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.

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 teh 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".

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 6^1/2. 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.