under the EO Act.

21 Under section 105, a person must not request, instruct, induce, encourage, authorise or assist another person to contravene a provision of Parts 4 or 6 or 7.

22 Section 109 provides for the vicarious liability of employers or principals if an employee or agent contravenes a provision of Parts 4 or 6 or 7.

23 The statement of CZZ was received by the Tribunal on 3 April 2020. CZZ was married to ICC for 10 years. They have a daughter, YWK. CZZ relevantly states:

1. he was charged with obtaining financial advantage by deception. The nature of the charge was amended during the hearing. Despite pleading not guilty, he was found guilty and sentenced to a term of imprisonment;
2. towards the end of 2015 he wrote to the then Principal of the country primary school at which YWK attended;

1. he requested copies of school reports for YWK which were sent to him;

1. that Principal retired and was replaced during 2016 by Ms Bourne who was appointed Acting Principal;
2. in approximately March 2016 he wrote to the primary school to obtain a copy of a further school report for YWK;
3. a parent has the right to the child's academic progress and that right can only be taken away if it is clearly stated that the right is removed and, if Family Court documentation is silent on the matter, then the right has not been withdrawn;
4. Ms Bourne did not acknowledge receipt of CZZ's letter and instead passed it to the family law solicitor acting for ICC;
5. in subsequent correspondence, Mr Fitzgerald stated to CZZ on 2 March 2017:

...I can confirm that the Department's practice at the time was that schools did not refer letters from one parent to the other parent (or to their representative) unless there were safety reasons for doing so and I am sorry if the Principal did not act consistently with this practice;

1. there was no safety reason to which Ms Bourne could refer for her action;

I want to take this opportunity to emphasise that Principals and school staff were not responsible for interpreting and/or enforcing parenting orders;

1. why then did Ms Bourne take it upon herself to interpret the parenting order?;

1. Ms Bourne must have known it was not for her to make such discriminatory decisions, yet she chose to do so and if she was unsure then she needed to ascertain from an independent solicitor what she should do, rather than from the solicitor acting for ICC;

1. Mr Ticchi in a letter dated 4 March 2018 stated:

Given the only documentation available does not clearly or categorically remove your parental responsibility for [YWK], we have decided to release her student report to you, which is enclosed.

1. if there was no documentation removing his parental responsibility on 4 March 2018 then there was no documentation removing his parental responsibility when he initially wrote to Ms Bourne seeking his daughter's school reports in 2016;
2. on 6 March 2018, Mr Fitzgerald stated to him:

You are correct that ordinarily the Department would not require a parent to produce court orders to receive school reports, but on occasion we do need to take additional steps to determine parental responsibility, when there has been uncertainty regarding parenting status;

1. where was the uncertainty? It is a parent's right to their child's academic progress and it must be clearly negated otherwise the right is enforceable. If it is unclear, then the parent has the right to their child's academic progress;
2. Ms Bourne's actions were wrong and clearly discriminated against him solely because he is a male and she deliberately sought to bias events in favour of ICC;
3. Mr Fitzgerald and Mr Ticchi, by each supporting and not addressing Ms Bourne's actions, have reinforced her discrimination and, as such, are each also guilty of discrimination;
4. this discrimination has caused him emotional distress and the actions of the three individuals have assisted in the parental isolation of YWK; and
5. as a desired outcome he wants an explanation for Ms Bourne's actions as the one offered is clearly a lie and he seeks financial compensation for his emotional distress.

24 Ms Bourne made her statement on 13 May 2020. Relevantly, she states:

1. she is a registered teacher and has been so since 1991, but is not currently working;
2. she moved from Queensland in June 2016 to country Victoria and took a six month contract as an Acting Principal at a local primary school, which finished in January 2017;

1. she first heard from CZZ when she received a letter from him in what she thinks was the last few days of the 2016 school year;

1. she opened the letter and while she does not clearly recall its contents, she remembers it was quite long;
2. in the letter, CZZ requested a copy of YWK's school report and information about whether she would be dux;
3. she also recalls that there were a number of derogatory comments about ICC in the letter but she cannot remember what they were;
4. after reading the letter she spoke with her personal assistant, Leesa Dorman, who was a long-term employee at the school and she asked her whether she could provide the school report to CZZ;
5. Ms Dorman told her that there were some issues between CZZ and ICC which were before the Court and Ms Dorman left YWK's school file with her;
6. Ms Dorman also informed her that the school was waiting for further paperwork about the situation between CZZ and ICC;
7. she recalls that included in the school file were two family law orders relevant to YWK;
8. the first court order, made in 2015, stated, among other matters, that CZZ and ICC have joint parental responsibility for YWK and that YWK was to live with ICC. Additionally, it set out when CZZ would have access with YWK and requirements for her collection and return to ICC;

1. the second court order, made in 2016, among other matters and pending further order, suspended the previous court order for joint parental responsibility and CZZ's access, and confirmed that YWK was to live with ICC;

1. after looking through YWK's school file, she formed the view that it was better not to provide the requested information to CZZ at that time and this accorded with Ms Dorman's suggestion. The court orders on the school file appeared to suspend CZZ's parental responsibility and she understood that further information was required before she could release the documents to CZZ;
2. her practice as a teacher and Principal was that she would never simply provide information about a student without first confirming who was able to access such information. Accordingly, when she received a request for a school report or other information, she would first check the school file and make sure that it was appropriate to provide the school report to the person requesting it;
3. it would not make any difference to her whether the person making the request was male or female, single, married or divorced;
4. shortly after receiving the letter from CZZ, ICC requested to see her and then met with her after school one day;
5. ICC told her that she had fears about CZZ returning to the town and that YWK was concerned about being in the school grounds during lunch and recess. ICC also said she, herself, was nervous and fearful about CZZ;
6. she told ICC that arrangements could be made for YWK to stay inside if YWK wanted to do so;
7. allegations of potential family violence of any form are very serious and it was important for her to take ICC's concerns seriously;
8. in the circumstances, and because of the comments made in the letter from CZZ about ICC, she thought it was appropriate that ICC see the letter from CZZ. Accordingly, she provided ICC with a copy of CZZ's letter, but she did not provide a copy of the letter to anyone else;
9. to the best of her memory, the following morning before school, ICC and YWK came to see her;

1. ICC had told YWK that ICC had spoken to her and that she had suggested to ICC that if YWK did not want to go outside during lunch then she could go to the library or come to the office and talk to her or read a book;

1. YWK said that she would like to stay inside at lunch and recess and was worried about being in the playground. She also suggested that YWK could write some articles to put in the newsletter;

1. ICC also sent a photo of CZZ to the school and Ms Dorman printed a copy so she and others would be aware of what CZZ looked like;

1. she then called a quick staff meeting with the other teachers and informed them of the situation and showed them the photo of CZZ and she told the teachers that if they saw CZZ at the school they were to ask him to visit her office;
2. she is not sure when she found out that CZZ had spent time in prison but she did recall receiving a phone call from someone who had something to do with the prison. He may have been a minister but she could not recall for certain. This person requested information about YWK on behalf of CZZ but she told that person that she could not provide information about a student over the phone whom she did not know;
3. she ceased working at the school shortly after, in January 2017; and
4. she has read the witness statement of CZZ. None of her decisions were made, or actions taken, because CZZ is a man and it is not her view that a father has less right to his daughter's academic records than a mother.

25 Mr Ticchi made a witness statement on 12 May 2020. Relevantly, he states:

1. he commenced employment with DET in 1983 as a secondary school teacher;
2. his current role is Manager of Health, Wellbeing and Specialist Services in the Wimmera South West Area, having held this role since 2016;

1. he first became aware of CZZ in 2018, when he was briefly Acting Area Executive Director while Mr Fitzgerald was on leave. Neil Sproal was then the Community Liaison Officer;

1. Mr Sproal came to him about some correspondence CZZ had sent to DET and gave him the background of the matter;
2. he also read copies of the letters that had been exchanged between CZZ and DET;
3. his view of the situation was that because the original request of CZZ for the school report had been received some time ago, and given that the interim court orders were also quite old, he was comfortable for the school report to be provided to CZZ;
4. whenever a request for information about a student is received, the school and DET need to make sure that the person is entitled to receive the information. DET has policies in relation to the provision of information about students;
5. these policies include Requests for Information about Students, Information and Privacy, and Decision Making Responsibilities for Students;
6. by letter on 4 April 2018 (which was incorrectly dated 4 March 2018), he wrote to CZZ and attached a copy of YWK's school report that CZZ had requested;
7. his letter to CZZ stated, among other things, that;
   1. DET had repeatedly asked CZZ for family law orders clarifying his parental status and demonstrating his entitlement to access a copy of YWK's school reports;
   2. after making reasonable enquiries which resulted in no further documentation from CZZ, DET had reassessed his request; and
   3. given the only documentation available did not clearly or categorically remove his parental responsibility for YWK, DET decided to release YWK's school report to CZZ; and
8. his actions in relation to this matter had nothing to do with CZZ's sex and he approached the matter as he would with any other request for information about a student. The same considerations as to whether someone is entitled to receive information about a student apply to all requests.

26 Ms Dorman made her witness statement on 3 September 2020. Relevantly, she stated:

1. she has worked since March 2000 as the Administration Manager at the school at which YWK attended. She manages general administration and assists the Principal;
2. she can remember CZZ, ICC, and YWK whom she met when YWK was first starting at the school and they attended to enrol YWK. She thinks that this was at the start of 2013 and that YWK was then commencing grade 3;

1. she also recalled ICC visiting the school office on a few occasions which is common for parents during their child's schooling. She remembers one brief conversation with ICC when ICC said she was scared for her own and YWK's safety, but she cannot remember when this conversation occurred;

1. on one occasion which may have been before Ms Bourne was Acting Principal, she took a call from a remand centre to advise that CZZ could not attend the contact session with YWK that day because he was incarcerated, but she did not know why CZZ was on remand or in prison;
2. Ms Bourne commenced as Acting Principal at the school on a short-term contract in July 2016 for terms 3 and 4;
3. she recalls a letter from CZZ around the time that Ms Bourne started at the school, in which letter CZZ was asking for a copy of YWK's school report and whether she would be dux that year;
4. she also recalls that in response to CZZ's letter, Ms Bourne asked her to arrange for YWK's semester 1 2016 report to be sent to CZZ, which she did;
5. she does not recall seeing a letter from CZZ to the school in or around December 2016 asking for YWK's school report. It is possible that the school received such a letter, but she did not see it;
6. she does not recall speaking with Ms Bourne in around December 2016 about providing CZZ with YWK's 2016 school report or about the family law orders on YWK's school file;
7. she remembers talking to Ms Bourne about CZZ and giving Ms Bourne YWK's school file in 2016 but she cannot remember exactly when that was, although she thinks it was around July or August;
8. she recalls that there were family law orders on YWK's school file, and that they were temporary or incomplete, but she cannot recall their details or how or when the school obtained the court orders. Such court orders are usually given to the school by the parents;

1. she also recalls CZZ sending other letters to the school and while it was not her role to respond to the letters, she recalls one letter from CZZ in which he made remarks about him being accused of abuse and in which he denied the substance of those remarks; and

1. she does not recall Ms Bourne or anyone else ever saying that CZZ should be treated any differently because he is a man.

27 Mr Fitzgerald made a statement on 12 May 2020. Relevantly, he stated:

1. he commenced employment with DET in 1985. He was a teacher until 2005 and now holds the position of Area Executive Director for the Wimmera South West Area and has done so since 2016;
2. he was first made aware of CZZ in around early 2017 after CZZ had lodged a formal complaint with DET. This was referred to him for response because it involved his region;

1. CZZ's complaint was in a Parent Complaint Form dated 19 December 2016. The date stamp indicates that it was received by DET on 3 January 2017;

1. the Parent Complaint Form stated, among other things, that:
   1. CZZ had written to Ms Bourne approximately one month prior, and had sought a copy of YWK's school report, any stories about her performance and attitude in the classroom, whether she was likely to be dux of the school, and where she was going to school in 2017 as ICC had refused to provide CZZ with this information;
   2. CZZ had asked 'Glenn', a Family Connections Worker at the Metropolitan Remand Centre, to call Ms Bourne;
   3. it seemed that Ms Bourne had provided CZZ's letter to the family law solicitors acting for ICC;
   4. CZZ claimed that in doing so, she had acted outside of her authority and had no right to 'side', or collude, with ICC in a family law dispute; and
   5. CZZ requested that his questions be answered and that a copy of YWK's school report and a written apology from Ms Bourne be provided;
2. he responded to the Parent Complaint Form from CZZ in a letter dated 18 January 2017 which stated, among other things, that:
   1. DET would not be able to seek information from appropriate personnel until the beginning of the school term at the end of January 2017;
   2. in considering a request from parents regarding information about their child, Principals and school staff are obliged to consider DET's policies and relevant court orders;
   3. Principals and school staff are not responsible for interpreting and/or enforcing parenting court orders, but are guided by such court orders and utilise their best judgment on how to proceed with such requests. This is particularly difficult when parents provide conflicting information; and
   4. despite this, DET would follow up CZZ's concerns with the school and would respond to his formal complaint.
3. CZZ responded with a letter dated 20 January 2017 in which he stated, among other things, that:
   1. Ms Bourne had acted inappropriately;
   2. there were no court orders and therefore no reason to refuse his request;
   3. CZZ believed that this was a targeted attack on him based on information given by ICC and outside the area of the Principal's responsibility; and
   4. Ms Bourne had become involved in a matter in which she was not a party and had chosen to 'side' with ICC and had discriminated against him;
4. he received a further letter from CZZ dated 6 February 2017 in which CZZ again requested YWK's school report and questioned why a father with no intervention orders (IVOs) and no domestic violence or sexual abuse accusations was not allowed to receive it;
5. DET policy is that any information about students and student documents cannot just be handed to anybody who requests them. When a school or the DET receives a request for information about a student, checks should be made to ensure that it is appropriate to give out information about a student. As part of DET policy, the school should consider any current court orders in place that remove parental responsibility from the parent who has requested information about a student;
6. the two family law orders on YWK's school file created an uncertainty about whether the requested information should be supplied to CZZ. As a result of this, he was satisfied that it was reasonable in the first instance to not provide the information to CZZ, and he also wanted to invite CZZ to provide further information that might clarify the situation;
7. CZZ's sex had nothing to do with his request for more information and hesitancy to provide the school reports at that time and the reason that he did not provide the school reports then to CZZ was because of the uncertainty created by the two court orders about CZZ's parental responsibility;
8. he sent a letter dated 10 February 2017 to CZZ, which letter, among other things, stated:
   1. despite CZZ's advice that there were no current court orders, the school was in possession of two interim orders;
   2. the 2016 order referred to the previous court orders having been suspended which suggested that CZZ's joint parental responsibility for YWK had been suspended by the Court;
   3. given the available court orders and the difficulty in establishing CZZ's entitlement to the information about YWK, it was reasonable for his request for copies of YWK's school reports to be refused in the first instance;
   4. Principals and school staff are not responsible for interpreting and/or enforcing parenting court orders as they are not trained lawyers who are able to determine the complexities with regard to court orders; and
   5. if CZZ had recent court orders clarifying the status of his parental responsibility and/or entitlement to education information about YWK, DET would be pleased to reconsider his request;

1. he received a letter from CZZ dated 19 February 2017 which, among other things, stated:
   1. CZZ was currently held on remand at the Metropolitan Remand Centre as he was accused of a summary offence;
   2. the informant in the matter had falsely stated to potential witnesses 'off-record' that CZZ was a child molester, but the informant had been forced to withdraw this comment;
   3. if he was one of those 'off-record' witnesses that was told this lie in his dealings with the informant or ICC or Ms Bourne, such a comment was not true;
   4. this matter needed be clarified with Ms Bourne, if she had been misinformed; and
   5. CZZ was still awaiting YWK's school report;

1. until receiving the letter from CZZ, he had not known anything about the informant or any allegation that CZZ was a child molester and he never had any communications with the informant. He did not contact Ms Bourne about the letter because it was not relevant to the issue with which he was concerned, being clarification of the court orders and the parental responsibility;
2. he received a further letter from CZZ dated 24 February 2017 which requested an explanation as to why Ms Bourne had provided his letter to the family law solicitor acting for ICC and it otherwise also stated, among other things, that:
   1. the solicitor cannot be impartial and would act in the interests of ICC;
   2. Ms Bourne was colluding with ICC to the detriment of CZZ;
   3. it was not Ms Bourne's position 'to take sides' and this is clearly what she had done;
   4. if Ms Bourne had difficulties in understanding her position, she needed to approach the Family Court or seek independent advice; and
   5. the bias of Ms Bourne was the root of CZZ's complaint that needed to be addressed;

• as CZZ had not clarified the issue about the court orders and parental responsibility, he did not respond to CZZ's letters of 19 and 24 February 2017;

1. he wrote a letter dated 2 March 2018 to CZZ which among other things, stated that:
   1. CZZ had written a number of emails to the Integrity and Assurance Division of DET regarding access to YWK's school reports;
   2. in his letter dated 10 February 2017 he had explained the difficulty to CZZ in establishing his entitlement to information about YWK on the basis of the court orders;
   3. due to the confusion relating to the court orders and the status of CZZ's parental responsibility, he had at that time asked CZZ to provide clarity, by way of a further court order or explanation, to confirm his entitlement to obtain the school reports;
   4. however, the practice at the time was that schools would not refer letters from one parent to another (or to their representative) unless there were safety reasons to do so and he apologised if Ms Bourne did not act consistently with this practice;
2. on 2 March 2018, he received an email from CZZ which stated, among other things, that:
   1. CZZ did not recall him asking for family law orders;
   2. there are no family law orders that forbid CZZ from receiving YWK's school reports, as a parent has a right to be informed of their child's academic progress; and
   3. there are no sexual abuse, domestic abuse, physical violence, bullying, etc accusations against CZZ and therefore CZZ requests an explanation as to why he is being forced to go through the humiliation because he cares for YWK;
3. he has never spoken to, or communicated with, ICC or her solicitor;
4. by letter dated 6 March 2018, he responded to CZZ's letter which explained the reasons for DET requesting any recent court orders. In this regard, it was stated, among other matters, that while it was unclear whether the intent of the 2016 order on YWK's school file was to remove CZZ's parental responsibility, it was apparent that the Family Court proceedings were ongoing and DET considered it was likely that final court orders were made in relation to parental responsibility;
5. he received an email from CZZ dated 6 March 2018 which, among other matters, stated that if it was unclear whether the intent of the interim order of 2016 was to remove parental responsibility and the school had sent previous school reports then, in the circumstances, Ms Bourne's decision to not send the school reports was discrimination against a father's rights;
6. after receiving further emails from CZZ between 13 and 19 March 2018, he asked a member of his team to further liaise with other relevant persons at DET about release of YWK's school report;

1. he was on leave when the decision was made to provide YWK's school report to CZZ, which occurred by letter from Mr Ticchi sent 4 April 2018;

1. there was further correspondence from CZZ, including an email dated 13 January 2020 to the primary school which YWK had attended. Among other things the email stated that:
   1. the Education and Training Act 2006 (sic) establishes a principle stating the right of parents and students to receive individual student achievement data from their school;
   2. as there was no longer any IVO in place, CZZ requested copies all of YWK's school reports;

1. on 2 February 2020, he sent to CZZ an email attaching copies of all of YWK's school reports from semester 1 2014 to semester 2 2016; and

1. he has read the witness statement of CZZ and confirms that he has never made any decisions or undertaken any actions because of CZZ's sex or for reasons including CZZ's sex, and he does not believe, and has never believed, that a father has less right to his daughter's academic records than her mother.

28 In this section I will make additional reference to relevant documents beyond the contents of the witness statements.

29 In the Requests for Information about Students policy, it is stated that parents are generally entitled to school reports and other school communications ordinarily provided to parents, unless a court order restricts this right.

30 In the Information and Privacy policy, it is stated that unless a court order is made under the Family Law Act 1975, both parents of a student have the same rights to access information about the student.

31 In the Decision Making Responsibilities for Students policy, it is stated that parental responsibility is defined as all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Each parent of a child under 18 years of age has parental responsibility for the child unless this responsibility is varied by a relevant court order or parenting plan.

32 It is further stated in this last policy that parenting orders are court orders made under the Family Law Act 1975 and they may deal with a number of issues which relevantly include the allocation of parental responsibility and any aspect of the care, welfare, or development of the child. In allocating parental responsibility, the parenting order may differentiate between 'major long term issues' and other issues, and major long term issues can include the child's education, both current and future.

33 A summons was issued by CZZ to Ms Dorman requiring her to produce YWK's school file. Included in documents produced were school enrolment documents dated 27 June 2012 which included, as required, personal and contact details of CZZ, ICC, and YWK and which documents were signed by CZZ.

34 Also included in the documents produced, is a typed document dated 25 November 2016, not under any letterhead, which states:

A copy of the mid-semester school report, belonging to [YWK] - Year 6A, 2016 was posted to her father, by mistake.

However, this document was not signed by Ms Bourne, although spacing was provided for her signature.

35 Another of the documents produced is a copy of a letter dated 28 November 2016 addressed to CZZ and relating to YWK and signed by Glenn, Family Connections Worker, Metropolitan Remand Centre, under the letterhead of VACRO (Victorian Association for the Care and Resettlement of Offenders). Omitting formal parts, the letter reads:

I had a conversation with the school principal Ms Sandra Bourne who informed me that she was in receipt of a letter from you and said she has passed the letter onto the family lawyer.

When asked who will inform [CZZ] of the process, she said the family lawyer would make contact with you. She would not engage in any form of conversation and kept it very formal. I have no doubt know (sic) you would know what this is like.

Again, I am sorry we were not able to proceed on this any further at this stage.

36 Also produced from YWK's school file, are copies of two letters handwritten by CZZ and sent to the school. The first letter, dated 21 August 2016, was marked, both by name and position, to the attention of the school Principal prior to Ms Bourne. Omitting formal parts, the letter reads:

I recently wrote to you requesting a copy of [YWK's] school report be sent to me.

I am also aware that a Prison Chaplin (sic) has also been in contact to request, on my behalf, the same.

I thus request once again a copy of my daughter's report be sent to me.

PSS I remind you that I am on remand - that is, I have been found guilty of nothing and in this country a person is innocent until proven guilty. This matter has a long way to go yet and many assumed truths will be shown to be lies. Consequently I do not deserve to be treated as a 'leper'. All I am asking for is my daughter's school report - there is no justification or similar to withhold it.

37 The second letter is dated 30 August 2016 and is marked to the attention of 'The Principal'. Omitting formal parts, the letter reads:

I am [YWK's] father and have yet to receive a copy of her school report.

For the fourth time, would you please send a copy of it to me.

38 Prior to the hearing, CZZ sought the issue of a number of subpoenas. Relevantly, the Tribunal refused his application for issue of a subpoena to Mr Sproal to give evidence about his conversations with Ms Bourne and it also refused his application for ICC to give evidence. However, leave was granted to CZZ to issue a summons to Mr Sproal to give evidence about his conversations with Mr Ticchi relevant to the dispute in this proceeding.

39 Oral evidence was given at the hearing by CZZ and Mr Sproal and by Ms Bourne, Mr Fitzgerald, Mr Ticchi and Ms Dorman.

40 CZZ was held on remand at Melbourne Remand Centre in and from November 2015. He remained on remand for 22 months. He initially requested a copy of YWK's semester 1 2016 report by letter from the primary school in around July or early August 2016 and also information as to whether YWK would be dux. He ultimately sent four letters making this request with the last two letters being those dated 21 August 2016 and 30 August 2016. He received a copy of YWK's school report.

41 In around November or early December 2016, CZZ sent a letter to the primary school seeking a copy of YWK's further school report. Neither the original of this letter nor a copy of it is on YWK's school file. He denies making any derogatory comments in this letter. It would have been unwise of him to make derogatory comments about ICC given ongoing Family Court proceedings. He disputes Ms Bourne's witness statement and he denies that the first time she heard from him was around December 2016 when she received the letter. He does not understand where the original of this letter is now located given that it is not on YWK's school file, nor why it is not on the school file.

42 He also does not believe that there was any discussion between Ms Bourne and Ms Dorman in November or December 2016 about release of the school report. He believes they had a discussion about the release of the school report in July or August 2016. He confirmed that he never received a response from Ms Bourne to his December 2016 letter which led to him making his parental complaint.

43 CZZ also maintains that Glenn from VACRO spoke to Ms Bourne about release of the school report and that this is confirmed by Glenn's letter on the school file dated 28 November 2016. For a period of time prior to Glenn speaking with Ms Bourne, efforts had been made by Glenn to make contact with ICC to arrange for an access visit for YWK with CZZ, but no return contact was ever made to Glenn by ICC.

44 CZZ maintained that Ms Bourne accepted without question what he regarded to be hearsay evidence of ICC and her alleged fear of him. He also maintained that Ms Bourne locked YWK in the library and taught her to fear him because basically all males are violent. He regarded Ms Bourne's actions as being based on this stereotyping of a male as opposed to a female. He also noted that there was no possibility of him visiting YWK at school because he was in remand a long distance away. He also believed that Ms Bourne had provided a copy of his December 2016 letter to ICC's family law solicitor.

45 He regarded the issue of uncertainty over the family law orders as having been fictitiously created by Mr Fitzgerald and DET as the reason for not providing him with the requested school reports and information about YWK, to attempt to conceal the discriminatory actions of Ms Bourne.

46 CZZ also disputed the position taken by Ms Bourne because he maintained that she and Ms Dorman would have looked at YWK's school file in August 2016 and they had no concerns about the court orders on the school file then. He was also of the view that the letter headed "To whom it may concern" and dated 25 November 2016 from Ms Bourne was written and sent by her in accordance with instructions she received from the family lawyers acting for ICC.

47 CZZ agreed with general propositions put to him by Ms Grinberg of Counsel that Principals and teachers are required to act in the best interests of the child and the child's safety is paramount. He disagreed, however, with Ms Grinberg's proposition that he did not receive any response or reports from Ms Bourne as the court orders on YWK's school file appeared to remove his parental responsibility.

48 When he wrote the Parent Complaint Form, CZZ was not certain, but suspected, that ICC had spoken to Ms Bourne about her own and YWK's alleged fears of him and this had led to her 'siding' with ICC and providing a copy of his letter to ICC's family law solicitor which was consistent with what Glenn of VACRO had said in his letter. He also had suspected that he was the victim of a targeted attack because he believed that ICC had been told by the informant in the summary offences' case that he was a child molester and that ICC had in turn told Ms Bourne. However, until he received a copy of Ms Bourne's statement, he did not actually know, despite his suspicions, that Ms Bourne maintained that she had met with ICC and YWK and they had communicated their concerns to her about him.

49 He was not certain when the school received copies of the family law orders as although he knew of the 2015 order, he was not in attendance when the court order was made in February 2016 as he was incarcerated. Additionally, he did not have legal representation at that second hearing and he was never made aware of its outcome. When Ms Grinberg put to him that the 2016 order made reference to a lawyer appearing for him, he denied that the lawyer had been instructed by him. Rather, he believed that the lawyer named in the court order as appearing for him, had only attended as a courtesy to inform the Court that she was no longer acting for him although she remained on the Court record. He stated that his legal representation ceased when he was incarcerated.

50 CZZ was eventually released on bail on 13 September 2017. An IVO was put in place after that and lapsed on 7 December 2019. However, the IVO was definitely not in existence when he requested YWK's school report in December 2016.

51 Mr Sproal did not recall any background discussion with Mr Ticchi about CZZ's matter. He needed to show Mr Ticchi a letter that he had drafted to see if Mr Ticchi was happy to sign it. He never spoke to ICC. He had one or two telephone calls from Ms Bourne. He spoke to Mr Fitzgerald and to the Legal Department of DET.

52 Ms Bourne confirmed that her statement made 13 May 2020 was true and correct. She has not had any contact with any lawyers acting for ICC and she did not lock YWK in the library. The options that she had proposed for YWK was to attend the library or to shadow an outdoor or duty teacher or to read a book in her office. The library was open for her to go there if she wished, and it was never locked and she could have left at any time. There would always have been a duty teacher and other children in the library when it was open.

53 She commenced working at the school in mid-July 2016. She has no memory of any letters from CZZ to the school in July or August 2016 seeking YWK's semester 1 2016 report or information about whether she would be dux. She does not remember saying anything to a person who rang from the prison or a person assisting CZZ to the effect that CZZ should wait to hear from lawyers.

54 She does not believe all males are violent. She also believes that males are to be trusted.

55 Ms Bourne commenced as Acting Principal at the school at the beginning of term 3 which she believed was around mid-July 2016. She opened letters addressed to the Principal or to her by name but she did not open letters or emails addressed to the previous Principal which she believed would have been held in the office with staff who knew the previous Principal.

56 CZZ put to her that there was such a letter to her (the Principal) on the school file (sent in August 2016). In response, Ms Bourne stated that she did not recall seeing such a letter. CZZ then put to her that there was an envelope addressed to her by name and as Principal, but the letter inside it was addressed by name to the previous Principal. Ms Bourne, while querying this and why it would have been the case, assumed that she would have opened the envelope but if, when looking at the letter, she saw it was addressed to the previous Principal by name, then she probably would not have read it or read it quickly and probably handed it to the office staff who did know the previous Principal.

57 She maintained that the first time she received a letter from CZZ was one to two weeks before the school year finished in 2016. She does not recall the contents but remembers that CZZ requested a copy of YWK's school report and she also believed that CZZ asked for any information on whether YWK would be dux of the school, but, at that stage, she was not sure it had been announced.

58 To the proposition that in saying this, she could have been referring to a letter received on 21 August 2016 in which that same information was sought, she doubts it seriously because she does not understand why someone would be asking about a dux student in August of a school year.

59 She can remember that the letter she recalls having received from CZZ was not straight-forward but she does not remember the actual comments made in the letter about ICC. She would not want to say that it was threatening as it was four years ago and she cannot remember the finer details.

60 However, she does remember that it was a very long letter and it was not just a letter simply asking for YWK's school report or whether she would be a dux. There was other information in that letter but she does not recall it and she does not have a copy. She believed that it would have been in YWK's school file but when CZZ indicated to her that that was not the case, Ms Bourne could not say why the letter would not have been in YWK's school file. She no longer works at the school and does not have access to it, but she maintains that the letter would have been put in YWK's school file.

61 Before her decision not to provide the school report to CZZ, Ms Bourne would have looked through YWK's school file and read any notes and made enquiries of school staff who may have known what was going on with the particular situation because she was new to the school. If she had been by then at the school for two years, she would have had a better idea of the situation.

62 When she looked at YWK's school file, she did not find letters dated 21 August 2016 or 30 August 2016 from CZZ addressed to the school. The documents she remembers finding in the school file, although she acknowledges there were other documents, were the family law orders. The other documents did not have an impact on her decision whether to send CZZ the school report.

63 She recalls reading the court orders including the part which said that parental rights in relation to CZZ had been suspended. However, as it was an interim order, she thought that there would be a subsequent order. She agrees that it is the right of every parent to receive information about their child's achievements but what is in that child's school file does have a bearing on that right.

64 Ms Bourne acknowledged that there was no information on YWK's school file about any issues of abuse. If she had seen any information of this nature, she would have contacted the police.

65 Ms Bourne did not respond to CZZ's letter as it was received at the end of the school year which was an extremely busy time. She did not know CZZ, nor had she ever met him. CZZ did not ring her or contact her and she had to obtain more information for herself.

66 She could not remember the exact date when ICC met with her. ICC told her that both her and YWK were fearful of CZZ. It was a very quick conversation held in the afternoon. ICC was worried about CZZ being around her or YWK, but she did not otherwise say anything unpleasant about CZZ.

67 Ms Bourne further stated that when a mother comes to her saying that she and her daughter are scared that the father may be back in town and the daughter did not want to be in the playground because she was scared, it was important for her to take ICC's concerns seriously. When Ms Bourne repeated the alternative options available to YWK, YWK was happy with them and to consider them. Ms Bourne also took the actions she did because of the comments made in CZZ's letter about ICC. She gave a copy of his letter to ICC because there was some derogatory material in there about ICC and it was quite a threatening letter which she described as 'passive aggressive'.

68 Although Ms Bourne does not remember exactly what was in CZZ's letter, it made her worried enough to give ICC a copy. She did agree, however, that there was nothing she had been made aware of in relation to CZZ about any form of abuse or any other possible concerns that she had heard mention of during the proceeding thus far.

69 She did not know that CZZ was incarcerated at the time. The situation was a mother and child coming to her because they were scared of somebody. It could have been their uncle, aunt, grandmother or anybody. It did not make any difference to Ms Bourne that it was a man, it was just that they were scared. All Ms Bourne did was to allow YWK to feel safe and to be inside the school buildings. Ms Bourne did not 'take the side' of ICC. She 'took the side' of YWK who was scared.

70 Ms Bourne does not remember any person by the name of 'Glenn' nor does she remember receiving a phone call from VACRO. She can only remember one conversation with a male whom she thought, to the best of her recollection, was a chaplain or a minister asking about YWK's school reports. She sought the copied photograph of CZZ because YWK was scared and it was best practice and not discrimination to call the staff meeting, explain the situation and to hold the copied photograph up in front of the meeting to show the staff what CZZ looked like.

71 She is reasonably sure that she spoke to Ms Dorman at the time and asked her if she knew anything about the situation, but ultimately it was Ms Bourne's decision.

72 She was shown a copy of the document in YWK's school file dated 25 November 2016 headed "To whom it may concern". Ms Bourne was adamant that she had never ever seen that document. She also noted that it had no signature and she would never write anything without signing it.

73 Mr Fitzgerald confirmed that his statement made 12 May 2020 was true and correct. In relation to the notation at the top of the Parent Complaint Form indicating that it had been emailed to the Legal Department of DET for advice, he confirmed that this was part of the general process undertaken.

74 Mr Fitzgerald does not recall how he became aware of the family law orders. He did not speak with Ms Bourne about the matter as she was no longer an employee. He believes he became aware of the court orders later in January 2017. He regarded it as unclear from the court orders whether CZZ was entitled to YWK's school reports.

75 Mr Fitzgerald agreed that a parent generally has an entitlement to a child's school reports unless a court order restricts this right. It is the role of a Principal to make sure there is no court order that removes parental responsibility or rights and it is the responsibility of the parents to supply the court orders when they are asked for.

76 Mr Fitzgerald maintained that it is not the job of DET staff to enforce a court order with the parents but they have to follow the advice of the court orders in schools. If a court order says that certain things are in place, then the school has to follow the order.

77 In some of his correspondence to CZZ, Mr Fitzgerald set out a couple of possible options for CZZ to provide further information, including seeking CZZ's permission to contact ICC to ascertain whether she may have had access to court orders to which CZZ did not have access.

78 Mr Fitzgerald does not believe that he was ever of the opinion that YWK was at risk but the focus he had was to determine whether the court orders in place prevented CZZ from receiving YWK's school reports.

79 Mr Fitzgerald regarded it as possible to have a situation where there may be a court order in existence that restricts a parent's right to school reports and other school communications when, at the same time, the school or DET might not have any information that would give rise to specific welfare concerns, for instance, that there had been abuse. Having said that, to a further question from CZZ, Mr Fitzgerald acknowledged that he had not yet been confronted with such a situation.

80 Mr Ticchi confirmed that his statement dated 12 May 2020 was true and correct.

81 In relation to Mr Sproal, Mr Ticchi cannot remember what investigations he had undertaken, what he had found out, and how he had reached any conclusions. He confirmed that Mr Sproal did not have any welfare concerns for YWK, nor did he make mention of any issues such as abuse or violence.

82 In relation to background, Mr Ticchi remembered that CZZ had written requesting the school reports quite some time before he became involved but the initial view of DET was that given the uncertainty in the court orders, it was prudent to seek further information, that Mr Fitzgerald had sought it, but there was none forthcoming from either the school, CZZ or anyone else. Basically, given the passage of time, and the fact that the court orders did not categorically rule out CZZ's right to the school reports, the decision was made that DET could provide them to CZZ.

83 CZZ then put the proposition to Mr Ticchi that if the court orders did not rule out his right to YWK's school reports in 2018, why was it not decided in 2016 that they also did not rule out his right to YWK's school reports. In response, Mr Ticchi clarified that the consistent view held was that the court orders were unclear and clarity was being, and needed to be, sought because if DET had provided the school report in the first instance and then found out later that it should not have provided the school report, it could not then recover it. There was therefore a need to be cautious and to seek further information. In the absence of any further information, and there being no objections that DET was then aware of to CZZ receiving YWK's school reports, Mr Ticchi was happy to provide them.

84 Ms Dorman confirmed that her witness statement made 3 September 2020 is true and correct.

85 At the school, each of the Principal, Ms Dorman and the Business Manager have access to a student's school file.

86 On one occasion, ICC mentioned to Ms Dorman that she feared for her safety and YWK's safety. In response, Ms Dorman passed her onto the Principal.

87 Ms Dorman has only copied YWK's school file and never read it, so she is not aware of its full contents. She confirmed that Ms Bourne started as Acting Principal in July 2016. She recalled a letter being received from CZZ around that time requesting a school report and whether YWK would be dux and that the letter referred to a couple of other matters.

88 CZZ referred Ms Dorman to a copy of his handwritten letter dated 30 August 2016 and she confirmed that the initials at the foot of the letter were hers and that she had arranged for the semester 1 2016 report to be sent to him.

89 Mr Dorman stated that Ms Bourne would have directed her to send the school report. She also stated that she had nothing to do with court orders and only acted in connection with them according to instructions from a Principal. She does not remember seeing a letter from CZZ sent around December 2016. She may have been away sick from work on the occasional day in December 2016 but not for any extended period. She also does not recall having spoken to Ms Bourne in around December about any letter from CZZ. She agrees that there were court orders on YWK's school file but she does not know when she first noticed them and she does not know how they were received by the school or from whom.

90 In relation to the letter dated 25 November 2016 headed "To whom it may concern", and bearing Ms Bourne's typed name, Ms Dorman confirmed that she had seen the letter on YWK's school file, but she does not know of any background to it or who typed it or why or how it was on the school file.

91 Ms Bourne never disclosed why she did not send YWK's school report. It was not because of the family law orders. After the Legal Department of the DET reviewed CZZ's Parent Complaint Form, it was decided by DET that the court orders were the reason and Ms Bourne was instructed by DET accordingly.

92 There is no corroborating evidence of a meeting at school between Ms Bourne and ICC and YWK. There is corroborating evidence that Ms Bourne spoke with VACRO and more probably handed CZZ's late November/December 2016 letter to ICC's solicitors rather than to ICC.

93 The giving of CZZ's letter to either ICC or to her solicitors by Ms Bourne is against DET regulations, which has been admitted by Mr Fitzgerald and is highly prejudicial to, and biased against, CZZ.

94 As Ms Bourne has never met CZZ, she only knows that he is the father of YWK, that he is a male, that he wished a copy of YWK's school report, and that he has been imprisoned for a period of time.

95 The fact of him having been imprisoned made a definite impression on Ms Bourne and this is the reason behind her refusing to provide YWK's school report and is her justification for not so doing. It is an attempt by Ms Bourne to imply that because of his imprisonment he has a lesser right to YWK's school report and that she can therefore discriminate against him. Her stereotyping of a male being in prison led to her conclusion of ICC being subjected to family violence, rather than from any meeting she had with ICC.

96 It has been corroborated that Ms Bourne knew of the August 2016 letter and that CZZ was on remand then. She also would have known that CZZ was on remand from her telephone discussion with Glenn from VACRO in November 2016.

97 In relation to indirect discrimination, CZZ was clearly disadvantaged by his attribute of being a parent or a male and it was not reasonable for Ms Bourne to take the position she did.

98 Ms Bourne's only 'explanation' for not providing the requested school report is the family law orders and this cannot be true as she sent YWK's semester 1 2016 report to CZZ after seeing the court orders in August 2016 when she had then reviewed YWK's school file.

99 The Education and Training Act 2006 (sic) provides that CZZ is entitled to a copy of YWK's school report and therefore he should have been provided it.

100 In cross-examination, Mr Fitzgerald referred to the DET's Requests for Information about Students policy. The policy states:

Parents, guardians and informal carers are generally entitled to school reports and other school communications ordinarily provided to parents, unless a court order restricts this right.

The wording about the court order is very clear and is not applicable in a situation of 'uncertainty.' The court order must restrict this right. CZZ then notes the use of the word 'generally' in the policy wording. This refers to a situation where there are welfare concerns. Under cross-examination, Mr Fitzgerald had admitted there were no welfare issues.

101 Even if Ms Bourne met with ICC, Ms Bourne accepted ICC's version without question or investigation. She displayed bias based on sex and immediately 'sided' with ICC without evidence, but refused CZZ's legitimate request because of uncertainty. In so doing, she applied two vastly different standards of proof to each parent.

102 Without proof or requirement, Ms Bourne locked YWK in the school library and taught her to fear her father. She told YWK this action was to protect YWK from CZZ. This was stereotyping of sex and direct discrimination.

103 When DET actually spoke with Ms Bourne in early 2017, it found out what she had done and resorted to the court orders excuse and directed Ms Bourne to state that she refused CZZ the school reports because of uncertainty in the court orders.

104 CZZ is legally entitled to YWK's school reports. He does not have to prove his entitlement. Rather, DET and Mr Fitzgerald have to prove he is not so entitled.

105 Contrary to Mr Fitzgerald's statement that Principals and school staff are not responsible for interpreting and/or enforcing parenting orders, what Ms Bourne did was exactly that.

106 Mr Sproal's sole objective was to cover for Ms Bourne. He did not contact either ICC or CZZ, as the parents of YWK.

107 Ms Bourne's evidence about her knowledge of, and actions about, CZZ's July/August 2016 letters is directly contradicted by Ms Dorman's evidence.

108 There is no reason why Glenn from VACRO would falsely write that he spoke with Ms Bourne in relation to assisting CZZ and that she informed him that he would be hearing from lawyers. His letter was contemporaneous to the conversation. Ms Bourne did not want to admit the truth of this and feigned memory loss in her evidence.

109 It is not possible to accept Ms Bourne's evidence that she cannot remember any of the threatening or derogatory comments she has asserted were made by CZZ about ICC in CZZ's letter, in circumstances in which they were of such importance that she regarded it as necessary to hand a copy of the letter to ICC.

110 Mr Fitzgerald, in terms of indirect discrimination, needs to prove that his action was reasonable when demanding that CZZ provide an update family law order, in circumstances where there was no uncertainty in the court orders on YWK's school file.

111 Mr Fitzgerald discriminated against CZZ because he supported, covered up, and continued to act on, Ms Bourne's discrimination. He reinforced it. As an Area Manager, he was obligated to rectify the discrimination but instead he deliberately chose to ensure it continued.

112 It is incomprehensible that Ms Bourne, as Principal, would not keep a record of a meeting with ICC.

114 There can be no doubt that Ms Bourne saw, read, and acted upon CZZ's request for YWK's school report in accordance with his August 2016 letter. Despite there being family law orders, she directed Ms Dorman to send YWK's school report to CZZ. Accordingly, the family law orders cannot be the reason for refusing to send YWK's school report to CZZ in December 2016.

DET, Ms Bourne, Mr Fitzgerald, and Mr Ticchi (the respondents)

115 The respondents did not discriminate against CZZ and their actions were based on the need for the school and DET to ensure that requests for information about students are dealt with appropriately.

116 In his closing submissions, CZZ appears to have relinquished his claim against Mr Ticchi. The attributes he identifies in his closing submissions are that he is male, a father, and on remand. He also refers to his marital status, parental status, and sex.

117 CZZ has alleged that the discrimination occurred in the area of education. Part 4 of the EO Act sets out areas of activity in which discrimination is prohibited. Division 3 of Part 4 relates to education. The situation that CZZ alleges, does not fall within any of the situations covered by Division 3 of Part 4 of the EO Act as he was not a student of the school.

118 I may wish to consider whether CZZ's application could be considered in relation to the provision of goods and services, set out in Division 4 of Part 4 of the EO Act, despite this not having been put by CZZ. In relation to discrimination in the provision of goods and services, Section 44 of the EO Act states:

(1) A person must not discriminate against another person -

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

(b) in the terms on which goods or services are provided to the other person; or

(c) by subjecting the other person to any other detriment in connection with the provision of goods or services to him or her.

(2) Subsection (1) applies whether or not the goods or services are provided for payment.

119 CZZ has not advanced any argument to support a contention that he has been the recipient of goods and services provided by any of the respondents. The respondents do not, in any event, concede that he has been such a recipient.

120 It is clear from the evidence that the respondents did not discriminate against CZZ.

121 Being on remand or in custody is not a protected attribute under the EO Act.

122 Ms Bourne's evidence was clear that the reason she did not provide YWK's school report to CZZ was due to family law orders on YWK's school file that appeared to suspend CZZ's parental responsibility and she considered further information was required.

123 Ms Bourne also gave evidence that, shortly after receiving the December 2016 letter, she received the visit from ICC who told her that ICC and YWK were fearful of CZZ returning to the town and YWK was concerned about being in the school grounds during lunchtime and recess. Due to ICC's concerns and the contents of CZZ's December 2016 letter, Ms Bourne considered it was appropriate to provide a copy of the letter to ICC. She also gave an option to YWK to spend time in the library during breaks, and she informed staff of the situation.

124 Ms Bourne remained steadfast in her evidence, including under cross-examination. She was a credible witness who was frank about the extent of her memory of events which occurred some years previously at a busy time at the end of the school year.

125 Despite CZZ's suggestion that Ms Bourne did not meet with ICC, as a credible witness her evidence on this issue should be accepted. Some corroboration was provided by Ms Dorman that ICC had expressed safety concerns to her and Ms Dorman had referred her to the Principal.

126 The VACRO letter dated 28 November 2016 from Glenn should not be given any weight by me as he did not give evidence about it or its contents. Further, CZZ has not provided any evidence that if Ms Bourne did give his December 2016 letter to ICC's solicitors, which is denied, that she did so for a discriminatory reason.

127 Differences in recollection of some events between the evidence of Ms Dorman and of Ms Bourne are understandable given the effluxion of time and that it relates to the running of a school. Ms Dorman could not recall when the family law orders were put on YWK's school file and her memory of providing a school report of YWK to CZZ earlier in 2016 does not establish discrimination by any of the respondents in the response to the December 2016 letter. CZZ's assertion that Ms Bourne was aware of the family law orders in August 2016 but still instructed Ms Dorman to provide the school report to CZZ is not supported by the evidence before me.

128 I also do not have any evidence before me that Ms Bourne's actions were for an inappropriate or discriminatory reason, and her awareness that CZZ is a male and a father does not establish discrimination against him due to those attributes, simply because of such knowledge.

129 In relation to indirect discrimination, although CZZ addressed it to some degree in closing submissions, he did not identify a requirement, condition, or practice that had the effect of disadvantaging him because of an attribute.

130 Ms Bourne gave evidence of a practice that she had as a teacher and Principal, to never simply provide information about a student without first confirming who is able to access such information and that this included checking the student's school file. This practice was reasonable and in line with DET policies. Mr Fitzgerald's evidence was that it was reasonable for Ms Bourne not to provide YWK's school report in the first instance. Mr Ticchi gave evidence that whenever a request for information about a student is received, the school and DET need to make sure that the person is entitled to receive the information. There is also no evidence that this practice disadvantaged CZZ because he is a man, because of his marital status, or due to his parental status.

131 CZZ alleges that Mr Fitzgerald discriminated against him because Mr Fitzgerald supported, covered up, and continued to act on, Ms Bourne's discrimination, and that he was obligated to rectify the discrimination but instead deliberately chose to ensure it continued.

132 Mr Fitzgerald became involved in early 2017 when CZZ's formal complaint was referred to him and he then had written correspondence with CZZ over a period of time. He gave evidence that the reason he initially did not provide YWK's school reports to CZZ was because of the two court orders creating uncertainty about CZZ's parental responsibility. At the hearing, Mr Fitzgerald gave clear evidence of the relevance of DET policy to the approach to be taken when requests are made for information about students. Mr Fitzgerald was a credible witness whose evidence should be accepted.

133 CZZ's urging for me to reject that evidence and instead find that Mr Fitzgerald was told by DET to cover for Ms Bourne's actions, focus on the family law orders, and divert attention from her actions, is not based on any evidence or inferences that could fairly be drawn from the evidence and is speculation by CZZ. In any event, CZZ's theory of a cover up in an attempt to divert attention from Ms Bourne's actions does not establish discrimination as defined under the EO Act.

134 As to CZZ's allegations that Mr Fitzgerald authorised or assisted Ms Bourne's discrimination, it is initially submitted that her actions do not constitute discrimination. Further, CZZ's allegations do not fall within the concept of authorising or assisting discrimination under the EO Act.

135 By the time Mr Fitzgerald became aware of CZZ's request and subsequent complaint, Ms Bourne had left the school, was no longer employed by DET, and no longer had access to school reports or information about YWK held by the school. As such, CZZ's assertion that Mr Fitzgerald and Mr Ticchi 'took over' the discrimination commenced by Ms Bourne and 'reinforced' it after her alleged discrimination had ceased, does not amount to authorising or assisting discrimination under the EO Act.

136 Any claim by CZZ that Mr Fitzgerald's actions amount to indirect discrimination against CZZ should be dismissed for the same reasons that such a claim against Ms Bourne should fail.

137 The evidence establishes that Mr Ticchi did not discriminate against CZZ. He had only minor involvement and he provided the requested school report to CZZ. The same submissions are made by the respondents about Mr Ticchi as have been made about Mr Fitzgerald in relation to any allegations against Mr Ticchi that he authorised or assisted Ms Bourne's discrimination. The same submissions about Mr Ticchi, as made about Ms Bourne, are also made in support of the dismissal of any allegations against him for indirect discrimination.

138 DET accepts that it is vicariously liable for its employees' actions, but it contends that none of the respondents discriminated against CZZ.

139 If not already formally relinquished or abandoned by CZZ, any claim for failure to make reasonable adjustments and victimisation should be dismissed. CZZ has not claimed to have a disability that requires any of the respondents to make reasonable adjustments. There is no evidence before me that any conduct that could constitute 'discrimination' as defined by the EO Act has occurred.

140 Much of CZZ's claim consists of speculation which is, at some points, quite divorced from reality.

141 CZZ's suggestion that the school should not act on a child's fears, or on an indication in court orders that a parent's parental responsibility has been removed, without further 'proof', should be rejected. In the face of uncertainty, it is appropriate for Ms Bourne and DET to be cautious and to prioritise the privacy and safety of students. It was appropriate for Ms Bourne to ensure that YWK felt safe and to address and respond to her fears or concerns, proven or not, about being in the playground during break times.

142 Ms Bourne never recorded any reason why she did not provide the school report to CZZ and this indicates that the reason she did not do so was inappropriate.

143 Her discrimination can only be assessed by her actions and what she knew about CZZ at the time.

144 Ms Bourne could not recall any derogatory comments by CZZ about ICC in the December 2016 letter because there were none. It is alleged CZZ made derogatory comments about ICC, but telling the truth does not constitute a derogatory comment. ICC gave false evidence against CZZ in a statutory declaration and in an earlier hearing separate to this proceeding. CZZ had also established a Family Trust, and a real estate property was an asset of the Trust for the future benefit of YWK. Despite this, ICC attempted to obtain the property for herself but it had to ultimately be sold to cover ICC's legal costs.

145 Mr Fitzgerald and DET did not speak with Ms Bourne but they both claimed to know the reason for her refusal to provide YWK's school report to CZZ.

146 In these reasons, I have provided a detailed background to this proceeding and CZZ's application.

147 CZZ has expressed concern about, and significant criticism of, his 'treatment' by each of the respondents, both individually and as a group. However, while he is left with feelings of injustice, this is not what invokes the jurisdiction of the Tribunal.

148 For CZZ to succeed, he must bring himself within the 'discrete' statutory framework of the EO Act.

149 It is not in dispute that CZZ has the attributes of sex (he is a male), of marital status (he was married to ICC), and of parental status (he is the father of YWK). Despite CZZ's comments in his reply submissions, the fact of CZZ being on remand, in custody or in prison is not an attribute.

150 Although CZZ, in his application, has made a number of claims and all of which are considered in my findings, the focus is whether Ms Bourne directly discriminated against CZZ by failing to provide YWK's school report and any other requested information to CZZ as sought by him in his letter to the school in December 2016.

151 There have been inconsistencies between parties in their evidence about events, with particular reference to Ms Dorman and Ms Bourne. Ms Bourne, in her oral evidence, while confirming her witness statement, did subsequently vary occasionally in her accounts relating to some matters when compared with her statement. However, these variations were not fundamental or decisive. I regarded her as a credible witness who was rather aptly described in the respondents' closing submissions as having been 'steadfast' in giving her evidence. I did not accept CZZ's strong criticisms of Ms Bourne, either in relation to her allegedly unlawful discrimination or her giving of evidence.

152 Ms Bourne did make concessions in her evidence, including that there were issues with her recall of certain matters. However, I find this to be understandable given her very short period of tenure at the school, and her statement and evidence having been given between three and a half and four years after the events.

153 I cannot understand the basis of CZZ's scathing and inappropriate criticism of Mr Sproal's brief evidence. Mr Ticchi's evidence was credible, concise, and to the point, which accords with his actual involvement in events, the subject of CZZ's claims. There is simply no basis, given Mr Ticchi's conduct and minimal involvement, to find any liability on his part arising from any aspect of the EO Act.

154 I also found both Mr Fitzgerald and Ms Dorman to be credible witnesses, with each of them prepared to make concessions, as and when appropriate.

155 CZZ's evidence was replete with speculation. As such, what 'might have been' does not discharge his burden of proof to comfortably satisfy me on the balance of probabilities that he has made out each essential element of his claims under the EO Act. Additionally, CZZ's closing submissions were, to an appreciable extent, either not based on any evidence or contrasted with substantive evidence. They exemplified CZZ's focus on what he regarded as inconsistencies of the respondents and trying to build a case on these matters, rather than leading evidence of substance relating to the EO Act.

156 Importantly, there was no evidence about how or when either or both of the family law orders were placed on YWK's school file. This has particular relevance to the 2016 interim order of which CZZ claimed to have had no knowledge for some time after it was made. I cannot be satisfied on the evidence that both court orders were on YWK's school file in August 2016.

157 CZZ urged that adverse inferences be drawn by me against Ms Bourne from the VACRO letter of 28 November 2016 and from the unsigned letter headed 'To Whom it May Concern' dated 25 November 2016 and purportedly typed by, or for, Ms Bourne, on paper without letterhead. However, 'Glenn' did not give evidence about the authenticity and accuracy of the VACRO letter and its contents. Indeed, its date does not align with the preponderance of CZZ's evidence about his December 2016 letter. I accepted both Ms Dorman's and Ms Bourne's evidence that they did not have any knowledge of how the purported correspondence of 25 November 2016 came into existence or the reason for it. It was entirely unclear how either letter came to be on YWK's school file or why. I do not place any weight on either letter.

158 Having accepted Ms Bourne as a credible witness, I also accept that she did meet with ICC and YWK in December 2016 at the school. Relevantly, CZZ's submission that the meeting did not occur is contrary to how he approached and undertook cross-examination of Ms Bourne at the hearing.

159 I find, on the preponderance of evidence, that Ms Bourne did not discriminate against CZZ in not responding to his December 2016 letter. There is no direct evidence, nor can there be any inferences reasonably drawn by me, that her conduct and actions were due to treating CZZ unfavourably because of any attribute in section 6 of the EO Act, with particular reference to sex, parental status, or marital status.

160 Given the wording of the 2016 interim order, I also find on the preponderance of evidence that Ms Bourne did have genuine concerns, which were justifiable and reasonably based, that CZZ's parental responsibility had been removed and that, in the first instance, pending any further information that might be available, a cautious approach, as adopted, was warranted until that issue was clarified. This situation of concern was not unreasonably then exacerbated by the visit of ICC to the school and the apparent safety concerns of both her and YWK. I also accept on the preponderance of evidence that Ms Bourne did not have sufficient knowledge at that stage about whether an imminent visit to the town could have been made by CZZ.

161 I also accept that as CZZ was not a student at the school, he could not come within the provisions of section 38 of the EO Act relating to discrimination by educational authorities or of section 44 relating to discrimination in the provision of goods and services. In this regard, the respondents have also relied on the decision in Tarpey v State of Victoria - Department of Education and Early Childhood Development & Ors.[2] It relates to the Equal Opportunity Act 1995 (Vic) but its wording of the corresponding sections was the same as in the EO Act. Although the decision is not binding, I find its relevant reasoning to be persuasive.

162 I cannot find any discrimination by Mr Fitzgerald. I agree with the respondents' submissions that the bases of CZZ's allegations in this regard are speculation, unsupported on the evidence, and, even if proven, do not constitute discrimination under the EO Act.

163 Any allegations of indirect discrimination made by CZZ against Ms Bourne, Mr Fitzgerald, or Mr Ticchi were not sufficiently or fully particularised. Having said that, any practices, conditions, or requirements that could be contemplated as having been imposed were reasonable and CZZ, on the evidence, was not disadvantaged because he is a man, because of his marital status, or due to his parental status.

164 Given my findings about there having been no discrimination by Ms Bourne, allegations against Mr Fitzgerald and Mr Ticchi of authorising or assisting discrimination fall away. In any event, I accept the respondents' submissions that the allegations of CZZ on this issue do not come within the concept as defined under the EO Act.

165 I also accept the respondents' submissions, for the reasons given in closing submissions, that any claims for failure to make reasonable adjustments or victimisation must fail and they are also dismissed.

[1] Briginshaw v Briginshaw (1938) 60 CLR 336, 362.

[2] (Anti-Discrimination) [2009] VCAT 410 [18].