Opinion had value though discrimination practitioner, not family lawyer, would have been preferable
Upon considering an independent lawyer’s opinion and other evidence in proceedings alleging disability discrimination against the Department of Education, the Australian Federal Court found that a settlement agreement would serve the best interests of a 12-year-old person under legal incapacity.
Born on 11 October 2013, the applicant in Boyd v State of New South Wales (Department of Education) [2026] FCA 1190, was legally incapacitated.
Her conditions or disabilities – disputed by the department – included autism spectrum disorder, developmental delay, language impairment, and attention-deficit/hyperactivity disorder (ADHD).
As the applicant’s litigation representative, her mother initiated a proceeding alleging discrimination and contraventions of the Disability Discrimination Act 1992 (Cth) and the Disability Standards for Education 2005 against the State of New South Wales, as represented by the department.
According to the proceeding, while the applicant was a student at a department-operated public primary school between 2020 and 2023, the department:
The proceeding sought declaratory relief and damages. The department denied the disability discrimination claims.
By an interlocutory application filed on 3 June 2026, the applicant’s mother applied for the approval of an agreement to resolve the dispute through a deed of settlement and release dated 20 May 2026.
To support the interlocutory application, the applicant’s mother filed an affidavit, affirmed on 3 June 2026 and annexing an independent lawyer’s written opinion dated 1 June 2026.
According to the solicitor, a law firm principal whose practice focused on the family law jurisdiction, she applied her knowledge of the best interests of a child under s 60CC of the Family Law Act 1975 (Cth).
The Federal Court of Australia ruled that approving the proposed settlement agreement would benefit the applicant and serve her best interests. In making this decision, the court considered:
The Federal Court acknowledged that it would have preferred a more comprehensive legal opinion by a lawyer practising discrimination law. The court also accepted that the independent legal opinion did not address the prospects of the application’s success or the litigation’s uncertainties.
However, the court held that the benefits and risks raised by the independent lawyer and her observations regarding the settlement agreement’s appropriateness were relevant to the court’s determination.
The court added that requiring another lawyer to provide an opinion would be unduly wasteful and expensive, given the direct relevance of the costs of continued litigation to the mother’s decision to resolve the dispute.
Here are some other news stories revolving around disability.
In August 2025, the federal government announced the release of an issues paper seeking submissions on planned reforms to the Disability Discrimination Act and ways to clarify and enhance protections for people with disability.
Guidelines released by the Australian Human Rights Commission in April 2025 sought to help businesses and organisations offering digital products and services comply with their accessibility obligations under the Disability Discrimination Act.
In March 2025, Australia’s disability and age discrimination commissioners claimed that the NSW and WA governments’ refusal to adopt the minimum national accessibility standards in the National Construction Code for new homes led to issues for older people and people with disability.
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