Battered by the system
The Weekend Australian - Focus 3-4 June 2000
Nobody believed 'Frank' when he tried to protect his son from
bureaucratic bungling. John Stapleton reports that, nearly 20 years
on, Frank has been proved right, even though he lost in court.
[Picture: Father and son: "Frank" and "James"]
The boy was eight weeks old when his father called welfare authorities
and pleaded with them to take his son into foster case. He alleged
that the mother was being violent towards the child, throwing him
against walls and trying to smother him. The authorities ignored him,
as they did for years to come, but the father persevered.
Twenty years, 550 days in court and tens of millions of dollars of
public funds later, the matter which has just run across the civil,
criminal and family law jurisdictions, reached its final chapter this
week.
Last year the Office of the Director of Public Prosecutions, satisfied
there was a prima-facie case, laid charges against the mother for
tying her son in a cot with a rope, striking him in the face, throwing
him against a wall and "causing him actual bodily harm", events
alleged to have occurred in 1981-82.
But earlier this week, in a judgment highly critical of earlier police
inaction, Sydney's Downing Centre Local Court issued a permanent stay
on proceedings, primarily due to the time that has elapsed since the
alleged offences occurred.
Magistrate Hugh Dillon said the disappearance of police records raised
the suspicion of a cover-up. But he said the "appalling" treatment the
Police Service meted out to the father did not detract from the issue
of the mother facing a possible abuse of process because of the
20-year delay.
One of the sad ironies of the case is that, although the father does
not see it this way, in many of his claims of judicial, police and
political inaction as well as inappropriate behaviour by the NSW
Department of Community Services have been vindicated in a series of
court judgments. But nobody has been found guilty, no compensation has
been paid.
End of the road
The following are excerpts from this week's
judgment in the Local Court of NSW by
magistrate Hugh Dillon, who granted a
permanent stay on the case against the m
other of "James", which alleged she
bashed and tied up her son in 1981-82. The
real names of those involved in the case have
been suppressed by the court.
"There is no explanation before the court as
to why or how the investigation stopped once
the father had set it in train. No one has ever
explained to the father what happened during
the investigation or what decisions, if any,
were made by those originally in charge of it.
the fact that police records, which would,
presumably, explain these things, have
disappeared raises a suspicion that police
officers have been involved in covering up
their own negligence or the negligence of
colleagues. Beyond this, we can merely
speculate.
"I feel considerable sympathy for the father
... it is appalling that it has taken him almost
20 years to get the Police Service to take
action on evidence [that] it has had for most
of that time.
"A reasonable and right-minded person
might have his or her confidence in the justice
system undermined because the
father has been treated so badly.
"Yet is it now just ... to continue the
proceedings because the father was unjustly
or unreasonably treated ... for many years?
This is ... one of those rare or exceptional
cases where the delay in proceedings has
been so excessive that the proceedings constitute
an abuse of process.
"These proceedings are permanently stayed."
The long history of the case means it offers a time-tunnel view of the
behaviour of bureaucracies in the face of an outraged and persistent
litigant. Its resolution comes as sex and family issues are attracting
worldwide media attention, with focus on the high suicide rates of
separated men and the behaviour of family courts, child protection
authorities and court-appointed psychiatrists.
An expert on female abuse of children, Dr. Malcolm George of St
Bartholomew's Hospital in London, says it if "par for the course",
where the mother is the alleged abuser, for institutions to spend
large amounts of money defending their decisions,, based on an
ideology that "denies that women can be violent and abusive".
It was nine years ago that The Weekend Australian broke the story of
"James" and his father "Frank" on its front page, illustrating one of
the most under-reported and under discussed crimes in Australia today:
physical and sexual abuse of children by women.
[Illustration: A copy of the Weekend Australian April 6 1991 story
"Why it took years for Frank to save his son".]
Although Australian and international research clearly indicates that
children are most at risk from their mother, followed by their step
father and live-in boyfriends, almost a decade on crimes of this type
remain significantly under-reported and under-researched.
'I get flashbacks: a
smell, an idea can
trigger them'
'James'
During his early years, Frank - the family's real names have been
suppressed by the courts - made hundred of calls and applications to
police, welfare organisations, the NSW Department of Community
Services, parliamentarians and the Family Court. But it was not until
1984, when the child was four years old, that at least some members of
the department appear to have begun taking the accusations seriously.
A report by an independent clinical psychologist gave a graphic
account of James attempting to have oral sex with her - behaviour
considered to have been acquired from a woman. A departmental
psychologist and a child protection worker then interviewed the mother
and the child. They concluded that James was an "emotionally deprived
little boy who has been sexually abused and has been exposed to adult
sexual behaviour".
For almost two years from this date, the father was prevented from
seeing his son through Family Court orders, actions by departmental
officers and recommendations by Sydney psychiatrist Dr Brent Waters,
who had been a favourite of DOCS, the Family Court and Legal Aid over
many years.
Waters recommended custody be with the mother and that the father be
denied access. The Citizens Commission on Human Rights, which
campaigned for the Chelmsford deep sleep inquiry in the 1980s, has
helped prepare a number of complaints against Waters in the past year.
Waters has declined to comment.
The journal Psychiatry, Psychology and the Law's editor-in-chief Dr
Ian Freckleton says there is a long and disappointing history of
bureaucracies responsible for the welfare of child not acknowledging
errors.
"A particular difficulty exists in relation to the independence of
advise," he says. "Welfare department often utilise services offered
by mental health professionals who interlink with the departments in a
complex of advisory, consultant and expert roles, all of which can be
well paid and career-enhancing."
Repeated attempts by Frank in the early 80s to gain custody failed. In
1986, James was bashed with a cricket bat. Frank Alleges the boy's
mother's then de facto husband was responsible. The man was never
questioned. A Children's Hospital report from the time reports
evidence of a recent severe beating "suggesting he had been held on
the face and struck". The report noted "extensive bruising ...
blue-black in colour" and records the six-year-old's long association
with the hospital for similar problems.
In desperation, the father finally gained full custody of his son by
locating the home of the then federal attorney-general Lionel Bowen.
Braving dogs, he knocked on the door. Bowen was not at home but his
wife answered the door and listened to Frank's story. James has not
seen his mother since.
The Ten network;s footage of the child when he was 11 shows a quiet,
well-mannered boy asking: "Why was it me, why was it me that got
hurt?" He said his mother "should be put in jail for life, I just hate
her".
James, now 20, is on medication and rarely leaves the house. He has
consistently maintained for several years that he remembers
psychiatrist Waters saying: "Don't tell anyone about the naughty
things mummy's doing."
"I was so young," James recalls. "The main things that come across now
- I get flashbacks: a smell, and idea can trigger them. It is more a
sense of fear. I used to dream a lot, nightmares ... about my mother.
I was extremely scared of her. I remember certain episode and events
... when her husband beat me with a cricket bat ... I felt anger, but
more than anything, no I feel pity."
The obsessive campaign for justice by Frank has touched many of
Australia's best known people and has been mentioned in parliament 14
times. Among the judges who ruled against the father was Elizabeth
Evatt, a former chief justice of the Family Court and now a member of
the UN Human Rights Committee. Justice John Ellis, now a senior Family
Court judge, also ruled against Frank.
The dozens of politicians whom the father approached - unsuccessfully
- for help include Paul Keating, Gareth Evans, Neville Wran, NSW
Minister for Women Faye Lo Po' and NSW Police Minister Paul Whelan.
DOCS officers in the early 1980s accused the father of being violent
and threatening a number of solicitors. None of these accusations was
proved.
After press coverage his local member, the then shadow minister for
industrial relations John Howard, called for an independent inquiry.
In 1992 he told parliament: "I have satisfied myself, from very
lengthy interviews with my constituent and from an exhaustive
examination of a huge file, that the complaints that he has brought to
me about the conduct of officers of the then Youth and Community
Services Commission in NSW are justified". Independent Ted Mack also
claimed welfare officers showed "prejudice and bias ... against the
father when he made efforts to protect his child".
Two decades of discord
1978: "Frank" and his wife marry in Syria, arrive in Australia.
1979: Wife is pregnant, admitted to psychiatric hospital.
1980: "Janes" is born underweight. Eight weeks later, Frank makes his
first calls to welfare officers and police.
1980-82: Frank alleges neglect and abuse by his wife, including
hitting, burning and throwing the child against a wall. Makes hundreds
of phone calls and visits to authorities.
1982: Wife moves to Marrickville Women's Refuge. Residents also allege
abuse, including the boy being tied to a cot. Alleged sexual abuse
begins.
1983: Child is living with his mother and another alleged female
perpetrator. Frank makes repeated application to what was then the
Department of Youth and Community Services, the Family court, churches
and other organisations for the child to be removed.
1984: Child protection workers and psychologists confirm sexual abuse
and neglect. The child provides detailed statement of alleged oral
sex. The department, Sydney child psychiatrist Dr Brent Waters and the
child's Legal Aid solicitor recommend the child remains with his
mother. In May, Frank refuses to return the child. Police on
instruction from Family Court return the child to his mother. Frank
does not see the child for two years.
1985: Frank constantly makes requests to authorities to remove the
child to safety; he approaches the home of the then federal
attorney-general Lionel Bowen after 68 trips to Canberra seeking help
from politicians.
1986: The child is badly bashed with cricket and becomes a ward of the state.
July: Frank gains full custody.
1991-92: The Weekend Australian breaks the story of the child abuse
bungle. John Howard calls for an inquiry.
1993: 5000 people sign a petition to parliament demanding an inquiry.
The Independent Commission Against Corruption decides not to
investigate. Frank begins proceedings in the NSW Supreme Court.
1997: The trial for damages begins in NSW Supreme Court. After three
weeks, Frank attempts to sack Alec Shand QC from the case. Instead,
Frank is removed as "tutor".
1999: Judgment absolves a string of officers from what is now the
Department of Community Services and Waters of wrongdoing, but finds
the department in breach of duty of care. The NSW Department of Public
Prosecutions charges the mother with physical abuse of the child.
2000: The NSW Supreme Court find that, though DOCS was negligent, the
link between negligence and damage to the child cannot be established,
therefore compensation is not paid.
May 30: Local Court magistrate Hugh Dillon finds the NSW Police
Service Performance in the case was "appalling", but grants permanent
stay of the case against the mother because of passage of time.
The weekend Australian concluded in the early 90s that documents
unearthed under freedom-of-information legislation showed government
officers had made false claims that the father was an arsonist.
The Ethnic Affairs Commission also expressed concerns.
During the past eight years, Frank has sought compensation via the NSW
Supreme Court. Last year, after 64 days in court and a transcript
stretching to 3000 pages and 330 exhibits, the court handed down a
judgment absolving a string of DOCS officers of bias and negligence.
'I believe every
child should be
given every right to
live without abuse
and pain'
'FRANK'
However, the court did find the department I'm "in breach of its duty
of care owed to the plaintiff" in failing to fully investigate
affidavits that alleged abuse of the child, filed by a women who had
lived at the refuge where James and his mother were staying.
The court also found the department failed to attend promptly on
notification of a child at risk to provide material and give clear
written instructions to Waters.
Psychiatric reports link the son's present problems with his early
sexual abuse. However, in a subsequent ruling last April, the NSW
Supreme Court found there was
absent an essential link in the chain of causation" between breaches
of duty of care by DOCS ann conditions now suffered by the son.
Justice Timothy Studdert was unable to conclude that due investigation
"would have led in the exercise of reasonable care to the avoidance of
... exposure to sexual abuse".
Frank believes his son needs treatment and the ruling leaves him
without vital help. His main focus now is his outrage at the way the
NSW Supreme Court dealt with the case.
He originally acted as "tutor" or guardian, for his son, the
plaintiff. Well known Sydney silk Alec Shand QC took on the case. In
the end, the father was removed from the case after allegations that
his emotional involvement went against his son's best interests.
Frank may very well not have helped his case through the years by
calling everyone who would not help him, including judges, politicians
and police, "evil, disgusting, protectors of paedophilia" and so on.
Transcripts from the Supreme Court show much legal huffing and puffing
over the man's "scurrilous" attacks.
Frank alleged in a complaint to the Legal Services Commission that
Shand, once granted legal aid "hijacked" the case. He alleges that
Shand deliberately concealed evidence from the court and failed to
cross examine witnesses. The commission found no wrongdoings on the
part of Shand.
Frank believes that the system, including the judiciary and
politicians generally, has acted to protect the interconnecting webs
of Legal Aid, DOCS and the Family Court. He says that his case is not
just a failure of the system" "I am saying the whole system is
immoral, inhuman.
"The abuse of my son was known to the authorities from when my son was
weeks old to when he was 61/2. Instead of the system protecting my son
from horror abuse, they left my son in a dangerous situation and then
proceeded to protect the people who were abusing him.
"I believe one thing" every child should be given the right to live
without abuse and pain and suffering."
Although Frank has been dismissed by members of the legal profession
as "paranoid" and "unpleasant", his is not that uncommon a view.
Whistleblowers Australia's national president Dr Jean Lennane says
DOCS, Legal Aid and the Family court "have very close connection -
incestuous you might say".
"What tends to happen is that the aggrieved party, the whistleblower
or litigant early on gets labelled as a troublemaker and mentally
unbalanced, unofficially or with the help of a hired-gun psychiatrist
or psychologist," says Lennane.
"Once that has happened, nobody in any part of the bureaucracy is
usually willing to examine the facts of the original complaint. You
find it constantly. The main point is the waste of public money.
The scars of what happened to the family in the early 80s are still
visible. James after struggling to concentrate at school, is at a
turning point, not sure where his life will lead.
His mother has remarried and has two other children.
Frank, a pensioner, is fearful that he will be hit with a cost order
for millions of dollars for his Supreme Court Action. His hope that
his case would help stop other children being abused and provide a
comfortable future for his son is in ashes.
He believes there are other fathers doing, as he did, everything they
can to protect their children and being frustrated in the process.
"There is no doubt it is still happening today," he says.
Statistical risks
Although there has been little Australian research, international
studies indicate that children are most at risk of abuse from their
mothers.
US
The US Government's 1997 report Child Maltreatment found 62.3 per cent
of perpetrators were women.
The Heritage Foundation Study, The Child Abuse Crisis, found that of
the approximately 2000 children killed each year, 55 per cent were
killed by mothers, 25.7 per cent by live-in boyfriends, 12.5 per cent
by stepfathers, and 6.8 per cent by biological fathers.
The 1995 report US National Incidence of Child Abuse and Neglect found
that where maltreatment led to death, 78 per cent of perpetrators were
female. Boys were four times more likely to be fatally abused and 24
per cent more likely to be seriously abused than girls.
UK
The book Broken Homes and Battered Children reports that the child of
a biological mother cohabiting with a man other than the natural
father is 33 times more likely to suffer serious abuse that a child
with married natural parents.
Australia
Although there is a contention over what constitutes a substantiation,
the latest statistics from the Australian Institute of Health and
Welfare, based on an amalgam of data from some states, suggests 31 per
cent of child abuse cases occur in natural families, 20 per cent in
step or blended families, 40 per cent in single-mother households and
5 per cent in single-father households.
