Tc v State of New South Wales [1999] NSWSC 31 (11 February 1999)

Last Updated: 17 February 1999

NEW SOUTH WALES SUPREME COURT

CITATION: TC v State of New South Wales [1999] NSWSC 31 revised - 12/02/99

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 11844/93

HEARING DATE{S): 14/10/97-04/11/97,19/11/97, 28/11/97, 02/12/97, 09/12/97, 27/01/98-06/02/98, 13/02/98, 05/03/98, 11/03/98, 22/06/98-25/06/98, 29/06/98-17/07/98, 22/07/98, 03/08/98-12/08/98, 20/08/98-21/08/98, 06/10/98-16/10/98

JUDGDMENT DATE: 11/02/1999

PARTIES:

TC by his tutor Kris Sabatino (Plaintiff)

State of New South Wales (Defendant)

JUDGMENT OF: Studdert J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

A.B. Shand QC/R.R.I. Harper (Plaintiff)

F.S. McAlary QC/G.W. Moore (Defendant)

SOLICITORS:

Heidtman & Co (Plaintiff)

Crown Solicitor (Defendant)

CATCHWORDS:

Tort

Action in negligence

Claim by child in respect of negligence alleged against officers of YACS in failing to respond appropriately to complaints that concerned his welfare

Whether duty of care actionable in negligence, and if so whether there was any breach of such duty

ACTS CITED:

Child Welfare Act, 1939

Family Law Act, 1975

Children Act, 1989 (Eng)

Ombudsman Act

Children Services Act (Qld)

DECISION:

See para 552

JUDGMENT:

I N D E X

Paragraph Number

The cause of action outlined 11-14

TC's family history 15-28

The involvement of YACS 29-38

Sexual abuse: the evidence assessed 39-93

Was there a duty of care in YACS capable of founding a private

cause of action? 94-191

The reliability of HF and HM as witnesses 192-213

HF 193-208

HM 209-213

Complaints of ill treatment of TC and the responses by YACS 214-382

Pre February 1983 214-229

Affidavits and other material produced in February/

March 1983 230-267

Assessment by this Court of material as to alleged

physical abuse of TC 268-276

Complaints as to scratches in March and May 1983 277-297

The period from mid 1983 until May 1984 reviewed 298-317

The May 1984 notification of sexual abuse and the

response by YACS 318-382

Bias 383-474

Mr Male 385-388

Mr Finch 389-392

Mr Hanrahan 393-397

Mrs Burgess 398-412

John Banks 413-416

T. Long 417-418

Mr Langshaw 419-422

Mr Lungley 423-427

Mr Heagney 428-430

Mr Shelston 431-433

Ms Withers 434-436

Mr Callaghan 437-442

Ms Boulter 443-474

The expert evidence considered 475-504

Delay in relation to Dr Waters 505-518

The negligence alleged against the various officers of YACS 519-545

Mr Plater 520

Mr Hulbert 521

Mr Finch 522-523

Mrs Burgess 524-525

Mr Hanrahan 526

Mr Langshaw 527-530

Mr Lungley 531

Mr Callaghan 532-534

Ms Boulter 535-536

Mr Heagney and Mr Croke 537

Ms Ralston and Ms Withers 538-544

The Department 545

Conclusions 546-551

Findings and formal orders 552

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

STUDDERT J

Thursday 11 February 1999

11844/93 TC by his tutor Kris Sabatino v THE STATE OF NEW SOUTH WALES

JUDGMENT

1 HIS HONOUR : The hearing of this matter concluded on 16 October 1998, subject to counsel for the plaintiff then being permitted to present written submissions in reply. Those submissions, and they were extensive, were not received until mid December 1998. Through its solicitor the defendant then requested that judgment be deferred until the defendant considered the plaintiff's submissions and responded to them if need be. The final submissions from the defendant were not received until 29 January 1999. Inevitably therefore the delivery of this judgment has been delayed, but I express my appreciation to counsel for both parties for the assistance given to the Court in this most difficult case.

2 Throughout these proceedings the plaintiff has been referred to as "TC", his father as "HF" and his mother as "HM". I shall use those titles in the course of this judgment.

3 TC began proceedings by his tutor HF seeking damages from the State of New South Wales as first defendant, Marrickville Women's Refuge Limited as second defendant, Pamela Dahl-Helm as third defendant, Brent Waters as fourth defendant and John McCourt as fifth defendant. The hearing of the cause commenced before me on 14 October 1997. There were a number of interruptions which it is unnecessary for present purposes to address, except for those interruptions which led to the proceedings against the second, the fourth and the fifth defendants being finalised and which led to the replacement of HF as tutor.

4 On 4 November 1997 Mr Shand of Queen's Counsel, appearing for the plaintiff, sought and was granted an adjournment in order to pursue an application (for obvious reasons, before another judge of this Court) for an order for the removal of HF as tutor and for the appointment of another tutor. Sperling J made an order for the removal of HF and then the hearing of this cause was delayed to afford an opportunity for appeal against that order. Kris Sabatino was appointed as tutor for TC in place of HF, and on 23 January 1998 Simos J ordered that Mr Sabatino's appointment continue "until further order". The order of Simos J remains in force.

5 On 19 December 1997 compromises of TC's claims against the second, the fourth and the fifth defendants were approved by Master Malpass.

6 The third defendant at no stage appeared, and Mr Shand did not seek to prove a case against her. Ultimately he did not seek to assert that the evidence established a case against the third defendant. Plainly it does not, and I propose to direct the entry of judgment in her favour.

7 Thus it is that eventually the plaintiff pursued his claim by his present tutor only against the first defendant.

8 On 28 October 1997, that is at a time when the second, fourth and fifth defendants were parties to the cause, I ordered that there be a separate trial on the issue of liability. The precise orders which I made at that time were these:

"1. That the issues of liability and damages against all defendants be tried separately.

2. That to the extent that proof of loss or damage is or forms any part of the plaintiff's causes of action against any of the defendants, the question of causation of any loss or damage to the plaintiff by an alleged act or default on the part of any of the defendants be tried together with the issue of damages."

9 The orders were so expressed in anticipation that the question of causation could be dealt with conveniently with the issue of damages should fault be proved.

10 So it is that the hearing has been limited to the issue of liability and it is therefore that issue which is the subject of this judgment.

The cause of action outlined

11 The plaintiff has sued the first defendant in negligence. I shall presently address the claim closely but by way of introduction and in the broadest of terms, the cause could be said to be one in which the plaintiff has sued the defendant in respect of the acts and/or omissions of officers of the Department of Youth and Community Services (YACS). In consequence of their failure to act appropriately to protect him in his tender years, the plaintiff claims to have suffered harm, both physical and psychological. "Intentional unlawful conduct" by the first defendant has also been pleaded. Precisely what the pleader intended in such added expression of the cause of action is not immediately clear, but in the course of his final submissions Mr Shand made it plain that the plaintiff's claim was based solely in negligence. I observe at this point that Mr Shand did not contend that the plaintiff had available a statutory cause of action, although reliance was placed upon the Child Welfare Act for the purposes of the common law claim in a manner to which I shall refer later. In its final form the amended statement of claim particularised the negligence "and intentional and unlawful conduct" of the first defendant as follows:

"(a) Failure to conduct an independent, impartial, prompt and reasonable investigation of the allegations of physical abuse, sexual abuse and neglect of the Plaintiff.

(b) Failure properly to investigate the allegations made by the father.

(c) Blindly and loyally supporting the claims of the mother to custody of the Plaintiff on ideological grounds, which precluded appropriate consideration of the need for further investigations, or of the best interests of the Plaintiff, or of the need to give the Plaintiff the protection he needed from the mother, or from those to whom her custody exposed him or of the risk of injury.

(d) Embarking upon a campaign to prevent the father from successfully challenging the continuing custody of the Plaintiff by the mother, regardless of the true merits of the case or of the true needs of the Plaintiff for protection.

(e) Endeavouring to disrupt prevent and discourage continuing effective legal representation of the father in his attempts to secure custody of the Plaintiff, and in his attempts between mid 1982 and July 1986 to protect the Plaintiff from physical abuse, sexual abuse and neglect whilst in the custody of the mother.

(f) Preventing and diverting the New South Wales Police Force, by its Child Mistreatment Unit, from conducting its own investigation by incorrectly assuring that Unit that the Department had conducted its own proper and thorough investigation of the alleged facts and found the allegations by the father to be without basis, and thus causing the Police Department to neglect their duty.

(g) Preventing the full facts bearing upon the risk to the Plaintiff from being made known, whether promptly or at all, to the Family Court, the Children's Court, the Child Mistreatment Unit of the New South Wales Police Force and the Fourth Defendant, by failing to give each of those Courts, bodies or persons necessary access to the full facts which were in the possession of the Department or its servants or agents on reasonably capable of being discovered by them by the necessary investigations.

(h) Engaging in a campaign against the father with a view to discrediting and discouraging him and thereby impeding his prospects of ever securing the degree of custody and access or removing the Plaintiff into a safe environment which he sought in order to protect the Plaintiff against physical and psychological injury and diminishing his prospects of preventing the mother from continuing to have the custody of the Plaintiff."

12 Mr Shand did not rely upon the negligence as pleaded, and I shall not dwell upon the deficiencies of the statement of claim. Ultimately in the course of his final submissions Mr Shand identified the alleged acts and omissions relied upon as supporting the plaintiff's case and I shall consider the thrust of that case in due course.

13 The first defendant has denied negligence. The existence of a duty of care has been denied, and so too has the breach of any duty of care if found to exist. The defence also pleads reliance upon s 158 of the Child Welfare Act.

14 The hearing of this cause occupied sixty-four days and the evidence was very extensive. Fifteen witnesses were called in the plaintiff's case and fourteen witnesses in the defendant's case. In addition there were over 330 exhibits, consisting largely of documents produced by YACS upon discovery. The transcript of proceedings extended to well over 3000 pages. I mention these raw statistics at the outset simply to emphasise the volume of evidence that was introduced. I do not propose to refer to all the evidence in close detail; this would not be a helpful exercise, even if the task was a practicable one, which it is not. I propose now to record something of TC's background before outlining how YACS became involved in TC's life.

TC's family history

15 TC was born on 10 February 1980. His parents had married in Syria in May 1978. HM was only 15½ years old at the time of marriage and was unable to speak any English when she came with her husband HF to live in Australia. It is clear from the evidence that the marriage was troubled from the start. This was no doubt due in part to the arduous lifestyle of TC's parents. HF was industrious and worked long hours, firstly as a carpet cleaner but subsequently in the conduct of a pizza shop and two other food outlets in which HM assisted him.

16 In August 1979, that is during her pregnancy, HM was admitted to Mount St Margaret Hospital, Ryde under the care of Dr Roxanas. Dr Roxanas diagnosed HM to be suffering from a condition of manic depressive psychosis which he described in evidence as being a chemical disorder. This was a condition that could be treated effectively in the doctor's opinion, but absent appropriate medication HM's condition could fluctuate. HM discharged herself from hospital without the approval of Dr Roxanas. Later in her pregnancy HM returned to hospital, this time to Gladesville. Dr Roxanas said that he was not aware of her condition when she was discharged from that hospital and there was no later evidence of complaints or treatment attributable to that psychotic condition. However Dr Waters, in assessing HM in 1984, spoke with Dr Atreya, who had treated HM in Gladesville Hospital in 1979, and Dr Waters recorded in his report of 1 November 1984 that Dr Atreya considered HM's psychosis to have been a reaction to cultural isolation and considerable stress. Dr Atreya said that following treatment HM "returned to a level of complete sanity with no evidence of psychosis". From his point of view, Dr Waters, having assessed HM in 1984, found no evidence then of psychosis.

17 TC was born prematurely but from the time he came home from hospital there was friction between his parents, much of it surrounding the care of the child. HM left HF for the first time in November 1980 and went to a refuge at Como and on 21 November 1980 appeared in the Sutherland Court of Petty Sessions seeking and obtaining an order for the custody of TC. Following those proceedings HM and HF became reconciled but the reconciliation did not last. HM left HF finally in February 1982 and went to live at the Marrickville refuge where she remained until November 1982 at which time she obtained accommodation in a flat at Waterloo. Subsequently HM moved to The Rocks and she was living there when proceedings in the Family Court came to their conclusion in 1986.

18 Following their final separation in February 1982, HM and HF were continually engaged in litigation in the Family Court until the middle of 1986 and the course of this litigation assumes much significance by way of background in this cause. Particulars of the various applications, hearings and orders in the Family Court are to be found in Exhibit 9.

19 After the final separation and before Family Court litigation began there were proceedings in the Children's Court where HM sought custody of TC and maintenance. That court made an order on 28 April 1982 restraining HF from assaulting, molesting, harassing or otherwise interfering with HM and TC and adjourned proceedings to 12 May 1982, for mention on that date. On the night of 28 April 1982 HM went to a club with some other residents of the Marrickville refuge and whilst she was there a petrol bomb exploded in the premises. HM was seriously injured and admitted to Royal Prince Alfred Hospital where she remained until August 1982. Whilst HM was hospitalised, an order was made in the Children's Court on 3 May 1982 granting custody of the child to the third defendant. That same day Dovey J made an order in the Family Court in the third defendant's favour. On 5 May 1982 Dovey J granted custody to the third defendant until further order, giving HF access two days per week.

20 I do not propose to review here every one of the many applications recorded in Exhibit 9, but after HM was released from hospital, Dovey J made an order on 25 August 1982 whereunder HM was to have care and control of TC and HF access three days per week. There was some later variation to the days of access and there was regular dispute between HF and HM concerning the handing over of TC for access purposes and concerning his return after access.

21 In August 1983 Pawley J pronounced a decree nisi for the dissolution of the marriage between HM and HF, the decree being made absolute on 16 August 1983. Two weeks later, on 30 August 1983, Pawley J varied the earlier order for custody, ordering joint custody to HF and HM with HF to have TC from Friday to Sunday and HM for the remainder of the week. HF agreed in cross examination that on no less than six occasions thereafter he refused to return TC after access.

22 The fact that there was a joint order for custody led to the dismissal of an application for the issue of a warrant on one occasion when HF failed to deliver TC to HM on an appointed date. This prompted further proceedings before Pawley J who on 20 January 1984 ordered that HM and HF have joint guardianship of TC, but his Honour ordered custody to HM with access to HF.

23 Exhibit 9 records that there followed many applications to the Family Court concerning TC. The next noteworthy proceedings were heard by Ellis J on 30 May 1984 when his Honour dismissed HF's application for custody and guardianship and ordered that the child be surrendered to HM.

24 Then on 27 July 1984 HF made a further application, this time for custody and interim custody. Alternatively he applied for an order that TC be placed in custody at Dalmar Homes. HF sought that HM be denied access. He sought an order for short service of his application, but Ellis J refused short service on that same date. HF did not have access to TC again, other than when he saw him with Dr Waters in September 1984, and on a further occasion at Montrose in 1986, until proceedings commenced before Bulley J in April 1986. The decision of Ellis J on 30 May 1984 was the subject of appeal but of particular significance in this cause was an application made by the Director General of the Department of Youth and Community Services to intervene in the proceedings then pending before the Family Court concerning the custody of TC. On 28 September 1984 Hogan J granted leave to the Director General to intervene. By that time the department wanted TC to be placed at Montrose for assessment having regard to allegations that TC had been exposed to sexual abuse. Then on 19 December 1984 an order was made for the expedition of the Director General's application.

25 On 12 April 1985 the Director General's application for interim custody was refused. It will be necessary to return to the subject of the Director General's intervention when considering the allegations of negligence made by the plaintiff, but I record the fact of the intervention and the outcome of the application in this short background narrative of proceedings in the Family Court.

26 When refusing the intervention application, Ellis J set the hearing of the substantive application involving HF, HM and TC down for hearing before Hogan J on 24 June 1985. On that date HF did not appear, being absent in Syria, and the matter was accordingly adjourned and refixed for hearing before Hogan J on 18 November 1985. His Honour embarked upon the hearing in November 1985 but on 27 November 1985 disqualified himself from proceeding with the cause.

27 Thus a new date had to be fixed and the competing applications for guardianship and custody were ultimately fixed for hearing before Bulley J. His Honour began to hear the applications in April 1986 and the hearing concluded in June 1986. Finally, on 31 July 1986, Bulley J ordered that HF have sole guardianship and custody of TC, with no access to HM.

28 Prior to those proceedings before Bulley J HM had remarried, and whilst she was absent from Australia visiting a sick parent in Syria, TC was physically abused at a time when he was being cared for by HM's then husband. This abuse had led to the making of an order in the Children's Court at Yasmar in March 1986 for TC's placement in a place of safety with foster parents. He had been so placed when HM returned from Syria, and he did not return to HM at any time before Bulley J made his final orders. I observe that an officer of YACS laid the complaint in the Children's Court on which that court made the placement order in March 1986.

The involvement of YACS

29 Sufficient has I think been said by way of introduction to proceed to outline the evidence as to how and when YACS became involved in entertaining what proved to be a great number of complaints that were made as to the alleged ill treatment of TC whilst in his mother's care up to March 1986. The complaints initially concerned alleged physical ill treatment and verbal abuse. The first of the complaints appears to have been in November 1980, but their frequency increased with the passage of time. Later on there were complaints concerning alleged sexual abuse. When complaints of this nature were first made to YACS I shall address shortly.

30 In essence it is contended that the officers of YACS who became involved in the case did not investigate the complaints properly, and that eventually there was a failure to remove TC from his mother's care when circumstances called for this to occur.

31 I propose to identify the officers of YACS who became involved in TC's case and the periods of their involvement.

32 HF first approached YACS expressing concern about TC in November 1980. Exhibit A(a) records that HF saw Ms Medus on 25 November 1980, just after HM and HF separated for the first time. Ms Medus recorded that her inquiries led her to conclude that TC was being adequately cared for by HM, and the records disclose that no action was considered by YACS to be necessary then; and, of course, HM and HF subsequently became reconciled, unhappily only for a relatively short period.

33 On 14 December 1981 Ms Medus made a home visit, again in response to complaints by HF that TC was being neglected. Ms Medus apparently saw HM on that visit, and she also saw TC, who she wrote "looked healthy and appeared to be receiving adequate care". It is clear that Ms Medus considered no action was warranted at that time. Ms Medus is deceased.

34 In identifying the officers of YACS who were allegedly negligent, Mr Shand has focussed on the period from October 1982 until July 1986. However from March 1986 TC was not with HM, because of the order made in the Children's Court at that time, so strictly the period to be considered ends with the date of that order in the Children's Court.

35 No complaint is made about the conduct of Ms Medus (although Mr Male recorded HF's dissatisfaction with the behaviour of Ms Medus in October 1982: see Exhibit A(e)) and it will not be necessary to revisit the period prior to October 1982. Suffice it to say that I am satisfied the evidence does not establish any act or omission of an officer of YACS in the period 1980 to October 1982 which could be regarded as constituting negligence, even assuming a private duty of care.

36 I propose in the paragraphs that follow to number those paragraphs which introduce the various officers of YACS against whom an allegation of negligence is made in the plaintiff's case.

(i) The first of the officers complained of is Mr Plater who was a field officer at the Stanmore office in October 1982. By that time HF and HM had separated for the last time and indeed they had been separated since February 1982. HM was then living at the Marrickville refuge and HF visited the Sydney office of YACS on 11 October 1982 where he saw Mr Male. To Mr Male he complained that HM went out every night "having a good time with the men" and leaving TC tied to the bed at the women's refuge. Mr Male referred that complaint to the Stanmore office and here the complaint was assigned to Mr Plater for investigation.

The results of Mr Plater's investigations are recorded in Exhibit A (g) and Exhibit A(h). For the present I summarise the outcome of his investigations briefly. According to Mr Plater, he visited the refuge where he spoke to HM and to a refuge worker. They both denied any neglect or abuse by HM and Mr Plater concluded no intervention by YACS was warranted.

Further inquiries by Mr Plater in December 1982 appear to have satisfied him that YACS should not intervene. He recorded on 13 December 1982 that he had contacted Dr Condon and the doctor advised him that HF brought TC to his surgery when he had access to TC and that the doctor saw no evidence of abuse or neglect of the child. Mr Plater also recorded in Exhibit A(j) that inquiry at the Tempe refuge revealed HM and TC had moved, but he advised Mr Hulbert HM was to phone Mr Hulbert to indicate whether TC's immunisation had been completed.

(ii) Mr Hulbert was the assistant senior district officer at Stanmore at the end of 1982 and he responded to an inquiry by the Director General following a complaint by HF to the Minister that HM was neglecting TC. Mr Hulbert's involvement is reflected in his memo, Exhibit A(k). In that memo, directed to the Director General, he wrote that:

"There has been a span of two years of investigation in this case and on each occasion there has been no substance in the allegations."

Mr Hulbert also compiled Exhibit A(m) and Exhibit A(n) to which I shall refer later.

(iii) Mr Finch was at the Stanmore office as the senior district officer from September 1982 until September 1983. Whilst he was there he met HF. I note at this point that HF asserted that he had met Mr Finch earlier in 1980 but Mr Finch denied having done so and denied having the conversations then attributed to him by HF. Indeed Mr Finch was not at Stanmore in 1980. Weighing those denials by Mr Finch, I do not find that Mr Finch met HF prior to January 1983.

However Mr Finch did meet HF when he visited the Stanmore office on 28 January 1983. HF then complained that his child was being ill treated by HM and he asked Mr Finch to look at the bruising which the child exhibited as a consequence of such abuse. According to Mr Finch he saw no bruises, although he did examine the child.

Several days later, on 2 February 1983, Mr Finch again saw HF, this time accompanied by Mrs Denley. On this occasion three affidavits were produced by HF which referred to an episode when TC was tied to a cot in March 1982. I shall return to consider the complaint about TC being tied to the cot in closer detail but for the present I record that this complaint was made at this time to Mr Finch. As Exhibit A(o) records, Mr Finch determined that the complaint the subject of the affidavits would be "re-examined" and Mr Finch himself went to the refuge and spoke to two workers there. According to Mr Finch these workers denied the neglect alleged of HM.

The memo prepared by Mr Finch, Exhibit A(o) was directed to the Sydney office because by then HM and the child were living at Waterloo. The forwarding of this memo led to the involvement of Mrs Burgess and Mr Hanrahan. Mrs Burgess, having received the memo Exhibit A(o), referred the subject matter to Mr Hanrahan for his attention.

Mr Finch was later involved in events in 1984 when consideration was being given by YACS to allegations of sexual abuse of TC. Mr Finch presided over a case conference on 23 August 1984 when there was discussion as to what action YACS should take in respect of the child.

(iv) Mr Hanrahan's involvement, commencing with the referral by Mrs Burgess of the subject matter of Exhibit A(o), extended until November 1983. He made a home visit on 10 February 1983 but HM was then in hospital being treated for the effects of her burns. Subsequent attempted home visits were made by Mr Hanrahan on 18 February and 23 February 1983. He did see HM and TC on 25 February 1983 and again on 7 March 1983. He recorded in Exhibit A(aa) that

"There appears nothing to suggest there was anything but a normal happy relationship between the child and his mother."

Subsequent complaints, including complaints that HM had inflicted scratches on TC, were investigated by Mr Hanrahan, whose involvement ended with his file note dated 21 November 1983 (see Exhibit A(zz)).

(v) Mrs Burgess had occasion to consider TC's case over a longer period than Mr Hanrahan. Whilst Mrs Burgess was absent from work between 22 June and 19 July 1983, she returned to the Sydney office then until September 1983. There was a further period of absence on other duties, conducting a staff developmental programme until July 1984, but thereafter Mrs Burgess had a further period of involvement with TC's case until the end of October 1984.

(vi) Mr Langshaw was the Director General of YACS when in March 1983 the then Shadow Minister for Health and Youth and Community Services forwarded to him a deal of material raising allegations of mistreatment and neglect of TC by HM. The allegation made against Mr Langshaw, which I shall return to consider later, is that he did not react appropriately to the receipt of that material from Mrs Foot.

(vii) Ms Louise Boulter was posted to the Sydney district office as a child protection worker in March 1982 and she remained there until the middle of 1984. Ms Boulter was transferred to the Central Metropolitan Regional Office in about June 1984.

Ms Boulter became active in TC's case in May 1983 when she made inquiry as to the child's well being at the kindergarten he was then attending. Thereafter Ms Boulter made a number of home visits to see HM and TC, the last of which appears to have been on 28 June 1984 (see Exhibit A(abp)). Ms Boulter was inter alia called upon to investigate a complaint that HM had scratched TC, she made arrangements for HM to take voluntary work and she became aware in May 1984 of the allegation of sexual abuse on TC. Ms Boulter was later involved in case conferences to determine what action YACS should take as to the issue of the alleged sexual abuse.

(vii) Mr Chris Lungley, then a district officer of YACS, became involved in the matter of TC in 1984. Exhibit A(abl) records that on 12 April 1984 he attended on a home visit with Ms Boulter to the home of HM and TC, they having then recently moved to new accommodation at Cumberland Street, The Rocks. Shortly thereafter a complaint made by HF was recorded by Mr Lungley in Exhibit A(abp) as to the alleged sexual abuse of his son by HM. Mr Lungley had continuing involvement in the matter through the months of 1984 and (inter alia) he attended with a child protection worker, Ms Ralston, on an interview with Mr and Mrs Tiba to inquire as to the alleged sexual misconduct by TC towards their daughter (see Exhibit A(acl)). Mr Lungley attended on HM to investigate the allegations of her sexual abuse of her son and he also attended on the conferences concerning TC on 21 May 1984, 23 August 1984 (see Exhibit A(abg)) and subsequently (see Exhibit A(ade)).

(ix) Mr Bruce Callaghan was the regional director for the Central Metropolitan Region in August 1984 and he still held that position in January 1985. It is alleged that he was negligent in the discharge of his responsibilities in this period but I will return to consider that issue in due course. Mr Callaghan considered the material supplied to him by HF on 21 August 1984, concluding that there was evidence that TC

"was involved in sexual activities which he alleges he learnt from his mother and a friend of hers called Judith."

(See Exhibit A(abf)). Mr Callaghan further concluded, as evidenced in that exhibit, that

"There appears to be a strong prima facie case that the child has been abused."

Mr Callaghan was later involved in the decision making process that led ultimately to YACS making application to intervene in proceedings in the Family Court (see Exhibit A(acj)).

(x) Ms Judith Withers (also known as Parker), a psychologist, and Ms Leigh Ralston, a child protection worker, both of whom were attached to YACS, became involved in TC's case. On 21 August 1984 they went to the child care centre at Tempe where TC was then attending. They discussed TC with the director of the centre and with TC's teacher and his "special person". They observed the child's behaviour at the centre and they also interviewed him. Later they visited his mother on 22 August 1984 when HM was questioned about the allegations of sexual abuse. Ms Withers and Ms Ralston were the joint authors of a lengthy report dated 3 September 1984 (Exhibit A(abj)) in which the conclusion was expressed that TC

"is an emotionally deprived little boy who has been sexually abused and who has been exposed to adult sexual behaviour."

Both Ms Withers and Ms Ralston swore affidavits subsequently to support the application made in the Family Court for the intervention by YACS in the proceedings then current between HM and HF.

(xi) The legal officers of YACS became involved in the decision making process in 1984 as to whether YACS should take action in the Children's Court or seek to intervene in the Family Court.

Mr James Heagney, now a magistrate, was in August 1984 the senior legal officer for YACS and as his memorandum to Mr Callaghan dated 31 August 1984 discloses (Exhibit A(abr)), Mr Heagney's opinion then was that proceedings should not be taken in the Children's Court but rather YACS should make available to TC's separate legal representative such material as YACS had. Subsequently, as Exhibit A(adi) records, Mr Heagney instructed the State Crown Solicitor to make application to the Family Court for leave for the Director General to intervene in proceedings in that court for the purpose of seeking an interim order for custody of the child for thirty days so as to permit of a psychiatric assessment.

Mr Heagney did have some prior involvement in this matter in March 1983 when he forwarded to the regional director of the Central Metropolitan Region affidavits that had been by that time filed in the Family Court concerning the custody of TC. He had found those affidavits on his desk and, as Exhibit H records, he forwarded those documents to Mr Callaghan.

Mr David Croke was the second legal officer of YACS to become involved in the matter. In January 1985 when Mr Heagney went on leave Mr Croke assumed his responsibilities and Mr Heagney resigned shortly after his return from leave. Mr Croke was then his successor as senior legal officer and as such he was involved in the application of YACS in the Family Court.

37 It is clear from the evidence that at no time prior to the surfacing of the allegations of sexual abuse did any officer of YACS ever consider that TC's circumstances warranted intervention by YACS in order to remove the child from his mother's care. Certainly at no time was it considered that there had been physical or verbal abuse such as called for this to be done.

38 Mr Callaghan's note referred to earlier (Exhibit A(abf)) reflects real concern for TC in his then circumstances, which included by that time the serious allegations of sexual abuse and evidence that supported such allegations.

Sexual abuse: The evidence assessed

39 I propose now to identify the evidence as to sexual abuse, to evaluate it and to determine when it was that knowledge of relevant evidence on the issue reached YACS.

40 On 11 March 1983 HF made a statutory declaration, Exhibit A(t), in which he referred to two occasions on which HF was purchasing fruit when TC took a carrot and

"made certain motions with it between his legs, saying `That is very nice just here.'"

41 The evidence does not satisfy me that the declaration came to the knowledge of any officer of YACS at about the time it was made but the account of the two incidents referred to in the declaration is to be contrasted with what HF swore in his affidavit in the Family Court on 24 July 1984, which affidavit became Exhibit R before me. In paragraph 10 of the affidavit, sworn some sixteen months after the statutory declaration, HF said:

"I first became aware of [TC's] sexual behaviour early in 1983 when, in a food shop with me, he picked up a carrot and rubbed it between his legs and said `That is nice just here'. I was very embarrassed and took away the carrot and said `How do you know about this'. He replied `Mummy, Judith, Karen and Cassie, they do that, it is very nice Daddy.'"

42 It is to be observed that there are very significant differences in the extracts from the declaration and the affidavit referred to above. In particular, there is absent from the declaration any allegation of the involvement of the child's mother, Judith, Karen or Cassie in any activity with a carrot. I find myself unable to accept at face value the assertion as to the child's conduct contained in the declaration of 11 March 1983.

43 However, in any event even if that description of behaviour was acceptable as a description of what occurred, it is not necessarily behaviour indicative of sexual abuse. Indeed, I accept the evidence which Dr Scott gave about this at pp 1867-1868:

"Q. Would you agree that that behaviour, on the assumption that the child had indulged in it, could well be regarded as evidence of the child being subjected to sexual abuse?

A. No, it could equally be seen as what is within normal limits for young children in terms of their sexual behaviour. It is sometimes difficult to determine the spectrum or continuum when the normal sexuality and curiosity and sex play of preschool age children begins and ends. That type of behaviour one would see in many creches, kindergartens, in many families, and I would not draw the conclusion from that in relation to sexual abuse.

Q. Coupled with the information that you have as to the signs later which we have been through in detail, would you think that the connection between sexual abuse and that behaviour in paragraph 7 could not be ignored?

A. I wouldn't put great weight on it in the same way that there are descriptions of sexualised play at the kindergarten in which other children are much more active than the child in question and there is some margin or participation by the child. I really wouldn't put weight on this behaviour as indicative of sexual abuse. I will give it low weight.

Q. Low weight?

A. Yes.

Q. But perhaps better than low weight if one connected it with later behaviour conveyed by the information that you have which indicates to you that sexual abuse has occurred?

A. It's a possibility, but I wouldn't want to draw a conclusion about it.

Q. To a responsible officer of a department such as the Youth and Community Services, would you consider that that information ought to put the officer on guard as to the possibility of sexual abuse?

A. Not really, no.

Q. Not at all you would say, would you?

A. I wouldn't say not at all. I would say not really, no. That type of behaviour is extraordinarily common amongst preschool aged children who are sexually curious and, within certain limits, active. That is the sort of behaviour one would see, as I said, in a kindergarten, children playing with bananas, making little jokes, often as a result of children's contact with other children and the games they play. I would not put salience on that."

44 Accordingly I am not satisfied by Exhibit A(t), or HF's evidence about it, that TC was exposed to sexual abuse in 1983.

45 Of course, the affidavit of July 1984 makes an assertion which, if true, would amount to improper behaviour by HM and those other persons named in paragraph 10, but by then allegations of sexual abuse had already arisen.

46 On 7 May 1984 HF had telephoned Ms Poppy Harris at the Royal Alexandra Hospital for Children and told her that TC had asked him to "suck his cock", and that HM and her friend did this (see Exhibit 10D). The allegations made to Ms Harris were repeated to Dr Younan, to whom HF took his son on 7 May 1984. Dr Younan had by then seen HF and TC many times, the first of which was on 14 October 1983. It was on this last visit on 7 May 1984 that HF first said that the child behaved in the manner already described to Ms Harris. On the following day HF complained of sexual abuse of TC by HM at the Bankstown Area Health Central (Exhibit 10J). On 11 May 1984 Ms Harris alerted YACS, prompting the completion of a "Child at Risk Notification" (see Exhibit A(mmm)).

47 HF also took his son to a social worker, Mr Malak, on 7 May 1984. Mr Malak's report of 9 May 1984 became part of Exhibit A(eee). Mr Malak had seen TC twice in late 1983 and no allegations of a sexual nature arose then but when HF took TC to Mr Malak on 7 May, TC told Mr Malak that he asked HF to "lick his dickie". TC told Mr Malak that his mother and Judith did that to him. Mr Malak was unsuccessful in arranging to see HM but nevertheless reported on 9 May that he was certain that the child had been "exposed to the practice of oral sexual act".

48 Dr Waters was very critical of Mr Malak's report of 9 May and said he gave it very little weight. Indeed, the doctor said in the course of his evidence (at T2146):

"Q. What reliance did you place upon the second report of Mr Malak?

A. Well, I gave it very little weight.

Q. Why was that?

A. Well I think there were three - there are three things - firstly he makes what seems to be a final conclusion about the matter in terms of a certainty that he has been abused in the way described or alleged based on just having seen TC and the father and not having had the opportunity to see the mother, and bear in mind the nature of the problems between the two of them as well. So that's the first thing. The second thing is that the questioning even as it is set out in the second report - I haven't got the second report here - the questioning even as it is set out in the second report indicates a very leading line of questioning with the child basically affirming propositions put to the child. It also appears as if the father was in the room at the time. That method of questioning is simply invalid. It is no more valued with children than it is with adults. Then the third reason is that Mr Malak doesn't consider any other possibilities. I mean, for instance, the incidents that he mainly questions about occurred in the shower and children in the shower - children, parents in bathing situations, there is often things happen between children and parents in bathing situations that have nothing to do with sexual abuse. They are in the form of play and curiosity from children, and he doesn't seem to have explored the possibility that the behaviour that went on may have had another explanation. So I think for all of those reasons unfortunately it doesn't represent a comprehensive and objective account."

49 In my opinion those considerations expressed by Dr Waters are persuasive.

50 Dr Scott was also critical of Mr Malak and made three points:

(i) that Mr Malak's conclusion that he was certain TC had been exposed to oral sexual acts was not the opinion a person skilled in child sex abuse would reach;

(ii) that it was very unusual to reach such a confident opinion on the word of such a young child;

(iii) his report indicated a leading nature of questioning of the child.

51 Dr Scott regarded the Malak report as "very inadequate" and said she could not place weight on his conclusions (T1870).

52 Whatever criticisms might be levelled at the quality and reliability of Mr Malak's assessment in May 1984, Ms Goldberg's assessment is, I find, on a different footing.

53 Ms Goldberg had seen the plaintiff in her capacity as a clinical psychologist in October 1982 and at that time no complaint was made of any sexual abuse. However Ms Goldberg saw the plaintiff again on 12 May 1984, the appointment having been arranged by HF's solicitors. HF told Ms Goldberg what he had told Mr Malak some days before but then, whilst Ms Goldberg was testing TC in her personality assessment, TC behaved inappropriately as Ms Goldberg later recorded:

"With very young children it is usual practise, as with [TC], to structure the test as an informal game and in this instance the psychologist was seated on the floor with [TC] while he was looking at each card. In this informal unstructured context [TC] moved restlessly around the room and although he gave cursory responses to picture cards it was clear that none of them could hold his attention. One card however did attract him. It showed a small puppy dog laid out on the lap of an older dog sitting on a bathtub with toilet in the background.

[TC] seemed very interested in this card, but instead of responding to it as requested he took the card and placed it like a bridge over his leg and the psychologist's knee. He then explained that this was a bridge and that we would have a game in which [TC] was to call out certain instructions after the writer asked certain questions. The game was called `How do you get to Luna Park' and the writer was told to ask this question to which [TC] answered `you go down here and up there and over to the bridge then across the bridge and up there---`

As he chanted these directions with his finger he traced the imaginary route up and down his own leg - across the `card' bridge over to the writer's knee and up the leg. Asked to explain the purpose of the game and what he would do when he got there [TC] replied with growing excitement that we would see what was inside the writer's pants. He became quite inappropriate and distracted at this stage and was climbing and tugging in an aggressive way at the writer's belt saying `take them off, take them off.' When asked why, he replied `to see your dickie' - `What for' - `to see if you've got a ladies - ` and when asked what would you do then, he replied `lick it'. Asked if this is something he has done before he replied `yes, it is nice'.

All this with heightened excitement and reduced impulse control to a degree that had the boy been older and bigger the scene could resemble an assault."

54 Ms Goldberg's opinion was that TC had been sexually abused by some experienced female person. I quote from p 7 of her report:

"Normal psychosexual development in an advanced four year old does not preclude an active interest in their own genitals and that of others male and female, child or adult and so the genital interest and preoccupation is of itself of no significance. Knowledge of adult sexual practises such as intercourse and oral sex is also not exceptional, and can be learnt from observing or from other children.

What is both unusual and significant is the child's interest in actively performing cunnilingus, which by itself is not directly sexually stimulating to the doer and therefore this sort of interest or behaviour cannot have been incidentally learnt, and must have been acquired through active coaching and encouraging reward by some experienced female person, and probably one older than the child."

55 Ms Goldberg further opined that the Luna Park game was one which TC had probably played many times before.

56 TC told Ms Goldberg that he had played the game with "Mummy and Judith", but Ms Goldberg made it plain in her evidence that she did not seek to determine whether TC's accusation as to the wrongdoers' identity was factual.

57 Ms Goldberg gave evidence before me and I accept the evidence that she gave. There is nothing elsewhere in the evidence given by other qualified experts in this case which disturbs my assessment of Ms Goldberg's evidence.

58 Dr Waters, then the Head of the Department of Psychiatry at the Children's Hospital, was asked to assess HM, HF and TC in circumstances I shall later consider. He carried out such assessments in September and October 1984 and these are dealt with in the doctor's lengthy report of 1 November 1984. Whilst Dr Waters did not agree with all that Ms Goldberg had to say, he did agree with her that the way in which TC misbehaved in her rooms indicated that "at some point" the sexual activities he then engaged in had formed part of his experience. Dr Waters agreed that TC could not simply have been coached to present in that way, and he agreed that the behaviour did not reflect "normal childish sexual exploration". Dr Waters concluded that TC had "probably been the object of at least one incident of inappropriate sexual activity".

59 Ms Goldberg's evidence is also supported by Ms Withers and Ms Ralston; I referred earlier to their joint conclusion in September 1984 that TC had been exposed to adult sexual behaviour.

60 I find that TC was sexually abused by a female or females at some time or times prior to Ms Goldberg's assessment in May 1984. The evidence does not permit me to determine when or where or how often abuse took place.

61 Who was involved in such activity?

62 TC told both Ms Goldberg and Mr Malak that HM and Judith were responsible but I am not persuaded that such evidence is reliable. Ms Goldberg did not regard TC's assertion to her as to the identity of the culprits as probative (T470-471), and I have above reviewed the criticisms of Mr Malak's assessment, which criticisms I regard as valid.

63 TC gave evidence in this Court, and I have not found it easy to determine what reliance can properly be placed upon his evidence. TC is now a young man eighteen years of age who was being asked to recount what had occurred to him at the tender age of four years or thereabouts.

64 Mr Shand called a psychologist, Ms Milne, who interviewed TC in October 1993. TC told her at that interview that he remember that HM and Judith had done "naughty things" to him, but he gave no details. Ms Milne said that she perceived no inconsistencies in TC's presentation at that interview. Ms Milne professed no expertise in the area of "recovered memory" but recognised that much care was required in assessment where memory increase occurs from the time of initial assessment. I have read Ms Milne's evidence closely but I do not find that it helps me to evaluate TC's evidence. I add, however, that Ms Milne said that for the purposes of her interview with TC she was provided with a document in TC's handwriting dealing with his recollection. That document was tendered as Exhibit FF. It emerged in cross examination that Ms Milne was not provided with the complete document that had been prepared by TC. The complete document had an earlier page and TC acknowledged in the course of his evidence that the whole document he had prepared over a couple of days. I set out the content of TC's document comprising both Exhibit FF and Exhibit 5:

65 (Exhibit 5)

"I Remember...

* Ashraff beating me with a cricket bat, for being late from school. I was curled up into a ball between cuboard [sic] & wall & bed.

* an episode where, in the care of Judice (with her watching at the time), a male friend of Jidice asked me, with errect [sic] penis, to enter the bath & play with him.

* I remember a doctor (Dr Waters) told me (on two seperate occations [sic]) to not say anything about Mummy that I remember

* One time I dropped a glass of milk (strawberry flavoured quick) all over my pants. [HM] went beserk [sic] and grabbed the nearest thing she could get her hands on, a hammer, and threw it at my leg. I moved my leg, the hammer smashed a tile and she ran at me, took my arm (right) & bit it leaving teeth marks, with blood oozing out of some of the indentations

* I remember another time when I broke the TV (the light bulb inside blew up). She looked at me, her eyes very wide, then she rushed me, took my arm & bit me.

* I remember one time at pre-school, a young friend (male) & a little girl & I hid in a cubby house. I seduced her & licked her vagina.

* Another time a different little girl & I were having a bath, with Judice looking after us. We licked each others genitals. Judice said that it was good."

(Exhibit FF)

"I remember Dr Waters giving me a biscuit and a cup of cordial and telling me not to tell anyone the naughty things Mummy did to me. I also remember sitting in a room with someone watching over me and [HM] coming in and whispering `Tell the people that you want to stay with Mummy or I'll kill you.'"

66 It is to be observed that the document comprised of Exhibit FF and Exhibit 5 does not contain any assertion of sexual impropriety against HM but it does against "Judice".

67 In his oral evidence TC said that he remembered telling Mr Malak that he had oral sex with Judith and his mother but although that is what he told Mr Malak he could now only clearly remember having oral sex with Judith. He said he now has no recollection of doing this with his mother.

68 When asked whether he presently had a recollection of any conduct on the part of HM of a sexual kind, TC's response was:

"I don't clearly remember any incident, although I do get an impression that something of that nature occurred."

69 TC's evidence, as I assess it, would not warrant a finding that he was sexually abused by HM.

70 For her part, HM consistently denied being involved in the sexual abuse of her child when she was interviewed and she again denied any such misconduct in the evidence that she gave in these proceedings. Dr Waters was engaged specifically for the purpose of assessing TC and it was hoped that that assessment might enable him to identify the perpetrator or perpetrators. That hope was not fulfilled but eventually Dr Waters concluded that he was "certain" that HM had not sexually abused her son. He was equally confident that HF was not involved in any activity of sexual abuse. TC did not identify his mother as having done what he told Mr Malak she had done. Dr Waters was not, of course, in a position to assess the issue of any wrongdoing by Judith Curran, and that person was not called in the proceedings before this Court.

71 Evidence was introduced during the course of the hearing that indicated that Judith Curran evaded service of a subpoena issued on the defendant's initiative in an endeavour to bring her before this Court. I do not consider it would be proper to draw the inference from that evidence however that that person was evading service through a consciousness of guilt. It seems to me that her reluctance may well have been altogether innocent.

72 I am not satisfied, having reflected on all the evidence in point in this case, that the perpetrator or perpetrators of the sexual abuse has or have been identified.

73 When did YACS become aware of the allegations of sexual abuse that emerged in May 1984?

74 Mr Lungley's file note written on 22 August 1984 (Exhibit A(abp)) records that Ms Goldberg's reports together with that of Mr Malak were received at the Sydney office of YACS on or about 11 July 1984. Prior to that time of course the Child at Risk Notification had been received on 11 May 1984 (Exhibit A(mmm)). The receipt of that notification prompted the making of inquiries about sexual abuse in advance of the receipt of the persuasive report of Ms Goldberg. The nature of the response of YACS to the knowledge of sexual abuse that emerged and developed from May 1984 onwards is an issue I will address later.

75 Mr Shand submitted however that I should find that YACS was on notice of allegations of sexual abuse during the year 1983 and in this respect he relies in particular upon handwritten statements attributed to Mr and Mrs Blevnik.

76 Mrs Carolyn Blevnik swore an affidavit in the Family Court proceedings dated 15 August 1983. That affidavit contained no allegations as to any sexually inappropriate behaviour by TC. However a handwritten statement by her dated 2 August 1983 referred to physical ill-treatment by HM of her son and to other disturbing behaviour of TC. Mrs Blevnik wrote:

"One night I was minding [TC] and he was sitting on the bed and I was lying on the bed watching the television when he got off the bed and took his pants off, I thought he was going to the toilet. He got back up and sat on top of me, pulling his penis towards me, touching me on the breasts and trying to touch me down below. He was acting out the sex act..."

77 In that same statement Mrs Blevnik said that she had seen HM tongue kissing TC.

78 That handwritten statement found its way into evidence as part of Exhibit K and it formed part of the material produced by the defendant upon discovery. Mr Shand submitted that the inference ought to be drawn that the department became aware of that handwritten statement at about the date which it bears. He submitted that that inference was appropriate in the absence of any evidence to explain how or when YACS came into possession of that document.

79 Further Mr Shand drew attention to Mr Lungley's report, Exhibit A(xxx). In that document Mr Lungley recorded on p 4 inter alia:

"The allegations of sexual abuse which [HF] has been claiming occurred since August 1983...are only substantiated insofar as [TC] has made statements to Greta Goldberg, psychologist, and Nabil Malak..."

80 Mr Shand submitted that, whilst Mr Lungley was not called, the inference arose from what he wrote in Exhibit A(xxx) on 31 July 1984 that YACS must have been aware that HF had been alleging sexual abuse of TC to the knowledge of the department as far back as August 1983. Mr McAlary submitted to the contrary.

81 Exhibit MM is a report prepared by a YACS officer, Liz Lorschy. It records an interview with a Debbie Howarth who had had some association with HF and TC. Ms Howarth told Ms Lorschy that on an occasion "around Christmas 1983" TC said to her: "Where's your dick, I want to play with it." According to Ms Howarth he also tried to put his tongue in her mouth. That information was not conveyed to YACS in December 1983. The note makes it plain that Ms Lorschy elicited the information from Ms Howarth when she saw her in January 1985.

82 Returning to the question as to when it was that YACS became aware of the content of the Blevnik handwritten statement, it is plain that Mrs Burgess learnt what Mrs Blevnik could say in an interview in August 1984.

83 Mrs Burgess gave evidence which I accept that she did not see the Blevnik letter dated 2 August 1983 until during the course of the hearing in this Court. The Blevniks were referred to Mrs Burgess by an emergency assistance officer on 13 August 1984. At that time as neighbours of HM they complained they were being harassed and they wanted alternative accommodation away from the Waterloo flats where they were neighbours of HM.

84 In the course of the interview which Mrs Burgess conducted with Mr and Mrs Blevnik, Mrs Blevnik provided information consistent with the content of the statement of 2 August 1983 so the evidence establishes that on 13 August 1984 YACS became aware of the substance of the Blevnik document dated 2 August 1983. This leaves open the question whether any other officer of YACS knew of the Blevnik statement of 2 August 1983 before that time.

85 I find no record in all the documents emanating from the department file which indicates to me that YACS did receive the handwritten Blevnik statements at any time prior to the interview which Mrs Burgess conducted in August 1984.

86 The second August 1983 document handwritten by Mrs Blevnik carries a date of 12 August 1983. It refers to Mrs Blevnik accompanying her husband and HF to the Child Abuse Prevention Centre (CAPS) and the document asserts that Mrs Blevnik gave to a woman from YACS a six page report which, by inference, is the earlier handwritten document of 2 August 1983. However the Blevniks did not give evidence before this Court and I am not persuaded by what Mrs Blevnik wrote in Exhibit K on 12 August 1983 that it was an officer of YACS to whom she gave the six page report. Mrs Blevnik could well have been mistaken about this. There is simply no indication elsewhere in the papers as to who any such officer may have been and the person referred to may well have been an officer of CAPS.

87 No evidence was called from CAPS in relation to any attendance there by Mrs Blevnik in August 1983 and no documentary material has been produced from CAPS either.

88 On 31 July 1984 Mr Lungley wrote a detailed report tracing the history of YACS involvement with TC and the first specific mention of any sexual impropriety there recorded relates to HF's complaint to Ms Harris on 7 May 1984. Had the Blevnik statement of August 1983 been in the department's possession at the time Mr Lungley wrote this report, I would have expected to find reference to it in that document.

89 HF gave evidence that he took the Blevnik statements of 2 and 12 August 1983 to YACS, visiting both the Sydney office and the Parramatta office for that purpose, but I accept the submission advanced by the defendant that the conduct of HF was not consistent with his having copies of the statements at that time. (The material that HF gave Mr Callaghan did not include the Blevnik statements.) Mr McAlary has drawn attention to twenty occasions upon which HF spoke to doctors or psychologists between 9 August 1983 and 16 March 1984 without referring to any allegation of sexual abuse:

(i) on 9 August 1983 HF took TC to the Prince of Wales Children's Hospital where Dr Falk was consulted;

(ii) on 16 August 1983 HF contacted Ms Poppy Harris;

(iii) on 19 August 1983 HF spoke with the court counsellor, Jill Burrett;

(iv) on 26 August 1983 Ms Harris saw HF and TC at the hospital;

(v) on 26 October 1983 HF saw Dr Younan with TC. Dr Younan saw HF and TC on a further six occasions prior to the date of his report of 29 December 1983 (Exhibit A(ddd)). Dr Younan conducted a further interview in January 1984 but it was not until the last interview in May 1984 that any concern about sexual abuse was raised with the doctor;

(vi) there was an attendance upon Mr Goard on 22 November 1983 and there were further attendances on 25 November, and 2 and 9 December;

(vii) then Mr Malak conducted interviews with TC in the presence of HF on 25 November 1983 in Mr Malak's office and subsequently on 2 December 1983 on a home visit without any allegation arising about sexual abuse;

(viii) on 19 December 1983 HF arranged for TC to be seen at the Bankstown Area Health Centre and both father and son were psychologically assessed on that day. No complaint was made of sexual abuse then, and the first complaint at the Area Health Centre of that nature, was made on 8 May 1984;

(ix) on 9 January 1984 HF saw Mr Ford, social worker at the Children's Hospital at Camperdown expressing concerns about the safety and welfare of TC. He told Mr Ford then that he had decided not to take TC back to HM because of the "mental abuse" of TC by HM.

90 When consideration is given to the purpose of the visits above referred to, Mr McAlary submitted that one might have expected HF to have alerted each of the above doctors or psychologists to the behaviour described by Mrs Blevnik if HF was then aware of it. I agree.

91 Mrs Blevnik made an affidavit for the purpose of the proceedings in the Family Court. This affidavit was sworn on 15 August 1983, but it contains no reference to the sexually inappropriate behaviour described in the handwritten statement, so that the affidavit, even had YACS been aware of its contents at about the time it was sworn, would not have alerted the department to the child's behaviour not mentioned in it.

92 I have concluded that the evidence does not warrant a finding that any officer of YACS became aware of what Mrs Blevnik wrote in August 1983 and that the first officer to become aware of the substance of what was then written was Mrs Burgess on her interview with Mrs Blevnik in August 1984.

93 Accordingly I do not find that any officer of YACS was alerted to allegations that TC had been sexually abused or was behaving in a sexually inappropriate way prior to May 1984.

Was there a duty of care in YACS capable of founding a private

cause of action?

94 This case demands consideration of questions of much complexity on the issue of liability. The first such question is whether YACS owed to TC a duty of care, the breach of which would enable TC to maintain a claim for damages. I have had the benefit of receiving detailed submissions from counsel on this issue. I do not propose to embark upon an exhaustive review of those submissions but I have given them close consideration.

95 Generally speaking, the common law has not imposed a duty upon one citizen to come to the aid of another.

96 In Hargrave v Goldman [1963] HCA 56; [1963] 110 CLR 40 at 65-66 Windeyer J said, referring to Lord Atkins' judgment in Donoghue v Stevenson [1932] AC 532 at 580-581:

"Lord Atkin's well-known generalization explains the scope of a duty of care, that is to say it states who can complain of a lack of care when an obligation of care exists. But I venture to think that it is a mistake to treat it as providing always a complete and conclusive test of whether, in a given situation, one person has a legal duty either to act or to refrain from acting in the interests of others. The very allusion shows that it has not this universal application. The priest and the Levite, when they saw the wounded man by the road, passed by on the other side. He obviously was a person whom they had in contemplation and who was closely and directly affected by their action. Yet the common law does not require a man to act as the Samaritan did. The lawyer's question must therefore be given a more restricted reply than is provided by asking simply who was, or ought to have been, in contemplation when something is done. The dictates of charity and of compassion do not constitute a duty of care. The law casts no duty upon a man to go to the aid of another who is in peril or distress, not caused by him. The call of common humanity may lead him to the rescue. This the law recognizes, for it gives the rescuer its protection when he answers that call. But it does not require that he do so. There is no general duty to help a neighbour whose house is on fire."

97 Thirty-five years later in Pyrenees Shire Council v Day [1998] HCA 3; [1997-98] 192 CLR 330 at 368 McHugh J said:

"101. As I pointed out in Lutz ((1988) 12 NSWLR 293 at 326), from the time of the Year Books, the common law has drawn a distinction between causing damage by a positive act and `causing' damage by a failure to act. The early forms of action gave no remedy for failure to prevent harm. The writ of trespass, historically the most important of the early writs for remedying wrongs, was available only for direct or forcible injury. Not until the action on the case was developed did the common law provide a remedy for omissions. Initially, both contractual and tortious wrongs were remedied by the action on the case because the distinction betweens `rights ex contractu and ex delicto was by no means clear' (Sutton, Personal Actions at Common Law (1929) p 26). When tort and contract separated, contractual wrongs came to be identified with the action on the case. Speaking generally, remedies for omissions were henceforth seen as remediable by the action in assumpsit, not case. Absent consideration or its equivalent, the common law generally imposed no obligation on a person to protect or help another. As Windeyer J pointed out in Hargrave v Goldman ((1963) [1963] HCA 56; 110 CLR 40 at 66), `the common law does not require a man to act as the Samaritan did'. For that reason in most cases, the occupier of property owes no duty to a neighbour to secure the property so as to prevent thieves gaining access to the property for the purpose of robbing the neighbour's premises (P Perl (Exporters) Ltd v Camden London Borough Council [1983] EWCA Civ 9; [1984] QB 342 at 357-8, 359-60). The `general rule' said Dixon J in Smith v Leurs ((1945) [1945] HCA 27; 70 CLR 256 at 262), `is that one man is under no duty of controlling another man to prevent his doing damage to a third'. Nor does the common law generally impose any duty on a person to take steps to prevent harm, even very serious harm, befalling another. Thus, absent a statutory duty, a highway authority owes no duty to motorists to improve the visibility on a dangerous corner even though it is aware of the danger created by the poor visibility (Stovin v Wise [1966] AC 923). The careless or malevolent person, who stands mute and still while another heads for disaster, generally incurs no liability for the damage that the latter suffers. Harsh though the common law may seem to be, there are nevertheless strong political, moral and economic arguments that justify its approach, as Lord Hoffmann pointed out in Stovin v Wise ([1996) AC 923 at 943-4)."

98 There has been no decision directly determining whether or not a private cause of action may arise under the Child Welfare Act and Mr McAlary submitted that hitherto the common law has not recognised as a category of relationship giving rise to a private duty of care the relationship between a welfare worker and a child needing help. Indeed, the House of Lords recently had occasion to consider the liability of a council under welfare legislation in X (Minors) v Bedfordshire County Council [1995] UKHL 9; [1995] 2 AC 633. In that case five young plaintiffs were seeking to recover damages from the council. They alleged by statement of claim that they had suffered from parental neglect and in consequence sustained personal injury. They sued the council alleging breach of statutory duty and negligence. It was pleaded that the council had received reports of such parental abuse and neglect but had failed to investigate adequately or to protect the plaintiffs from further harm.

99 The statements of claim were struck out as disclosing no cause of action and that decision was upheld in the Court of Appeal and again in the House of Lords. It was held that the English legislation gave rise neither to an action for breach of statutory duty nor to an action for negligence.

100 In a sense therefore the plaintiff is treading fresh ground in this cause, and the principle that there is the need to proceed incrementally in increasing categories of negligence is not to be ignored. That principle was referred to in Council of the Shire of Sutherland v Heyman [1985] HCA 41; [1985] 157 CLR 424 by Brennan J at 481 where his Honour said:

"It is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable `considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed.'"

(See also Hill v Van Erp [1995-97] 188 CLR 159 per Dawson J at 178-179.)

101 Then in the Pyrenees case (supra), Kirby J (at 420) referred to "the incremental approach accepted by this court".

102 See also the Bedfordshire case (supra) per Lord Browne-Wilkinson at 751, and earlier in the Court of Appeal the judgment of Peter Gibson LJ at 680.

103 In this context Mr McAlary also drew attention to a variety of situations in which no duty of care was held to exist:

(i) in Hill v Chief Constable of West Yorkshire [1989] AC 53 the House of Lords determined that police officers owed no general duty of care to identify or apprehend an unknown criminal. It was contrary to public policy for the police to be liable in negligence for their activities in the investigation of crime;

(ii) in Elguzouli-Daf v The Commissioner of Police [1994] EWCA Civ 4; [1995] QB 335 it was held that there was no general duty of care owed by a prosecuting authority towards a defendant and that there were policy considerations against the recognition of such a duty;

(iii) in Capital and Counties PLC v Hampshire County Council [1997] QB 1004 it was held that no common law duty was imposed upon a fire brigade to answer a call for help (see in particular the judgment of the Court of Appeal at pp 1026-1030).

104 A review of recent authority on the law of negligence in Australia begins with Jaensch v Coffey [1984] HCA 52; [1984-85] 155 CLR 549. In that case Deane J considered the interrelationship of the concepts of reasonable foreseeability and of proximity in confining "the frontiers of negligence". His Honour said at 579-580:

"The notions of reasonable foreseeability and of proximity of relationship which were enunciated in Lord Atkins' speech in Donoghue v Stevenson are related. The fact that an act of one person can be reasonably foreseen as `likely to injure' another is an indication, and, as will be seen, sometimes an adequate indication, that the requirement of `proximity' is satisfied. At the same time, the overall proximity of the relationship between the person or property of the plaintiff and that of the defendant or between the allegedly negligent act and its effect may be relevant to the question whether injury to the plaintiff was reasonably foreseeable. Lord Atkin's `restricted reply' to the common lawyer's question `who is my neighbour?' was not, however, couched in the unqualified terms of reasonable foreseeability which would, in the context, have served merely to provide a diversionary circuity of reasoning. The `neighbour' requirement (`this necessary qualification' [1932] AC at 582) was a substantive and independent one which was deliberately and expressly introduced to limit or control the test of reasonable foreseeability. As explained and expanded in terms of `proximity' (`the relation being so close that the duty arises' and `so close as to create a duty': [1932] AC at 582, 599), it differed in nature from the test of reasonable foreseeability in that it involved both an evaluation of the closeness of the relationship and a judgment of the legal consequences of that evaluation."

105 His Honour addressed the significance of policy considerations in a subsequent passage at 583:

"It is not and never has been the common law that the reasonable foreseeability of risk of injury to another automatically means that there is a duty to take reasonable care with regard to that risk of injury: cf. per du Parcq LJ, Deyong v Shenburn [1946] KB 227, at 233; Edwards v West Herts. Group Hospital Management Committee [1957] 1 WLR 415 at 420, 422; [1957] 1 All ER 541 at 545, 547; and per Lord Reid, McKew v Holland & Hannen & Cubitts (Scotland) Ltd [1969] UKHL 12; [1969] 3 All ER 1621 at 1623. Reasonable foreseeability on its own indicates no more than that such a duty of care will exist if, and to the extent that, it is not precluded or modified by some applicable overriding requirement or limitation. It is to do little more than to state a truism to say that the essential function of such requirements or limitations is to confine the existence of a duty to take reasonable care to avoid reasonably foreseeable injury to the circumstances or classes of case in which it is the policy of the law to admit it. Such overriding requirements or limitations shape the frontiers of the common law of negligence."

106 The concept of proximity has been addressed in many cases in the High Court in recent times: see Heyman (supra) and in particular the judgment of Deane J at 497-498; Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; [1992-94] 179 CLR 520 at 542-543; and Bryan v Maloney [1995] 182 CLR 609. In their joint judgment in that case Mason CJ, Deane J and Gaudron J said at 617-618:

"The cases in this Court establish that a duty of care arises under the common law of negligence of this country only where there exists a relationship of proximity between the parties with respect to both the relevant class of act or omission and the relevant kind of damage. In more settled areas of the law of negligence concerned with ordinary physical injury to the person or property of a plaintiff caused by some act of the defendant, reasonable foreseeability of such injury will commonly suffice to establish that the facts fall into a category which has already been recognized as involving a relationship of proximity between the parties with respect to such an act and such damage and as `attracting a duty of care, the scope of which is settled' (Sutherland Shire Council v Heyman (1985) 157 CLR at 441, per Gibbs CJ and see also pp 495, 501; Caltex Oil (Australia) Pty Ltd v The Dredge `Willemstad' [1976] HCA 65; (1976) 136 CLR 529, at 572-574; Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549 at 581-582). In contrast, the field of liability for mere economic loss is a comparatively new and developing area of the law of negligence. In that area, the question whether the requisite relationship of proximity exists in a particular category of case is more likely to be unresolved by previous binding authority with the consequence that the `notion of proximity...is of vital importance (San Sebastian Pty Ltd v The Minister [1986] HCA 68; (1986) 162 CLR 340 at 355, per Gibbs CJ, Mason, Wilson and Dawson JJ). As Stephen J indicated in Caltex Oil (Australia) Pty Ltd v The Dredge `Willemstad' ((1976) 136 CLR at 575), it is the `articulation', in the different categories of case, `of circumstances which denote sufficient proximity' with respect to the mere economic loss, including `policy considerations', which will gradually provide `a body of precedent productive of the necessary certainty'. Inevitably, the policy considerations which are legitimately taken into account in determining whether sufficient proximity exists in a novel category will be influenced by the courts' assessment of community standards and demands (see, e.g. Hedley Byrne & Co. Ltd v Heller & Partners Ltd [1963] UKHL 4; [1964] AC 465 at 536; Dorset Yacht Co. v Home Office [1970] UKHL 2; [1970] AC 1004 at 1038-1039, 1058; Caltex Oil (Australia) Pty Ltd v The Dredge `Willemstad' (1976) 136 CLR at 575; Sutherland Shire Council v Heyman (1985) 157 CLR at 497)."

107 More recently there have been reservations expressed as to the usefulness of proximity as a guiding principle: see, for instance, Hill v Van Erp (supra) and the judgment of Gummow J at 237-238; Pyrenees (supra) per Kirby J at 215; Romeo v Conservation Commission of the Northern Territory [1998] 72 ALJR 208 per Gaudron J at 222 (and the dicta in other cases there referred to); the discussion by Mason P in W.D. & H.O. Wills (Aust.) Ltd v SRA [1998] 43 NSWLR 338 at 350-351; and the judgment of the Court of Appeal in Hyde v Agar & Ors (unreported, 19 October 1998, at pp 55-56).

108 Pyrenees is notable as marking, in the decisions of the majority of the court, the abandonment of "general reliance" as a determinant of the existence of a duty of care.

109 Whatever be the shortcomings of the concept of proximity, it remains, as I understand the modern authorities, a touchstone for determining whether there exists in a particular situation a relationship that gives rise to a duty of care. In Hill v Van Erp (supra) Dawson J, in addressing the usefulness of proximity (at 178-179) said:

"Reasonable foreseeability of harm does not, of itself, always give rise to a duty to take care. Something more is required according to the category of the case in question, and that something more is called proximity. Where a new category is suggested, regard should be had in the first place to the established categories which may be helpful by way of analogy in determining whether to recognise a duty of care. That is how incremental development takes place (see Dorset Yacht Co v Home Office [1970] UKHL 2; [1970] AC 1004 at 1058-1059, per Lord Diplock). The process is affected by relevant policy considerations, such as the need to avoid indeterminate liability of the placing of impediments in the way of ordinary commercial activity. It is also important that the tort of negligence should not be regarded as providing an all-enveloping remedy, supplanting `other torts, contractual obligations, statutory duties or equitable rules in relation to every kind of damage including economic loss' (see Downsview Ltd v First City Corporation Ltd [1993] AC 295 at 316). In the end, policy considerations will set the outer limits of the tort."

110 In Caparo Industries v Dickman [1990] UKHL 2; [1990] 2 AC 605, in the context of considering the responsibility of an auditor with statutory duties, Lord Bridge of Harwich (having identified a number of decisions since Anns v Merton London Borough Council [1977] UKHL 4; [1978] AC 728) said at 617-618:

"What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other. But it is implicit in the passages referred to that the concepts of proximity and fairness embodied in these additional ingredients are not susceptible of any such precise definition as would be necessary to give them utility as practical tests, but amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope."

111 Whether the concept of "fairness, justice and reasonableness" is to be regarded as an element of proximity or as a third discrete element of criteria for determining the existence of a duty of care, probably matters not. Toohey J in Pyrenees at 360-361[76] regarded the concept as embraced in the notion of proximity whereas Kirby J recognised the concept as a third element when in Pyrenees (at 419-420) he adopted the three stage test in Caparo:

"I would therefore adopt as the approach to be taken in Australia the three-stage test expressed by the House of Lords in Caparo. To decide whether a legal duty of care exists the decision-maker must ask three questions:

1. Was it reasonably foreseeable to the alleged wrong-doer that particular conduct or an omission on its part would be likely to cause harm to the person who has suffered damage or a person in the same position? (Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488; 69 ALR 615 applying Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 at 662-3; [1984] HCA 84; 56 ALR 417 per Deane J)

2. Does there exist between the alleged wrong-doer and such person a relationship characterised by the law as one of `proximity' or `neighbourhood'? (Whereas some authorities treat proximity and foreseeability as substantially synonymous, the differentiation reflects the long history of the common law in which foreseeability of the risk of harm to another is insufficient of itself to impose a legal duty to act to avoid consequences to that other; cf McHugh, `Neighbourhood, Proximity and Reliance' in Finn (ed) Essays on Torts (1989) 5 at 17.)

3. If so, is it fair, just and reasonable that the law should impose a duty of a given scope upon the alleged wrong-doer for the benefit of such person? (This tripartite test is to be preferred to simplistic tests which impose undue work to be done by the notions of proximity and foreseeabillity; cf Dugdale, `Public Authority Liability: To What Standard' (1994) 2 Tort Law Review 143 at 156.)"

112 Mr Shand placed much reliance upon the Pyrenees case, one of four recent decisions concerning the liability of local councils with statutory powers to which he referred. The other cases cited in this connection were Sutherland Shire Council v Heyman (supra), Parramatta City Council v Lutz [1988] 12 NSWLR 293 and Avenhouse v Hornsby Shire Council (unreported, NSWCA, 15 May 1988).

113 Whilst each of these four cases concerned the relationship of a council to a party with an interest in property within the confines of the council's geographic area, Mr Shand submitted that the decisions in these cases, in particular those in Heyman and Pyrenees, were more far reaching. He submitted that Pyrenees stands as general authority for the way in which a private right of action may arise from the terms of a statute and the claimant's membership of a class which the statute is intended to protect. I accept that to be so. The decision also illustrates that foreseeability, proximity and policy considerations play their role in determining whether a cause of action can arise in a statutory setting.

114 In Pyrenees, the Council was found to owe a duty of care to property owners whose premises were damaged by fire. The council had inspected the chimney in one of two adjacent properties and had found it to be defective. It directed the then occupier of the relevant premises not to use the fireplace until it was repaired but the council then failed to follow the matter up. The subsequent occupier used the fireplace unaware of the council's direction and fire damaged each of the two properties. The relevant statutory provision was s 695(1A) of the Victorian Local Government Act:

"For the purpose of preventing fires the owner or occupier of any land upon which is erected any chimney or fire-place which is constructed of inflammable material or which is not adequately protected so as to prevent an ignition of other adjacent material of an inflammable nature may by notice in writing be directed by the counsel of the municipality within the municipal district of which such land is situated to alter the fire-place or chimney so as to make it safe for use as a fireplace or chimney, as the case may be."

115 Each of the judges in this case gave separate judgments with Toohey and McHugh JJ dissenting from the majority view that the concept of general reliance had no role to play in determining whether a duty of care was owed. A consideration of the various decisions in this case however emphasises the importance of the terms of the statute in determining whether it can give rise to a private cause of action.

116 I do not propose to here review in close detail what was said in Pyrenees but in the course of his judgment the Chief Justice said at p 347:

[24] Thus a duty to exercise a power may arise from particular circumstances, and may be enforceable by a public law remedy. Where a purpose for which a power is conferred is the protection of the person or property of a class of individuals and the circumstances are such that the repository of the power is under a public law duty to exercise the power, the duty is, or in relevant respects is analogous to, a statutory duty imposed for the benefit of a class, breach of which gives rise to an action for damages by a member of the class who suffers loss in consequence of a failure to discharge the duty. The general principles of public law establish the existence of the statutory duty to exercise the power and the statute prescribes the class of individuals for whose benefit the power is to be exercised.

[25] Where the power is a power to control `conduct or activities which may foreseeably give rise to a risk of harm to an individual' (to use a criterion stated by McHugh JA in Parramatta City Council v Lutz [1988] 12 NSWLR 293 at 328) and the power is conferred for the purpose of avoiding such a risk, the awarding of compensation for loss caused by a failure to exercise the power when there is a duty to do so is in accordance with the policy of the statute. An individual who is among the class whose interests are intended to be protected by exercise of the power has both locus standi to seek a public law remedy (Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27; 36 ALR 425; Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552 at 557-8; 129 ALR 191) and a right to compensation for damage suffered as a result of any breach of the duty to exercise the power in protection of that individual's person or property."

117 Gummow J emphasised at p 377 [126] "the primary requirement of analysis of any legislation which is in point and the positions occupied by the parties on the facts as found at trial". His Honour later went on (p 388 [166]) to identify three general propositions of importance, citing the judgment of Dixon J in Shaw Savill and Albion Co Ltd v Commonwealth [1940] HCA 40; [1940] 66 CLR 344:

(i) "The obligation of due care to avoid harm to others, though a general duty arises out of the situation occupied by the person incurring it or the circumstances in which he is placed."

(ii) "Where what is alleged against [the defendant] is failure to fulfil an obligation of care, the character in which he acted, together, no doubt, with the nature of the duties he was in the course of performing, may determine the extent of the duty of care."

(iii) "In the application of the other propositions, regard is to be had both `to reason and to policy'".

118 Later still at p 391-392 [177] his Honour said:

"The general rule is that `when statutory powers are conferred they must be exercised with reasonable care, so that if those who exercise them could by reasonable precaution have prevented an injury which has been occasioned, and was likely to be occasioned, by their exercise, damages for negligence may be recovered" (Caledonian Collieries Ltd v Speirs [1957] HCA 14; (1957) 97 CLR 202 at 220; Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 at 436, 458, 484; [1985] HCA 41; 60 ALR 1). A public authority which enters upon the exercise of statutory powers with respect to a particular subject matter may place itself in a relationship to others which imports a common law duty to take care which is to be discharged by the continuation or additional exercise of those powers (Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 at 459-60; [1985] HCA 41; 60 ALR 1). Any absence of further exercise of the interconnected statutory powers may be difficult to separate from the exercise which has already occurred and that exercise may then be said to have been performed negligently (cf Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 at 479; [1985] HCA 41; 60 ALR 1; Fellowes v Rother District Council [1983] 1 All ER 513 at 522; X (Minors) v Bedfordshire County Council [1995] UKHL 9; [1995] 2 AC 633 at 763). These present cases are of that kind. They illustrate the broader proposition that, whatever its further scope, Lord Atkin's formulation in Donoghue v Stevenson ([1932] AC 562 at 580) includes `an omission in the course of positive conduct...which results in the overall course of conduct being the cause of injury or damage' (Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 at 501; [1985] HCA 41; 60 ALR 1 at 58)."

119 I referred earlier to the approach of Kirby J in adopting the three stage test in Caparo. In considering the third stage his Honour addressed policy considerations (see paras 249-253 of his Honour's judgment).

120 McHugh J did not consider it was reasonable for those interested in the premises in which the defective chimney was located and from which the fire spread to take advantage of the general reliance doctrine against the council and considered therefore that no duty of care was owed to those parties. However, his Honour did say at p 373 [119]:

"I fully accept that the circumstances may require a power such as that conferred by s 695 (1A) to be exercised and that the failure to exercise the power may give rise to a breach of duty under the statute and to an action for damages at common law..."

121 I turn now to consider the provisions of the Child Welfare Act of 1939. Whilst this Act was later repealed, it is common ground that this was the governing statute for the period with which this cause is concerned, because it was the governing statute for so long as HM had the care of TC.

122 Part II identifies the authority responsible for the administration of the Act. The Act empowered the appointment of a Director as the permanent head of the Department of Youth and Community Services and "such other officers and employees as are necessary for the administration of this Act" (s 5). It made provision for the Minister to become the guardian of any young person who became a ward (s 9) and charged the Minister with the care of all wards except in periods defined in s 10. Section 10A empowered the Minister to delegate to any specified officer of YACS the exercise or performance "of such of the powers, authorities, duties or functions conferred" under the Act.

123 Part III provided for the establishment of Children's Courts.

124 Part IV provided for the establishment of depots, homes and hospitals.

125 Part V defined the Minister as being the authority to admit a child to State control and thereafter to make any of the provisions contemplated in s 23 in relation to such a child. These included providing for his accommodation and maintenance, the payment of foster parents, the boarding out of a ward and the approval of people applying for custody of wards.

126 Part VI empowered the Minister to grant allowances for the support of destitute children and young people in the circumstances identified in that Part.

127 Part VII provided for the licensing of child care centres, children's depots, homes and hostels and private foster homes.

128 Part VIII concerned lying-in homes, that is homes where women were received for confinement.

129 Part IX made certain provisions for intellectually handicapped persons.

130 There is no need for present purposes to refer to any of the detail of Parts VII, VIII or IX.

131 Part X provided for the establishment of institutions and schools for young persons and for them to be controlled by the Minister (ss 49 and 50). Sections 53 and 54 empowered the Minister to determine in what particular institution a child might be placed and to make decisions for the transfer of a child from one place to another and for the discharge of a child from an institution and to restore the child to the custody of his parent or some other suitable person.

132 Part XI was concerned with the punishment of inmates in institutions and does not call for examination here.

133 Neither do Parts XII or XIII which deal with the maintenance of children by their relatives and the employment of children.

134 Part XIV made provision for the committal inter alia of neglected children. Section 72 defined a "neglected child" as including a child:

"(d) who...is ill-treated or exposed...

(j) who, in the opinion of the court, is under incompetent or improper guardianship...

(n) who is falling into bad associations or is exposed to moral danger..."

135 Section 73 empowered a justice "upon oath being made before him by an officer authorised by the Minister in that behalf..." to summons any child to appear before the court if, after due inquiry, he believes that child to be neglected.

136 Section 74 empowered any officer authorised by the Minister to apprehend a child for whose apprehension a warrant had been issued under s 73, even if that person did not have the warrant in his possession.

137 Section 78 provided that where a child had been apprehended as a neglected child he was to be taken to a shelter and thereafter brought before the court as soon as practicable.

138 Section 81 dealt with the procedure when the child was brought before the court. This section and ss 82 and 83 which concern the powers of the court do not require close reference at this particular point although I will return to them later when addressing the negligence alleged against the defendant in failing to bring TC before the Children's Court.

139 It is appropriate to pass now to Part XVII of the Act. Section 148 created offences for those who neglected to provide for children in their care and s 149 created offences for those who assaulted or ill-treated children. Section 132 provided for the maximum penalties to be imposed upon those guilty of offences under the Act which were punishable summarily.

140 Under s 135 any officer authorised by the Minister or a police officer was empowered to take a child in respect of whom it was believed that an offence had been committed to a shelter where he could be detained until brought before a court.

141 Under s 146 any person might lay an information before a magistrate upon which the magistrate who believed there was reasonable cause to suspect that a child was a neglected child as defined might issue a warrant for the purpose of having the child taken to a place of safety until he could be brought before a court.

142 Section 148B provided for a statutory scheme of notification of the Director and this provision assumes particular significance in the present context. It defined, in sub-s (1), a "prescribed person" as meaning:

"(a) a medical practitioner; and

(b) a person who is a member of any class of persons prescribed for the purposes of this paragraph, being a person who follows a profession, calling or vocation, other than a solicitor or barrister in the course of his profession, so prescribed, or who holds any office so prescribed."

143 Section (2) provided for notification by those other than prescribed persons:

"(2) Any person who forms the belief upon reasonable grounds that a child -

(a) has been assaulted; and

(b) is a neglected child within the meaning of Part XIV

may

(c) notify the Director of his belief and the grounds thereof either orally or in writing; or

(d) cause the Director to be so notified."

144 Sub-section (3) imposed an obligation of notification on prescribed persons and sub-s (4) provided for a penalty for breach of this obligation:

"(3) A prescribed person who in the course of practising his profession, calling or vocation, or in exercising the functions of his office, as the case may be, has reasonable grounds to suspect that a child has been assaulted, ill-treated or exposed, shall -

(a) notify the Director of the name or a description of the child and those grounds either orally or in writing; or

(b) cause the Director to be so notified promptly after those grounds arise.

(4) A prescribed person who fails to comply with sub-section (3) shall be guilty of an offence against this Act."

145 Sub-section (5) concerned the Director:

"(5) Where the Director has been notified under sub-section (2) or (3) he shall -

(a) promptly cause an investigation to be made into the matters notified to him; and

(b) if he is satisfied that the child in respect of whom he was notified may have been assaulted, ill-treated or exposed, take such action as he believes appropriate, which may include reporting those matters to a constable of police."

146 Section 148C provided machinery for the Director or a constable of police to have a medical examination of a child where it was believed on reasonable grounds that the child had suffered injury by reason of having been assaulted or ill-treated.

147 Section 158 was referred to earlier as being a section relied upon in the defence pleaded. This section provided, in sub-s (1):

"(1) No suit or action shall lie against the Minister or any officer or employee of the Department of Youth and Community Services for or on account of any act, matter or thing done or commanded to be done by him and purporting to be done for the purpose of carrying out the provisions of this Act, if the Minister or the officer or employee has acted in good faith and with reasonable care.

(2) [Repealed].

(3) Proceedings in such suit or action as aforesaid may, on application to the court in which such suit or action was commenced, be stayed upon such terms as to costs or otherwise as the court may think fit, if the court is satisfied that there is no reasonable ground for alleging want of good faith or reasonable care."

148 Section 148B was added to the Child Welfare Act by Act No. 29 of 1977 and it was plainly added in the interests of children with a need for protection, as the Second Reading Speech by the then Minister for Youth and Community Services emphasised:

"The main object of this legislation is to ensure that children who are ill treated or abused by their parents receive prompt attention, that parents be provided with access to professional help at the earliest possible moment and that such cases be systematically identified..."

149 The procedure of notification to the director was made available for any person forming the belief addressed in sub-s (2), but the procedure of notification was made compulsory in the case of a prescribed person coming within sub-s (3).

150 Once a notification was given to the director, s 148B(5) was enlivened and he thereupon became obliged to promptly cause an investigation into the subject matter of the notification. Moreover, if the director was satisfied that the child the subject of the notification "may have been assaulted, ill treated or exposed", he became obliged to take such action as he believed appropriate, which may include reporting those matters to a constable of police.

151 It is to be observed that the need to cause a prompt investigation was mandatory, as was the need to act if investigation satisfied the director the child may have been assaulted, ill treated or exposed but the action the director was then to take involved an element of discretion.

152 That the director had a discretion concerning the action he was obliged to take, if satisfied of the possibility of assault or ill treatment or exposure, did not of itself preclude the existence of a common law duty of care. Indeed, there are statements to the contrary to be found in Pyrenees. In his judgment in that case Brennan CJ said at 346 [23]:

"But the existence of a discretion to exercise a power is not necessarily inconsistent with a duty to exercise it. As Earl Cairns LC said in Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 at 222-3:

[t]here may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so.

In Padfield v Minister of Agriculture, Fisheries and Food ([1968] AC 997 at 1033), Lord Reid cited this passage and proceeded:

Lord Penzance said that the true question was whether regard being had to the person enabled, to the subject matter, to be general objects of the statute and to the person or class of persons for whose benefit the power was intended to be conferred, the words do or do not create a duty ((1880) 5 App Cas 214 at 229-30), and Lord Selborne said that the question was whether it could be shown from any particular words in the Act or from the general scope and objects of the statute that there was a duty ((1880) 5 App Cas 214 at 235). So there is ample authority for going behind the words which confer the power to the general scope and objects of the Act in order to find what was intended."

153 McHugh J in his judgment said at 371 [110]:

"There is nothing novel in the proposition that, despite the conferment of a discretionary power, particular circumstances may require the power to be exercised. To hold that the existence of the power can give rise to a common law duty to take reasonable care to exercise it is therefore not inconsistent with the existence of the discretion."

154 Gummow J, at p 376 [124], referred to Heyman, saying:

"Sutherland Shire Council v Heyman established that the circumstance that a public authority is the repository of a statutory discretion does not prevent the application of the ordinary principles of the law of negligence."

155 The fact that s 695(1A) conferred a discretionary power upon the council in Pyrenees did not preclude the existence of a breach of duty giving rise to a claim for damages in that case. Indeed, in that case Gummow J, having acknowledged the defendant's statutory powers, said at 389 [168]:

"This statutory enablement of the shire `facilitate[d] the existence of a common law duty of care', [again citing Heyman] but the touchstone of what I would hold to be its duty was the shire's measure of control of the situation, including its knowledge."

156 In Kirby J's analysis in Pyrenees at p 427-428 [255], the law did impose a duty of care on the shire for the benefit of the Days:

"The scope of the duty was to oblige the shire to consider and effectively to exercise the powers which it had under s 695(1A) of the Local Government Act. It also required the shire to follow up action under that sub-section."

157 It is not contended in the present case of course that the Child Welfare Act gave rise to a statutory cause of action. However, the absence of a statutory cause of action does not prevent the creation of a common law duty of care. Indeed, Pyrenees is itself illustrative of this, and see the judgment of Kirby J at 422 [250]. See also the judgment of Mason J in Heyman (supra) at 459.

158 I am satisfied that this legislation, and in particular s 148B, was introduced for the protection of a limited class, namely children at risk. I find no pointer in the statute that parliament did not intend to create a source of a private cause of action. Indeed, s 158 may be regarded as an indicator that parliament intended that a private duty could arise under the statute.

159 Section 158 was in the Act prior to the addition of s 148B. It was amended however by Act No. 19 of 1977, the Notice of Action and Other Privileges Abolition Act. That Act, as its title indicates, addressed limitation provisions then to be found in many acts. It repealed s 158(2) which had required any action to be commenced within six months "after the alleged cause of action", and it amended s 158(3), again by eliminating the six month limitation period referred to therein. Hence this Act removed restrictions formerly affecting a remedy contemplated by s 158(1).

160 Section 158 was considered by the Court of Appeal in Minister for Youth and Community Services v Health and Research Employees Association [1987] 10 NSWLR 543. It is unnecessary to refer to the facts in that case, far removed from those presently under consideration. However, McHugh JA said of the section at 561:

"Section 158 in my opinion is directed to suits or actions in tort or in quasi contract type situations such as actions for money had and received and so on."

161 I respectfully adopt the analysis of s 158 expressed by McHugh JA, as he then was. Section 158 contemplated that liability could arise in tort

"for or on account of any act, matter or thing done or commanded to be done...and purporting to be done for the purpose of carrying out the provisions of this Act..."

162 Mr McAlary acknowledged that the section could have work to do after intervention by the defendant and the removal of a child from his former environment, but submitted that the presence of s 158 was entirely consistent with the absence of any tortious exposure before intervention of that nature.

163 Upon reflection I am not attracted by that submission. Under s 148B an obligation to act was triggered by notification, which notification imposed mandatory requirements. It follows that what was done in response to any notification was contemplated by s 158, whether a decision to remove the child was implemented or not. It seems to me that viewing s 148B in conjunction with s 158, the latter section had possible application even as early as the investigation stage referred to in s 148B(5)(a).

164 I observe that s 148B(5) had no real counterpart in the legislation considered in the Bedfordshire case, in which case Lord Browne-Wilkinson, with whose speech the other members of the House of Lords agreed, observed at 739:

"...the question whether there is such a common law duty and if so its ambit, must be profoundly influenced by the statutory framework within which the acts complained of were done."

165 Against the above background and with the provisions of the Act in mind, I now approach the task of determining whether in the present case the defendant owed to the plaintiff a duty of care at common law. I do so adopting, with respect, the three stage approach employed by Kirby J in Pyrenees (see para 111 above).

166 Following the introduction of s 148B into the Child Welfare Act in 1977 the defendant introduced a set of instructions which became Exhibit L:

"In conjunction with recent legislation it is proposed to establish a Central Index of cases of child abuse known to or notified to the Department, in the Child Life Protection Unit being established.

The basis for this central index will be the cases previously referred to the Stanmore District Office under existing circular instructions, plus other cases known to the Department and under supervision, but not previously notified to Stanmore.

It will therefore be necessary to immediately review all current Family Casework Files (and any appropriate Local Files) and to extract appropriate data from these case records. It is proposed that this task be shared between Field staff and Specialist Child Abuse personnel.

The cases concerned are those which fall within the following definition -

`Any child under the age of 16 years who has sustained non accidental injury as a result of actions on the part of a parent having his or her care, these actions usually being associated with a degree of violence on the part of such a person.'"

167 On a further sheet of Exhibit L there was recorded the following concerning notification procedure:

"The notification procedures establish the basis for intake, assessment, case planning and management, and review. These procedures are important to the safety of the child; and they aim to give additional protection to the children through the Central Register.

All cases of suspected child abuse and neglect which come to the notice of a Departmental Officer MUST be officially notified to the Montrose Family Crisis Service.

At the time of notification a Departmental Officer is nominated as Case Co-ordinator. He/she is responsible for ensuring that action to obtain assessment is taken.

Assessment is a critical process in the management of child protection cases. Poor or inadequate assessment may:

- lead to an insufficient response to the family which, in turn, might more likely result in failure to take such action or offer such assistance as may be needed to help those caregivers responsible for the `at risk' child, to avoid situations where further injury or neglect occurs;

- result in continued involvement of officers that is wasteful of scarce resources of the Department, and an unnecessary invasion of family privacy, when intervention is not justified; or

- result in unnecessary and wasteful contention between the professionals and other service deliverers involved in the case.

An initial assessment must take place as soon as possible after initial notification. Further assessment, however, needs to canvass all the relevant issues outlined in Form 2; not necessarily in one or even two interviews. The Form is not a substitute for a thorough written assessment."

168 The content of Exhibit L has obvious relevance when considering questions of foreseeability and proximity.

169 I am satisfied that the requirement of reasonable foreseeability has been proved in this case. It is plain that it was reasonably foreseeable that any failure by YACS to respond appropriately to a notification under s 148B could result in harm to the child concerned. A statutory notification inevitably alerted YACS to the risk of harm.

170 I am also satisfied that the Child Welfare Act created the necessary proximity for a duty of care to arise. The statutory scheme established a particular relationship once a notification under s 148B was received, thereby imposing the mandatory requirements upon the director earlier considered. The vulnerability of a young child considered to be at risk is self evident.

171 Is it fair, just and reasonable that the common law should impose a duty of care upon the defendant for the benefit of the plaintiff?

172 This, of course, calls for attention to policy considerations and it is convenient to return to the Bedfordshire case where Lord Browne-Wilkinson addressed this very issue at 749-751:

"Is it, then, just and reasonable to superimpose a common law duty of care on the local authority in relation to the performance of its statutory duties to protect children? In my judgment it is not. Sir Thomas Bingham MR took the view, with which I agree, that the public policy consideration which has first claim on the loyalty of the court is that wrongs should be remedied and that very potent counter considerations are required to override that policy ante, p. 663C-D. However, in my judgment there are such considerations in this case.

First, in my judgment a common law duty of care would cut across the whole statutory system set up for the protection of children at risk. As a result of the ministerial directions contained in `Working Together' the protection of such children is not the exclusive territory of the local authority's social services. The system is inter-disciplinary, involving the participation of the police, educational bodies, doctors and others. At all stages the system involves joint discussions, joint recommendations and joint decisions. The key organisation is the Child Protection Conference, a multi-disciplinary body which decides whether to place the child on the Child Protection Register. This procedure by way of joint action takes place, not merely because it is good practice, but because it is required by guidance, having statutory force binding on the local authority. The guidance is extremely detailed and extensive: the current edition of `Working Together' runs to 126 pages. To introduce into such a system a common law duty of care enforceable against only one of the participant bodies would be manifestly unfair. To impose such liability on all the participant bodies would lead to almost impossible problems of disentangling as between the respective bodies the liability, both primary and by way of contribution, of each for reaching a decision found to be negligent.

Second, the task of the local authority and its servants in dealing with children at risk is extraordinarily delicate. Legislation requires the local authority to have regard not only to the physical wellbeing of the child but also to the advantages of not disrupting the child's family environment: see, for example, section 17 of the Act of 1989. In one of the child abuse cases, the local authority is blamed for removing the child precipitately: in the other, for failing to remove the children from their mother. As the Report of the Inquiry into Child Abuse in Cleveland 1987 (Cm. 412) said, at p.244:

`It is a delicate and difficult line to read between taking action too soon and not taking it soon enough. Social services whilst putting the needs of the child first must respect the rights of the parents; they also must work if possible with the parents for the benefit of the children. These parents themselves are often in need of help. Inevitably a degree of conflict develops between those objectives.'

Next, if a liability in damages were to be imposed, it might well be that local authorities would adopt a more cautious and defensive approach to their duties. For example, as the Cleveland Report makes clear, on occasions the speedy decision to remove the child is sometimes vital. If the authority is to be made liable in damages for a negligent decision to remove a child (such negligence lying in the failure properly first to investigate the allegations) there would be a substantial temptation to postpone making such a decision until further inquiries have been made in the hope of getting more concrete facts. Not only would the child in fact being abused be prejudiced by such delay: the increased workload inherent in making such investigations would reduce the time available to deal with other cases and other children.

The relationship between the social worker and the child's parents is frequently one of conflict, the parent wishing to retain care of the child, the social worker having to consider whether to remove it. This is fertile ground in which to breed ill feeling and litigation, often hopeless, the cost of which both in terms of money and human resources will be diverted from the performance of the social service for which they were provided. The spectre of vexatious and costly litigation is often urged as a reason for not imposing a legal duty. But the circumstances surrounding cases of child abuse make the risk a very high one which cannot be ignored.

If there were no other remedy for maladministration of the statutory system for the protection of children, it would provide substantial argument for imposing a duty of care. But the statutory complaints procedures contained in section 76 of the Act of 1980 and the much fuller procedures now available under the Act of 1989 provide a means to have grievances investigated, though not to recover compensation. Further, it was submitted (and not controverted) that the local authorities Ombudsman would have power to investigate cases such as these."

173 It is to be observed that his Lordship regarded the public policy consideration as having first claim on the loyalty of the courts was that wrongs should be remedied.

174 It is further to be observed that the first of the "very potent counter considerations" to the imposition of a duty of care identified by his Lordship was a statutory scheme which is not to be found in the Child Welfare Act in this State.

175 It seems to me that the weight to be attached to the remaining factors identified by his Lordship is tempered, when considering their application to the Director's statutory obligations under s 148B(5), by the mandatory nature of those obligations.

176 As to the last of the counter considerations addressed in the above speech, I observe that the only possible remedies in the event of a public authority declining to exercise its power or to perform its function in New South Wales would be mandamus and resort to the Ombudsman Act. There are obvious limitations in the nature of the relief that would be available by resort to either of these avenues.

177 Mr McAlary drew attention to a number of cases in which Bedfordshire was applied in England: Barrett v Enfield London Borough Council [1997] 3 WLR 628; O'Rourke v Camden London Borough Council [1997] UKHL 24; [1998] AC 188; Harris v Evans [1998] EWCA Civ 709; [1998] 1 WLR 1285; W v Essex County Council [1998] 3 WLR 534. However, once again in each of these cases the legislation differed from the Child Welfare Act significantly and it would not be useful to refer to the detail of those cases for the purposes of this judgment.

178 Mr McAlary also referred to a decision in South Australia where Bedfordshire was applied: Hillman v Black, a decision of Duggan J at first instance (unreported) and of the Full Court on appeal ([1996] [1996] SASC 5941; 67 SASR 490). Hillman was a very different case from the present. It was held there that no duty of care was owed to the parent by the Department of Community Welfare under South Australian legislation following upon an accusation that a father had sexually abused his daughter. Once again the legislation in South Australia differs in what I perceive to be significant respects from the Child Welfare Act with which the present case is concerned.

179 I was also referred to the recent decision of the Court of Appeal in Victoria in Stevedoring Industry Finance Committee v Crimmins (unreported) in which the Victorian Court of Appeal decided that a stevedoring authority vested with statutory powers had no duty of care to a waterside worker injured through the inhalation of asbestos fibres. Here again of central importance to the decision was the statutory framework upon which the plaintiff sought to rely and it bore no resemblance to the statute with which I am concerned.

180 Ultimately therefore I have not been much assisted by consideration of the above cases decided since the Bedfordshire case.

181 My attention has also been drawn to a recent decision of the Court of Appeal in New Zealand in Attorney General v Prince and Gardner (1998) 1 NZLR 262. In that case the plaintiff alleged negligence on the part of social welfare officers in the failure to properly investigate a complaint concerning his ill treatment that had been made under the Children and Young Persons Act, 1974. The Court of Appeal (by majority, with Henry J dissenting) determined that the claim should not be struck out but that it ought to proceed to trial.

182 Under s 5 of the New Zealand statute the obligation was imposed upon the Director General in these terms:

"(1) It shall be the duty of the Director-General to take positive action and such steps under this Act as in his opinion may assist in preventing children or young persons from being exposed to unnecessary suffering or deprivation or from becoming seriously disturbed or from committing offences.

(2) In pursuance of the duty imposed on him by subsection (1) of this section the Director-General shall arrange -

(a) For prompt inquiry where he knows or has reason to suspect that any child or young person is -

(i) Suffering or likely to suffer from ill-treatment or from inadequate care or control; or

(ii) By reason of his behaviour, causing serious concern to his parents, guardians, or teachers..."

183 The Bedfordshire case was considered by the New Zealand Court of Appeal, as were policy considerations perceived to be relevant. In the joint judgment of Richardson P, Thomas and Keith JJ, their Honours said at 284:

"The question is whether it is just and reasonable to superimpose a common law duty of care on the department in relation to the performance of its statutory responsibilities for the protection and care of children and young persons. But, given the conclusion that proximity is satisfied, the statutory framework within which the department and its social workers act is consistent with the imposition of a common law duty of care. The narrow argument is that liability may arise where the person charged with the responsibility either unreasonably fails to carry out the duty to consider the matter or reaches a conclusion so unreasonable as to show failure to do its duty.

Given the important features of the 1974 Act which we have been emphasising, it cannot be said that a common law duty of care in these terms would cut across the whole statutory scheme. At that early triggering step a specific positive duty rests on the Director-General. At that step it does not require participation with other agencies. The duty suggested does not conflict with any other duty by the department and its officers. On the contrary it enhances it.

In the Bedfordshire case Lord Browne-Wilkinson at p 739 emphasised that the question whether there is a common law duty, and if so its ambit, must be profoundly influenced by the statutory framework within which the acts complained of were done. In the various respects we have been discussing the Children and Young Persons Act 1974 is clearly distinguishable from the statutes before the House of Lords in the Bedfordshire case and the statutes under consideration in the large number of cases (but few in the child protection field) canvassed in argument. Little is to be gained from a point-by-point comparison. Also, the rescue cases are not comparable because in those cases any statutory framework was very different from the 1974 Act.

There are other policy considerations to be considered although we would not weigh them as heavily in this case as the scheme and policy of the 1974 Act. First, the difficulty and delicacy of the social worker's task and its judgmental nature are relevant. Intrusion into the family has to be handled with tact in the interests of the child or young person. The social worker must also have regard to the advantages of not disrupting the family environment and to the advantages and disadvantages of other options for the care of the young person. Clearly a plaintiff would have difficulty in establishing that an assessment made by a social worker fell outside the bounds sanctioned by professional opinion. Nevertheless considerations of that kind cannot absolve the department and social workers from the responsibility of considering and responding to specific complaints with professional skill and care.

Next, the Solicitor-General submitted that the imposition of a duty would or could cause the department and social workers to adopt a more cautious and defensive approach to their duties. He drew our attention to a considerable body of professional literature on that point and to the recognition of it in the Bedfordshire case (see also Barrett v Enfield London Borough Council [1997] 3 WLR 628 at pp 636 and 638). But like lawyers and doctors, social workers are professionals. At that triggering step (and at other steps) they should be expected to have shouldered willingly a standard of reasonable skill and care that their private sector counterparts were expected to discharge. And in the absence of any data as to potential claims based on the roles and responsibilities of the department and social workers under the 1974 Act, which was replaced eight years ago by a very different legislative scheme, it would be unwise to give any particular weight to the resource implications of allowing for a common law duty of care.

Finally, and as pointing against the imposition of a duty, there are the obvious difficulties of reaching conclusions as to causation and damages. Clearly any such claims would be very difficult to establish. That in itself cannot, we think, be adequate justification for ruling out the possibility of any claim for negligence whatever the circumstances."

184 Once again the framework of the legislation in the New Zealand case differs from that in the Child Welfare Act but the sort of policy considerations identified in the extract from the judgment set out above arise for consideration here. Plainly regard must be had to considerations such as those set out in the above extract, and in particular to those matters addressed in the three paragraphs last cited above. Nor can it be ignored that the resources of YACS are limited, and that doubtless many demands are made upon those resources. However, in my opinion contrary considerations do not outweigh those factors supportive of a duty of care, at the forefront of which is the statutory framework itself and the recognition in s 148B of the need to protect the limited class there contemplated, namely children at risk in one or other of the ways identified in the section. The vulnerability of the members of that class is a most important and weighty consideration.

185 I have reached the conclusion that it is fair, just and reasonable in all the circumstances for the common law to impose a duty of care upon the defendant towards this plaintiff, and accordingly I do conclude that the defendant did owe such a duty towards TC.

186 What is the measure of that duty?

187 Mr McAlary submitted that at its highest the duty of the Director could only be regarded as a duty to consider exercising the power of apprehending the plaintiff to bring him before the court, and this involved the exercise of a discretion. Therefore, Mr McAlary argued, the power could not be regarded as imposing a duty unless failure to exercise the power was irrational. He referred to Stovin v Wise [1996] UKHL 15; [1996] AC 923 and in particular to the speech of Lord Hoffmann at 953 and to the judgment of Brennan CJ in Pyrenees at 345 [21]. As indicated earlier in the context of considering the significance of s 158, I do not accept that the exposure in tort could only arise once the placement of the child was disturbed by the department. As I see it, there was a duty commencing at the mandatory investigation stage.

188 In Pyrenees Kirby J said at 423 [252]:

"It is settled law that where a public authority enters upon the exercise of its powers, it must do so carefully."

189 His Honour cited Heyman (supra) and the judgment of Mason J at 459 in support of that proposition. Later at p 426 [253] Kirby P referred to the speech of Lord Hoffmann in Stovin v Wise relied upon by Mr McAlary in this passage:

"The extent of the risk necessary to convert a statutory power into an obligation to act in particular circumstances has been various described. In Stovin, Lord Hoffmann suggested that a consideration would be whether it could be said to be `irrational' for the authority not to exercise its powers (Stovin v Wise [1996] UKHL 15; [1996] AC 923 at 958). Although such a test might have the attraction of reconciling principles of the law of negligence and administrative law, it would impose on a claimant a burden more onerous than the law of negligence typically does. It may be `fair, just and reasonable' to impose on a public authority a duty of care to exercise relevant statutory powers in given circumstances although a refusal to do so would not have attracted the epithet `irrational'. This would be especially so where the beneficiaries of the power `could not guard themselves' (Stovin v Wise [1996] UKHL 15; [1996] AC 923 at 954) or where the defects said to call forth the exercise of the power are dangerous and even life-threatening (Winnipeg Condo Corp v Bird Construction Co [1995] 1 SCR 85; (1995) 121 DLR (4th) 193; cf Bryan v Maloney (1995) 182 CLR 609 at 649-50; 128 ALR 163 per Brennan J; see also comment in Wallace `The Murphy Saga in Australia: Bryan in Difficulties?' (1997) 113 Law Quarterly Review 355 at 355)."

190 I referred earlier to that passage in the judgment of Gummow J in Pyrenees (at p 391 [177]) where he expressed the general rule as requiring that statutory powers should be exercised with reasonable care.

191 Assisted as I am by what was said in Pyrenees, it seems to me that the measure of the duty imposed upon the department by the receipt of notifications was a duty to exercise reasonable care in the discharge of the mandatory requirements of s 148B.

The reliability of HF and HM as witnesses

192 Before proceeding to consider the complaints made on behalf of TC and the responses YACS made to them, it is desirable that I address the reliability of TC's parents as witnesses.

HF

193 HF was born in Syria and when he gave evidence in October 1997 he was forty-nine years of age. He came to Australia to settle in 1972 and he worked generally in the food industry. Apart from a period during which he was a cleaning contractor, he worked in and conducted a number of take-away food businesses. As I observed earlier, following his marriage he was conducting two take-away food businesses and a pizzeria. His subsequent marital problems and his concerns about TC appear to have impaired HF's ability to work. His evidence was (T425) that he could not continue with his businesses after 1982 because he was "tense, worried, confused and involved in the litigation". The litigation in the Family Court, as I have observed, continued until 1986 and the present proceedings in this court have been on foot since 1993. HF is at present unemployed, finding support in pension benefits.

194 In the course of these proceedings HF spent a lengthy period in the witness box. His evidence began on the fourth day of the hearing and it continued, albeit with interruptions when other witnesses were interposed, until the fourteenth hearing day. HF was extensively cross examined and I had ample opportunity to observe and to assess him.

195 I have no doubt whatsoever that HF has a deep attachment for TC and that from TC's infancy HF has been concerned to act in what he has perceived to be his son's best interests. Clearly HF regarded his son's best interests as requiring that HF should be his custodian and this, it seems to me, accounts in large part for the protracted litigation in the Family Court.

196 HF presented as a highly excitable and volatile witness who, as the transcript records, often expressed himself in extravagant language. I illustrate this by just a few examples from the transcript:

(i) When HF was being cross examined by Mr McAlary he was asked about the representations he made to various politicians concerning what he perceived to be the lack of appropriate action taken by officers of the Department of Youth and Community Services. In the course of this cross examination HF agreed that he complained to Mrs Foot, who was then the Shadow Minister for Health and Youth and Community Services. Mr McAlary asked this question and HF gave this answer (T344):

"Q. I am putting to you that you went and saw Mrs Foot and put all these complaints to her in a way that would suggest that you were being badly treated and the boy was being badly treated so that she would raise these complaints in Parliament to the detriment of the Minister?

A. Well, the reason I have contacted her for one purpose to eliminate suffering of my son and stop the corruption in the department.

Q. Stop the corruption?

A. The corruption and aiding and abetting child abuser in the department. That my aim, to save my son.

Q. To stop aiding and abetting child molesters, are you saying these officers of the department were corrupt?

A. Beyond any doubt.

Q. And that they were aiding and abetting child abusers?

A. Yes and my son as well."

(ii) Later in cross-examination HF was asked about an occasion when he took TC to the departmental office and saw Mr Finch who HF said looked at TC. I earlier observed that there was a conflict of evidence between HF and Mr Finch, the latter saying that he did examine the boy but, contrary to HF's assertion, saw no bruises. Mr McAlary asked HF the following questions and elicited the following responses at T352:

"Q. All right. But Mr Finch looked at the child on those occasions?

A. Yes, he did.

Q. Did he say he could see no bruises where you claimed there were bruises?

A. This is absolute crazy and malicious."

(iii) HF asserted in his evidence before this Court (T356) that in the Family Court proceedings witnesses were "manipulated" by his solicitor in the course of a hearing before Pawley J.

(iv) Later on in the cross examination of HF, Mr McAlary questioned the witness about certain evidence which he gave in proceedings before Ellis J in the Family Court. In the course of those proceedings it appears that HF withdrew his instructions from the solicitor he was then retaining and in relation to that he was asked the following question and gave the following answer at T382:

"Q. You got rid of the solicitor?

A. The solicitor, the criminal negligence, he was criminal against my case, yes."

(v) HF claimed that in the proceedings before Ellis J his own solicitor deliberately refrained from calling witnesses so that TC would be left with the people who had been molesting him (T432-433).

(vi) Elsewhere (T506) HF described his barrister and his solicitor representing him before Ellis J in April 1985 as "shameful", and the proceedings themselves (T505) as "shameful, it was disgraceful hearing".

197 I observe at this point that HF agreed in cross examination (T343) that he had contacted more than twenty solicitors at various stages, although he would not agree that he had had twenty solicitors who had acted for him.

198 It is apparent over the years since the birth of TC that HF has developed a deep distrust of many people he has encountered in various walks of life as he has pursued his concerns about his son.

199 His dissatisfaction with the legal profession is evidenced in the above transcript references and the many changes of solicitors he has made reflects this distrust. Nor have those who have acted for TC on the hearing of this cause enjoyed HF's trust. During the hearing there were a number of occasions upon which HF was outspoken in his criticism of the conduct of counsel and, indeed, he has made the most serious allegations against them. HF was present in Court during most of the long hearing and his animosity towards counsel appearing for TC was made obvious. He interrupted proceedings more than once.

200 On 9 July 1998, as the transcript records at T1938, HF presented a letter which contained allegations of impropriety against senior counsel appearing for both the plaintiff and the first defendant. I adverted to that incident in my remarks recorded on the following day (T1992-3) and I will not repeat what was there recorded.

201 Then on 20 July 1998 a communication was received in my chambers which was addressed to me. This purported to be a copy of a communication to senior counsel for the plaintiff. The further hearing of the cause had been adjourned on 17 July 1998 until 3 August 1998 but the receipt of this most improper communication prompted the listing of the matter on what was the first available opportunity, namely 22 July 1998, for the purposes of alerting counsel to what had occurred. I will not repeat what the transcript records was said on that occasion, nor will I repeat the remarks which I made and which were recorded, except to repeat the observation that HF's behaviour in sending this communication to the judge hearing the cause in which HF attacked the integrity not only of counsel but of a witness who had given evidence was grossly improper.

202 It is apparent that HF's antagonism, not proved by the evidence to have been well founded, was not focussed only upon TC's lawyers. It has, for example, been reflected in his association with Ms Goldberg, Dr Waters and various officers from YACS.

203 HF distrusted Ms Goldberg. Having indicated his belief that his solicitor had concealed from the Family Court on 29 May 1984 the names of the perpetrators of the sexual abuse upon TC, HF then expressed a belief that Ms Goldberg acted intentionally. HF's belief was apparently that Ms Goldberg so acted to protect these perpetrators. HF was asked these questions and gave these answers at T438:

"Q. At the time when she prepared that report she deliberately omitted the vital evidence?

A. Beyond any doubt of my mind, my own belief from what is happening. It was intentionally left out for reasons unknown to me but most probably to - to keep untouched.

Q. Most probably to?

A. To perpetrate keep unknown to.

Q. Can you say that again?

A. To keep the perpetrator in the clear."

204 When Dr Waters saw HF for the purposes of making the assessment he was engaged to make in 1984, the doctor observed that HF's attitude could change rapidly from ingratiating to being enraged and abusive. Dr Waters said HF conveyed:

"a fixed belief that his wife is surrounded by lesbians, including female YACS officers to the extent that he denied they had any positive attributes."

205 The doctor also recorded that HF was verbally abusive of him and other members of the doctor's staff whilst he was waiting for the preparation of the doctor's report.

206 So far as YACS is concerned, HF was sweeping in his condemnation of its officers. For example, he said (T516):

"My view is the Department controlled by child abusers. I certainly said it and I certainly have a view of it today and I have said it a couple of days ago. The Department Family Community Services, on what they have done to my son, regards his safety and well being but no doubt in my mind they have been protecting and encouraging child abusers from 80's until today, yes I am of the view."

207 Mrs Burgess gave evidence, which I accept, that when HF spoke to her he called her "a fucking lesbian" (T1692-3). Ms Boulter gave evidence, which again I accept, that HF screamed abuse at her and slammed the desk in her office.

208 HF speaks imperfect English and I must make due allowance for this. I must also make due allowance for the concern he has for his son which has, no doubt, motivated much of his conduct in the last eighteen years. Nevertheless, my task ultimately is to determine what of his evidence I should accept and in this respect I am primarily concerned with the reliability of his evidence. Having had such ample opportunity to observe him during the course of his evidence and the course of the hearing, and having had ample opportunity to consider and reflect upon his evidence in the context of other evidence in this case, and in particular evidence that I do accept, I have concluded that I must approach his evidence with much caution and I find that I can accept his evidence only where it is supported by other evidence in the case that I find to be satisfactory. Indeed, counsel for the plaintiff have not submitted that I should take a contrary approach.

HM

209 I traced earlier the background of this witness. Whilst there has plainly been animosity between HM and HF from the time they last separated, I accept the evidence of HM that she loved her child.

210 I do not find that she was guilty of sexually abusing TC nor do I find that she participated in any sexually inappropriate behaviour with anyone else in the presence of TC. I express my reasons for this conclusion elsewhere in the judgment.

211 It does not follow from the above conclusions that HM had no shortcomings as a mother, nor do I regard her credibility as unshaken in any respect.

212 There are some aspects of the evidence of HM which I found unsatisfactory. In particular:

(i) There was a teapot incident in respect of which HM's evidence in the Family Court is inconsistent with her evidence in this Court (T2649-2653).

This episode occurred when TC was about nine months old and the contents of a pot of tea were spilt causing a burn injury to one of TC's feet. HM said before this Court that TC was sitting on HF's lap. She said that she put the pot on the table and then had her back to it. She next heard TC screaming and she saw the broken teapot on the floor. She said she did not see the teapot in TC's hands. However HM was then reminded of different evidence that she gave in the Family Court in July 1983:

"When the child was on his father's lap, he was very strong baby, and he picked up the pot of tea in two hands."

HM agreed she probably gave that account in the Family Court but explained in cross examination here that that was what HF had told her had happened. She went on to say that she did not see TC do anything with the teapot before the accident. However, at this point of her cross examination HM was reminded of the further evidence she had given in the Family Court which was plainly inconsistent:

"When the child was on his father's lap, he was very strong baby, and he picked up the pot of tea in two hands and I said to Mr HF, `Please [HF] watch it, TC have the teapot in his hand."

(ii) Her evidence that nobody told her about TC's sexual behaviour with Mrs Blevnik. Ms Ralston's report (Exhibit A(acl)) appears comprehensive and records an interview which that child protection worker had with Ms Withers, psychologist, and with HM at her flat on 22 August 1984. Ms Wither's version is found in Exhibit A(abj). Those documents satisfy me that these two officers did interview HM about the Blevnik allegations on that date. I would add that that interview followed closely after Mrs Burgess interviewed the Blevniks on 13 August 1984 and heard Mrs Blevnik's account of the matters raised in Mrs Blevnik's handwritten notes forming part of Exhibit K. Mrs Burgess' record of that interview also forms part of Exhibit K. I do not accept HM's evidence that nobody discussed the Blevnik allegations with her, accepting as I do what the above exhibits (A(acl) and A(abj)), indicate to the contrary.

(iii) HM gave evidence that apart from an occasional night "every so often" TC was not left overnight with friends once she was discharged from hospital in August 1982 (for example, T2729). However, I accept from Exhibit A(abj) that HM told Ms Withers TC stayed away overnight more frequently. It is recorded in Exhibit A(abj) that HM told the author "[TC] is used to being left at friends' places approximately once per week", and the author noted that in the past week, that is the week prior to 3 September 1984, there were two such occasions.

213 The evidence of HM is to be assessed with much caution.

Complaints of ill-treatment of TC and the responses by YACS

Pre February 1983

214 Earlier I expressed my conclusion that, although YACS did have some involvement with TC prior to that point of time, I considered there was no failure by YACS to respond appropriately to complaints made before October 1982. I observed that Mr Shand focussed on the period from October 1982 onwards, as reflected in the particulars of negligence ultimately produced in the plaintiff's case.

215 Chronologically speaking, the first acts of negligence alleged in the relevant period were in October 1982 and the officers identified were Mr Plater, Mr Finch, Mrs Burgess and Mr Hulbert. Earlier, under the heading "The involvement of YACS", I recorded how those officers became involved in TC's case and I will not repeat what I wrote earlier.

216 So far as Mr Plater is concerned, he became involved because HM and TC were living at Tempe, which was in the jurisdiction of the Stanmore office of YACS and at the relevant time Mr Plater was a district officer attached to that office. Mr Plater's involvement did not extend to interviewing HF, because HF was not living in the Stanmore area, so that, in accordance with YACS' policy, any interview of HF was the responsibility of another office. Indeed HF had been interviewed to the knowledge of Mr Plater because his interview had been the occasion of the making of the complaint recorded by Mr Male in Exhibit A(e).

217 I have considered the evidence Mr Plater gave in Court. He said that when he interviewed HM he had the opportunity of seeing her with TC. He observed TC to be very happy on his mother's lap and he formed the conclusion that the child was not at risk. Mr Plater said that the refuge worker to whom he spoke had no concerns as to how HM was looking after TC. In cross examination Mr Plater acknowledged the need in his position to be objective and the need to take complaints seriously, but he did not consider that it was necessary for him to speak to anyone at the refuge apart from the worker to whom he had spoken.

218 Mr Plater's involvement in this matter ceased in mid December 1982. He did not see the affidavits that supported the assertion that TC had been tied to a cot, nor was he aware of their existence at the time he was making his inquiries in 1982. The various affidavits in Exhibit G, which I shall shortly consider in some detail, were made for the purposes of proceedings in the Family Court, and whilst several of those affidavits were sworn in October 1982, I accept that Mr Plater did not then become aware of them and, assessing all the evidence, I do not find that the existence of any one of the affidavits in Exhibit G was within the knowledge of an officer of YACS at any time in 1982.

219 I have considered the various omissions which Mr Shand has particularised as against this witness. Whilst Mr Plater could have made the additional inquiries suggested, I am not persuaded that Mr Plater's behaviour in the course of his involvement in TC's case evidenced a failure to exercise reasonable care.

220 It has been submitted that Mr Plater was biased and partial, but I do not find this submission to have been established. Indeed, I formed a favourable impression of Mr Plater as a witness, and I regarded his evidence as having been reasonably reliable. Whilst in Exhibit A(e), Mr Male had recorded a very unfavourable opinion of HF, and whilst no doubt Mr Plater read this, having considered what Mr Plater wrote in 1982 and his evidence in this Court, I am satisfied that he did what he considered was appropriate by way of response to HF's complaint.

221 Mr Hulbert's involvement, and I referred to it earlier, was confined to the month of December 1982. He did not give oral evidence but Mr Shand has submitted he should not have written what appeared in Exhibit A(k) and (m). Specifically, it is submitted, he should not have written in December 1982:

"There has been a span of two years of investigations in this case and on each occasion there has been no substance to [HF's] allegations. It seems that in his efforts to gain custody of his child [HF] has used this Department to harass his wife."

222 It is further contended that Mr Hulbert should not have recommended in that same document "that no further investigations be made from allegations made by [HF] against his wife's caring of their child".

223 The basis for these submissions is that Mr Hulbert did not satisfy himself by interviewing witnesses that there was no substance to HF's inquiries. He wrote what he wrote relying upon others.

224 Exhibits A(k) and (m) are to be considered in the same way. Each is a communication addressed to the Director General in response to a call for a report which the Director General was prompted to make upon inquiry from the Minister for Consumer Affairs. The Minister's concern was apparently enlivened by HF's complaints.

225 It is apparent from a reading of both documents, (k) and (m), that the author did not purport to have been personally involved in the investigations that had been made. The documents acknowledged that the recent inquiries had been made by Mr Plater, and they seem to contain an accurate summary of what was already in the file. I would not infer that the allegations of HF that prompted the Minister to intervene were fresh in the sense of having content additional to that which Mr Plater had so recently considered in October 1982.

226 Subject to one qualification, it does not seem to me that it was necessary for the author of (k) and (m) to have personally involved himself in investigations before writing what appears in those two exhibits. However, the qualification I express concerns (m). The language of the recommendation which I have set out above in para 222 is ambiguous. One possible interpretation of what is written is that Mr Hulbert was recommending that if HF made later complaints they should not be investigated. If that was what Mr Hulbert intended to convey, that would have been very improper. However it seems to me that the document is equally open to the interpretation that all the author was intending to do was to confine his recommendation to the allegations already made, and in this context the recommendation is not to be regarded as having been unreasonable. This Court would not be justified, as a matter of construction, in attributing to Mr Hulbert an intention to convey the improper recommendation. Certainly if that was his intention it was not acted upon, because the evidence reveals that YACS received and responded to many more complaints by HF after 14 December 1982.

227 The further submission is made that what Mr Hulbert wrote establishes he was biased. Mr Shand has placed emphasis upon the extract from Exhibit A(k) underlined above in support of this submission. Certainly this was an expression of opinion that was unfavourable to HF, but I do not infer it was not an opinion the author reached without attempting to make a fair assessment of the information before him.

228 This brings me to the involvement of Mr Finch. I earlier expressed my finding that Mr Finch first met HF at the Stanmore office on 28 January 1983 when HF presented with TC. On that occasion Mr Finch said he saw no bruises on TC although HF was claiming they were there. I prefer the evidence that Mr Finch gave to that of HF on this issue. In particular, I found the following passage in Mr Finch's evidence to be convincing:

"Q. Did he bring his son with him?

A. He did.

Q. Did you see the son?

A. I did.

Q. Is this the only time you saw the son?

A. The only time.

Q. When you spoke to the father, did he make some request of you in relation to the son?

A. Yes.

Q. What was that?

A. He asked me to examine the boy's arm and legs, and asked me to look at the bruises and scratches that were there. I examined his arms and legs carefully, and didn't see any bruises, marks or scratches.

Q. Have you a recollection of this?

A. Yes, I have a recollection of that. That has stood out in my memory, because that was a unique experience for me.

HIS HONOUR: Q. What was, having somebody bring a child in like that?

A. Having somebody bring a child to me and saying, `Look at those bruises and scratches' and when I looked, there were no bruises or marks whatsoever."

229 This experience was one which could justifiably have influenced Mr Finch when later required to consider HF's reliability when making complaints, although a professional approach required that any complaint received be assessed objectively.

Affidavits and other material produced in February/March 1983

230 On 2 February 1983 HF returned to the Stanmore office, this time with Mrs Denley, and this visit led to the preparation by Mr Finch of Exhibit A(o). The document was the focus of much attention during the hearing and I set out that part of the exhibit which records what happened on 2 February 1983 and what Mr Finch did the following day:

"[HF] was again interviewed on February 2 at the office, accompanied by Mrs Margaret Denley who said she resided at - 33/4 Henry Kendall Drive, Mascot, and was a friend of [HM]. Mrs Denley spoke derogatorily of [HM] as a mother but was vague about specific instances of ill-treatment. She did mention that the mother was seen `recently' to slap [TC] around the face.

Three affidavits were produced by [HF], two of which refer to an incident in March 1982 where [TC] was allegedly roped to a cot whilst the mother was out. One of the affidavits was completed by Ms Papakenstantinou [sic] who has now left Australia. Mrs Denley is now living in her house.

[HF] said that his wife regularly went out at night leaving [TC] in the care of friends, often in the care of Mrs Denley. He admitted that he had no evidence of [TC] being left alone. On February 3, [HM] is to enter hospital for an indeterminate period and in response to [HF's] request I informed him that this Department could not place the child in his care for this time. He then asked could we investigate the circumstances of the person who is to care for [TC] as he had heard that her house was `filthy'. In the absence of any real complaint I declined to intervene.

There is a custody application before the Family Law Court at present and [HM] has temporary custody with access rights to [HF]. Since leaving the refuge [HM] has tried to prevent [HF] from finding her current address; on `access days' she takes [TC] to the refuge where he is collected and subsequently returned by [HF]. Unfortunately for [HM] her erstwhile friend Mrs Denley gave her new address to [HF].

I spoke to two workers at Marrickville Women's Refuge on February 3 and they reiterated that [HM] had not neglected [TC] at the refuge and they refuted claims that he had been tied to a cot. Both workers have submitted affidavits to [HM's] solicitor to this effect.

[HF] visited the Minister's office last week and no doubt a report will be called for. He appears quite determined to remove [TC] from his wife's care and I believe he will make repeated representations to this end. [HF] has no objections to either this Department or the Salvation Army caring for [TC].

I informed [HF] that in the light of the affidavits produced the matter will be re-examined and he will be advised. He declined to give me his address and asked that he be contacted via his solicitor, Mr Smith on - 559-2022. One of the Marrickville workers told me that he is now living with Mrs Denley, probably at the Mascot address.

Referred for information and any action deemed necessary."

231 I am satisfied that the above document is a reasonably accurate record of what occurred and of what Mr Finch did. Mr Finch said that he did not retain the affidavits presented by HF, but he was aware of their content when he prepared Exhibit A(o). He said he did not envisage interviewing the deponents, and he did not make use of the photocopying facilities in the office to make copies of those affidavits.

232 What Mr Finch did was to visit the refuge before he wrote his report. He did not take the names of the two refuge workers he saw however. Mr Finch said he regarded the cot allegation as unsubstantiated despite the affidavits HF had presented. However he expected that his report, Exhibit A(o), would be followed up by Sydney office and that HM would be interviewed.

233 Although Mr Finch did not copy the affidavits he saw, it is clear that they reached the department subsequently when Mrs Foot, the Shadow Minister for Health and Youth and Community Services, forwarded them to the Director General on 3 March 1983. Exactly what happened to the documents then is not altogether clear, but they came into Mr Heagney's possession and he forwarded them to the regional director of YACS on 16 March 1983 (see Exhibit H). Mr Finch had been shown only three affidavits but the material supplied by Mrs Foot included a statement from Penny Tokatlidis and an affidavit by Peggy Brunner.

234 I now pause to refer to the content of the affidavits which HF had brought to the notice of YACS and which was added to by Mrs Foot in the following month:

(i) The affidavit of Margaret Denley was sworn on 1 February 1983. In that affidavit Mrs Denley said she lived at the Marrickville Women's Refuge between July 1982 and September 1982. Her affidavit evidenced several allegations of ill-treatment of TC by HM. The deponent referred to occasions when HM smacked TC with an open hand across his face, his back and his legs, and of an occasion when HM was restrained from hitting TC with a rubber thong. She also stated that HM very often went out at night whilst she was living at the refuge, leaving TC in his room there. The affidavit contained no reference to TC being tied to a cot.

(ii) The affidavit of Georgina Daskalopoulos was sworn on 12 October 1982. This deponent stayed at the refuge over the Greek Easter in March 1982. She stated there was an occasion then when she found a baby in a cot, with "a rope tied around its waist with the ends of that rope tied to either side of the cot." Later she said HM returned to the refuge and to the child.

(iii) Joanna Papakonstantinou also swore an affidavit of 12 October 1982. She said that she lived at the refuge in February and March 1982 and recalled HM as a resident there then. She said HM left her child in the refuge at night on a frequent basis and she said she recalled an occasion when she observed TC "lying in the cot with a rope tied around his stomach and torso with the ends of the rope being tied to the sides of the cot." She said HM offered no explanation for tying the child to the cot when asked to do so.

(iv) The affidavit of Penny Tokatlidis was not sworn until July 1983. The deponent's earlier statement prepared, on or after 4 February 1983, was however provided to the department by Mrs Foot in March 1983. The statement and the affidavit from this source cover much the same ground when the two documents are compared, and each contained a number of allegations against HM in the way she mistreated TC at the refuge. This deponent said that she lived at the refuge in 1980 and 1981. She said that she saw HM hitting TC very hard on the head and other parts of his body. She said she also saw HM kick TC and throw things at him. She also spoke of the Greek Easter incident. Mrs Tokatlidis claims she observed TC tied to his cot with a thick rope: "One end of the rope was held around the side of the cot and the other end had been tied around [TC's] waist."

(v) The affidavit of Peggy Brunner was sworn on 7 February 1983, a matter of days after HF and Mrs Denley had attended on Mr Finch. Again this affidavit contained an assertion that during the Greek Easter period of 1982 this witness saw TC tied in his cot at night on an occasion after HM had gone out. Mrs Brunner lived at the refuge between January and June 1982 and in her affidavit she asserted she had seen episodes of physical abuse of TC by HM in that time. She asserted she had seen HM slap TC repeatedly across the face and use abusive language in addressing him.

235 The allegations coming from the sources identified, (i) to (v) above, were serious allegations and the response of YACS to the information it undoubtedly received, first through HF and Mrs Denley on 2 February 1983 and one month or so later through Mrs Foot, merits scrutiny. This involves consideration of the conduct of Mr Finch, Mr Hanrahan and Mrs Burgess.

236 The response of Mr Finch was less than complete. His assessment of Mrs Denley was, as he recorded it, that she was vague about specific instances of ill-treatment. The deponent Joanna Papakonstantinou was unavailable to be interviewed because she had left Australia. Mr Finch was not aware in February 1983 of what Mrs Tokatlidis could say, because he did not then have her statement, nor was he then aware of Mrs Brunner's affidavit, but this left Mrs Daskalopoulos, for whom Mr Finch had an available address. The affidavit disclosed that she lived at an address at Padstow, or at the very least that she had done so as recently as 12 October 1982. In my opinion the seriousness of the allegation that TC had been tied to a cot made it desirable that she be interviewed but this was not done.

237 What Mr Finch did was to go to the refuge where he spoke to several workers. In his evidence before this Court Mr Finch said that he asked those workers whether the ill-treatment claimed by Mrs Denley was true, and also whether it was true that the child had been tied to a cot during Easter a year before. He said the refuge workers denied any ill-treatment of TC by HM and that they denied TC had been tied to a cot. Mr Finch said (T2230) he believed the refuge had a good reputation with YACS and he believed that what he was being told by the workers was reliable.

238 That was the extent of Mr Finch's personal inquiries, but he submitted his report, Exhibit A(o), to the Sydney District Office for attention, because HM and TC were then living in the region covered by that office. I am satisfied Mr Finch contemplated that the matter would be followed up by the Sydney office.

239 So it was. Mrs Burgess was the Sydney District Officer manager in February 1983. In that role, having received Exhibit A(o), she asked Mr Hanrahan, then an experienced officer of YACS, to make inquiries.

240 I have touched upon Mr Hanrahan's involvement earlier . What he did was to interview HM, after her release from hospital, on two occasions, namely 25 February 1983 and 7 March 1983. What he recorded in Exhibit A(aa) indicates he was satisfied with what he saw. He gave evidence about his visits to which I now refer (at T1228):

"Q. What did you see when you got there?

A. I saw the mother and the child home and I saw a child in a loving relationship with his mother.

Q. What did you see?

A. A little boy, bright, smiling face, bright eyes interested in his mother in the sense he would go up to her and talk to her and say `Hello Mum' and I am there watching him, trying to find out what was wrong with him and their relationship and he was not afraid of me.

I walked into the house and he was playing as a child of that age is accustomed to play with one of his toys. He was certainly a lively fellow. He showed no fear or reluctance whatsoever. I have written that down here. No reluctance or fear of his mother. She attended to him, touching him, doing up his shoes fixing his clothes or giving him something to eat.

Once he was playing near the window sill and he was part way out the window and she said, `Come down out of the window', so he came down straight away and he responded quite happily to her directions. He was suitably dressed and there was no evidence of any abuse of him in so far as any marks could be seen on him at all...

Q. You had two visits, one on 25 February and then on 7 March.

A. That's right.

Q. You had no different conclusion on the second visit?

A. No. I need to add something. I asked the mother did she ever leave him on his own at home. I said, `Do you ever leave him on his own?' And she said, `No'. I accepted what she said. She seemed to be sincere and genuine and I had no reason not to believe her."

241 Mr Hanrahan did not see the affidavits (i), (ii) or (iii) which I identified earlier, nor did he have the statement of Mrs Tokatlidis. Nor does it appear that he saw the affidavit of Mrs Brunner. He said in cross examination that he would not have regarded the content of those affidavits, in referring to events then twelve months past, as important, because his concern was with the present (T1240).

242 Later however he was shown the Tokatlidis statement and he said it described appalling conduct, and that had he been aware of it he would have considered it called for immediate investigation and probably the interview of the author (T1309-1310).

243 Mrs Burgess did not conduct any interviews in relation to the substance of the affidavits (i), (ii) or (iii) or in relation to the Tokatlidis statement or in relation to the Brunner affidavit. She explained that as manager she would not ordinarily be involved in interviewing unless supervising a junior officer. Mrs Burgess acknowledged that she did not seek to see the affidavits Mr Finch had referred to in Exhibit A(o). As I understand her evidence there were a number of reasons for this:

(i) the affidavits referred to events that were a year old (T1437);

(ii) it was difficult to test affidavits outside the court processes (T1448);

(iii) the affidavits were going to be tested in the Family Court (T1437);

(iv) Mrs Denley was unfavourably known to her (T1453, 1933).

244 When one considers the combined responses of Mr Plater, Mr Finch, Mr Hanrahan and Mrs Burgess to the various allegations covered by sources (i) to (v), it seems to me that in aggregate those responses were less than complete and less than satisfactory.

245 Mr Plater did not investigate the affidavits because he never saw them; they emerged after his involvement in the matter had ceased. Mr Finch was seemingly satisfied by his own inquiries and an awareness that Mr Plater had investigated the cot claim in October 1982. Mr Finch stated he was satisfied that Mr Plater's report (Exhibit A(g)) covered the cot incident although neither Exhibit A(g) nor Exhibit A(h) specifically refers to it, because he had referred that allegation recorded in Exhibit A(e) to Mr Plater for investigation.

246 Mr Hanrahan did not see the affidavits and plainly did not see it as his role to pursue any of the deponents.

247 Each of these officers of YACS impressed me as being an honest witness, and I did not conclude, generally speaking, that any one of them was other than conscientious. Nevertheless, it seems to me that complete investigation into the evidence presented by HF and Mrs Denley on 2 February 1983 warranted the interview of the remaining available witness, Mrs Daskalopoulos, and the interview of HM, in which the deponents (i), (ii) and (iii) were identified to her and the assertions each of those deponents made were expressed, in order to obtain HM's specific response.

248 Then later on, when YACS received the Tokatlidis statement and the affidavit of Mrs Brunner, again having regard to the serious matters raised, their substance warranted the interview of these witnesses, and also further interview with HM concerning such substance. That, of course, was not done.

249 It does not seem to me that the dates of the events referred to in the affidavit material justified the failure to further investigate in the manner I have identified.

250 True it is that the age of the allegations when they came to the notice of YACS was a relevant matter, because if a child was brought before the Children's Court under Part XIV of the Child Welfare Act, it was necessary to prove that the child was at that time a "neglected child". The language of the statute, and I have referred to the relevant provisions earlier, directs the court to consider the present position.

251 Section 82 requires the court to make a finding in terms that use the present tense. The court may do one or other of the things that it is empowered to do under sub-s (1) if it "finds that a child...is a neglected...child...".

252 However it does not follow from the language of the Act that an act of mistreatment that occurred twelve months before a child came before the Children's Court would necessarily be irrelevant. Any mistreatment could be indicative of systematic abuse, and in any event it seems to me that the more serious an episode of abuse, the more widespread the need for investigation. Indeed, Whale v Tonkins (9 Fam LR 410) is authority which is in point. In that case the Court of Appeal determined that a magistrate was in error in rejecting evidence from a child's school teacher that had been gathered over a period of several months prior to the matter coming before the court. In a judgment with which the other members of the court agreed, Hutley JA said at 411:

"Guardianship is a continuing state. When the court is enquiring whether a child is under incompetent or improper guardianship, though it has to find that existing at a certain date, it is in no way concerned with events close to that date; it is concerned with all evidence which is relevant, that is, evidence which can make more probable or less probable a finding as to the kind of guardianship the child is experiencing. The enquiry may cover years."

253 (I suspect there is a typographical error in the above passage and that "no way" should read "not only".)

254 It is to be recognised that YACS may well have faced difficulties in assessing the material available had there been a complete investigation.

255 Each of the affidavits above referred to was prepared for the purposes of the proceedings which at all relevant times were pending in the Family Court. Mrs Burgess was aware of those pending proceedings and I consider Mrs Burgess was realistic in acknowledging the difficulty of testing affidavit material outside the court processes.

256 Indeed the difficulties which Mrs Burgess perceived in assessing the reliability of affidavits "outside the court process" were encountered inside that process by the judges who heard the matter in the Family Court. The various deponents gave evidence before Pawley J. (Peggy Brunner's affidavit was introduced in the current proceedings as Exhibit T.) His Honour, in the course of his judgment delivered on 30 August 1983 (part of Exhibit 9 in these proceedings), said he found those witnesses "unsatisfactory" and that he "would hesitate to place reliance on their evidence". Having reviewed their evidence about the cot episode, the judge said that he found it "quite impossible to know where the truth of this matter lies".

257 Later in the ultimate proceedings in the Family Court before Bulley J, his Honour, after hearing evidence from Mrs Tokatlidis and from Mrs Brunner, assessed their evidence thus (at p 123 of his judgment) -

Mrs Tokatlidis (Jackas):

"I was not impressed by this witness. I felt she was far from careful in giving her evidence, her demeanour was poor, her recollection did not seem to be reliable. I consider it unsafe to place credence on her testimony."

Mrs Morund (formerly Brunner):

"She had virtually no recollection of the events at the refuge in relation to which she was called to testify. Again I consider it unsafe to rely upon her affidavit at all."

258 I do not regard those judicial findings as binding me as the tribunal of fact in this case, but I refer to them by way of emphasis of the difficulties that would or may have been experienced by YACS officers called upon to assess conflicting statements without the benefit of court process. I accept that Mrs Burgess perceived the difficulties of assessment that she expressed and that those difficulties may have influenced the extent of the investigation undertaken.

259 However, whatever difficulties of evaluation of such evidence may have confronted the officers of YACS, the allegations contained in the sources identified in para 234 (i) to (v) were of such a serious nature I find that they should have been further investigated in the various respects I have identified. The failure to do so was not excusable because of the time that had elapsed since the events asserted were alleged to have occurred nor was such failure excusable on any other basis. I find that the shortcomings in the investigation of such serious allegations amounted to a failure to exercise reasonable care.

260 Even though the misconduct alleged against HM in the material that was made available to YACS in the first quarter of 1983 related to events that had occurred up to twelve months previously, I accept, as Professor Oates opined, that conduct of the nature alleged, if it did occur, was only occasionally of a "one-off" nature. Hence the need for a complete investigation and that need was not met.

261 To whom is that failure to be attributed?

262 When Mr Finch was conducting his inquiries he had no evidence from Mrs Tokatlidis nor from Mrs Brunner. However I have indicated what other inquiries that should at that time have been made in para 247. When the Tokatlidis statement and the Brunner affidavit came to the department, those persons should have been interviewed and their allegations should have been put to HM. I am satisfied that Mr Langshaw received material from Mrs Foot under cover of her letter of 1 March 1983 which included the Tokatlidis statement and the Brunner affidavit. That material should have been passed on to Mrs Burgess for follow up. Mr Hanrahan said he did not see that material and I accept his evidence to that effect. Mrs Burgess was very vague about when she saw the relevant material, although she said that to the best of her knowledge she had not seen it before 21 August 1984 (T1506). Either Mrs Burgess is mistaken in this recollection or Mr Langshaw did not pass it on to her for investigation. Either way an officer of YACS failed to ensure that the appropriate measures were taken because if Mr Langshaw did pass the material on to Mrs Burgess, Mrs Burgess should have had the necessary interviews carried out, and they were not.

263 Another possibility is that Mr Langshaw did not pass the material on because he was told that it was not new and had already been investigated. Indeed, the note in Mr Langshaw's handwriting in Exhibit A(adb) suggests this may have been what occurred:

"Mrs Foot's Private Secretary recently phoned to notify that [HF] had complained to Mrs Foot and that she had received a statement about the Department's inaction. I asked for whatever evidence Mrs Foot had because Department inquiries had not revealed that the child was at risk and that he seemed to be well cared for. These papers have now arrived. They do not contain fresh material."

264 If Mr Langshaw was advised that the papers contained no fresh material, that was wrong because the material was certainly fresh. If such advice was given it can only have been given by some officer of the department, and, if so, in giving that advice that officer could not have exercised reasonable care.

265 Ultimately it does not matter how it came about that the matter was not sufficiently investigated, because it is clear that the responsibility for the inadequacies of investigation lies with YACS. It was the officers of YACS who failed to do what the exercise of reasonable care required.

266 I should add that if such investigation had achieved nothing more, it may well have prompted the investigating officer to record that he was unable to determine whether the misconduct alleged had happened or not; in a sense an open finding. Such a record could potentially have been more helpful to those later reviewing the history of the matter. For instance, Ms Boulter referred in Exhibit A(jj), (kk) and (ww) to "unsubstantiated" complaints and in Exhibit A(xxx) Mr Lungley recorded "On no occasion has there been any evidence to substantiate the allegations". This latter entry was plainly inaccurate.

267 Nevertheless I do not find established by the evidence an occasion on which an officer of YACS failed to address a fresh complaint because of the history recorded in the YACS file.

Assessment by this Court of material as to alleged physical

abuse of TC

268 It is appropriate that I now record my assessment of and findings on the evidence of physical abuse of TC by HM.

269 In this Court all the affidavit evidence provided to YACS by March 1983 was tendered, but the only witnesses who were called and who gave evidence as to the cot episode were Mrs Jackas (formerly Tokatlidis) and HM. In addition TC gave evidence as to some measure of ill treatment by HM, and Mrs Gray was called by the defendant.

270 It is extremely difficult at this point of time to determine where the truth lies as to the events that are alleged to have occurred so long ago. I must proceed cautiously in assessing the probative value of the affidavits of those deponents who have not been called. In the case of Mrs Blevnik I would add that the affidavit which she swore in the Family Court proceedings did not cover the serious matters of ill treatment mentioned in the statements attributed to her forming part of Exhibit K, even though the statements and the affidavit appear to have come into existence in the same month, namely August 1983.

271 Mrs Jackas did give evidence in this Court not only about the cot episode but about other episodes of ill treatment of TC by HM.

272 TC gave some evidence about ill treatment, but I referred earlier to the difficulties I have experienced in the assessment of the reliability of his evidence. I would add that one incident of ill treatment to which TC referred in Exhibit 5 concerned an occasion when he said he damaged a TV set. In that document TC said HM responded by taking his arm and biting him, but in his oral evidence TC said that HM responded by back-handing him across the face (T874). There are other features of concern I should mention. In that statement, Exhibit 5, TC said that he recollected Dr Waters telling him twice "to not say anything about Mummy that I remember". This, of course, would have been most improper conduct on the doctor's part, bearing upon the credibility of his evidence and his assessment stated in his report of 1 November 1984. However, it was not put to Dr Waters in cross examination that he had given any such direction to TC and I do not find it credible that the doctor would have acted in such a fashion. I say in this context that I was impressed by Dr Waters as a witness and I accept the evidence that he gave. There is the further feature affecting TC's evidence that he had access to and considered material that his father has collected touching upon the subject matter of these proceedings (T887-888). The reading of this material may well have added to any real recollection TC had of events that occurred so long ago.

273 For her part HM denied tying TC to the cot and she denied the allegations made in the various affidavits under consideration. I regarded her evidence about the cot episode as unsatisfactory and I have earlier referred to my reservations about HM as a witness. Those reservations impact upon my assessment of her evidence in general.

274 Mrs Gray gave evidence of her association with HM and of her opportunities to see HM with TC at the refuge and subsequently. Her evidence was that she heard HM yell at TC but she never saw HM ill treat the plaintiff.

275 I am, of course, mindful of the observations of the officers of YACS on the various occasions of home visits when TC and HM were observed in each other's company, seemingly enjoying an appropriate relationship. I accept the evidence given by the YACS officers as to what they said they observed on the occasions of the various home visits.

276 After reflection, I find myself unable to determine where the truth lies on the various episodes the subject of the affidavits in Exhibits G, J, K and T, and the added material in Exhibit K. It follows that the physical mistreatment of TC by HM the subject of this evidentiary material has not been proved on the balance of probabilities.

Complaints as to scratches in March and May 1983

277 I turn now to consider evidence that TC suffered scratches.

278 Two separate complaints concerning scratches sustained by TC were made in the first half of 1983.

279 On 18 March 1983 Dr Grunseit saw TC at the Royal Alexandra Hospital for Children at Camperdown. Dr Grunseit was then the head of the hospital's Child Protection Unit. He had no recall of the events when he gave evidence before this Court, but the hospital records disclose that Dr Grunseit examined TC, he said probably at the request of another doctor at the hospital. The hospital records (Exhibit W) indicate that TC had been brought into the hospital by HF because of scratches and also because the father felt the child was not well. The hospital record concerning the scratches is in these terms:

"[TC] says he got the facial marks `when Mummy scratched him.'

He also says the linear healed lesions on his legs were obtained `when Mummy scratched him.'"

280 The examination findings were as follows:

"Several scratch marks to both sides of face, on cheeks and around eyes, from half a centimetre to two centimetres.

Bruising around left eye.

2 centimetre heeled linear lesion right arm.

Linear healed lesions (x 4).

(R) lower leg about 2½ centimetres long

1½ centimetres linear ... (L) lower leg.

Bruising around both knees."

281 There is a further hospital notation in these terms:

"Happy cheerful boy. Relates well.

Prendergast (the name of the doctor at the hospital).

The child has a number of linear scratches on his face and under the right eye - due to fingernails. He tells me they were done by his mother. Cannot elaborate - custody dispute."

282 From evidence that Dr Grunseit gave and from the records themselves, it seems fairly clear that on 18 March 1983 TC was seen at the hospital and complained that the scratches described in the notes had been inflicted by his mother.

283 YACS was duly notified (see Exhibit A(x)) and it was Mr Hanrahan who investigated this complaint. He had made a home visit to HM and TC only two days before but he visited HM and TC again on 30 March 1983 and he made a record about these two visits (see Exhibit A(ee)). The explanation which HM gave Mr Hanrahan for the scratches was that the child had received the facial scratches at the refuge when a little girl scratched him whilst TC and another small boy, Michael, had been fighting over a bike. On the other hand TC told Mr Hanrahan that it was the boy, Michael, who scratched his face. Mr Hanrahan wrote as to this discrepancy:

"Now whether it was the little girl or the little boy who scratched him may be beside the point, however [TC] by no means said that his mother had scratched him."

284 Mr Hanrahan also recorded that he asked HM about the scratches on TC's legs and she said he had fallen off his bike riding it at Waterloo. He wrote that:

"The marks on the legs appeared to be consistent with the type of marks little boys of this age receive from falls."

285 According to Exhibit A(ee) Mr Hanrahan considered at the time that HM's explanation had the ring of truth about it, and that TC appeared to be happy and content with his mother, showing no indication he was afraid of her.

286 Mr Hanrahan visited HM and TC again on 14 April 1983 and he recorded in Exhibit A(ff) that on that occasion:

"Both seemed happy and well as before, I could not see anything amiss in regard to [TC] - such as marks or scratches on his face, arms or legs."

287 Mr Hanrahan gave evidence consistent with what he had written in Exhibit A(ee) and he said he considered HM's explanation for the scratches "sounded honest and truthful" and he "had no reason not to believe her" (T1229).

288 I accept that was the conclusion which Mr Hanrahan reached at the time.

289 It has been submitted that Mr Hanrahan was negligent in his investigation of the complaint of the scratches the subject of the notification by Dr Grunseit:

(a) in failing to take into account the different explanations for them given by TC and HM;

(b) in failing to interview Dr Grunseit about them;

(c) in failing to make a reasonable and impartial investigation of the scratches.

290 I do not consider that submission to have substance. Mr Hanrahan was alert to the different explanations as what he wrote evidences, but it does not seem to me that his inquiry would have been advanced by seeing Dr Grunseit. Nor am I persuaded that in the inquiry which Mr Hanrahan made he acted other than with impartiality. I consider his response to the complaint to have been entirely reasonable.

291 Because of the number of complaints HF was making about HM's treatment of TC, Mr Hanrahan saw the need for another opinion and he discussed TC's case with Mrs Burgess. This resulted in the decision being taken on 20 April 1983 to involve Ms Louise Boulter. I find that was a decision taken conscientiously; Ms Boulter was called in, I am satisfied, because of her specialised training in child protection.

292 A further notification about scratches was received from Dr Kakakios from the Children's Hospital on 17 May 1983. Dr Kakakios spoke to Ms Boulter and I find that the substance of what he said was recorded by Ms Boulter in Exhibit A(jj). The doctor told Ms Boulter that HF had brought TC to casualty that morning and that the child had a scratch and a bruise on his nose and a linear graze on the right shin, "all of which looked accidental". The doctor went on, as Ms Boulter has recorded the conversation:

"Father insisted mother injured child though [TC] told doctor he had fallen at the beach."

293 The doctor told Ms Boulter that HF was "full of complaints" and that he impressed the doctor as "a bit odd". The doctor said that he considered the child to be reasonably well cared for.

294 In response to this notification Ms Boulter and Mr Hanrahan visited HM and TC on 18 May 1983 and this visit led to a lengthy file note compiled by Ms Boulter (Exhibit A(kk)). I do not propose to repeat all that Ms Boulter then wrote but the note discloses that the visit was of nearly an hour's duration. Ms Boulter recorded under the heading "Mother - Son relationship" that

"there were no indications that [TC] is ill-treated by his mother. The mark visible on [TC's] nose was explained by him (and then his mother) as gained from a fall which seemed consistent with the injury. Other marks on his legs were consistent with normal injuries sustained by active pre-schoolers. [TC] related quite strongly to his mother, showing neither hesitancy to make requests, or to demand reinstatement of something confiscated. This latter behaviour arose after his mother quietly removed a battery from his toy car (which he was driving around the room) and hence eliminated the very loud siren noise. Her action appeared quite reasonable and [HM] maintained a consistent response in the face of [TC's] immediate temper-tantrum. This, however, declined quickly with [TC] seeming to understand his limits. On several occasions, [TC] spontaneously approached his mother who responded warmly and appropriately."

295 Later Ms Boulter added:

"In terms of her relationship with [TC] nothing of concern was noted and the mother - son dynamic was normal, with warmth and responsiveness shown and normal limits being set. [TC] himself exhibited no fear of his mother. He exhibits very active behaviour, possibly with a manic, though not uncontrollable, component. He related in a lively manner to the officers and there is a question of a lack of discrimination. This may relate to a lot of time spent with adults to whom he seems to relate readily. [TC] would no doubt benefit from additional pre-school hours. Although his temper tantrum was short-lived and handled well by his mother, [TC] may well be already learning techniques to gain attention and/or to play off one parent against the other. If his father continues to accuse his mother of abuse and or neglect in [TC's] presence, it is probable that the child will learn he is in a powerful position and may well be damaged emotionally by the conflict. In view of the father's current practice of taking [TC] for regular medical checks on access days a reassessment of his access may be worthwhile, especially since the child's increased attendance at pre-school would be to his advantage. Apparently, although he is able to have [TC] on weekends, [HF] presently prefers the 3 weekdays."

296 Mr Hanrahan gave evidence about this home visit. He agreed with Ms Boulter's record of it. He added that the explanation that had been given for the state of the nose and for the marks on his legs was that the child had had a fall at the beach. He said as to the interaction of mother and child on that interview that what he observed was

"a loving relationship between the child and his mother and she responded, I mean he responded warmly to her. This is what Louise has got here. That is correct. They looked good together."

297 I accept that the observations made by Ms Boulter and Mr Hanrahan on this home visit were as evidenced by these two witnesses, and their evidence satisfies me that adequate consideration was given to the notification by Dr Kakakios.

The period from mid 1983-May 1984 reviewed

298 TC was never categorised as an abused child by YACS, but it appears the case was placed in the "C" register following Ms Boulter's recommendation on 17 June 1983 (see Exhibit A(kk)). This meant, as I understand the evidence, that a file was kept in acknowledgment of an ongoing family case. In any event, there was ongoing activity in the case.

299 Ms Boulter made a home visit with Mr Hanrahan on 16 June 1983, on which occasion both HM and TC were seen. That same day there followed an interview in the office of YACS with HF (see Exhibit A(pp)).

300 There was another home visit by Ms Boulter on 21 June 1983 when Ms Boulter saw HM and, following his return from access with HF, she also saw TC (see Exhibit A(rr)). It is noteworthy that on the occasion of this visit Ms Boulter saw the child leaving his father's car on return from access. TC claimed that HF had pushed him out of the car. This was contrary to Ms Boulter's observation. This prompted the recording by Ms Boulter:

"The distinct impression gained was that [TC] reiterated what his mother had said and what he thought she wanted to hear and that, like many young children caught in a conflictual marital situation, he was supporting the parent present."

301 This was a factor acknowledged by experts called in the case and I accept that it was a factor making the various tasks of assessment of complaints more difficult for the various officers of YACS involved in this case.

302 Indeed Mr Goard, to whom Dr Younan first referred the plaintiff for assessment towards the end of 1983, identified this feature as being present in this case. Mr Goard saw TC on a number of occasions, including an occasion in January 1984 following an order made by Pawley J that TC be seen with HM. Following the January 1984 visit Mr Goard reported on 17 January 1984 (part of Exhibit Y):

"[TC] is an extremely intelligent child who is remarkably manipulative for his age. He freely attempts to play one parent off against the other, for example, with tales of maltreatment and complaints. At one point his mother challenged him mildly when he said his father smacks him all the time and [TC] readily admitted he was lying and then laughed."

303 Then on 27 June HF attended the office of YACS and saw Ms Boulter. He requested that YACS interview those who had made affidavits (and this presumably was a reference to the affidavits first produced to Mr Finch). He was told that the Family Court was the appropriate place for those affidavits to be considered. I note that at this time the hearing before Pawley J at which the deponents to those affidavits were called as witnesses was imminent.

304 On 28 June 1983 a home visit was made by Mr Hanrahan and by Ms Boulter. HM was not at home but whilst the YACS officers were present HF arrived to return TC. Ms Boulter said that on both 27 and 28 June 1983 HF was abusive and on the earlier of those two occasions he called her a lesbian. I accept the evidence which Ms Boulter gave as to this.

305 On 4 July 1983 Ms Boulter made a home visit, seeing both TC and HM.

306 Another home visit was made on 12 July 1983 and both mother and child were seen.

307 Then again on 21 July Ms Boulter made a home visit, again seeing mother and child.

308 On 10 August and 15 August 1983 Mr Hanrahan attended the plaintiff's home but was unsuccessful in seeing mother or child there. Mr Hanrahan did, on the second occasion, go to the Waterloo Pre School and there he discussed the child's progress with the director.

309 A further home visit was made by Mr Hanrahan on 22 August 1983 and on this occasion he saw HM.

310 Then on 18 November 1983 Mr Hanrahan endeavoured unsuccessfully to speak with HM on the telephone. He did speak thereafter to TC's teacher at pre school and he recorded on his report, Exhibit A(zz), what the teacher had to say. She reported that HF had visited the pre school and inter alia had said that TC was displaying suggestive acts towards women. It has been alleged that Mr Hanrahan's failure to follow up the receipt of that information by investigation constituted negligence on his part. I do not consider that Mr Hanrahan had an obligation to take any positive action about the information relayed to him in that fashion. At the time of writing the report Mr Hanrahan was about to cease his involvement in this case and to go to the Burwood office. He regarded it as important enough to record what the teacher had told him for the benefit of those who were to follow him in dealing with the case, and it seems to me that that was appropriate behaviour then.

311 Before passing from Mr Hanrahan's involvement, it is convenient to address a submission made by Mr Shand that the officers of YACS were deflected from their task by an asserted agreement with the Family Court. The source of this submission is to be found in Exhibit A(s), a file note in the handwriting of Mr Hanrahan dated 23 February 1983. In that note the author recorded the circumstances in which he rang Mr Bevan, a counsellor at the Family Court, for details as to the custody and access arrangements concerning TC. Mr Hanrahan recorded that Mr Bevan told him there was an agreement that YACS "would only intervene in dire circumstances in such cases as those which were before the Family Court" and that Mr Bevan did not consider the case warranted such intervention. The note then concluded:

"In view of what Mr Bevan says does the DG wish us to continue our efforts to see [HM]? Message left with Mr Langshaw's secretary in his absence."

312 Exhibit A(aa) records that Mr Hanrahan proceeded to interview HM with TC two days later and then again on 7 March 1983. It was Mr Hanrahan's recollection that he made those visits at Mr Langshaw's request, which indicates that the response to the query he had raised at the end of Exhibit A(s) was in the affirmative.

313 I have reviewed above the nature and extent of Mr Hanrahan's involvement in this case thereafter.

314 I am not satisfied that there was any such agreement as Mr Bevan appears to have asserted. Certainly Mrs Burgess was aware of no such agreement (T 1398). Heeding the conduct of the officers of YACS, including the conduct of Mr Hanrahan after the conversation referred to in Exhibit A(s), I am not persuaded that such officers were deflected from their responsibilities by reason of any notion of any agreement that Mr Bevan may have advanced.

315 Between October 1983 and January 1984 there were many specialist assessments of TC undertaken, on HF's initiative. There were the attendances upon Dr Younan, Mr Goard and Mr Malak to which I referred earlier in this judgment. HF also took his son to see a social worker, Mr Ford, at the Children's Hospital on 9 January 1984.

316 Then on 12 January 1984 the court counsellor, Mr Lutzyk, saw the plaintiff, his father and his mother following a direction by Pawley J on the previous day. The counsellor's report was ordered and was to be focussed particularly on the suggestion that TC was afraid of HM. Mr Lutzyk's report became Exhibit 8. The counsellor assessed the interaction of HM and TC to be "spontaneous, warm and happy". The order for joint guardianship followed on 20 January 1984. HF appealed from the making of that order and there followed a flurry of activity in the Family Court which is conveniently recorded in the chronology forming part of Exhibit 9.

317 Looking at the involvement of YACS in the early part of 1984, there was little activity. Ms Boulter endeavoured to undertake a home visit on 5 January 1984 but there was no-one home. Ms Boulter ascertained that HM had been staying at the Marrickville refuge when she inquired there a week later. Then on 12 April 1984 Ms Boulter and Mr Lungley made a home visit where both mother and child were seen together (see Exhibit A(abl) and (ade)). By this time, as Ms Boulter recorded in Exhibit A(abl), HM had moved to the unit at The Rocks. Ms Boulter recorded that throughout the visit the mother/son relationship "presented as normal". Her assessment then was that there were no indications during the visit that HM was abusing or ill-treating the child.

The May 1984 notification of sexual abuse and the response by

YACS

318 This brings me to a consideration of the responses of YACS once the allegations concerning the sexual abuse of TC had come to its notice.

319 I drew attention earlier to HF's complaint to Ms Harris on 7 May 1984 that TC had asked him to "suck his cock" and that HM and her friend did this. That complaint was immediately followed by the histories taken by Dr Younan and by Mr Malak to which I also referred earlier. The evidence satisfies me that Ms Harris alerted YACS and that a Child at Risk Notification was received at the Sydney office of YACS on 11 May 1984 (see Exhibit A(mmm); see also Exhibit A(abp)).

320 The notification of 11 May 1984 of course introduced a new and serious allegation and I therefore propose to examine in some detail what was done by YACS thereafter.

321 On 11 May 1984 Ms Boulter also received a call from Mr Hampson, a social worker at Prince of Wales Hospital, advising that HF had attended that hospital as well, making a like complaint. This complaint received by Mr Hampson was recorded by Ms Boulter in Exhibit A(jjj) and it is convenient to address two criticisms of Ms Boulter arising out of what she there wrote.

322 The first criticism concerns the decision then taken that Mr Hampson would not assess TC. In my opinion that criticism is not justified. Ms Boulter was correct to perceive that another assessment by another social worker was inappropriate, and properly considered that any further assessment should be undertaken at the Children's Hospital where TC had been assessed already.

323 The second criticism is that Ms Boulter did not recognise the seriousness of the allegation. I do not regard that criticism as well founded. This was the first notice this witness had of any allegation of sexual abuse. It does not seem to me that Ms Boulter is to be criticised for having been sceptical as to the allegation at this stage. It must be borne in mind that Ms Boulter had had ample opportunity to assess HM, and moreover Ms Boulter's own professional experience had been that she had encountered only one case of sexual abuse of a child by his mother in ten years work (T2092). At this time all Ms Boulter had was a second-hand account of a complaint made by HF.

324 It was on the day after YACS had been first alerted to the allegations of sexual abuse that Ms Goldberg saw HF and TC again on 12 May 1984. She reached the conclusion to which I referred earlier, and which conclusion I accept, that TC had been sexually abused by some experienced female person.

325 On 14 May 1984 Mr Lungley, who by this time, according to Ms Boulter (T2093), had taken over the day to day handling of TC's case, spoke to HM by telephone. HM advised Mr Lungley she was aware of HF's allegations because he had made them at the Family Court that day when the court had ordered that HF return TC to HM by 7.00 pm. I note that on 14 May Pawley J made an order for separate representation for TC.

326 On 16 May 1984 Mr Lungley telephoned Mr Malak who informed him that TC had described certain sexual practices to him which Mr Malak was not prepared to specify over the telephone. On the same day arrangements were put in place for a case conference concerning TC to be held at the Children's Hospital on 21 May 1984. The minutes of that case conference were admitted into evidence as Exhibit A(ppp). Concern was expressed at this conference as to the lack of coordination because so many agencies had been involved through HF's initiative. That involvement is reflected by those present at the conference: Ms Harris, the psychologist from the Children's Hospital was present, as was Ms Goard from the Child Care Centre, Dr Gallyot and Dr Steal from the Bankstown Area Health Service and Mr Lungley, Ms Boulter and Ms Curtis from YACS. It was resolved to arrange for TC's assessment by a child psychiatrist and that that assessment should be organised by the Children's Hospital (I presume by Ms Harris) and by the Bankstown Area Health Service. Mr Lungley was appointed the case coordinator and a further case conference was arranged for 9 July 1984 at the Children's Hospital. I should add that it was resolved that both HM and HF should be interviewed by the psychiatrist in the course of and for the purposes of the contemplated assessment.

327 On 22 May Mr Lungley spoke again with HM about the allegations of her sexual abuse of her son. Mr Lungley has recorded in Exhibit A(abp) that HM strenuously denied those allegations and maintained that the only Judith of her acquaintance was a Judith Curran who was a woman in her fifties, with four grown-up children, who had cared for TC when HM was in hospital in February 1983. HM told Mr Lungley that Judith Curran was not a lesbian and that she had no cause to suspect her of having a sexual interest in children. She also told Mr Lungley that she had not seen Ms Curran since December 1983. (As to this, HF gave evidence that Judith Curran attended Dr Waters rooms in 1984 with Ms Morris when HF and TC were present, and this would suggest an ongoing association between HM and Judith Curran until that time. However Mrs Gray said she was the person who with Ms Morris attended on that occasion and I accept the evidence of Mrs Gray on this point.)

328 On 31 May 1984 Mr Lungley spoke with Mr McCourt, the solicitor by then representing TC in the Family Court proceedings. Mr McCourt was agreeable to the proposed assessment. By 22 June 1984 the necessary consent for that assessment was obtained from HF. On that day it seems that HF showed Mr Ryan a copy of the Goldberg report and Mr Ryan relayed some of the details in that report to Mr Lungley. This prompted a home visit by Mr Lungley when he saw HM and TC. The issue of sexual abuse was raised and Mr Lungley has recorded HM's denial, again in Exhibit A(abp).

329 At the case conference on 9 July 1984 it was determined that Dr Waters would conduct the psychiatric assessment. I pause here to observe that no justifiable criticism of Dr Waters' selection could be maintained having regard to his professional standing. It was determined that reports from those agencies that had been involved in TC's case would be forwarded to Dr Waters and Dr Waters wrote to Mr Lungley on 16 July 1984 requesting all previous relevant reports and assessments and any other documents that Mr Lungley believed might assist the doctor in his assessment task.

330 On 1 August 1984 the Sydney District Office of YACS received from Mr Samways, the district manager of Bankstown, copies of affidavits of HF and Penny Tokatlidis together with a copy of Ms Goldberg's report. On that same day Mr Lungley sent off to Dr Waters a report which he prepared on 31 July 1984 (Exhibit A(xxx)), together with copies of Ms Goldberg's report, Mr Malak's report, a report from Dr Rose, and Ms Boulter's report of 17 June 1983 (Ex A(part of (kk)).

331 It is recorded in Exhibit A(abp) that YACS first received the important report written by Ms Goldberg on 11 July 1984 when it had been decided, after discussion between Mr Lungley and Mr Long, the assistant district manager, that its receipt warranted no additional step before the outcome of Dr Waters' assessment was known.

332 I note that Mrs Burgess, who resumed her duties as district manager in the Sydney office in July 1984, endorsed her approval on Exhibit A(xxx) on 9 August 1984 but she also recorded:

"I am seriously concerned about the emotional welfare of this child and wish to discuss this with the Regional Director next week."

333 On 14 August 1984 Mrs Burgess interviewed the Blevniks and I have already recorded the substance of what she was then told. On the same day Mrs Burgess prepared a document, Exhibit A(abc), which reviewed her assessment of the matter. At that time she was under the mistaken belief apparently that all the material then available to the department had been considered by a judge of the Family Court. That is incorrect, as Mrs Burgess herself apparently subsequently discovered (see Exhibit A(acd)). Mrs Burgess expressed her opinion in this document of 14 August, acknowledging the continuing involvement of the Family Court:

"I don't question the Family Court's judgment on legal matters, nor its counsellors' expertise in family problems. I am unconvinced, however, in their expertise in abuse - particularly sexual abuse.

The various psychologists' reports, which do not explain the leaps from observed behaviour to conjecture, at least do indicate a deterioration in [TC].

I believe it is imperative that the Department be granted leave to intervene/appear in this matter."

334 Mr Callaghan, the regional director, had discussions with Mr Finch, Mrs Burgess and others before seeing HF on 21 August 1984. It appears from Exhibit A(abf) that HF provided for Mr Callaghan, inter alia, a copy of his affidavit, a copy of Ms Goldberg's affidavit, copies of the affidavits of Peggy Brunner and Joanna Papakonstantinou, a statutory declaration from Penny Tokatlidis, an affidavit from Theresia Wolf, and reports from Mr Malak and Dr Younan. I observe that this is the first record in the documentary exhibits, so far as I can see, which records any study of the declaration of Penny Tokatlidis. As far as the affidavit of Theresia Wolf is concerned this would appear to be the first occasion that any officer of YACS became aware of it. It was only sworn on 25 July 1984 and it referred to an incident at the airport on 18 May 1984 when TC had behaved in an inappropriate fashion, pressing his mouth against the deponent's pubic area.

335 It is evident that what Mr Callaghan had read, coupled presumably with the earlier discussions to which he referred in Exhibit A(abf), caused Mr Callaghan concern as to TC's welfare. He recorded in his document of 21 August 1984 the following:

"2. Some of these documents have been prepared by professional workers and it appears that they corroborate [HF's] contention that his child is at risk in the care of his mother.

3. It seems that there is medical evidence that the child's face was either slapped or scratched by an adult and this occurred while he was in the care of his mother.

4. There is evidence that the child is involved in sexual activities which he alleges that he learnt from his mother and a friend of hers called Judith.

5. There is evidence that workers at the refuge alleged that [HM] has not properly cared for the child while at the refuge. The statement that the child was tied to its bed is of itself a matter of grave concern.

Irrespective of the criticisms which may apply to [HF], on the material submitted to me, there seems to be a strong prima facie case that the child has been abused and there are indications that this Department should take action to take him into care.

I am aware that I have not fully studied the case but I would wish to submit this information to the case conference. I am convinced that action should be taken on the matter, unless other facts which are not known to me, would support another course of action."

336 On the same day as Mr Callaghan saw HF, Ms Withers and Ms Ralston attended the child care centre at Tempe, and I referred earlier to what they did on that and the subsequent day. I have also recorded the conclusions which they expressed in their report, Exhibit A(abj).

337 On 23 August 1984 both Ms Withers and Ms Ralston attended a case conference chaired by Mr Finch and at which the director of the child care centre at Tempe and Mr Lungley were also in attendance. The outcome of that meeting was that there was a general agreement that court action was required but that first some legal advice should be taken.

338 The case conference chaired by Mr Finch was followed by the involvement of Mr Heagney to which I referred earlier. In Exhibit A(abr) Mr Heagney stated his reasons for advising against initiating proceedings in the Children's Court. Because it is alleged that the defendant was negligent in not going to the Children's Court, it is appropriate that I here record what Mr Heagney had to say when advising the regional director on 31 August 1984:

"As I indicated to Mr Finch, I would advise against initiating proceedings at this stage under the Child Welfare Act. The evidence which is available to support a complaint under s.72 of that Act has in the main already been put in evidence before the Family Court - and there denied by [HM]. It seems also that Ms Goldberg's report of her consultation with [HF] on the 12th May, 1984 was placed before the Family Court on the 29th May, 1984, although it may not, at that stage, have been supported by an affidavit.

This being the case, it seems to me that to begin proceedings in the Children's Court would only duplicate the proceedings which are already before the Family Court and which have occupied so much time there. [HM] will deny in the Children's Court, as she has in the Family Court, the truth of the allegations which are made by [HF]. The report of Ms Goldberg is untested in cross examination and in any event as she expressly says in paragraph 13 of her affidavit of the 26th July, 1984, she made no attempt to discover the identity of the person or persons from whom [TC] learnt the behaviour which she witnessed. It is not beyond the bounds of possibility that [TC] was instructed in this behaviour by [HF].

The situation is obviously a worrying one but, unless other and compelling evidence becomes available, I would advise against initiating proceedings in the Children's Court. It is imperative that the assessment of the family which is to be done by Dr Waters be completed as soon as possible.

In the event that proceedings before a Children's Court are not instituted, the best way to proceed, it seems to me, is to make available to [TC's] separate legal representative any material which we may wish to put before the Family Court. If I understand Mr Finch correctly, however, the only information available to the Department which is not also generally available is the conversation with the Blevniks on the 14th August, 1984 and a psychologist's report (which neither I nor Mr Finch have seen)."

339 I observe that before so advising the regional director Mr Heagney had had a discussion with TC's solicitor, Mr McCourt, on 24 August 1984 who had conveyed to Mr Heagney he was not in favour of action being taken by the department in the Children's Court.

340 A further case conference was held on 4 September 1984 involving Mr Finch, Mrs Burgess, Ms Boulter, Ms Withers and Ms Ralston. This was followed by yet another case conference on 5 September 1984 attended by Mr Callaghan, Mr Finch, Mrs Burgess and Ms Boulter. It seems that there was a further discussion that involved Mr Callaghan on 9 September 1984. The outcome of these discussions was that a decision was taken to become a party in the Family Court proceedings.

341 I note YACS received a letter from the solicitors then acting for HF, Spooner Anderson, dated 6 September 1984 urging in the interests of expedition that proceedings be taken in the Children's Court. I cannot determine whether this was considered before 9 September or not.

342 On 9 September 1984 Mr Lungley and Ms Ralston interviewed Mr and Mrs Tiba seeking information as to TC's behaviour towards their daughter at a time when HF was living in a flat at the Tiba residence and when TC used to visit on weekends. This was when the two children were approximately three years of age, either in 1983 or 1984. I have been unable to determine when or how YACS became aware of the evidence the Tibas may be able to provide but through an interpreter both Mr and Mrs Tiba were spoken to and Exhibit A(acl) purports to record the information supplied to the YACS officers that day. (I observe that Mrs Tiba gave evidence in the proceedings before this Court and whilst the content of Exhibit A(acl) would indicate, if taken at face value, that more was involved, as indeed does the evidence of TC, when Mrs Tiba gave evidence in this Court she said only that her daughter twice complained TC had scratched her leg and that there was a third incident when he followed her into the toilet.)

343 On 12 September 1984 Mr Heagney by letter (Exhibit A(adi)) instructed the State Crown Solicitor to act for the department and to seek to intervene in the proceedings pending in the Family Court. The Crown Solicitor was instructed to intervene with a view to seeking an interim custody order for the Director General so as to permit of a thirty day psychiatric assessment of TC, it being proposed that the child would live at Brougham during the assessment period.

344 The next event to be recorded was that on 13 September 1984 Mr Callaghan wrote to Mr Finch urging that the pursuit of an application in the Family Court be given "absolute priority" (see Exhibit A(acj)). On the same date Mr Callaghan issued an instruction (Exhibit A(ack)) directed at Mr Finch:

"Further to discussions with you on 11 September 1984 and subsequent discussions with Mr Ken Finch, Acting Operations Manager, Central Metropolitan Region, I wish to confirm my instructions that this Department should seek to intervene as a party in this case before the Family Law Court as soon as possible.

I have made this decision after careful consideration of the facts, discussions with the Director-General and lengthy consultations with officers from this Region.

As I believe the child may be at risk, I suggest that the matter should be put before the Court with all reasonable haste and the Crown Solicitor briefed to act on the Department's behalf on this matter."

345 Then on 15 September Mr Lungley spoke with Dr Waters, in effect obtaining a progress report on the awaited assessment.

346 On 28 September Hogan J granted the Director General leave to intervene in the proceedings in the Family Court and the parties were ordered to file their affidavits. No hearing date could be appointed until the affidavits required of all the parties were filed.

347 On 1 November 1984 the long awaited assessment by Dr Waters came to hand and the doctor made it clear in that report that he regarded it as being disadvantageous for TC to be taken from his mother's care.

348 On 28 November 1984 the State Crown Solicitor advised YACS by letter (Exhibit A(aes)) against Children's Court proceedings, and I quote from the letter:

"I further advise that Ms Boulter sought advice from my officer as to the immediate institution of Children's Court proceedings, having regard to the fact that even an expedited hearing of the Department's application would not take place before March, 1985.

I advise that Counsel's advice on this question is unchanged from the last occasion this was raised (when the Department initially forwarded instructions to this office to act on its behalf in this matter). Such advice remains that Children's Court proceedings should not be instituted because

1) the Children's Court will only intervene in a custody dispute in the Family Court in the clearest circumstances justifying, for example, the immediate removal of the child in circumstances of extreme danger. In this case there does not appear to be unequivocal evidence sufficient to justify such action.

2) [HM] would be able to apply for injunctive relief preventing the hearing of any Children's Court application, having regard to the fact that all the evidence and issues are already before the Family Court."

349 On 13 December 1984 there was a case conference attended by Mr Callaghan, Mr Finch, Mrs Burgess, Ms Boulter, Mr Lungley, Ms Lorschy and Mr Heagney. It was noted that there appeared to be agreement amongst the professional witnesses whose opinions had been sought that TC had been sexually assaulted but it was not known by whom. It was also noted at this conference that Dr Waters was not in favour of TC being removed from the care of his mother. Some concern was voiced at this meeting about when the case would be heard in the Family Court. The information then available was that it would not be heard until March and that the hearing could be spread over a period of months and this time factor led to further consideration about bringing proceedings before the Children's Court. Mr Heagney advised against this and he stated reasons which are recorded in Exhibit A(aeg). Those reasons may be summarised as follows:

(i) that resolution could be delayed by procedural or jurisdictional problems;

(ii) the action should only be taken if TC was believed to be in immediate danger.

350 Mr Heagney pointed out that in advising against the Children's Court he had the supporting opinions of counsel and of the Crown Solicitor.

351 On 2 January 1985 Mr Callaghan again raised the question of withdrawal from the Family Court proceedings and the institution of proceedings in the Children's Court (Exhibit A(afn)).

352 Mr Croke assumed the role of Mr Heagney in January 1985, first whilst Mr Heagney was on leave and subsequently following Mr Heagney's replacement and Mr Croke's appointment as the senior legal officer for YACS. Mr Croke spoke to Mr Callaghan about the question of changing courts and he advised both Mr Callaghan and Mr Finch against such a course, expressing the opinion that it was preferable to remain in the Family Court.

353 On 7 January 1985 the Family Court granted the application by YACS for expedition. On that date Mr Croke advised Mr Callaghan and Mr Finch that he did not consider it would be appropriate to proceed in the Children's Court because of problems in establishing a complaint (see Exhibit A(agq)). That advice was confirmed in a lengthy memo written by Mr Croke to Mr Callaghan on 17 January 1985 (Exhibit A(aft)) in which Mr Croke concluded:

". The delay in the Children's Courts in having the matter heard is estimated at at least six months. If we succeeded in that Court I would suggest it is unlikely that the child would be removed from the mother and point out that this is really a casework matter which would have to be looked at the time.

. Even with the delay in the Family Court we can have expedition of hearing of assessment. If we get our assessment hopefully we are further advanced if not then we have not lost anything. If we do not get our assessment then the matter must still be determined in the Family Court.

. The Family Court is just as capable of dealing with the matter as the Children's Court and the Department can fulfil its obligation to the children better I would suggest at this stage in the Family Court than it can in the Children's Court.

. It must be remembered too that the Children's Court could not order any assessment until the complaint is established unless the parties agree."

354 So it was that the proceedings remained in the Family Court where on 12 April 1985 Ellis J made an order dismissing the Director General's application for interim custody. That order did not conclude the department's involvement in the Family Court proceedings. Ellis J noted an undertaking given by HM that she would co-operate with and remain under the close supervision of YACS, and that she would allow the department to supervise TC until the determination of the custody applications.

355 Mr Dziedzic, the solicitor with the conduct of the matter in the State Crown Solicitor's Office and the author of the letter Exhibit A(aes), gave evidence that the decision was taken for the department to remain a party in the proceedings, notwithstanding that the application had been refused by Ellis J, because there was the possibility that the court might order that a third party assume control of TC and this could involve YACS. Moreover, Mr Dziedzic said that the court seemed favourably disposed "to the moderating influence which the department brought into the case" (T1943).

356 So it was that the department was represented by counsel when Bulley J ultimately determined the litigation on 31 July 1986. The reasons for the delay between April 1985 and July 1985 I recorded earlier.

357 After the failure of its application in April 1985 YACS reviewed TC's situation:

(i) On 10 May 1985 a home visit was made by Ms Ralston and District Officer Shelston. Ms Ralston recorded a very positive change in TC's presentation from when she had first met him in August 1984 and the file note of the visit (Exhibit A(ahh)) records TC as being relaxed and happy in his mother's company.

(ii) Inquiries of the headmaster of Fort Street Primary School on 19 June 1985 indicated TC's behaviour at school was improving (Exhibit A(ahi)). The headmaster reported that TC was displaying no abnormal or inappropriate sexual behaviour at school.

(iii) Home visits were made and TC was seen again on 22 July and 23 July 1985, by Ms Ralston (see Exhibit A(ahl)).

(iv) Mr Shelston visited TC at home on 7 August 1985. Mr Shelston recorded in Exhibit A(ahm) that TC was observed to be happy and content in his mother's care.

(v) On 15 October 1985 Mr Shelston spoke to the headmaster who reported continuing improvement in TC's behaviour at school.

(vi) Mr Shelston made a further home visit on 17 October 1985, seeing TC and HM, and he recorded "The relationship between mother and child is emotionally and physically appropriate" (Exhibit A(ahm)).

(vii) The next YACS action followed the notification by the headmaster of TC's school on 11 March 1986 that TC had arrived at school with many bruises. On the same day Mr Shelston interviewed the child who complained his "new dad" had struck him. That person was interviewed the following day and on 12 March 1986 a complaint was laid under the Child Welfare Act in the Children's Court that TC was a neglected child. He was placed at Montrose that same day and he went into a foster home on 7 April 1986 where he remained until Bulley J delivered judgment.

358 It has been submitted on behalf of the plaintiff that once there was evidence before YACS that supported the allegation that TC had been sexually abused, YACS should have acted to remove TC from his mother's care by taking proceedings in the Children's Court. Mr Shand argued that the defendant was negligent in opting to intervene in the Family Court instead.

359 I am satisfied that consideration was given by Mr Callaghan, Mr Finch, Mrs Burgess, Ms Boulter and the other officers of YACS I have identified in the review of events above to the alternatives presented by proceeding in the Family Court on the one hand or in the Children's Court on the other hand. I am satisfied on the evidence that the decision taken to proceed by way of intervention in the Family Court was taken on the advice of Mr Heagney, Mr Croke, Mr Dziedzic and Ms Lawrie of counsel and that it was taken after due consideration by the appropriate YACS officers. The ultimate responsibility was that of Mr Callaghan and the documents to which I have referred make it clear that whilst he seriously considered proceeding in the Children's Court he eventually acted on the advice given by the lawyers involved. In my opinion he was completely justified in doing so.

360 The advice of the various lawyers consulted is recorded in the exhibits to which I recently referred: Exhibit A(abr), (aes), and (aft).

361 Mr Heagney, Mr Croke and Mr Dziedzic gave oral evidence before this Court. I am satisfied each witness genuinely held the opinions he expressed and I accept the evidence that each of those witnesses gave.

362 Mr Heagney said his advice was to go to the Family Court rather than the Children's Court although he considered that a better course was simply to put whatever information the department had before Mr McCourt for use in the Family Court (T1599).

363 Mr Croke, in his oral evidence, elaborated upon what he had written as to the difficulties of establishing the necessary complaint in the Children's Court (T 1702-1703):

"Q. Can you just amplify the problems you saw about establishing the complaint?

A. The problems I saw was that there was evidence that the lad had been subjected to some form of inappropriate sexual activity at sometime in the past. It was not clear, in fact the evidence - I will take that back - it was not clear from that evidence who was responsible for that inappropriate sexual inactivity. There was also evidence in the past that there had been some inappropriate behaviour on the part of the mother, one instance it is alleged that she had the boy tied in bed. But by January of 1985 there was no evidence of inappropriate care for the child, either from a physical point of view, and Dr Waters's assessment indicated that he did not believe there was continuing sexual activity - sorry, inappropriate sexual activity towards the boy - and there was no evidence to clearly indicate it was the mother. So whatever had been the case before by January of 1985 there was no current evidence that the boy was subjected to any abuse. By that time the evidence in fact supported - that is from Dr Waters and some of the department's officers - supported the child remaining with the mother. For that reason I did not believe it was appropriate to take the matter before the Children's Court."

364 It was Mr Croke's belief that the delay in the Family Court would be less than in the Children's Court (T1772), and he considered the time and jurisdiction factors important in choosing the appropriate court (T1774).

365 Mr Dziedzic, the solicitor at the Crown Solicitor's Office with the conduct of this matter, said that his letter of 28 November 1984 from which I quoted earlier was preceded by oral evidence to the like effect. Mr Dziedzic gave the following responses to the following questions in his evidence (T1941-1942):

"Q. Could you just tell us what that advice was?

A. That the only way in which proceedings could be successfully brought would be to seek an assessment that is, would be through proceeding in the Family Court. That was because there had to be some current danger to the child in order for proceedings to be brought in the Children's Court. All the advice that we obtained was that there was no absolutely current danger to the child. The allegations were in relation to incidents that had occurred some time previously and the advice consequently was that the proceedings could only be brought in the Family Court.

Q. In the Family Court it was possible to obtain an order which would allow you to obtain an assessment of the child?

A. Yes, yes, and in the Children's Court it was not the case that we could obtain an order for assessment until the complaint had been established that the child was neglected.

Q. I thought you needed an affirmative finding of neglect?

A. Yes, and at that time. That the child was neglected at that time. There being no evidence that the child was neglected at that time there was no prospect that the proceedings would be successful in the Children's Court.

The problem, also, was that we were aware that there had been protracted proceedings in the Family Court. Those proceedings had involved numerous affidavits as we subsequently found - well, had produced to us, which involved many of the allegations that had been already made by both HF and HM. The Family Court already being seized of the matter, having that material before it, and the mother having been left with custody of the child despite that fact, it was thought that it was much more sensible to leave the matter in the Family Court. And furthermore, that it would be, in fact, abusive of the child to subject him to further possible assessments, further set of proceedings in the Children's Court in addition to what he had already been exposed to. So it really seemed to be the only available course to proceed in the Family Court."

366 No expert witness was called in the plaintiff's case to contradict the evidence given by Mr Heagney, Mr Croke and Mr Dziedzic. Mr Shand however submitted that no expert evidence was required to be called since whether those solicitors acted negligently was a matter for the Court. He referred to Midland Bank Trust v Hett Stubbs and Kemp [1979] 1 Ch 374 and to dicta of Oliver J at 402; and also to Permanent Trustee Australia v Boulton [1994] 33 NSWLR 735 and to dicta of Young J at 738. I accept that submission.

367 Mr Shand further submitted that I should find the advice given by each of the solicitors to be deficient and indeed that it was "third rate to say the least" (T3014). He submitted that it demonstrated "an inadequate and fundamentally erroneous knowledge of the law relating to the availability of and the advantages of going to one court or the other" (T3014).

368 I do not consider that those submissions have been made good, and I am not persuaded any one of these legal officers acted negligently in giving the advice which was given. Plainly practical considerations and experience were matters properly to be taken into account.

369 An important consideration was the need for expedition. This was recognised and it was considered that a decision would be reached more quickly in the Family Court than in the Children's Court. I am not persuaded that that assessment was erroneous. It would be wrong to determine that issue simply with the benefit of hindsight.

370 The application by YACS was given an expedited hearing and was heard in April 1995. Ellis J set the cross applications down for hearing for two weeks, commencing 24 June 1985, and, but for HF's absence overseas by reason of which the hearing of the custody proceedings had to be adjourned, that hearing would have occurred some twelve months earlier than proved to be the case. Mr Croke's estimate of the delay in the Children's Court expressed in Exhibit A(aft) (supra) was based upon advice from an officer of the Children's Court and I accept that Mr Croke acted responsibly in relying upon that estimate. Indeed there is no evidence that persuades me that the Children's Court could have entertained a contested complaint any earlier than the available time frame for proceedings in the Family Court.

371 Any decision reached in the Children's Court would have been subject to appeal under s 18 of the Child Welfare Act. The statutory appeal was an appeal to the District Court and would have been in the form of a hearing de novo. Mr Heagney identified this, in my view correctly, as a disadvantage of proceeding in the Children's Court (T1643). The history of the many proceedings in the Family Court is a powerful indicator that either HM or HF, if dissatisfied with the magistrate's decision, would have decided to challenge it. It is, in my opinion, highly likely that either HF or HM would have exercised the right of appeal from the decision of a magistrate. There is another factor also affecting the finality of any decision of the Children's Court and that is the prospect of further proceedings in the Family Court. I shall consider this prospect shortly.

372 Having regard to the structure of the Child Welfare Act, before the Children's Court would act under Part XIV it would have been necessary to establish TC to be a neglected child as defined under s 72 at the time the proceedings were commenced in the Children's Court. (That section I referred to earlier at para 134.) Section 82 also requires the magistrate to address the present position:

"82. (1) If a court finds that a child or young person is a neglected or uncontrollable child or young person it may -

(a) admonish and discharge the child or young person; or

(b) release the child or young person on probation upon such terms and conditions as may be prescribed or as the court may, in any special case, think fit, and for such period of time (whether expiring before or after the date upon which the child or young person attains the age of eighteen years) as the court may think fit; or

(c) commit the child or young person to the care of some person who is willing to undertake such care upon such terms and conditions as may be prescribed or as the court may, in any special case, think fit, and for such period of time (whether expiring before or after the date upon which the child or young person attains the age of eighteen years) as the court may think fit; or

(d) commit the child or young person to the care of the Minister to be dealt with as a ward admitted to State control; or

(e) commit the child or young person to an institution, either generally or for some specified term (whether expiring before or after the date upon which the child or young person attains the age of eighteen years) not exceeding three years.

(2) If a court finds that a child is a neglected child it may release the child -

(a) upon such terms and condition as the court may think fit and as are willingly undertaken to be observed by the child's parents, one of the child's parents or another person approved by the court; and

(b) for such period of time (whether expiring before or after the date upon which the child attains the age of 16 years) as the court may think fit."

373 Evidence establishing that TC had been sexually abused in the past would not necessarily have been excluded in the proceedings in the Children's Court. Indeed, it seems to me that it would have been properly admissible evidence (see Whale v Tonkins, supra). Nevertheless the magistrate's task would have been to address the child's current circumstances and it was correct of the lawyers advising YACS to recognise this. Whilst absence of direct evidence that sexual abuse was continuing at the commencement of the proceedings in the Children's Court need not inevitably have led to the failure of proceedings before that court, such absence presented a very real practical problem and one which it was proper for those advising on the choice of the more appropriate court to take into account

374 In his written advice, before expressing the conclusions I have set out already, Mr Croke reviewed the evidence available to the department and concluded "that the prospects of having the complaint established are not high". In my opinion that was a responsible assessment.

375 In proceedings in the Family Court the time at which any sexual abuse occurred did not assume the same emphasis. In any proceedings for custody or access the Family Court is required to consider whether on the evidence there is a risk of sexual abuse occurring in the event that custody or access as the case may be was to be granted and the court is required to assess the magnitude of such risk: see M and M (1988) FLC 77,076 and in particular the joint judgment of Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ at 77,081.

376 At the time a choice of courts was being contemplated YACS wanted to have interim custody to permit the thirty day assessment of TC. An assessment could only be ordered in the Children's Court after the magistrate was satisfied that a prima facie case had been established. Section 89 provided:

"89. (1) Where a child or young person is charged before a court with any offence, or is brought before a court as a neglected or uncontrollable child or young person the court, if satisfied that a prima facie case has been made out, shall give the child or young person or his parent an opportunity to call evidence, and shall hear any evidence that may be tendered by or on behalf of the child or young person.

(2) The court, if satisfied that the child or young person has committed the offence, or is a neglected or uncontrollable child or young person, shall, before making any order, give consideration to reports, if tendered, setting out the details and results of investigation into the antecedents, home environment, companions, education, school attendance, habits, recreation, character, reputation, disposition, medical history and physical or mental characteristics and defects, if any, of the child or young person..."

377 Whilst eventually Ellis J refused the application of YACS, there was the flexibility in Family Court proceedings to achieve what YACS wanted by way of assessment in a way that was not available in the Children's Court.

378 It seems to me that it was also very proper for those advising YACS to recognise the proceedings already taken in the Family Court and those pending in that court. So much of the relevant evidence was already available in affidavit form in the Family Court and there were proceedings on foot there concerning custody of TC. Moreover, as I have already observed, it is unlikely that either HF or HM would have accepted without challenge an unfavourable outcome in the Children's Court. One method of challenge would have been an appeal to the District Court as mentioned previously; but unless in proceedings in the Children's Court an order had been made under s 82(1)(d) of the Child Welfare Act, neither HM nor HF would have been prevented by an unfavourable decision under the Child Welfare Act from pursuing a further application concerning TC's custody in the Family Court.

379 The Family Law Act of 1975 contained s 10 at the time the department decided to intervene. The section has since been repealed but it provided:

"10. (1) Subject to sub-section (3), a court shall not make an order under Part VII or Part VIII for the maintenance, custody or guardianship of -

(a) a child who, under the law of a State, is a ward of the State or a State child or is under the guardianship, or the care and control, of -

(i) a Minister of the Crown of the State;

(ii) an officer of the State; or

(iii) an officer of an adoption agency approved under a law of the State; or

(b) a child who has a similar status under a law of a Territory.

(2) Nothing in this Act, and no decree under this Act, affects -

(a) the jurisdiction of a court, or the power of an authority, under a law of a State to make an order, or to take any other action, whereby a child becomes a ward of the State or a State child, or is placed under the guardianship, or the care and control, of -

(i) a Minister of the Crown of the State;

(ii) an officer of the State; or

(iii) an officer of an adoption agency approved under a law of the State,

or any similar jurisdiction or power under a law of a Territory;

(b) any such order made, or action taken, or the operation, in respect of a child in relation to whom any such order has been made or action taken, of the law under which the order was made or action taken;

(c) the jurisdiction of a court under a law of a State or Territory to make an order in respect of the maintenance of a child referred to in sub-section (1) in favour of an officer or authority of the State or Territory performing functions in relation to the welfare of children; or

(d) an order of a kind referred to in paragraph (c) made by a court.

(3) The Family Court, a Family Court of a State or the Supreme Court of a State or Territory may make an order referred to in sub-section (1) if it is satisfied that there are special circumstances that justify the making of the order."

380 Section 10 was considered by the High Court in re Demack; ex parte Plummer [1977] HCA 37; (1977) FLC 90-244. In that case the court was concerned with a Queensland statute, the Children Services Act, whereunder an order had been made by the Children's Court placing a child under the care of the Director of the Department of Children's Services. When subsequently the parents of the child sought custody in the Family Court, the jurisdiction of the Family Court to entertain those applications was challenged. The challenge was unsuccessful. The construction of s 10 was considered and in the course of his judgment Mason J, as he then was, said at 76,315:

"When these sections [referring to sub-sections (1), (2) and (3) of s 10) are read together, in my opinion they place a limitation on the authority of the Family Court to make orders for custody with respect to children who are wards of the State or who are State children or are in the care and control of a Minister of the State. In these cases the Family Court can only make an order for custody if it is satisfied that special circumstances exist within the meaning of subsec. (3). And even if the Family Court is so satisfied, the making of an order for custody by the Family Court does not affect an order already made under State law in respect of the child. Precise effect must be given to the language of subsec. (2) of sec. 10 and I see nothing in subsec. (1) and (3) which requires a reading down of subsec. (2). It seems to me that the section was designed, as the marginal note `Child welfare law not affected' suggests, to preserve the independent operation of State child welfare laws and of orders with respect to the care and control of a child made under such laws."

381 It follows from the above decision that s 10(2) would prevent the Family Court from disturbing a current wardship order made pursuant to s 82(1)(d) of the Child Welfare Act. However s 10 would permit the Family Court, notwithstanding an earlier determination of the Children's Court under s 82(1), to make an order for custody or guardianship of a child unless the Children's Court order was made under s 82(1)(d). Mr Croke indicated in his evidence that he was alert to this, and he regarded a wardship order as being an unlikely result if proceedings were to be taken in the Children's Court (T1734). So it is that he perceived that proceedings under the Child Welfare Act were unlikely to achieve a final resolution of the issues that had to be determined in this case. That was a reasonable perception.

382 Having reflected on the evidence and the competing submissions, I have concluded that the actions and the advices of each of the lawyers identified were thoughtful and reasonable. I do not find that Mr Heagney and/or Mr Croke and/or Mr Dziedzic failed to exercise reasonable care in giving the advice that was given. Nor do I find that any officer of YACS was negligent in accepting and acting on that advice. Once a decision was taken to proceed in the Family Court, the delay that did occur in the course of the proceedings in that court was not attributable to any neglect on the part of YACS.

Bias

383 It has been submitted that a number of YACS officers who became involved in TC's case from time to time were biased. Absence of good faith would defeat a defence under s 158 of the Child Welfare Act, but so too would the absence of reasonable care and any liability in the defendant in this case could only arise by a failure to exercise reasonable care. Nevertheless bias, if present, could clearly have tainted the actions of any officer affected by it, so as to affect the quality of investigations, and it is appropriate that I deal with this issue in some detail.

384 I have already considered the question of bias in relation to Mr Plater and Mr Hulbert. I propose to consider those other officers against whom this allegation is made in turn:

Mr Male

385 G. Male was the author of a report form dated 11 October 1982 which became Exhibit A(e). The document reads:

"The father of this child, [HF], of 426 Avoca St. Kensington, called at the Sydney District Office on 8.10.82 alleging that his child [TC] was being mistreated by the mother who he alleged, went out every night `having a good time with the men' leaving [TC] tied to the bed at the women's refuge.

He stated that the mother had a lengthy history of mental illness and in his opinion was unfit to care for the child. He stated that she had been hospitalised at the Gladesville Mental Hospital and the St Margaret's Mental Hospital at Top Ryde.

Custody proceedings are currently in process at the Metropolitan Family Law Court.

[HF] stated that he made previous complaints to SDO Stanmore and that a lady officer subsequently visited his home and after a dispute he ordered her out. He asked that if enquiries be made into this matter they not be conducted by the staff of SDO Stanmore.

I explained to him that this was an impossible request. He then stated that he would go to the Minister and ask for the matter to be reviewed.

It was suggested to him that he take his complaint to the SDO Stanmore who would no doubt be familiar with this matter and might make the necessary enquiries.

It seems to me that [HF] is a neurotic, emotionally disturbed person and that his complaint has little substance.

He was referred to SDO Stanmore for follow up."

(Emphasis added)

386 It is submitted on the plaintiff's behalf that the document affords evidence of bias by the author Mr Male.

387 The author was not called and I am unable to determine upon what basis he formed the opinion in the brief paragraph underlined above. He may well have seen Exhibit A(c) which purported to record the unhappy experience of another officer, Ms Medus, when she visited the home of HF and HM in December 1981 and this may have influenced his assessment of HF. On the other hand he may have formed his assessment of HF by what he observed on HF's visit on 11 October 1982. However the complaint requiring consideration at that time was the misconduct of HM that was alleged in the first paragraph of Exhibit A(e). The statement that it seemed to the author that that complaint "has little substance" could not have been justified without prior investigation and it is clear that there had been no such investigation at the time when Exhibit A(e) was written. In my opinion the statement that "his complaint has little substance" is indicative of prejudice by the author.

388 However, consistently with departmental practice, HF was referred to the Stanmore office to make the appropriate inquiries and I would infer that Exhibit A(e) was written for the benefit of the Stanmore office. The form is endorsed "Copy to SDO Stanmore". For Mr Male to refer the matter to Stanmore was a proper step to take and Mr Plater made the inquiries I have already considered in response to that referral.

Mr Finch

389 I have already written of the involvement of this officer. There were the two phases of involvement, the first early in 1983 and the second in 1984 after the allegations of sexual abuse had arisen.

390 In the course of his cross-examination and in the context of questioning about his memorandum of 3 February 1983 (Exhibit A(o)), Mr Shand put the following question to the witness and obtained the following response (T2250):

"Q. You had not made up your mind adversely to this man, had you, at the time?

A. No, I don't believe I had."

391 I accept that as being a truthful response and it was not elsewhere specifically put to Mr Finch that he was biased or lacked good faith in what he did in this matter.

392 I have already recorded that I assessed Mr Finch as being both honest and conscientious and reflecting on all that he wrote and the evidence that he has given, I am not satisfied that he was biased in what he did.

Mr Hanrahan

393 Two matters were relied upon in support of the submission of bias against this witness. They are that he admitted that he never recorded anything critical of HM and that he recorded assertions made by HM to the discredit of HF without knowing if the assertions were true.

394 It is appropriate to extract the relevant passage of transcript for the purpose of considering this submission:

"Q. Mr Hanrahan, I want to ask you a rather more comprehensive question about the line that you took or the attitude that you took so expressed in the course of records that you compiled while acting as district officer or ASDO in this case. It is correct to say, isn't it, that you really did not ever record anything critical of the mother, did you?

A. There was a reason for that.

Q. I am not asking you about reasons, that is the fact, isn't it?

A. It looks like that, I cannot see anything here.

Q. And you did, not infrequently, record matters to the discredit of the father, didn't you?

A. Allegations except for this one here.

Q. Even understanding that you recorded allegations, you are referring to allegations which, if true, reflected discredit upon the father, didn't they?

A. Only if proved.

Q. Nonetheless they mentioned matters to the discredit of the father, didn't they?

A. If proved.

Q. Why was it that you adopted that course with the father and the other course with the mother?

A. Because my job was to see if the child was being cared for properly and to see if he was a child at risk, and when I went to see the mother and the child I wasn't interested in minor defects of parental skills, I was interested in serious defects of parental care of the boy. I wasn't going to put in my report minor matters where the mother may have failed. I mean, when an officer calls on a house, he is interested in serious abuse, not minor defects.

Q. Is this what you say, that you did not discover anything of significance to the discredit of the mother?

A. No serious defects in her care of that child, no.

Q. You knew, of course, you were aware of the allegations of a very serious nature which the husband made against the wife as to her behaviour, didn't you?

A. Scratches.

Q. Allegations of abuse?

OBJECTION. QUESTION REJECTED.

Q. First of all the example I have been dealing with, exhibit xx, was an occasion where you were prepared to put matters which were to the discredit of the husband without knowing whether in fact they were true or not, weren't you?

A. I was repeating what she told me.

Q. Without knowing whether what she told you was true or false, is that so?

A. I didn't know, certainly, no.

Q. You think that was being objective?

A. Not completely objective.

Q. Now do you remember whether you expressed an opinion concerning the father in comparison with the mother as to whether he was fit to have custody of this child?

A. No, I don't remember."

395 The document upon which Mr Hanrahan was being cross examined in the above extract (Exhibit A(xx)) was an application form to support HM's application for funds for her telephone.

396 It emerged in re-examination, contrary to Mr Hanrahan's concession, that he recorded unfavourable material concerning HM in his final report on 21 November 1983 (Exhibit A(zz)). He there recorded that TC said he hated HM and he also recorded the allegation made by HF that she was a lesbian. In that same document Mr Hanrahan recorded favourable comments made by TC's teacher about HF.

397 I observe that Mr Hanrahan never met HF. I have elsewhere recorded of Mr Hanrahan that I found he acted conscientiously. That finding extends for the period of his involvement in this matter from 10 February 1983 to 21 November 1983. Whilst this witness became agitated in the course of a testing cross examination, I formed in general a favourable impression of him, and, having considered all the evidence that he gave, I conclude bias has not been established.

Mrs Burgess

398 In support of the submission that this officer was biased, my attention was directed to three exhibits: Exhibit A(abc), Exhibit A(acb) and Exhibit A(ada). The first of these exhibits came into existence following an interview which Mrs Burgess had with the Blevniks. In the exhibit, which reflected Mrs Burgess' perception of TC's case at that time, the officer addressed the significance of what she had been told by Mr and Mrs Blevnik that day:

"Today I interviewed Mr & Mrs Blevnik who were neighbours of [HM]. Amongst other matters they made serious allegations against [HM's] care of [TC]. I could see no reason to doubt what they said. However, their evidence has already been heard in the Family Court and apparently dismissed. In view of [HF's] indiscriminate provision of Family Court papers, it is difficult to assess - particularly with fairly simple people like the Blevniks - how much is their experience and how much comes from the information [HF] has given them."

399 It is submitted that the last sentence of the above paragraph indicates bias. I do not agree. I read it as reflecting the attempt of Mrs Burgess to evaluate what the Blevniks had told her. It was reasonable for her to recognise that HF had spoken to the Blevniks about TC and HM before the Blevniks spoke to Mrs Burgess.

400 Exhibit A(acb) is a five page document prepared by Mrs Burgess and directed to Mr Callaghan. It recorded then recent events, including what Ms Pennui, then HM's solicitor in the Family Court proceedings, had said about what occurred in proceedings before Pawley J. What Ms Pennui had to say was noted by Mrs Burgess in considerable detail and the passage which it is submitted discloses bias is emphasised in the extract from the exhibit set out below:

"Glenys Pennui said that:

1. Mr Malak and Dr Goard had both attended the Family Court and the contents of their affidavits have been considered by the Court.

2. Greta Goldberg's affidavit had been admitted and considered on 30/5/84. She was not examined (i.e. G. Goldberg) because she was not available.

[HF] was cross examined and asked in view of his statements that this alleged sexual abuse of [TC] had been going on for a long time - why he had returned [TC] to his mother's care. His answer was that he was not prepared to do anything until he was given Legal Aid.

3. [HM] had been given custody of [TC] by Mr Justice Pauley [sic] on 20/1/84 - with [HF] given access.

4. [HF's] access rights had been removed on 30/5/84 (Mr Justice Ellis one of the most Senior Judges in the Family Court).

5. His Honour had been clear that [HF], could with new evidence, have the mother [sic] quickly heard on the production of affidavits. However, [HF] had not done so.

6. [HF] had had at least 25 solicitors, continually dismissing them. He was currently in receipt of Legal Aid which had already cost the taxpayers $60,000.

7. Ms Pennui sees [HM] as a very brave woman, under a great deal of strain. She felt the Departmental Psychologist may have seen the result of that strain - in that the constant accelerating by `venamous' [sic] allegations have made [HM] avoid the most normal reaction i.e. she had discussed with Ms Pennui [TC's] nightmares, when he wanted to come to her bed for reassurance but felt she must deny this in view of the allegations and how [HF] would interpret simple comments re this. Ms Pennui told her that of course she should comfort [TC].

8. Re the Blevniks - Ms Pennui said that they had in fact approached her re the allegations, that [HF] had attempted to run over Mr Blevnik and then she had next seen them in Court for [HF]. They had told her they were frightened of [HF], but denied that under examination in the Family Court.

9. She had been told by the pre-school that [TC's] behaviour had improved since not seeing his father.

I took the opportunity to ask Ms Pennui:

1. About the occasional mention on our file of violence by [HF].

She said that immediately after [HF] dismissing these legal representatives:

a) One Solicitor's office had been bombed with the blast going through a thick partition leaving a hole of 3 ft radius. The police had said that if the Receptionist had been sitting at her desk, she would have lost her legs.

b) A Barrister's office received a letter bomb.

c) Another Solicitor's office had been set on fire.

d) [HM] Social Worker's (i.e. from the Refuge) car had been bombed during the six day hearing."

(Emphasis added)

401 I do not regard that passage as reflecting bias. It was a reasonable matter of concern for Mrs Burgess to better inform herself about earlier indications in the YACS file as to possible violence. Mrs Burgess gave evidence HF had threatened her with violence. It was a matter of relevance for the future handling of TC's case and one way in which this was shown is indicated on p 5 of the same exhibit where Mrs Burgess, in recording her discussion with Mr McCourt and the possible placement of TC, referred to the contemplated use of Brougham about which she wrote:

"d) A small Departmental establishment such as Brougham.

I said that whilst this is the placement I would recommend - in view of the beliefs re [HF] violence - this would have to be brought to the attention of the Managers of Brougham who would have to consider [TC's] needs in the context of the safety of the other children."

402 Exhibit A(ada) was not a document prepared by Mrs Burgess. Rather it was a copy of a letter written by Ms Cuthbertson, the Executive Officer of the Ethnic Affairs Commission, on 9 January 1985 and addressed to the Director General of YACS. It contained this passage:

"As I have personally dealt with [HF] I would like to express my concerns about the case before leaving the Commission. Although [HF's] manner at times tends to be very offputting, some of the allegations being made about him appear to have little base in fact. For example a senior officer of your Department mentioned to me that six of [HF's] ex-legal representatives had received bomb threats and that some of these solicitors' offices were actually bombed.

On reflection this seemed unlikely to me so I phoned and spoke to nine solicitors who at various times represented [HF] and either spoke to them or their secretaries. In all cases none had personally received threats of any kind, but three had heard stories of solicitors who were said to have received threats, but could not be specific about just who these people were. One only said a barrister who had represented [HF] was said to have received a letter bomb, from unknown sources, but he is also said to have represented [HF] after that event."

403 Ms Cuthbertson was called and she gave evidence that after HF visited her office in early November 1984 she rang YACS and spoke to Mrs Burgess and other officers of YACS. Ms Cuthbertson said that she told Mrs Burgess that HF was with her and that he was making allegations that TC was being sexually abused and otherwise ill-treated by his mother and that Mrs Burgess responded (T792):

"Be very careful with [HF]. He can be a very dangerous man. He has made many threats to his solicitors and the staff of my department and there have been letter bombs to some of his solicitors and fires in their offices and, in fact, he has set fire to or he is suspected of having set fire to a nightclub in which his estranged wife was present and she was injured as a result of that fire."

404 Ms Cuthbertson's recollection of that conversation finds some support in contemporaneous notes in her handwriting later introduced into evidence as Exhibit EE, although her oral evidence did not accord precisely with the contemporaneous notes.

405 Mrs Burgess was cross-examined about the alleged conversation . She agreed that she had spoken to Ms Cuthbertson but she said she could not recall the details. She did recall though that she cautioned Ms Cuthbertson. Mrs Burgess said (T1691):

"Q. You told Ms Lozzi-Cuthbertson that he had made threats to your life?

A. Yes sir.

Q. And she replied that you shouldn't -

A. Really I can't remember the exact words. But she really belittled that and said that I shouldn't pay any attention to that.

Q. Did you mention to her that either he had set fire to, or he was suspected of having set fire to a nightclub in which his wife was present?

A. Sir, I don't remember. As I say my memory is that she had information and that I really felt was not the same as was on the file and that's why I said I would go to the office and check with the file.

Q. But you did give her your recollection of what was on the file did you?

A. No, I don't remember that sir. I think she gave me what she had been told.

Q. But you had known then what was on the file, at least in round terms, didn't you?

A. Well sir, I don't know if it's three case workers had bombed cars.

Q. What is on the file is here in (acb) isn't it, where you asked Miss -

A. Yes sir, and what it says there is one solicitor's office had been bombed with a blast through a thick petition, leaving a hole of three feet radius."

406 Whether or not Ms Cuthbertson was given all the details of the concerns about HF reflected in her oral evidence or in the note Exhibit EE by Mrs Burgess or one of the other officers of the department to whom she spoke, I accept that Ms Cuthbertson did record on Exhibit EE what she was told by some officer of YACS on the same day she spoke to Mrs Burgess and that Mrs Burgess for her part did convey to that witness a caution concerning HF and concerns that he could be violent.

407 However, I am satisfied by the evidence of Mrs Burgess that she did genuinely entertain concerns that HF could be violent. In cross-examination she was asked these questions and gave these answers as to threats (T1692-93):

"Q. You mentioned to her, you told us, that you had received threats to your life?

A. Yes sir.

Q. From him?

A. Yes sir.

Q. Direct?

A. Yes, I think on the phone I received from him and I think about that time I interviewed him again, because it's about that and following this, that I contacted the police. And asked the police to see us, because his threats included cars. He said it was all about bombs and I got the police to come to the office and they actually instructed us in a number of things. One of the biggest problems is that our cars were under the office, readily accessible to the public and so the police showed us how to check whether or not, whether these had been tampered with. So it was all about that time yes.

Q. What did he say?

A. I can't remember exact words. I know that there were threats to me and to others. I know the clerical assistant was very very concerned about what he said to her and certainly it was, a number of things were about bombs, because that's what I approached police about. It was a very unsafe office and they advised the department to move out of that office. I think there is somewhere, sometime later the police did send a copy of their report to the department.

Q. Did he say these things to you face to face?

A. Certainly, yes, on one occasion.

Q. He did, did he?

A. Yes.

Q. At the office?

A. Yes sir.

Q. What did he say, to your best recollection?

A. I don't remember. I don't remember at this stage the words. I just know that it was a matter of concern and I'm sure it would be about this time, because I say in this report I took the opportunity to ask a solicitor about the mention of violence, because you had to work out what attention to pay to these threats.

Q. Was that in the course of him saying, protesting to you about the department not having done anything in response to his information about the treatment of the child?

A. Sir, it's very hard to know, because at the particular time I don't remember this man ever allowing me to finish a sentence and usually, I mean in the couple of times that I interviewed him, or on the phone, he talked for only a couple of moments and then he would call me a fucking lesbian and then he would threaten me and that was the experience. It was very sad, because we were not able to communicate with him and I think it's very sad."

408 I accept that HF did threaten Mrs Burgess and that he did abuse her as she claimed.

409 That there was concern within YACS that HF might be violent was a matter properly to be addressed but it does not follow because such concern was considered that proper attention could not be given to complaints about TC's welfare.

410 I find that there was concern being expressed about HF by the time Mrs Burgess spoke to Ms Cuthbertson, and indeed shortly thereafter there was a case discussion on 7 December 1984 at which Mrs Burgess was one of the officers in attendance and at which this concern was then discussed (see Exhibit A(aeg)). Whilst it was reasonable to address those concerns, I note that when Ms Boulter prepared her memo on that case conference dated 13 December 1984 she recorded that on the previous day she had spoken to Detective Paul Hume of the Bomb Squad who informed her that HF had twice been checked and cleared by them and that he felt the violence attributed to HF was probably exaggerated.

411 There was a need for YACS officers to make due allowance for the emotional distress that parents might suffer when genuine concerns were being felt for the welfare of their children. There was such a need concerning HF. Mrs Burgess was cross examined on this very matter (T1693-1694):

"Q. Is it correct to say that in your long history with the department in matters involving child protection -

A. Yes sir.

Q. And alleged child abuse, you encountered many cases where the child involved had distraught parents?

A. Yes sir.

Q. In fact, I suppose you expected more often than not, that they would be distraught, because of the allegations, the suggested problem?

A. Yes sir.

Q. In the course of your work in respect of such cases, you had to learn not to be put off from doing your duty by reason of the emotional state of the parents?

A. That's right sir.

Q. Keep your objectivity?

A. Yes sir.

Q. And make allowances for the state, the parents' state the turbulence of the parents' emotions?

A. Yes, yes sir I suppose so. I think, I certainly knew to focus on the child and that was the way I had been taught and that was the way I acted.

Q. And the case of this child and this child's father, was just such an example wasn't it?

A. Yes, yes sir.

Q. Where you had to focus on the child?

A. Yes sir.

Q. To understand and allow for the emotional state of the father?

A. Yes sir.

Q. You consider, you managed that in this case?

A. Yes sir."

412 Mrs Burgess was very closely examined and she was in the witness box for a long time. I formed a favourable impression of her and found her to be a responsible and honest person. Whilst I find that she was abused and threatened by HF and that she was concerned about safety considerations, I do not find that she became biased as a result. Indeed, I accept that the above extracted answers were truthful and I accept that she did focus upon the welfare of TC.

John Banks

413 It is submitted that Exhibit A(ccc) reflects bias. The document is a handwritten note addressed to "Louise" (presumably Ms Boulter). The note reads:

"Enclosed are some papers re [TC]. Mr. phoned today - I advised him that I had made the usual inquiries and that in our opinion the standard of care for [TC] was satisfactory. He, naturally, disagreed."

414 The document has stamped upon it the date 16 December 1983 and it identifies the author as the Assistant Senior District Officer, Bankstown. Attached to the document is a Child at Risk notification which records that HF was at the Bankstown office on 13 December and that he had affidavits evidencing abuse. The affidavits are not identified.

415 Viewed in isolation this note is dismissive and unsatisfactory. The reader cannot know by reference to the note alone what inquiries Mr Banks made, if any. However, it is apparent from the evidence of Ms Boulter and her file note, Exhibit A(afl), that Mr Banks spoke to her about TC on 15 December 1983. It appears that on that date HF attended the Bankstown office one day early for an appointment there, informing that a psychologist he had consulted for TC (and this presumably was Mr Goard) stated TC was "quite disturbed". Ms Boulter told Mr Banks this was "largely a product of marital conflict". The arrangement between Mr Banks and Ms Boulter was that he would contact the Sydney office if necessary, after seeing HF on 16 December 1983.

416 Exhibit A(ccc) suggests that HF did not call on Mr Banks on 16 December, but telephoned instead. Perhaps Ms Boulter had reassured Mr Banks on 15 December that HM was caring for TC to her satisfaction and this explains what Mr Banks wrote. In the absence of acceptable evidence that fresh complaints had been made to Mr Banks in mid December, I cannot be satisfied that there was a failure by YACS to address them appropriately. Nevertheless I do not temper the criticism I have earlier expressed about Exhibit A(ccc).

T. Long

417 It is submitted that Exhibit A(mmm) evidences that this officer was biased. The document contains a number of handwritten entries and it is the last of these which appears to have been written by Mr Long, a district officer attached to the Sydney office as at 6 April 1984. The entry is as follows:

"[HF] seen in office. Advised that I had discussed his case with other staff and had thoroughly read the file. The usual conversation took place with the old allegations being rehashed again. The interview terminated with me advising [HF] that I was satisfied that all YACS investigations had been carried out thoroughly and that I would not be removing Louise Boulter from the case. He left not too happy but not overly distressed."

418 At first glance this document may be thought to attract the same criticism as I have made of Mr Banks. However the entry indicates that what Mr Long was addressing was a request that Ms Boulter be taken off the case. I read the entry as indicating that when seen HF only restated complaints already considered in the file that Mr Long had read. I am not persuaded upon reflection that the entry is demonstrative of failure on the part of the author to duly address the request made.

Mr Langshaw

419 It has been submitted that Exhibit A(bb) reflects bias by the then Director General, Mr Langshaw. The file note bears date 27 March 1983 and I set out its content:

"Father has access to his son. His address is 426 Avoca Street, Kingsford.

[HF] made several complaints to the electoral office of Mr P. Whelan former Minister for Consumer Affairs in October 1982 and also visited the office of the former Minister, Mr K. Stewart. He proved to be so rude and aggressive and was so abusive of staff that when officers reported that the mother appeared to be adequately caring for her son, the former Minister decided to take no further action on [HF's] complaints.

There have been further complaints in February 1983 when [HM] was in Royal Prince Alfred Hospital receiving treatment for the extensive burns she suffered in 1982 when her car was blown up (she alleges at the instance of her husband).

[HM] has been visited last on 7 March 83. There is no evidence of neglect and the child seemed happy and well cared for. There are no grounds for intervention by this Department and the father has custody proceedings before the Family Court of Australia.

Departmental papers are attached. No action is recommended."

420 What is relied upon as indicating bias is the last sentence of the second paragraph.

421 I do not find that this document establishes bias in the author. What he has done in the second paragraph is to indicate what the outcome was of HF's complaints to the former Minister for Consumer Affairs and to the former Minister, Mr Stewart. Of apparent significance to the outcome of those complaints was the advice that HF appeared to be caring adequately for TC.

422 In the next two paragraphs the author has recorded that there were further complaints and that HM had been then recently visited. The document records the findings at that time. I am mindful of the deficiencies of the investigations that I find should have taken place in February and March 1983, but I am unable to conclude that what Mr Langshaw wrote was tainted by bias.

Mr Lungley

423 There are two exhibits which it is submitted disclose bias in this officer: Exhibit A(rrr) and Exhibit A(xxx).

424 The first of those exhibits is a three page typed document that records a number of events occurring during the period from 31 May 1984 to 29 June 1984. The entry relied upon is an entry for 29 June 1984 and that is a note following a telephone conversation which Mr Lungley apparently had with a police officer to whom HF went to complain that HM had sexually abused TC. The police officer wanted to interview HM and TC. The note upon which this submission focuses reads:

"DO declined, after discussion with A/DM T. Long to furnish address over phone and suggested CMU [the police officer] make a request in writing."

425 Mr Lungley was not called and neither was Mr Long. The reason for not giving the police officer the address of HM over the telephone is not apparent but I would not be justified in concluding that the requirement that the request be made in writing was indicative of bias. There may have been very good reason for the making of that request.

426 Exhibit A(xxx) is a very lengthy report dated 31 July 1984. It may be described as a summary of events, particularly over then recent times, and an assessment and a case plan. It seems to have been prepared by Mr Lungley for Mrs Burgess. I have of course considered the document in its entirety. It is submitted that the document contains an irrelevant assertion that many of the female officers of the department were lesbians. It is appropriate to consider the context in which that assertion is recorded:

"The pre-school had had contact with [HF] some eight weeks previously, and among other matters discussed were [TC's] aggressiveness, and his behaviour towards women. [HF] claimed that [TC] was behaving suggestively, and blamed his wife [HM] for this, stating that she was a lesbian and that [TC] was learning this behaviour from her.

[HF] has also claimed that many of the female officers in the Department of Youth and Community Services are lesbians, and are sympathetic towards his wife whom he has also claimed to be a lesbian. [HF] made these claims in an interview with the SDO of Sydney CWO, Mr Trevor Long, on 21.3.84."

427 On my reading of the document it was relevant in context for Mr Lungley to record the assertions HF was making about the departmental officers. He was asserting that because HM was a lesbian and the officers were lesbians they were taking her side rather than his. I certainly do not conclude, viewing the document as a whole, that it establishes any bias on the part of Mr Lungley and the submission to that effect is rejected.

Mr Heagney

428 In support of the submission that Mr Heagney was biased attention is directed to Exhibit A(abr). This is a document to which I have already made reference in considering the advice Mr Heagney gave against taking proceedings in the Children's Court. It contains the following sentence attracting the submission of bias:

"It is not beyond the bounds of possibility that [TC] was instructed in this behaviour by [HF]."

429 That sentence of course has to be viewed in context. So viewed, it seems to me, that all the author is doing is to look at the probative value of the available evidence and to point to one possible explanation for TC's behaviour with the psychologist. Mr Heagney is not asserting in the statement that HF did instruct TC to make the assertion to the psychologist.

430 The exhibit itself does not warrant a finding of bias. I have had the opportunity of seeing Mr Heagney and reviewing the evidence that he gave in this Court, and I entertain no concern that this witness was other than objective and impartial in his approach to this case.

Mr Shelston

431 It is submitted that this witness is biased because of the content of a file note Exhibit A(abb). That document is a handwritten note which purports to be signed by Ken Shelston from the district office at Sydney. The note on the face of it relates to a telephone conversation with he had with one Lyn Perkins, a child welfare officer at Stanmore. The note reads:

"Has received notification through Ethnic Project Officer that [TC] is `at risk' with mother. Sexual & physical abuse.

Father had approached the Project Officer and made allegations. Has apparently got supporting documentation which will be sent to Montrose.

Mother & child allegedly at Marrickville Women's Refuge but I thought they live at Waterloo.

Information known to this officer was relayed to Lyn who was wondering whether to do urgent call-out.

Only information available to this office is that of hearsay at office and attached papers from Bankstown CWO. [HF] is known to have made many complaints and those have been investigated in the past. The child is the `pawn' is a very bitter custody battle.

I advised Lyn to speak to DM if she needed more info. as I have only had this case nominally for this week."

432 It was submitted that I should conclude that Mr Shelston was biased because of what was written in the second last paragraph above. I do not consider I would be justified in reaching that conclusion. What Mr Shelston appears to have told Ms Perkins, if the note is accurate, is that he had no first hand information about this case but as far as he knew all past complaints had been investigated. I do not consider the observation that the child was a "pawn in a very bitter custody battle" as indicating bias one way or the other. The note concluded with a recommendation that the "C" file be located and that the district manager note what had occurred. There is then a footnote indicating that Mr Shelston had a later discussion with Ms Perkins. Whether that was after the file had been located and if so what was discussed I do not know.

433 I referred earlier to Mr Shelston's involvement in this matter once he began to make home visits in May 1985. Nothing in what Mr Shelston wrote after such involvement began persuades me that this officer was biased and the submission is rejected.

Ms Withers

434 It is submitted that I should infer that Ms Withers was biased because Exhibit A(abg) records that at a case conference on 23 August 1984 she said: "I have some problems accepting what [HF] says for obvious reasons." That remark has to be viewed in the context of the lengthy document in which it appears and in which many utterances are attributed to Ms Withers. Those utterances, in my opinion, indicate that Ms Withers was searching for the truth. The conference was held to respond to the notification of sexual abuse and at that conference Ms Withers and Ms Ralston reported at length on their inquiries and Ms Withers expressed the opinion that the child had been sexually abused. She expressed the opinion that the teachers at TC's school were very biased towards HM.

435 Subsequently to the case conference Ms Withers swore an affidavit for the purposes of the proceedings in the Family Court to which she annexed her report, concluding:

"From my twelve years experience as a clinical psychologist and in particular my two years experience in the Department of Youth and Community Services specialising in children who have been abused and neglected; from my discussion with Ms Greta Goldberg in whom [TC] confided instances of sexual `games'; from the extensive literature on the symptomatology of child sexual abuse; and from my two interviews with [TC] I conclude that he is an emotionally deprived child who has been sexually abused and has been exposed to adult sexual behaviour."

436 Ms Withers was not called in the proceedings before me but the exhibits do not indicate bias and the submission under consideration is rejected.

Mr Callaghan

437 Mr Callaghan was not called as a witness in this case but it is submitted that bias on his part is demonstrated by what he wrote in Exhibit A(agg). That document bears date 22 January 1985. It appears to have been directed to the legal branch of the department. The document is a historical narrative with particular emphasis on events after July 1984 when the allegations of sexual abuse had surfaced. Plainly to consider this submission of bias the document has to be read in its entirety and it is also to be read with other documents of which Mr Callaghan was the author, particularly documents in the latter part of 1984 and early 1985; indeed the allegation should be considered in the context of what occurred and of what Mr Callaghan did and wrote from the time consideration was first being given either to starting proceedings in the Children's Court or intervening in the Family Court.

438 All the material in point is persuasive of Mr Callaghan's resolve to have court proceedings to see whether TC had been sexually abused and if so by whom.

439 Returning to Exhibit A(agg) the document records:

"[HF] and [HM] and [TC] have been seen by Doctor B. Waters, RAHC, who concluded that [TC] has been sexually abused but in his opinion [HM] was not the perpetrator. This is the only opinion offered to exonerate [HM].

This is a complex case and in view of the conflicting evidence it is considered that a court appearance is necessary to resolve the situation. The regional position is that [TC] should be removed from his mother's care to enable a psycho-social assessment to be effected at Brougham, such assessment allowing full access to [HM]. This access is essential to gauge the interaction between [HM] and the child.

The Registrar, Family Law Court, is now awaiting certificates of readiness from all parties concerned; once these have been submitted a date of hearing will be allocated. [HF] has asked that the Department withdraw from the case as he feels a swifter resolution will be obtained without our `interference'. He is, however, wavering in this position.

[HF] is an aggressive, abusive person who has threatened departmental officers and Mr Keating, the Treasurer. [HF] has been investigated by the Bomb Task Force in connection with the bombing of Judges' homes and Family Law Courts and has been absolved from guilt. He has however been on the periphery of incidents which cause suspicion. [HM] was disfigured after a café in which she was dining was firebombed, a worker's car at Marrickville Women's Refuge where [HM] was staying was firebombed and a solicitor who was dismissed by [HF] received a letter bomb. [HF] has had approximately twenty solicitors.

In order to hear the basic evidence quickly, I believe that the Department should seek a live-in assessment and that only the evidence needed to proceed on this be heard in the first instance."

440 It is the second last paragraph above which it is submitted demonstrates bias. I do not agree. It seems to be clear that Mr Callaghan was wishing to emphasise in the document the complexity of the problems which the case presented and the desirability of having the issues determined. The conduct of HF was, in Mr Callaghan's perception, as I understand the document, a relevant consideration in the need to have the hearing expedited. There were many documents on file when Exhibit A(agg) was written that supported the assertions of aggression and abuse. I do not propose to refer to those documents in detail but I identify the following exhibits as being in point: Exhibits A(c), A(n), A(v), A(bb), A(pp), A(rr), A(ww), A(ggg), A(hhh), A(kkk), A(xxx), A(aby), A(ace), A(acm), A(acn), A(acr), A(ada), A(adj), A(afa), A(afe), A(afl), A(afo), A(afx), A(agd), A(agq), M and 8.

441 Whilst what was written by Mr Callaghan was unfavourable to HF, this does not demonstrate that Mr Callaghan was diverted from what he perceived to be the purpose of the pending proceedings, namely to endeavour to determine the perpetrator of any sexual abuse of TC.

442 The evidence does not justify a finding that Mr Callaghan was biased and I reject that submission accordingly.

Ms Boulter

443 I earlier identified the period of this officer's involvement in TC's case. It began in May 1983 and her last home visit was on 28 June 1984. Ms Boulter later participated in case conferences in the latter half of 1984.

444 In support of the submission that Ms Boulter was biased in her approach to this case, a number of documents have been identified and I must consider them in turn.

445 The earliest of these documents is a handwritten note dated 17 May 1983 (Exhibit A(jj)) in which Ms Boulter recorded notes of a telephone conversation she had with Dr Kakakios in relation to the notification concerning scratches after HF had taken TC to see Dr Kakakios. Ms Boulter recorded what Dr Kakakios told her, and that included that HF was "full of complaints" and impressed as "a bit odd".

446 No justifiable inference of bias could be drawn from the form of this note which simply purports to evidence what the doctor had said.

447 On the following day, 18 May 1983, Ms Boulter made a home visit and Exhibit A(kk) recorded, inter alia, what Ms Boulter observed that day. The exhibit is a detailed three page report and it deals with the author's observations and assessment. The criticism of the report in the current context focuses on the first paragraph:

"[HM] looks considerably older than her (approx.) 20 years and has major disfigurement on her neck, lower jawline and hands (as far as could be seen) due to burns received when a petrol bomb was thrown at her at a Marrickville club. Her husband was apparently a police suspect in this bombing, [HM] was quite receptive to officers visiting, although she resents having to accept repeated YACS `investigations', necessary after each notification. [TC] is a small boy for his age, very lively and very responsive too, to relative strangers. He seems quite at ease with his mother."

448 In considering any allegation of bias where attention is drawn to a particular passage in a document, it is always necessary to place the passage in context. It seems to me to have been reasonable that the above paragraph was included in the report. The history of the relationship between a mother and a father, and particularly the existence of hostility between them, must be a relevant consideration for a social welfare worker concerned to address the interests of the child of that relationship. One area of relevance is in addressing the veracity of complaints by one parent about another's treatment of that child, particularly in the context of ongoing disputes over custody and access.

449 Exhibit A(mm) is part of a Child at Risk notification completed by Ms Boulter on 10 June 1983. It appears to relate to the very same matter as was the subject of the notification by Dr Kakakios about the scratches on TC. However it is submitted that Exhibit A(mm) indicates bias because Ms Boulter wrote:

"As with all previous notifications over past two years, no substance found to father's allegations. Don't register."

450 I am satisfied by Ms Boulter's evidence that there was a conscientious investigation made by her, in conjunction with Mr Hanrahan, about the complaint referred to in Exhibit A(mm). I am satisfied that Ms Boulter reached the conclusion conscientiously that there was no substance in the most recent complaint. The notification "Don't register" was a recommendation against registration at Montrose, but not against keeping a record of the notification and its investigation in the then current YACS file.

451 I do not consider that the reference to the earlier investigations having been unsubstantiated indicated bias, but rather it comprised a record of the earlier history as Ms Boulter understood it. However Ms Boulter was not involved in the earlier investigations and it is regrettable that the investigations concerning the cot incident were recorded as "unsubstantiated". I addressed that elsewhere. Nevertheless, I do not regard the statement complained of in Exhibit A(mm) as disclosing bias, because I am satisfied it followed a conscientious consideration of the complaint which the witness had just undertaken.

452 Exhibit A(nn) is a handwritten file note relating to a telephone conversation with Dr Rose. It reads in part:

"Father brought [TC] to C & F Psych. Dept. wanting an assessment - 1st did so in Oct/Nov '82 but Dr did not proceed because no Court approval. Fa brought him again and Dr concerned at child's presentation. Dr has recognized father is v. difficult to handle & is totally preoccupied with child."

453 I reject the submission that that entry, and in particular the part underlined, reveals bias on Ms Boulter's part. It seems to me that it is no more than a record of the doctor's assessment and I consider it was both proper and relevant to record what the doctor said.

454 Exhibit A(pp) is a three page typed document prepared by Ms Boulter. It deals with a home visit on 16 June 1983 which was made, the author records, after HM had complained that HF was harassing her. It also deals with an interview with HF in the office of YACS on the same day. The document contained the following paragraph by way of assessment of HF following that interview:

"[HF] impressed as obsessed with [TC] and still involved with his wife, despite protestations to the contrary. The intensity of his dialogue and lack of any ability to accept the Officers input, impressed as quite disturbed. He became more excited and aggressive at any querying of his statements and indicates little capacity to negotiate. Overall he impressed as a determined, emotionally ill person who may well persist with his allegations despite (even because of) any Family Law Court decision."

455 Unquestionably the above paragraph reflects an unfavourable opinion of HF but I do not conclude that it was other than the opinion then held by Ms Boulter. Whether because Ms Boulter so regarded HF prevented her from reacting properly to complaints is, of course, a different matter and warrants close scrutiny of the relevant evidence.

456 Exhibit A(rr) is again a typed report prepared by Ms Boulter which extends over some five pages. It addresses a number of issues including a home visit on 21 June 1983, a recent assessment of TC by Dr Rose, and a visit HF made to the office of YACS. The author recorded, following this visit, the following:

"[HF] presented in the same manner and reiterating the same old complaints as during original interview with SDO and CPW 16.6.83. A/ASDO attempted to explain the responsibilities and constraints of the Child Welfare Act, but [HF] remained adamant that he wanted [TC] in a place of safety until custody settled. He furthermore wanted YACS to interview those making affidavits in his support but was advised the Family Law Court was the appropriate arena. [HF] was incensed by CPW's comment that [TC] does not show fear of his mother. He accused CPW of being a lesbian, `slammed' the table, swore, and hurriedly left."

457 It is submitted that bias is reflected in the above extract. I am not persuaded that this is so. I have earlier considered the question as to whether there ought to have been interviews of those persons identified by HF in February 1983. I have found that there should have been. However I do not consider the unwillingness of Ms Boulter to become involved in interviewing the deponents referred to at this stage is indicative of bias. The affidavits had been filed in the Family Court for the purposes of proceedings then current in the Family Court and I accept that Ms Boulter understood that the subject matter had been considered earlier by the department and that nothing in the affidavits amounted to fresh concerns.

458 In the same exhibit there is a reference to the concern which Ms Boulter expressed to a police officer about "the violence and unpredictability of [HF]". The note relates to events on 28 June 1983 when Ms Boulter went to HM's home and saw HF there:

"[HM] out at doctor's, and officers discussed situation with a Judith Curran who was awaiting [HF's] arrival with [TC].

She relayed general concerns re [HF's] mental state and conveyed her determination to withstand his hostility since she feels it is part of his tactic to alienate [HM's] friends as a punitive gesture. She stated that all the Refuge workers support [HM].

[HF] came to the door with [TC] who, contrary to Syrian custom and [HM's] wishes, had had his hair cut short during [HF's] access. Judith said: `You shouldn't have cut his hair, [HF]' for which she received a torrent of verbal and sexually-aggressive abuse which quickly ceased when he realized visitors were present (though he did not see who). Judith was upset at that and haircut, knowing [HM] would be, but calmed herself and had the capacity to hide her upset from [TC] who commenced playing unperturbed. [TC] responded very warmly and quickly to Mr Thredgold, saying he'd had a good day with his father.

Judith impressed as sensible, and supportive to [HM], understanding her predicament and able to continue backup.

CPW and A/ASDO visited Redfern Police:

Spoke with a Senior Constable Soames who took details of YACS concern re [HF's] violence and unpredictability, and said he'd visit and patrol near flat.

On return to office, CPW contacted [HM] to convey that police would visit about which she was pleased. She was upset about haircut and again feels harassed by [HF]. [HM] seems to be increasingly desperate in the situation, and the time up to and including the court case will be very demanding."

459 Contrary to the submission advanced on behalf of the plaintiff, I do not regard Ms Boulter's behaviour in going to the police station in the circumstances above outlined as being indicative of bias, nor do I regard the subsequent note as being so indicative. I accept that the witness genuinely considered that what had taken place at HM's unit warranted the action which was taken subsequently. I so conclude having regard to the evidence about this matter that Ms Boulter gave (T2311 and following).

460 Reference was made to other passages in the evidence on the topic of HF and violence. Ms Boulter was asked these questions and gave these answers at T2313:

"Q. I will ask you this question now. In respect of allegations about threats of violence which he is supposed to have made, or violence that he committed, proved to be unsubstantiated; did that prove to be unsubstantiated so far as you were concerned?

A. Well I think some proved to be unsubstantiated and some inconclusive and I think what my feeling about it at the time was I had seen Mr HF a number of times very verbally aggressive and unable to have dialogue about any matter unless I was agreeing with him totally. I have never had a dialogue with him when he was able to be relatively calm. He would escalate very quickly and so sometimes was abusive to me verbally. That was the evidence, if you like, to me that he could be volatile and at least verbally aggressive.

Q. Do you mean that he may do something violent?

A. Yes. If someone is screaming abuse at you and slamming the desk in a small office one could think he might be violent.

Q. Do you happen to remember if there was a theme in discussion on those occasions when he was verbally aggressive?

A. There were several themes. The major one was he felt his son was being abused, and other feelings were that his ex wife was a lesbian and any woman, including myself, who disagreed with him had the same description made of them. A fairly anti female presentation to me. That was a fairly strong theme."

461 It was submitted that Ms Boulter's perception that HF could be violent caused her to be biased. Ms Boulter denied in cross examination that the propensity she perceived in HF caused her to treat his allegations with doubt (T 2312). Her evidence in this regard I treat as truthful.

462 Exhibit A(ww) was prepared by Ms Boulter on 8 August 1983 and records her support for the placement of TC in pre school on a daily basis. The document records details of TC's disrupted family background and contains the following paragraph:

"[HM] has been under extreme stress since separation from her husband suffered extensive burns to her upper body in a fire in Marrickville early in 1982. Though no one was charged from that fire, [HF] was a prime police suspect. Both [HM] and myself consider pre-school attendance for a full-week, close to home would be very advantageous."

463 Like Exhibit A(pp) this document reflects the unfavourable opinion Ms Boulter had formed of HF and by way of contrast her sympathy for HM. It does not follow, however, that Ms Boulter's actions and decisions were necessarily tainted by bias; the question always to be asked when considering the actions of this witness is whether she approached successive problems that arose with an open mind.

464 Exhibit A(jjj) is a handwritten file note recording Ms Boulter's conversation with Mr Hampson on 11 May 1984 after HF had taken TC to the Prince of Wales Hospital complaining that HM had sucked his penis. I considered this earlier and I will not repeat the substance of what I wrote at para 322 and following.

465 Exhibit A(afl) is a lengthy report which contains entries for a number of dates. The first of relevance in the present context is an entry for 22 December 1983 which reads:

"22.12.83. Teresa Lee (Psychologist, Bankstown Child Health Centre, phoned CPW - [HF] came into Centre saying child very disturbed and wanting assessment. Made appointment for child to see a psychologist later - 6.1.83. (John Raue). [HF] showed a letter saying child needs ongoing treatment. Father stating child abused since birth and demanding psychologist has to see child. CPW clarified background and that no substance found in father's repeated allegations.

Dr Yunan saw child for [HF] (for Court).

[TC] - said in office he'd kill a child at school when he grows up. Expressed inappropriate violent remarks.

Plan: 1. Teresa will see [HF] tomorrow - expects him to come in again. Will try and deflect him as seems no point in extending his contacts.

2. [HF] to return child for assessment on 6.1.84."

466 The above underlined sentences are those which it is submitted reflect bias. I do not agree. The earlier of these sentences I am satisfied reflects Ms Boulter's genuine understanding that the allegations that had been made by HF were without substance. So far as the second of the underlined sentences is concerned, the arrangements which were in place were that a psychologist was to see TC on 6 January 1984. The decision by Ms Lee that in these circumstances visits to the Bankstown Child Health Care Centre in the interim should be discouraged does not demonstrate bias by Ms Boulter.

467 Also in the same exhibit Ms Boulter has recorded a discussion which she had with the solicitor acting for HM dealing with the proceedings in the Family Court. I quote from the document:

"CPW discussed with Glenys Pernu (C P Andrews & Associates, 922 6222). Apparently Adrian Ford did not want to give any comments to lawyer.

Family Court Counsellor (Alex Schzik) - saw [HM] today. Child not afraid of mother, and child wanted to go home with mother. Considered [HF] obsessive-compulsive, a `fanatic'. [HF] would deny all reality of mother and son getting on well.

Psychologists:

Mr Goard, who father sought out, wants to have mother and son assessed.

Greta Goldberg (Private Psychologist who saw father and son and thought father mad.) Her report tendered in an affidavit.

Glenys Pernu advised Mr Goard to speak with Greta and with Family Court Counsellor.

Arson Squad - believe [HF] was responsible for fire in Marrickville Night club.

- believe [HF] involved in Pamela Dahl Helm's car being blow up in August 1983 (she was a Social Worker at the Refuge).

- two of [HF's] solicitors got bomb threats."

468 I do not accept the submission that by recording the above detail of her conversation with HM's solicitor Ms Boulter was demonstrating bias. It seems to me to have been appropriate for her to record that detail in the same way as she recorded other events that had occurred in the period covered by this report form.

469 The final matter to which attention has been directed in Exhibit A(afl) relates to what is recorded as to a telephone conversation which Ms Boulter had with Mr Goard, the psychologist who, at the relevant time, was making assessments of both parents as well as TC. The note reveals that Ms Boulter spoke to the psychologist, responding to his telephone call. The exhibit records:

"...CPW conveyed that Departmental investigation by several Officers had not revealed any substance to complaints. She also stated that both parents had been seen (separately) by herself and several other Officers and that [HM], although stressed at times, was never irrational and a dialogue was always possible. This differed markedly to the behaviour of [HF] who was irrational, heated, very angry and abusive."

470 Mr Goard in the course of this conversation informed Ms Boulter of psychological test results and of his assessment and those details have been recorded.

471 It is apparent from the document that Mr Goard was seeking information from Ms Boulter as a social worker involved in TC's case. It was appropriate to assist the psychologist and that he be informed of the results of investigations, and whilst what Ms Boulter conveyed to Ms Goard about HF was unfavourable by way of contrast with what she said about HM, I am not persuaded that in passing on these assessments Ms Boulter was displaying bias in the relevant sense.

472 Ms Boulter said in evidence that she saw HF approximately four or five times (T2315); she said she saw HM and TC together "maybe fifteen times". She was cross examined about her assessment of HF's allegations in a passage to which it is appropriate to refer in the present context (T2315-2316):

"Q. In your presence did he not complain that the Department did nothing by way of response to his claims that the child was being neglected?

A. I think that is fair to say, that he claimed that.

Q. Would you agree so far as you are concerned you did not respond sympathetically to any of those complaints?

A. No, I don't agree with that at all.

Q. You think we can find some evidence in the records that involved you as though you did react sympathetically to that, can we?

A. I think you can find evidence of follow up of those allegations of abuse and neglect that Mr HF made in trying to establish whether his son was being ill cared for by HM.

Q. You never formed a view in your own mind there was any truth about the allegation he made about the child being abused or neglected by his mother?

A. No, I didn't form a view.

Q. Never, right through to the end of your contact with this matter. That is correct, isn't it?

A. I think it is broadly correct. I certainly was concerned about her stress level and being able to adequately meet TC's full needs for nurturing in the environment she was in. But the specific allegations were not - on a number of occasions that I saw her and saw her with TC and TC inter reacting with her, I never saw any substance to verify the concerns that he had in terms of how the child reacted to her, how she responded to him, how she disciplined him. I just didn't see that.

I spent time every day, almost, going out to notifications of child abuse or neglect so I considered I was very skilled at observing and noticing if the relationship was awry or if the child had been maltreated by a care giver and in the contact that I had with [HM] it was not evident to me.

HIS HONOUR: Q. How many times would you have seen the mother with the child together?

A. I have not added it up from the file but maybe fifteen, maybe no. And sometimes I would spend, you know, I was there for quite a lengthy period, an hour to an hour and a half talking to her, talking to TC, observing them.

SHAND: Q. I have to wait, is that the end of your answer?

A. I was there observing them and I did not see substance to what was alleged."

473 I accept the evidence above extracted as being reliable.

474 Whilst I find that early in her involvement in this matter Ms Boulter formed an unfavourable opinion of HF and a favourable opinion of HM, I do not conclude upon consideration of all the evidence in point that Ms Boulter was biased in her investigation and assessment of any matter concerning the welfare of TC. Ms Boulter did not make inquiries about the affidavits HF first produced to Mr Finch and I have addressed the shortcomings of the investigations in February 1983. However, starting with her response to the scratches reported by Dr Kakakios, I am satisfied that Ms Boulter considered fresh complaints with an open mind.

The expert evidence considered

475 Professor Oates was called in the plaintiff's case. I am satisfied that he is a highly qualified medical practitioner with particular qualifications and experience in child protection matters. Indeed, his qualifications were not challenged and they are recorded in his report, Exhibit LL. In that report, which formed the core of his evidence, Professor Oates responded to a series of questions that had been posed for his consideration. For the purposes of his report, the professor had been provided with certain of the material introduced in evidence in this case, but not all of it. The material Professor Oates considered included the following: the affidavits of Georgina Daskalopoulos, Joanna Papakonstantinou, Margaret Denley, Penny Tokatlidis and Mrs Blevnik; Mrs Blevnik's handwritten statements; the affidavits of Greta Goldberg and Peggy Brunner; Dr Grunseit's report and the hospital notes relating to his involvement; Mr Goard's reports; and Ms Brant's reports.

476 I set out certain of the questions which the plaintiff's solicitors addressed to the professor together with his responses which are to be found in his report:

"Q5.4 On the basis of my expertise and experience in the area of child welfare, should a person in the position of a YACS officer in possession of the evidence reasonably have formed the view that the plaintiff was at real risk of serious emotional and psychological damage, whilst in the custody of his mother, by any of the following dates:

December 1982?

March 1983?

May 1984?

May 1985?

A5.4 I believe that a well trained YACS officer in possession of the evidence should have reasonably formed the view that the plaintiff was at-risk, not so much of long term psychological damage, but more importantly in terms of further episodes of neglect and abuse. This is because these episodes are only occasionally `one-off' instances, but are often repeated unless the child can be given appropriate protection and this was known in the early 1980's. Such protection may involve at one extreme removal of the child from the parents to be cared for instead by foster parents (provided that they have the appropriate qualities to meet the child's emotional needs and that the fostering is a long term one), or at the other end of the spectrum, providing appropriate support for the parents to assist them to understand their child's needs so that they can provide appropriate parenting.

Q5.5 On the basis of my expertise and experience in the area of child welfare, did the evidence placed in the possession of YACS provide a sufficient basis to take steps to remove the plaintiff from the care of his mother, by any of the following dates:

December 1982?

May 1983?

November 1983?

May 1984?

May 1985?

A5.5 I believe that the accumulation of episodes of abuse during the period 1982-1985 would have been sufficient for the Department of Youth and Community Services to take appropriate steps to take the child before the Children's Court so that a determination about the child's safety could be made.

By March 1983 there was:

A medically documented episode, noted by a paediatrician experienced in child abuse assessments, to show that the child had been deliberately scratched on the face by a person's fingernails.

° The availability of 2 affidavits saying that the child had been seen tied to his cot in the refuge.

° The availability of an affidavit stating that the child's mother had been verbally abusive to him, often hitting him to keep him quiet, including hitting him on the face with an open hand (the child being less than 3 years of age at this time).

° By August 1983 there was the availability of handwritten statements by persons observing the child and caring for it of sophisticated adult sexual behaviour.

These 4 separate incidents should have been sufficient to warrant YACS officers investigating the allegations further, interviewing the relevant parties and making a decision as to whether to take the child before the Children's Court to determine the degree of risk to the child and the need for an alternative placement to ensure his safety.

By May 1984 there was further evidence, provided in an assessment by a clinical psychologist, that the child was showing sexual behaviour which was strongly suggestive that he had been involved in sexual activity with an adult. This alone would be grounds for appropriate steps being taken to investigate the cause of the behaviour and to protect the child. Combined with the previous episodes of physical abuse and neglect, the situation should have been regarded even more seriously.

Q5.6 Did the evidence placed in the possession of YACS provide a sufficient basis to take any other steps, and if so, what other steps?

A5.6 The evidence provided to YACS was sufficient for action to be taken to protect the child. This is summarised in a report of Mr Bruce Callaghan, Regional Director, Central Metropolitan Region, on 21/8/84, where he believed that there was a strong case that the child had been abused and that there were indications that the Department should take action to take the child into care."

477 Professor Oates made it clear in his evidence in Court that he assumed that the material with which he had been provided, including the affidavits and statements I have identified above, was correct, that is to say that he assumed that the information in those documents was true (T1080 and T1159).

478 Of the evidence Professor Oates considered, he was not aware that Mr Hanrahan had investigated the scratches complaint addressed by Dr Grunseit and he had not seen Exhibit A(e), being Mr Hanrahan's report into his investigations. Having been referred to that report, Professor Oates said of the investigation reflected in that document: "That looks like a reasonable investigation" (T1148).

479 The professor's attention was drawn to the evidence that TC had apparently given one answer as to the source of the scratches to Dr Grunseit and a differing answer as to the source of the scratches to Mr Hanrahan, and that provoked the response which appears at T1149:

"Q. If you assume as I think you would do that Dr Grunseit is an independently impartial witness who would be answering truthfully and correctly and Mr Hanrahan has the same character, the child has given to the doctor an answer in the presence of the father it was done by the mother and given to Hanrahan in the presence of the mother the answer it was done by Michael?

A. Yes.

Q. That would suggest, wouldn't it, that the child is capable of being manipulative?

A. I think it is an example of the child going with the flow really. Children of particularly the age I think this child would have been, four, three, at that age is very easy for children to be influenced by parents."

480 The further assumption reflected in A5.5 that YACS was aware by August 1983 of the Blevnik statements is an assumption contrary to the factual finding I have earlier expressed in the course of this judgment.

481 Nevertheless it is noteworthy that although Professor Oates assumed the truth of each of the matters identified in A5.5, he did not conclude that either independently or cumulatively they necessarily called for action to remove TC from HM, but rather that they called for the making of investigations and then deciding whether to proceed to court.

482 In his oral evidence, Professor Oates said that where he had nominated the Children's Court in A5.5 of his report, he did so "based upon the practice he believed to have been followed in the past" (T1139).

483 Referring to the answer 5.5 in the course of cross examination, Professor Oates gave the following answers to the following questions (T1140):

"Q. Let me make it clear, I do not wish to confuse you and I want to make the position as between us perfectly clear. You say here, investigate, I understand that, that is in the second last paragraph, then you say `Make a decision'. Now you do not say which way that decision should go in that paragraph, do you?

A. No.

Q. What you say is go and investigate and when you have made your investigation, then you make your decision, is that right?

A. Based on the facts of the investigation."

484 Professor Oates was later asked about the decision making process in cases of alleged child abuse at T1151-1152:

"Q. In making a decision as to what steps ought to be taken when these particular matters of abuse or alleged abuse took place before the Department, they would be entitled to have regard to all these matters that I have been putting to you, wouldn't they?

A. Yes.

Q. And in the end, what one has to do is to make a judgment, don't you?

A. That is correct.

Q. And you make the judgment on the basis of all the relevant material that you can get?

A. That is right.

Q. And I would assume, doctor, that you will frequently find that you have conflicting material?

A. Yes, certainly these judgments are always difficult.

Q. Difficult to make?

A. Yes.

Q. When I say obviously, in a case where the father is alleging that the wife is abusing the child in some way or other and she is denying it, you have the conflict of the two spouses?

A. Yes.

Q. And may also have other conflicting material?

A. Yes.

Q. And in the end, I suggest with respect what you do, is you have to make a considered judgment evaluating everything as best you can?

A. That is what district officers do when they have these sorts of cases and they may well go to court if they need the help of the court in helping them to make the judgment."

485 Professor Oates said that following the report of Ms Goldberg concerning sexual abuse the departmental response concerning the arranging of a case conference for 21 May 1984 was "the obvious and correct thing to do" (T1152). Professor Oates agreed that Dr Waters was an appropriate person to carry out the psychiatric assessment then decided upon.

486 I accept the opinions expressed by Professor Oates in the evidence I have reviewed, noting the qualifications to his report contained in his oral evidence.

487 Dr Scott was called as an expert in the defendant's case. Dr Scott is the Senior Lecturer in and Deputy Head of the School of Social Work at the University of Melbourne. Her doctorate involved researching the assessment of cases of alleged sexual abuse and I am satisfied that Dr Scott is highly experienced in the field of child protection. Her qualifications are fully detailed in her report, Exhibit 7, which was at the centre of her evidence. For the most part and subject to the reservations which I will identify, I accept the evidence Dr Scott gave. I reject the submission made by Mr Shand that the evidence of this witness "was coloured by a partisan desire to provide excuses for the failures of departmental officers".

488 Dr Scott was asked to consider all the relevant exhibits in the case, including those which indicated the responses by the various officers of YACS to the various notifications received concerning TC.

489 Dr Scott reported (at p 9 of Exhibit 7) that the Plater investigation in October 1982 was satisfactory. She then dealt with the Finch investigation following the presentation of the various affidavits in 1983 at pp 9-10:

"On January 28 1983 `HF' brought his son to the District Office and requested that a District Officer examine the child for bruises allegedly inflicted by his mother, but upon checking, no bruises, marks or scratches were found. `HF' returned to the office a few days later with a woman who had cared for `TC' and who reported having seen the mother slap him on the face. The mother was about to be hospitalised for further treatment to her extensive burns and `HF' requested that his son be placed in the Department's care. The child protection worker contacted the women's refuge and they refuted claims that the child had been ill treated, including being tied to his cot when there with his mother. Such an allegation is a serious matter due to the risk such restraint can pose to the child but given that the alleged incident had occurred approximately 9-10 months earlier, it would have been difficult to ascertain the truth of such an allegation. Whether it was reasonable to accept the assurance of the refuge worker would depend in part on the refuge's credibility in the past in relation to their duty of care to children. The file records the Family Court Counsellor indicating confidence in the refuge staff and mentioning the name of a qualified social worker who supervised `TC's' mother when she was there. The Family Court Counsellor, who was due to see the parents very shortly, also challenged the right of the Department to intervene in the case. He is described as having informed the child protection worker of the agreement between the Family Court and the Department to the effect that the latter was to intervene only in dire circumstances and that it was his view that the circumstances in this case did not constitute this.

Given the lapse of time since the alleged incident, the mother's hospitalisation at the time of the complaint, the refuge worker's denial of the incident, and the view expressed by the Family Court Counsellor who was responsible for the case in relation to proceedings occurring in the Family Court at the time, the level of intervention by the Department in relation to this allegation would appear appropriate."

490 Dr Scott said in her oral evidence that it would have been difficult to assess the affidavit allegations in 1983 because of the time lapse (T2016). Dr Scott agreed in cross examination that the allegation that the child had been tied to the cot was a matter of serious concern but she said that such an event would not be as significant as the current assessment of the well being of the child (T2019).

491 I have earlier expressed my findings as to the sufficiency of the investigations in early 1983 mindful of course of the evidence of Dr Scott which I have just been reviewing. In this respect I do not accept what Dr Scott wrote.

492 Dr Scott regarded the evidence as to the investigation of the scratches issue in 1983 as being adequate and in summary, as I understand the doctor's report and evidence, she regarded the actions of YACS officers throughout the remainder of the year 1983 as being reasonable in TC's case. I find this to be the case.

493 Dr Scott considered that the case conference and the recommendation for a full psychiatric assessment afforded an appropriate response to the emergence of evidence of sexual abuse in May 1984. I accept this evidence and I find accordingly.

494 Dr Scott gave evidence which I accept that the long term effects of child abuse, whilst they vary enormously, could be irreparable.

495 Dr Scott was then asked (at T1820):

"HIS HONOUR: Q. What would have been the damage to the child if the alternative had been taken, taking the child away from the mother as the primary carer in an urgent way?

A. That's also hard to predict with any certainty, but the sudden removal of a child from their primary figure of attachment, which is usually the person who is caring for the child on a day to day basis, is very strongly documented, not only with short term separation anxiety, but with long term consequences. There is a very large body of research in child psychiatry that documents that, that uses both prospective studies looking at children subjected to repeated - or even one-off hospitalisation at the ages of say two to four when there were hospital visiting practices which didn't allow the continuity of contact. There is research that retrospectively goes back from adults with psychiatric disorders finding a very strong correlation with experiences of disrupted attachments in early childhood. Much, much greater frequency than in adults which don't have psychiatric disorders. Then there is all of Harlow's work, which was experimental work done on primates which would have been unethical on humans, which actually inflicted such separation and which has been extrapolated. So there is a thirty year body of research which documents the high probability of long term emotional damage to children who are removed from their primary figure of attachment during something like between twelve months and 5, but I can't be definitive about that. And that's always the dilemma in child protection, is the weighing up of the probability of the impact."

496 Consistently with the answer above, Dr Scott was critical of the decision of YACS to seek to have the residential assessment of TC involving the child's removal from his mother. On this topic Dr Scott wrote in her report, Exhibit 7:

"The decision of the Department to seek through the Family Court the custody of `TC' for a month so that he could be placed in a residential setting to allow `a full medical and emotional assessment of him to be made to ascertain who, if anyone, is sexually abusing the child', was inappropriate. The Department argued that this assessment would be complementary with that being undertaken by Dr Waters at the Royal Alexandra Hospital for Children. It is hard to accept that such a proposed assessment could possibly be `complementary to the full family assessment'. To the contrary, the removal of `TC' from his mother at this age, would have very likely precipitated some level of separation anxiety which would have contaminated the psychiatric assessment of his emotional adjustment, and posed a risk of increasing his insecurity. Notes on the file suggest that this was the view of Dr Waters who opposed the proposed temporary placement. It is my opinion that such a view would be widely held among professionals in the child mental health field. It is also unlikely that such a residential assessment would have achieved its goal of evidence collection. To remove a child for four weeks in an attempt to seek evidence of this nature, and in so doing so pose a risk of causing emotional damage to the child, would be a most unusual intervention."

497 Dr Scott was, of course, correct in her understanding of the opinion of Dr Waters. Following his assessment, Dr Waters expressed his opposition to the removal of TC from his mother in his report of 1 November 1984 in which he wrote in this respect:

"Removal of [TC] from his home to an assessment facility will do more harm than good. First, it will interrupt what is fairly satisfactory mother-child relationship and introduce further insecurity; second, it is most unlikely that behaviour will be observed which will confirm unequivocally the allegations of sexual abuse; and third, even in this unlikely event, the identity of the perpetrator will not be able to be confirmed."

498 Dr Scott was cross examined about the need by August 1984 for protective measures to be urgently taken. Dr Scott was asked the following questions and gave the following answers (at T1851):

"Q. By that date, 14 August 1984, bearing in mind the information which you are aware the department had in its possession, in particular about sexual abuse?

A. Yes.

Q. Did you regard the situation as one urgently requiring protective measures to be taken for his welfare?

A. Protective measures in a thorough highly skilled assessment. Protective measures in terms of removing the child from his mother's care, no.

Q. What does that amount to, does that mean that the mother would continue to be alone with the child at night?

A. The need to have an assessment which interviews both parents and observes the child with each was essential for the long term case plan. That should have been done quickly.

Q. Did you hear my question by any chance?

A. Yes, and I don't think I can say anything more than say no, I don't think I could support the proposition that the child should be removed from his mother's care without there being a full assessment of the child with both parents.

Q. Does that mean that in fact what you are saying is that it was satisfactory from your point of view, bearing in mind the information that you have been taken to again about this child and the history, satisfactory to you to have the child alone with the mother at night, that was your meaning?

A. That is a risk balanced against the risk of removal. There was a risk involved in leaving the child in that situation and it needs to be balanced against the risks posed by removing him from that situation."

499 Ultimately, as I understand their evidence, neither Professor Oates nor Dr Scott expressed the opinion that YACS should have removed TC from the care of his mother at any stage before the department did ultimately intervene in 1986.

500 Neither expert opined that YACS should have taken such action before the emergence of the sexual abuse factor in 1984. It seems to me, reflecting on their evidence, that neither expert considered this would have been warranted even if the tying to the cot episode had been established to have taken place. What was to be regarded as more important, certainly in Dr Scott's opinion, was the current assessment of TC's well being on an ongoing basis (see her evidence at T2019). Certainly the results of these ongoing assessments did not lead Dr Scott to conclude that YACS should have acted to remove TC from HM.

501 Even when the allegations concerning sexual abuse surfaced Dr Scott was plainly opposed to the sudden removal of TC from his mother, and it is clear from her evidence that she considered the assessment by Dr Waters was the appropriate response to the emergence of the evidence as to sexual abuse. Dr Waters himself was of the like opinion. This emerged in cross examination at T2158-2159:

"Q. I now ask you the same question as I asked you before. Would you agree that the combined effect of the conclusions reached by Miss Parker and Miss Ralston, and that which Miss Goldberg indicated, in particular at the end of paragraph 6 of this affidavit, provided strong grounds for the child no longer being in the care and control of the mother?

A. Well, even in isolation I wouldn't say it provides strong grounds. I think it provides grounds for concern, for an investigation of some sort, but not grounds for removal.

Q. At least it does this, does it not, it suggests a degree of risk?

A. Yes.

Q. Let me come to Mr Malak. I want to take you to his statement which is relevant, which you have indicated you have.

HIS HONOUR: Q. Doctor, going back to that last question that you answered, those reports from Miss Parker and Miss Goldberg you said afforded grounds for investigation of some sort. Was the investigation which you were asked to undertake the appropriate investigation, or are there other investigations which you consider ought to have been carried out, based upon that evidence?

A. No, I would have thought that the investigation that I was asked to do would be one way of tackling that issue. I mean - yes."

502 When his opinion became available to YACS it was clear that Dr Waters was opposed to the removal of TC from HM, even for the limited period that would have been required for the contemplated assessment, and of course in due course Ellis J refused the defendant's application.

503 I accept the evidence of Dr Scott and Ms Boulter as to the rarity of the sexual abuse of a small child by his mother and I bear that in mind in considering whether it was an appropriate response for YACS to have made to the sexual allegations to have decided to seek Dr Waters' assessment. The evidence that has been adduced satisfies me that that was an appropriate response.

504 I am persuaded by the evidence Dr Scott gave that it would have been inappropriate to have removed TC from his mother before Dr Waters made his assessment, and because of the conclusions reached by Dr Waters I have decided that it was appropriate thereafter for YACS to act in the manner in which it did. Certainly as I assess the evidence I do not find it to have been proved that there was any breach of duty towards the plaintiff from the time Dr Waters made his assessment and furnished his report in November 1984.

Delay in relation to Dr Waters

505 There is however the question of the delay before Dr Waters was in a position to make his assessment.

506 A considerable period of time elapsed between the first notification of the allegation of sexual abuse that reached the department in May 1984 and the date upon which Dr Waters' report was received. The time lapse was nearly six months.

507 I have earlier traced the sequence of events between the receipt by YACS of the relevant notification on 11 May 1984 and the preparation and receipt of Dr Waters' report on 1 November 1984 (see para 320 and following). It seems to me that there was delay in engaging and instructing Dr Waters.

508 What had emerged in May 1984 was an allegation of a very serious nature, and it was therefore an allegation which in the interests of TC required urgent attention. Whilst I accept that the decision to seek Dr Waters' assessment was the appropriate response, the implementation of that decision warrants criticism. The sequence of events I reviewed earlier does not indicate that the matter did receive urgent attention.

509 I am mindful of the evidence of Dr Scott about this delay and I accept the evidence that she gave. Dr Scott regarded the delay as unacceptable (T1818) and so do I. From the material with which Dr Scott had been provided, which of course comprised all the exhibits, Dr Scott could not account for the delay (T1884).

510 Whilst it was Ms Harris, not an officer of YACS, who apparently undertook to arrange for a prompt psychiatric assessment, Mr Lungley was made case coordinator.

511 It seems to me that it is YACS that must accept responsibility for the failure to arrange for a prompt psychiatric assessment and because of his role in the matter Mr Lungley must be held responsible for this failure.

512 It does not appear that Dr Waters was appointed to undertake the assessment until the conference on 9 July 1984, at which conference it would seem, in the absence of Mr Lungley through illness, no officer of YACS was present.

513 Dr Waters wrote a letter to Mr Lungley on 16 July 1984 seeking any documents that might assist him. For some reason that letter has a receipt stamp in the Sydney office of YACS as late as 2 August 1984, but the relevant material had been forwarded by Mr Lungley the day before, so that it is apparent that Mr Lungley appreciated the need to give Dr Waters material before 2 August. The material which Mr Lungley forwarded was a report which he wrote on 31 July, and that was of a historical nature, and the reports from Mr Malak, Ms Goldberg and Dr Rose. He also forwarded a report of Ms Boulter of 17 June 1983. With the exception of Mr Lungley's report of 31 July 1984, none of that material was new, and the enclosures could have been made available to Dr Waters as soon as he had been appointed.

514 It emerged from the evidence Dr Waters gave that he received no letter of instructions before undertaking his assessment. Indeed, he was not clear as to the source of his instructions, as the following extract of his evidence illustrates (T2140-2141):

"Q. By whom did you perceive yourself to be retained in this assessment?

A. At the time I thought myself to be retained by the - actually by the separate representative, and that's who I addressed the report to.

Q. The representative of the child?

A. The child, yeah, Robert McCourt. But in fact I think probably technically I was by the department.

Q. Did you get any letter of instruction outlining what you were being asked to do, or any letter that sent you documents?

A. Well the short answer to that is I don't believe so. I certainly got a lot of documents, but I wrote - I sent out - as a result of this July meeting I sent out a number of letters under my own letterhead requesting documents. I think that that's where I got most of them from."

515 As late as 11 September 1984 Dr Waters wrote to Mr McCourt (see Exhibit 10G), apparently then considering that he had been retained by Mr McCourt, and explaining that he had only just received the documents he needed:

"Further to our meeting of July, I have only just received the majority of the documentation which I desired prior to my seeing [TC] and his parents. For your information, I have scheduled an appointment with [HM] and [TC] for 10.30 Thursday September 13th, and an appointment with [HF] and [TC] for Thursday September 20th at 10.30 a.m. I anticipate that further appointments will be necessary to complete the assessment, however I will attempt to complete my report in as short a time as possible."

516 It is to be appreciated that once Dr Waters was equipped with the material he needed he could not complete his assignment overnight, including as it did so many interviews. Nevertheless, accepting that Dr Waters' engagement was part of the YACS investigative process arising from the notification in May 1984, it seems to me that Mr Lungley, in the discharge of his duty to exercise reasonable care in making a prompt investigation, should have taken the following steps:

(a) to engage Dr Waters promptly;

(b) to give him clear written instructions as to what was being sought of him;

(c) to inquire of the doctor promptly what material he needed and to furnish such material as soon as possible, so as to see to it as best he could that the assessment proceeded expeditiously.

517 I find that Mr Lungley failed in those three requirements and that this amounted to a failure to exercise reasonable care in the circumstances, which was causative of such delay as there was up to 10 September 1984.

518 I can find no evidence that any attempt was ever made by Mr Lungley or anyone else to interview Mrs Curran with a view to seeking her account of her relationship with HM or TC. Perhaps she would have been unwilling to give any such account, but had she been willing her account about this relationship would have been very relevant. Be that as it may, the plaintiff has not raised the failure to interview or attempt to interview Mrs Curran as a particular of negligence, and the issue has not been addressed in submissions. Accordingly it would be inappropriate for me to make any finding on this subject.

The negligence alleged against the various officers of YACS

519 So far in the course of this judgment I have considered in large part the case of negligence which the plaintiff has presented, but for completion I propose to address the plaintiff's submissions concerning the negligence alleged against each of the officers involved.

Mr Plater

520 I considered earlier at para 215 and following criticisms levelled at Mr Plater. Having regard to the findings I there expressed, I do not consider that there was any failure by Mr Plater to exercise reasonable care in his attention to TC's case.

Mr Hulbert

521 The criticisms of Mr Hulbert's limited involvement I considered earlier at para 221 and following, and once again I am not satisfied that Mr Hulbert failed to exercise reasonable care in his attention to TC's case.

Mr Finch

522 Much of the criticism directed at Mr Finch I considered earlier when looking at his involvement between paragraphs 228 and 265. I have already expressed findings as to the shortcomings in the investigations undertaken by YACS into the allegations made in the affidavits and the statement presented in February and March 1983. I am not satisfied otherwise that in any of the respects advanced, Mr Finch failed to exercise reasonable care in his attention to TC's case.

523 It is submitted that Mr Finch was negligent in failing to bring the matter to the Children's Court in the latter half of 1984. That issue as to whether proceedings ought to have been taken in the Children's Court I have considered elsewhere. It follows from the conclusions I reached concerning that matter that this head of negligence against Mr Finch has not been established.

Mrs Burgess

524 I have earlier considered the role of Mrs Burgess in relation to the investigation into the allegations made in the material presented in February and March 1983. I do not otherwise find that Mrs Burgess failed to exercise reasonable care in her approach to TC's case.

525 As in the case of Mr Finch, it is alleged against Mrs Burgess that she was negligent in failing to take steps to remove TC from HM's care. It follows from what I have written earlier, particularly when considering the expert evidence of Prof Oates, Dr Scott and Dr Waters, that I do not regard this allegation against Mrs Burgess to have been made good.

Mr Hanrahan

526 I have earlier reviewed at length Mr Hanrahan's involvement in this matter, and the measures that he took on and after 25 February 1983. Earlier I have attributed fault for the shortcomings in the investigation by the Department at about that time, but since I do not find that Mr Hanrahan saw the affidavits by Mrs Denley, Ms Daskalopoulos, Ms Papakonstantinou and Ms Brunner at a time relevant to his involvement, and since I do not find that he saw either the statement or the subsequent affidavit by Ms Tokatlidis then, I am not satisfied that this officer was negligent. Indeed I am satisfied that throughout his involvement in the matter Mr Hanrahan did exercise reasonable care in addressing TC's case.

Mr Langshaw

527 I considered earlier the significance of the receipt by Mr Langshaw of the letter from Mrs Foot of 1 March 1983 (Exhibit A(adb)). Mr Langshaw was not called to explain his endorsement on that document, so I am unable to determine what prompted him to record that the "papers" Mrs Foot had forwarded contained no "fresh" material. That endorsement was incorrect, and I expressed my conclusion earlier that the failure to interview Mrs Tokatlidis and Mrs Brunner and then to interview HM to put to her the Tokatlidis and Brunner assertions constituted a failure to exercise reasonable care.

528 Mr Langshaw was entitled to rely upon Mrs Burgess and any responsible officer she assigned to the task to make relevant inquiries, and equally he was entitled to rely upon information passed on to him by a responsible officer as to the outcome of inquiries.

529 As the evidence was left, I am unable to determine the individual responsibility for the failure to properly address the Tokatlidis and Brunner material, but failure there was, and the failure was the failure of YACS, and constituted a lack of reasonable care.

530 It is submitted also against Mr Langshaw that he should have directed that steps be taken for TC to be removed from HM's care. I have elsewhere assessed the evidence of Dr Scott, Professor Oates and Dr Waters, and expressed my findings on that evidence. It follows from what I have written in that regard that this submission fails.

Mr Lungley

531 I have earlier expressed a finding as to the response of this officer in the investigation of the notification in May 1984 and for the shortcomings I have identified (in para 516). I do not otherwise find Mr Lungley to have been negligent.

Mr Callaghan

532 In Mr Callaghan's case also it is submitted that he was negligent in not initiating action to remove TC from HM's care. It is submitted that he should have so acted immediately after his interview with HF in August 1984. Once again, having regard to the evidence of Professor Oates and Dr Scott and to the conclusions I expressed earlier following consideration of their evidence, I reject this submission.

533 It is further submitted that Mr Callaghan should have obtained an alternative expert opinion to support that of Dr Waters. I find no substance in that submission. Dr Waters was selected to make the assessment because of his recognised expertise and in my opinion the exercise of reasonable care on Mr Callaghan's part did not require that he should have arranged for the qualification of a second psychiatrist.

534 It is also alleged against Mr Callaghan that he was negligent in not proceeding in the Children's Court. The criticisms directed at the failure to proceed in the Children's Court have been considered elsewhere. Having regard to what I have already written on that issue, I reject the submission that Mr Callaghan was negligent in failing to have proceedings taken in the Children's Court.

Ms Boulter

535 The first allegation against Ms Boulter is that she was negligent in February 1983 in failing herself to consider the various affidavits produced by HF. Ms Boulter's involvement in this case began in May 1983. Her evidence as to when it was that she first saw those affidavits and the Tokatlidis statement was vague and hence unsatisfactory. However, since she was not assigned to investigate such material, in the circumstances I am not satisfied she shares responsibility for the shortcomings of such investigation as there was in that regard.

536 I have considered earlier the investigation into the various complaints of scratches. In my opinion Ms Boulter did exercise reasonable care in her participation in inquiries as to those complaints. I earlier addressed the specific allegation of negligence by Ms Boulter in not advising Mr Hampson to assess TC and in failing to recognise the seriousness of the allegation of sexual abuse that surfaced in relation to the notification on 11 May 1984. For the reasons expressed earlier, I do not consider that there was any failure to exercise reasonable care on Ms Boulter's part at that time and I am not satisfied that Ms Boulter failed to exercise reasonable care elsewhere in attending to TC's case.

Mr Heagney and Mr Croke

537 I have already considered their involvement in this case and the considerations affecting the choice of court in 1984. In doing so I expressed my finding that I was not persuaded that these legal officers acted negligently.

Ms Ralston and Ms Withers

538 It is alleged against these officers that they were negligent in failing to take TC's case to the Children's Court in 1984. Neither of these officers, of course, had the ultimate responsibility for the decision that was reached to proceed in the Family Court, but since I do not regard the decision to proceed in the Family Court as being a decision reached in the absence of reasonable care, I do not find those involved in the decision making process as having been negligent.

539 It is also submitted that these officers were negligent in altering conclusions from their earlier report for the purposes of the affidavit evidence in the Family Law Court. Reference is made in support of this submission to Exhibit A(abj), (abt), (abu) and (acc).

540 Exhibit A(abj) is a very lengthy document extending into a fourteenth page and it records, in the form of a joint report, steps taken by the two officers on 21 and 22 August 1984, including attendances and interviews at TC's pre-school and attendance and interview with HM on the following day. The document records concerns that the authors had and concludes with an expression of opinion:

"It is the psychologist's assessment that [TC] is an emotionally deprived little boy who has been sexually abused and has been exposed to adult sexual behaviour."

541 Each of the authors of the joint report swore an affidavit for the purposes of the department's application for leave to intervene in the Family Court proceedings and for the purposes of those several affidavits, each deponent prepared her own individual report for annexure.

542 Exhibit A(acc) is a handwritten document by Ms Boulter and it purports to record a case discussion on 4 September 1984 which was attended by Mr Finch, Mrs Burgess, Ms Withers, Ms Ralston and Ms Boulter. This exhibit records that there was discussion which centred around the earlier joint report and it was agreed that the report was not in suitable form for evidence in court, and that a more precise report would be necessary. The exhibit records that opinion was expressed that the report may clash with earlier statements on file in reports of Ms Boulter and Mr Lungley.

543 Neither Ms Withers nor Ms Ralston was called in this case but Ms Boulter was cross examined about Exhibit A(acc) (T2416). She refuted the inference that might otherwise have arisen that a decision was taken at the case discussion on 4 September to change the form of the joint report so that these two witnesses could express opinions in agreement with what had been written earlier by the other officers.

544 I am not persuaded that there was any sinister motive for the preparation of the two subsequent reports. It was proper that what each officer placed before the court be written in a more concise form and it was proper that each officer should express her own opinion. The earlier joint report stated the psychologist's assessment about TC in conclusion but it did not state the protection worker's opinion. In the later documents placed before the court, each officer stated her own opinion. I am certainly not persuaded that the authors changed the form of the report in order to avoid expressing views contrary to those earlier expressed by Ms Boulter and Mr Lungley. Nor am I persuaded that the later individual reports evidence a failure of either officer to exercise reasonable care in TC's case.

The Department

545 It is submitted against the department generally that there was a failure to exercise reasonable care in not taking immediate steps to bring TC before the Children's Court in August 1984 and subsequently. I am satisfied on the evidence I reviewed earlier that the Department acted on the advice of its legal advisers in deciding not to take proceedings in the Children's Court. The findings earlier expressed at paragraph 382 address the submission presently under consideration and this submission fails.

Conclusions

546 I have given close consideration to all the evidence and the submissions in this case. I find that there was a failure by YACS to exercise reasonable care in the respects earlier identified:

(i) the incomplete investigation of the material presented in February and March 1983;

(ii) the delay associated with the engagement of Dr Waters to make his assessments in 1984.

547 I am not satisfied that any other alleged breach of duty has been proved.

548 Section 158 of the Child Welfare Act does not afford a defence unless "the Minister or the officer or employee has acted in good faith and with reasonable care." It follows from my finding of the failure to exercise reasonable care in the above respects that the section does not afford a defence in respect of those breaches of duty I have identified.

549 In order to establish his cause of action against the defendant, the plaintiff is required to prove not only breach of duty by the defendant, which he has done in the respects I have identified, but he must also prove that breach of duty as established caused the plaintiff harm.

550 Whether the breaches of duty that I have found were causative of harm, either individually or collectively, remains to be determined, but it does not seem to me that I should address this issue without affording to the parties a further opportunity to be heard, for reasons which I now express.

551 Whilst in submissions in reply counsel for the plaintiff have sought to advance the proposition that proper investigation would have satisfied YACS by August 1993 at the latest that TC was at risk of abuse from HM and that the risk was ongoing, it is clear that that submission is not directed only to the findings of breach of duty which I have expressed in this judgment. Nor have counsel for the defendant addressed the issue of causation which now requires to be considered in the light of the findings which I have made. Moreover, the terms of the order for a separate trial on the issue of liability contemplated that "the question of causation of any loss or damage to the plaintiff by an...act or default be tried together with the issue of damages." It seems to me whilst that order stands I should not yet address the question as to whether the breaches of duty I have found, or either of them, caused loss or damage to the plaintiff. In the orders I am about to make I intend to afford the parties the opportunity of advancing submissions as to how and when this issue of causation I have just identified can most efficiently be addressed.

Findings and formal orders

552 1. I find that the first defendant was in breach of its duty of care owed to the plaintiff:

(a) In the failure following the presentation in February and March 1983 of the material identified in para 234 of this judgment to take the steps identified in paras 247 and 248 of this judgment;

(b) In the failure following receipt of the notification in May 1984 to attend promptly to the matters addressed in para 516 of this judgment.

2. I order that the cause be listed for directions as to its further conduct on Thursday 25 February 1999.

3. Costs in respect of the proceedings against the first defendant thus far are reserved.

4. There is to be judgment for the third defendant as to the claim against her.

5. I make no order as to the costs of the claim against the third defendant.

LAST UPDATED: 12/02/1999