FAMILY COURT RALLY & PETITION Sunday 3rd MAY 2009

FAMILY COURT RALLY & PETITION Sunday 3rd MAY 2009

Global

Basic Info

Type:
Description:
In memory of all the children who have died at the hands of their parents following Family Court involvement….RIP
And the children who continue to be forced into contact with violent or sexually abusive parents by the Family Court of Australia.

Contact Info

Email:
Office:
PARLIAMENT HOUSE
Location:
Every Capital City, Australia

Recent News

The death of so many of our country’s children at the hand of their parents have shocked us all.

But have they shocked Australian politicians enough to make them review and amend the way the Family Court of Australia deals with children where domestic violence or sexual abuse allegations are made?

We hope so.

We are organizing this petition and a rally to be held in every capital city in Australia.
PLEASE SIGN THE FOLLOWING PETITION

http://www.gopetition.com.au/petitions/family-court-of-australia-amendments.html

Parents (and their family) currently involved in FCA dispute will need to wear red hoods or scarves to disguise themselves so they can’t be identified for legal reasons.

Red will signify the blood of Australian children being shed by FCA orders which force children to have access to, or shared care with parents who are violent or sexually abusive.

Please read the discussion forum to see what you can do, the latest updates on the organizing, and more information about the protest.

Importantly, please sign the petition and send it to your networks, personally asking them to pass it on. This is how we CAN make a difference.

We already have media interest and dozens of volunteers helping with this. Be part of an event that will help save children’s lives.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

This is an extract of a letter sent to the Attorney General’s Dept recently. It was forwarded to me by Prof Freda Briggs.
You might find the list of incidents at the end of the extract, pretty amazing. I did.

“Since the reforms of 1996 and 2006, there is a palpable reluctance by the courts to reduce contact between parents and children, even when there is ample evidence that one parent has engaged in behaviours congruent with domestic violence or ‘intimate terrorism’ as described by the AIFS study where category C is ascribed to the most severe form of interpersonal violence. This is also in spite of The Family Law Act 1975, (Cth) s60B, (b) and (c). Justice Wall from the UK has stated that,

“I was concerned to read in a number of places in the files that reliance was placed on the proposition that it may be safe to order contact where domestic violence had been perpetrated on the mother, but not on the child. In my judgment it needs to be recalled that Drs Sturge and Glaser pointed out that domestic violence involved “a very serious and significant failure in parenting- failure to protect the child and failure to protect the child emotionally (and in some cases physically) – which meets the definition of child abuse. It is, in my view, high time that the Family Justice System abandoned any reliance on the proposition that a man can have a history of violence to the mother of his children but, nonetheless, be a good father.”

“However, in Australia the reasoning seems to indicate that the judiciary continues to believe that a parent who has been physically violent to the other does not indicate that they are a danger to the children of the marriage. For example;

“However, on the father’s own admission, he has acted in ways that would bear the description of “domestic violence”. This includes putting his hands around the neck of the mother. It may be also that other conduct, though falling short of physical assault, but which was aggressive and angry, would also fit that description. He was probably controlling and dominant in the relationship with the mother. This might also fit the description of domestic violence. As well, he was a times physically domineering in applying physical discipline to [the 18 month old child], such as straddling her on the bed and holding her head or face to ensure her attention. All of these behaviours are indications of an approach to relationships and parenting, less than optimal, in times past. As well, it is clear enough that he has not been alert to crossing personal boundaries.”

This father continues to have unsupervised contact with this child. 

The causal factors between the dynamic of domestic violence, its range of indicators and the dangers this behaviour poses to the children of the marriage continue to be ignored by the judiciary, report writers, the legal practitioners and even the police department. This has resulted in the growing list of deaths of children from a family of origin where domestic violence can be ascribed as the feature of the breakdown in the relationship. Fears for the safety of children are ignored. Consider the following sample:

• 1996 – January 25: Peter May shot and killed his three children, Lisa eleven, Andrew eight, and Natalie seven during a contact visit. On the same day, he also killed his wife and her parents. May’s history of domestic violence and links to the Men’s Rights Agency was commonly known and reported,
• 1998 – October 23: After Ronald Jonkers lost custody of Aaron DeBaugy 5, Ashlee seventeen months and David seven, he poisoned them by carbon monoxide in their car on a contact visit in Perth,
• 1999 – August: WA four young children were gassed along with their father Mark Heath after a family court dispute,
• 2000 – Rhonda Bartley was shot dead by her ex-partner in Berri while attending a court ordered contact handover of their baby daughter,
• 2001 – September: Mikaylah Green eleven weeks, Taylah Pringle eleven months and Jackson Merrott six, were smothered by their father on a contact visit in Sydney,
• 2002- Ana Hardwick 35 is strangled by her former partner after the family court granted her custody of their eleven and eight year old children,
• 2004 – April 26: Jessie Dalton nineteen months and Patrick Dalton thirteen weeks were smothered by their separated father Jayson Dalton after a family court order to him to return the infants to their mother Dionne, 
• 2005 – 4th September: Robert Farquharson killed his sons Jai ten, Tyler seven, and Bailey two, by driving them into a dam in Winchelsea, south-west of Melbourne on Fathers’ Day contact visit,
• 2008 – May 9: The body of three year old Imran Zilic, was found after his father threw him down a mine on an access visit,
• 2008 – January 3: Christopher McEwen raped and then killed his daughter Rhiannon McEwen on Bribie Island on New Years Eve. The matter of the children’s residency was before the Family Court in 2004 where the father was given residency of all three children. It is not known to this writer if it was by consent. However, this father was cleared by a psychiatrist to leave a Brisbane hospital’s mental health unit just nine days before he allegedly raped and murdered his ten-year-old daughter. Queensland Health did not report the man – who had spent two weeks as an involuntary patient in the hospital’s mental health unit – to the Department of Child Safety. Given this man’s mental condition, the question is how in 2004 was it that he obtained sole custody of his four children aged between six and ten?
• 2009 – January 29: Arthur Freeman unbuckled Darcey from her seat in the family Toyota Land Cruiser on the West Gate Bridge about 9.15am and threw her over the edge and into the Yarra River 58m below. She died in hospital four hours later. The tragedy occurred one day after the Freemans had reached an agreement over access to Darcey and their two other children, Benjamin six, and Jackson two, following their separation in 2007. “
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Find out more at Facebook:

Their Silent Cries…

Above is a picture of a child ghost in the movie The Grudge.  The Movie was made by a director that wanted to portray the rage from women over the years from crimes against women especially domestic violence.  In the movie, the mother had a crush on her teacher and records it in her journal.  Her husband discovers her secret crush and breaks her neck in a fit of rage.  As she is dieing, her voice box is damaged as she lays on the floor watching her husband drown her son.  She cannot scream or cry in pain.  The only sound that leaves her mouth is a chilling croak.   

In real life, these victims don’t come back to make others feel the pain that they endured and it is often why they become our forgotten voices in a landscape of systematic failure.  Perhaps we will look back to this point of history and wonder why indeed these children were forgotten and why something was not done sooner.  Whilst Anonymums focus is on mothers and children’s rights, we have not forgotten fathers either.  We are against groups that encourage violence and child abuse and use excuses such as contact to justify their means to incite terror and silence those who speak out against it.  Unfortunately fathers are represented by undesirables who wish to destroy  all barriers to maintaining abusive control over children and mothers.  Research on homicides has already revealed that some of these fathers and mothers will harm or even kill children to punish their exes.  Homicide stats state that most of these are fathers and whilst fathers Rights groups would prefer to distort these facts and portray that mothers are the major offenders, it simply is not true especially in the dynamics of family violence.  
What we cannot deny is the consequences of history where we have thousands of years and establishment of a world dominated by men.  In the last hundred years, women have begun to have rights in nearly every area and become recognized as equals to men in both home and public life.  Along with women’s rights came children’s rights that were established by women who knew all to well the dehumanizing status as “property” and seeked to change that area as well.  In the late 70s domestic violence began to peak and later became recognized as a deadly backlash against women and children’s rights.   Mens movements began to form as the ones we know today persuading the public that we have too much equality that men are now victims of the woman’s movements.  Statistics prove that this is simply not true and their advocacy is disastrous when a majority of their members claim to have been falsely accused of child abuse and domestic violence.  Few horrors that have hit the public have not been untainted by the mens movements attempts to conquer public conversation on violence prevention with the old “fatherless” “false allegations” “It was her fault” “Parent Alienation”.  Their arguments have often halted and diverted most public enquiries into victims of child abuse and domestic violence.  Last year, a father abandoned his three year old at a city railway station after murdering her mother.  Her name was dubbed, “Pumpkin” as the story became a world wide issue and a grave reason why more needs to be done on protecting victims throughout the Family Court processes.  Around the same time, Karen Bell lost her three children because she had to go to family court before she could even protect them.  Ingrid Poulson lost her children for the same reasons.   Dionne Dalton warned the family court that the children were in grave danger, but the Family Court handed the children over to the father.  In the next court case, he applied for shared parenting but accused her of being a negligent mother.  The court awarded the father unsupervised weekend access and the next day he killed the children and then himself.  The men blamed the death on not having shared parenting laws and ignored the risks involved.  The freeman’s had also raised concerns for two years and just recently lost their only daughter after the father was awarded shared care.  The incident was on Melbourne’s west Gate Bridge in front of many motorists and became a worldwide tragedy.  The Family Courts response was less than humane as they attempted to divert responsibility by stating that they were not aware and that the courts documents were “stolen” from the chief justices car.  
Whilst this was going on, a mother named Melinda Thompson is one of 126 mothers on the run from the family courts being hunted down like an animal because she fears for the safety of her children.  How many children does it take before we have some serious changes?
Add your voice to our petition at:
http://www.gopetition.com.au/online/22705.html

Diana Bryants last lot of Excuses… When is the Family Court going to Take Children Seriously?

TRANSCRIPT

Losing the Children

Liz Jackson tells a compelling and intimate story of a family’s tragic breakdown.

Date: 16/08/2004

LIZ JACKSON, REPORTER: It was a shocking and seemingly incomprehensible act, but one that is far from unique. In the small, bleak hours before dawn on Anzac Day morning three months ago, a Brisbane man took the lives of his two small children. Jessie was 20 months, Patrick was 12 weeks. Their father, Jayson Dalton, took this footage of the children the night before, after what he told them was a bad day for Daddy in the Family Court.

JAYSON DALTON (ON HOME VIDEO FOOTAGE): We had a bad news today about the courts. Yeah, you’re going to miss Daddy, aren’t you?

LIZ JACKSON: It appears it was some hours after he had drugged the children that Jayson Dalton wrote a suicide email to his estranged wife Dionne and then took his own life.

OWEN PERSHOUSE, FOUNDER, MENDS: What he did was monstrous. What he did was crazy. What he did was evil. But it’s too easy to just say the person’s bad or mad and leave it at that.

DIANA BRYANT, CHIEF JUSTICE, FAMILY COURT: If it happens, you go over the case and think, “I did what I could. There was nothing to indicate this would happen.” But emotionally, of course it affects us. We’re all human. I think it affects everybody. We all live in the shadow of this happening to us, unquestionably.

LIZ JACKSON: And what’s it saying to us, that phenomenon?

OWEN PERSHOUSE: “Do something. Do not ignore this.”

LIZ JACKSON: Jayson Dalton appeared to be a father who doted on his children, especially his little girl. As the Government declares the need for major reform of the family law system, Four Corners tells the intimate story of what led to this tragedy. It’s a story that confronts the issues of family violence, and the bitter battles for custody in the wake of family breakdown.

(HOME VIDEO FOOTAGE OF DIONNE GETTING READY FOR HER WEDDING PLAYS)

LIZ JACKSON: Dionne Dalton likes to be organised, and wanted everything on this day to be just right. In a few hours time, she would be marrying Jayson Luke Dalton. Her husband-to-be’s stepmother, Evelyn Dalton, is a hairdresser, and she’d flown over from Western Australia to help prepare for the big day. Jayson and Dionne picked her up from the airport.

EVELYN DALTON, JAYSON DALTON’S STEPMOTHER: He gave the impression then of…very caring, very tender. He was proud of her. You could see it. Like I said to him after I met her, “You’ve hit the jackpot, mate. Good on you.”

LIZ JACKSON: Dionne had met Jayson after he’d contacted her through an Internet chatroom site. Eight weeks after their first date, they were living together. Six months later they were engaged.

DIONNE DALTON: I was just so ecstatic that he’d proposed to me. I thought, “This is the man I’ll spend the rest of my life with and have children with.”

LIZ JACKSON: Dionne had been married before, but this was not going to stop her getting married in white.

(FOOTAGE OF DIONNE PREPARING FOR HER WEDDING CONTINUES)

WOMAN 1: Do you want any more gold to wear? Got enough?

DIONNE DALTON: Should I take my watch off?

WOMAN 1: Yes.

WOMAN 2: Yes.

WOMAN 1: Brides don’t wear watches.

DIONNE DALTON: How will I tell the time?

WOMAN 1: Don’t worry about it.

WOMAN 2: That’s what Jayson’s for.

DIONNE DALTON: Oh, mate.

WOMAN 2: That, and he looks decent in a black suit. (Chuckles) The only reason. He’s just there for colour.

DIONNE DALTON: We’re not relying on Jayson this week.

LIZ JACKSON: There’d been a small incident with Jayson a few days before which no-one really wanted to talk about.

EVELYN DALTON: Jayson and Dionne came to pick us up from the motel. Dionne was driving and Jayson was a passenger, and I looked at the windscreen and I said, “Did someone throw a rock at the screen?” And he never lied to me, he was always honest, and he said, “No, I put my fist in it.” And I just said, “Oh,” and I said no more.

DIONNE DALTON: I can’t remember what it was over, but he…he just punched the windscreen and the windscreen shattered. It was the first time I’d really, really seen him get really aggressive. The alarm bells were ringing in my head, but I just thought, “No, I can’t pull out of this wedding three days before we’re due to get married.”

LIZ JACKSON: Dionne was Jayson Dalton’s first serious girlfriend, and he held the view that marriage was for life.

EVELYN DALTON: It was always in his mind, and he used to voice it, that he was only going to get married once. He didn’t want to be divorced like his dad, and he wanted children. That was the whole package.

LIZ JACKSON: Everything went smoothly as the two families were joined together, but not everyone was happy. Dionne’s mother, Julie Wherritt, hadn’t liked Jayson from the day that she’d met him, and found herself sidelined at her own daughter’s wedding.

JULIE WHERRITT, DIONNE DALTON’S MOTHER: I knew from the first time I met Jayson that Jayson was a control freak. Jayson had to have control. He was a perfectionist and he had to have everything going the way he wanted it.

LIZ JACKSON: Dionne’s bridesmaid increasingly shared Dionne’s mother’s doubts – a groom who chose the bridesmaid’s dress?

SHARYN WRIGLEY: Jayson came with me to choose the bridesmaid’s dress. He chose the colour and he chose the dress. I had no say, and on the day of the wedding, he decided the hairstyles, and, uh…he was a very… Then the true colours just started coming out. He was a controller.

LIZ JACKSON: But who could really care, as long as the couple were happy?

After the honeymoon, they moved into the house that Dionne had bought before they were married – a weatherboard in the Brisbane suburb of Kelvin Grove. Dionne remained estranged from her mother and began to see less of her friends.

DIONNE DALTON: I’d been so close to my mother and my family, but I took his side, and that’s basically when the rot set in. From that time, we just didn’t have any contact, really, with Mum.

SHARYN WRIGLEY: All of a sudden, Dionne wasn’t allowed to have her friends. Dionne wasn’t allowed to go out. Jayson made sure that I wasn’t going to be someone who was taking Dionne out Saturday night and Friday night.

LIZ JACKSON: After the wedding, they saw very little of Jayson’s immediate family as well – his father and stepmother lived in Western Australia. He was an only child, and his parents separated when he was eight. He started off living with his mother, but it didn’t work out.

Val Dalton is Jayson’s father’s cousin.

VAL DALTON: He, uh…would go into rages and so on. He, um…he did that with his mother when he was living here at the coast, and he was expelled from a school. I believe he threatened a teacher and, um, so he went back with his father.

LIZ JACKSON: When his father enrolled him at Mount Isa High School, he specifically asked that Jayson not be taught by women, to avoid the problems he’d had at his last two high schools.

Mollie Dalton is Val Dalton’s sister.

MOLLIE DALTON: From accounts by his father, there does seem to have been a problem. There seems to have been a kind of anger that often surfaced in him and sometimes led to, um, you know, violent actions or speech against… particularly against women.

LIZ JACKSON: Four months into the marriage, Dionne was pregnant.

DIONNE DALTON: We were both just so elated and so, just, shocked and surprised because we had been trying for about four months and when it did actually happen, we just ecstatic at the thought that we were going to have a baby.

MOLLIE DALTON: They seemed to, uh, talk together a lot about what was to be done, though we wouldn’t have always spoken to Dionne in the way that Jayson sometimes did. He had a rather abrupt way of speech sometimes.

DIONNE DALTON: We were still going along quite well, but he was just verbally abusing me.

LIZ JACKSON: What sort of things?

DIONNE DALTON: Oh… Words I don’t want to repeat. A lot of swearing, using the F word, using the C word and every second word was “F this, F that, F this, F that.” And it just demoralised me totally when he would speak to me that way because I decided that I was doing everything in my power that I could to do what he wanted.

LIZ JACKSON: While Dionne was pregnant, Jayson decided that they would start a business – a shop that would boast the largest collection of door handles in Australia. Up until the day she went into labour, Dionne ran the shop, while Jayson continued his job with a mining company.

DIONNE DALTON: It was really hard on me and he was hard on me as well, just making sure that we met figures and he got the achievement…he achieved the goals he wanted to achieve.

LIZ JACKSON: On September 12, 2002, Jessie Caitlin Dalton was born.

DIONNE DALTON: The day before, he’d had a huge argument with me and it put me into stress and the next day they induced me. But he was very apologetic to me that night.

LIZ JACKSON: From the moment she was born, Jayson was besotted. She was a delightful baby, but business was business.

DIONNE DALTON: He just kept on at me the whole time, trying to pressure me and get me to go back to the business and leave hospital.

LIZ JACKSON: When Jessie was one week old, Dionne was back at work three days a week, taking Jessie with her.

DIONNE DALTON: It was like I was on autopilot. I did that for six months until Jessie got to the stage where she was crawling around and needed some stimulation. So we put her into day care two days a week.

LIZ JACKSON: By this time, Dionne says that Jayson had started to hit her.

DIONNE DALTON: The first time he did it to me I was just absolutely terrified. I said, “Why did you hit me? What did I do to deserve that?” He said, “You didn’t do as you were told. If you had done as you were told, it wouldn’t have happened.” I said to him, “But I didn’t do anything wrong. I just did what I was supposed to.” “You didn’t do it the way I wanted it done.”

LIZ JACKSON: His temper was increasingly bad. Here Jayson is getting Dionne to video a car he believes has cut him off.

(HOME VIDEO FOOTAGE PLAYS)

JAYSON DALTON: Zoom in on the bloody thing there.

DIONNE DALTON: I’m just nervous, OK?

JAYSON DALTON: Just zoom in!

DIONNE DALTON: Alright.

LIZ JACKSON: But she was not thinking of leaving.

DIONNE DALTON: I’d always said that if anyone hit me I’d leave a relationship straightaway. But at that stage, because I had Jessie, I was too scared to go anywhere else. I thought, “I’ve frozen my family out of the picture.” So they weren’t there for me anymore and I had no one else to trust.

LIZ JACKSON: In April 2003, Jessie was christened. Jayson’s stepmother, Evelyn Dalton, came over from WA for the service.

EVELYN DALTON: That was all very nice. We had a nice time. Uh, we came home and Dionne changed clothes and I noticed some bruises on her arms. And I said to her, “What happened here?”

DIONNE DALTON: And I just broke down in tears and told her about what had been going on.

EVELYN DALTON: And she said then he was very controlling. He was starting to push her around. I knew that it wouldn’t stop there. It would get worse. It does.

DIONNE DALTON: And, um, anyhow, that night she confronted Jayson about it, when I’d gone to bed.

EVELYN DALTON: I spoke to him and said, “You know, you don’t do this. This is not on.” I also said to him, “If you continue in this manner, you will lose everything that’s near and dear to you. The thing that you will lose will be your wife and children.” And I said, “If you’ve got any feeling for me, you’ll lose me.” So we had a…not a… I probably… I said more than Jayson. Jayson didn’t have a real lot to say because he knew he was wrong.

LIZ JACKSON: A few weeks later it was Mother’s Day and Jayson wrote Dionne a card from Jessie.

(HOME VIDEO FOOTAGE PLAYS)

DIONNE DALTON: Thank you, Jessie. That’s really nice.

JAYSON DALTON: Oh, Mummy’s crying now. (Laughs) Why, what did she say, Mummy?

DIONNE DALTON: I can’t read it, ’cause I’ll cry again.

JAYSON DALTON: You’ll cry again? Did it say something about that Jessie can’t wait till she can say that she loves you all by herself?

DIONNE DALTON: That’s right.

LIZ JACKSON: By now, Dionne was already pregnant with Patrick.

DIONNE DALTON: I fell pregnant with Patrick on May 5, 2003. The reason I remember the date is because I hadn’t wanted to have sex with Jayson. Jayson had forced himself on me. Um, I’d said to him at the time, “Jayson, you don’t hit someone that you love. I don’t want to have sex with you.” And he was just very, very sullen and he was very, very angry. And, uh… Anyhow, he forced himself on me and, um, it was…it was a nightmare. And a couple of weeks later I found out I was pregnant.

The whole time I was pregnant with Patrick, he was hitting me and it was just getting worse and worse up until that… the first time I called the police.

LIZ JACKSON: On Dionne’s account, it came to a head one night in November 2003 when Jayson lost his temper.

DIONNE DALTON: The next thing I knew, he threw the microwave at Jessie and I as we sat on the lounge chair. And I’d had enough. I just rang the police straightaway and they came out and they took him away to the watch-house. It took eight of them to take him away. The neighbours had all come out that night because there were police cars everywhere. And, um, he just… As soon as he came back, he said to me, “Do you want to stay together?” And he was very apologetic.

LIZ JACKSON: The police obtained an interim domestic violence order to protect Dionne. One month later, just before Christmas, Jayson punched a hole in the French doors of their house and threw a broom at Dionne. He later admitted that ‘regrettably’ the handle had caught her on the back of her head. He took off with Jessie.

DIONNE DALTON: I was just out of my head with worry about where he’d taken her and what had happened. And, uh, anyhow, a police inspector came and he pulled me aside and said, “Look, this is escalating, this violence, and you’ve really got to do something.”

VAL DALTON, JAYSON DALTON’S COUSIN: I offered to go over. And Dionne said, no, the police were there with her, but… And I rang back several times. Then she said “No, he’s home now. Everything’s alright. We’ll work it out. I’ll go to my mother’s.”

LIZ JACKSON: Val and Mollie Dalton called around in the new year. Dionne was by then over eight months pregnant. By now, both families knew that there were allegations of violence, that Jayson was subject to a domestic violence order and that he’d already breached it once.

MOLLIE DALTON, JAYSON DALTON’S COUSIN: We knew that there were allegations of it and Jayson himself admitted that he had hit her. He said, “To my shame, I have hit her.” And he said, “I’ll never forget that. I should not have done it.” And he said, “But I am trying to be better. I am turning over a new leaf.” And he did try to manage his anger.

VAL DALTON: Whenever I spoke to Dionne alone, she said that they had worked things out, that they would work things out. And, um, I said, “Well, you don’t have to put up with violence.” Um, and I believe that very strongly.

LIZ JACKSON: Patrick James Dalton was born on 24 January, 2004. Dionne was back at work again within five days. The business was struggling.

VAL DALTON: Dionne could barely walk to go up their tall front stairs. We said, “You shouldn’t be at work.” She just laughed and said it had to be done.

LIZ JACKSON: But Dionne had decided she’d had enough. She wanted out from the marriage. She made plans to leave at the end of April when Jayson would be away. But after a bad row on March 4, she packed her bags and fled to her mother’s.

JULIE WHERRITT, DIONNE DALTON’S MOTHER: She was in tears and she said, “He’s just told me that it’s on tonight.” And she said, “I’m just so scared, Mum.” And I said to her, “Just come.”

DIONNE DALTON: He said, “Tonight’s the night. It’s on. It’s going to happen tonight.” So I packed up the car and I packed up Patrick. I went and picked Jessie up from day care and I took off to Mum’s place.

LIZ JACKSON: It took 1.5 hours to drive down to her mother’s place on the Gold Coast. In that time, Jayson rang Dionne’s mobile phone 76 times.

DIONNE DALTON: The phone just kept ringing and ringing and ringing and ringing. And it just didn’t even stop for a minute. It was just like that the whole way down until I turned it off. And at that stage, it was at 76 calls.

LIZ JACKSON: Were you afraid?

DIONNE DALTON: I was terrified, petrified. I didn’t know what he was thinking, what he was going to do.

JULIE WHERRITT: Dionne handed me Patrick and was getting the bags out and Jayson pulled up out the front.

DIONNE DALTON: I was so scared because I thought he would really hit Mum.

JULIE WHERRITT: I had Patrick in my arms and I just turned to say, “I’ve got your son here, Jayson. You don’t want to hurt him.” And he took a swipe at me. But he only hit my hand.

DIONNE DALTON: He just wanted to get me outside and Mum wouldn’t let me go outside with him on my own until the police came. But by the time the police turned up, he had gone.

LIZ JACKSON: Six days later, Dionne and her mother went to see a local solicitor. Dionne wanted to add names to the domestic violence order to keep Jayson away from her family and children. Ros Byrne took her instructions.

ROS BYRNE, LAWYER FOR DIONNE DALTON: She did talk about the physical violence. But to me, my recollection is it was more… The concern was the emotional abuse she was being subjected to.

LIZ JACKSON: Did you get the impression she was afraid of him?

ROS BYRNE: Oh, she was terrified of him. Absolutely terrified, yeah. Terrified of him and what he would do.

LIZ JACKSON: Dionne had it fixed in her mind that Jayson had guns, so the police went round to Kelvin Grove to check. They searched the house thoroughly, but none were found. Jayson was, however, taken away to spend the night in police custody for having breached his domestic violence order for the second time with his threatening behaviour at Dionne’s mother’s house. His family were now worried about Jayson’s mental state.

MOLLIE DALTON, JAYSON DALTON’S COUSIN: He was very, very distressed. He was also angry. Uh, he spent a lot of time crying and saying over and over again, “I just want my wife and family back.”

DIONNE DALTON: I was saying to him, “No, I’m not coming back ever. This is it. It’s over, Jayson. We can’t get back together.” And he’d say, “Oh, don’t say that. Just say six months. Give me six months to prove myself. Don’t say we’ll never get back together.”

LIZ JACKSON: Jayson phoned his father in Western Australia. He was in a state. Michael Dalton is a Vietnam veteran, so he rang the Veterans Counselling Service in Brisbane.

VAL DALTON, JAYSON DALTON’S COUSIN: He wanted Jayson to be put in hospital. He felt that Jayson… Jayson had evidently spoken to him on the phone and he was very upset, over the top. And he wanted Jayson to be put in hospital.

LIZ JACKSON: It appears that Jayson was counselled at least three times by the Veterans Counselling Service over the following weeks. At the same time, he enrolled himself in a 12-week program for separated men. Their website reads, “Separated men needn’t lose their shirt, their kids or their life.”

Owen Pershouse is a founder of the program.

OWEN PERSHOUSE, FOUNDER, MENDS: I heard reports that he was extremely sleep-deprived, he wasn’t sleeping very well, that he’d been depressed and maybe was given medication but he didn’t take it – which is quite common in the clients that we deal with – but in any event, was, um…was not coping.

LIZ JACKSON: When the police released Jayson from overnight custody, midday on Thursday, 11 March, Dionne and her mother jumped in the car with the children and drove away from Julie’s house.

JULIE WHERRITT, DIONNE DALTON’S MOTHER: The police talked to us and they said, “He’s going to be so angry when he comes out of…when we let him out, that we think you need to get to a safe house. We can find you one, or if you know somewhere to go, go there.”

DIONNE DALTON: I knew that he’d be absolutely aggro at the fact that he’d been in jail that night and that he’d be after some type of revenge for what had happened.

LIZ JACKSON: As the family headed out for a cousin’s place in the country, a five-hour drive away, Dionne’s own mental state collapsed. Over the next 24 hours, she became manic and delusional. She ended up in the Acute Mental Health Unit at Toowoomba Hospital with what appears to have been postnatal psychosis. Julie and Dionne’s sister Tammy took over care of the children. Jayson found out what was happening.

VAL DALTON, JAYSON DALTON’S COUSIN: When I spoke to him about it, he said, “The children will either be with their mother or with me.” And I said, “It’s very difficult for a father to look after two little children, two little babies.” And, um, he said, “They will either be with their mother or with me. No-one else. Julie doesn’t have the right to them.”

LIZ JACKSON: Dionne’s solicitor received a fax late on Tuesday, 16 March, telling her that the following morning, Jayson would be applying to the Family Court to have Jessie and Patrick reside with him.

ROS BYRNE, LAWYER FOR DIONNE DALTON: I was mystified to see it, because there hadn’t been any suggestion up till that time that there was any issue about the children. And the children were being cared for by Dionne’s mother.

LIZ JACKSON: The court case the next morning lasted just 14 minutes. There was only one brief reference to Jayson’s domestic violence when Dionne’s solicitor informed the judge, “there are domestic violence issues”. Just those five words, no further information. Jayson had made arrangements to care for the children and the judge took the view that while Dionne was unwell, “the next most logical person to care for the children…is the children’s father.” He ordered that the children be delivered forthwith to Jayson.

ROS BYRNE: The big problem with this case was that Dionne wasn’t available, wasn’t able to swear an affidavit because she was in hospital. So I was going on the information that I had been given by her over the phone and in a conference which lasted about half an hour.

LIZ JACKSON: Dionne’s solicitor broke the news to Julie.

ROS BYRNE: Oh, she was horrified. Absolutely horrified. She said, “The children should be with me. I’m able to care for them. I’m not working.”

JULIE WHERRITT, DIONNE DALTON’S MOTHER: I said, “What would you do, Ros, if these were your grandchildren?” And she said, “Oh, please don’t ask me that question,” and I said, “Well, I’m going to run.”

ROS BYRNE: I said to her, “As a lawyer, I can tell you what I would do in your situation, but as an individual, I don’t know what I’d do. As a lawyer, my advice to you is to bring the children back, because you don’t want the police to become involved.”

LIZ JACKSON: Julie and Dionne’s sister Tammy headed back to Brisbane, taking the children with them. They stopped and called the Federal Police to confirm the advice they had from Dionne’s solicitor. They were told if they could make it back before the court closed, Julie could try herself to get the judge to reconsider his order. So now they drove as fast as they dared. They made it to the Family Court with just minutes to spare.

JULIE WHERRITT: I was so tired and I was so drained, and they said, “No, it’s you going for the custody, you have to talk.” This was just so far out of my comfort zone to even be in there.

LIZ JACKSON: Julie spilled out to the judge everything Dionne had been saying to her about Jayson’s anger and violence, but she had nothing on hand to prove if it was true, and there was no evidence of violence to the children.

JULIE WHERRITT: He said, “You’ve told me that he’s been violent to his wife, but you haven’t really told me… He’s been a hard father, OK, but he hasn’t really been violent to his children.” And he said, “They stay with him until she is well.”

ROS BYRNE: I remember her sister saying that the children would be dead in a couple of days. That’s what her sister said. I remember her shouting that out.

EVELYN DALTON, JAYSON DALTON’S STEPMOTHER: I sat down and wrote a fax and faxed it off to…one to the Coolangatta police, one to ‘Today Tonight’, one to ’60 Minutes’ and one to ‘A Current Affair’. And in that I wrote that Jayson had just received custody of his two young children and he was on his second or possibly third domestic violence order, and I couldn’t understand really why. And I felt that if something wasn’t done about this, that it would just only end up in tragedy.

LIZ JACKSON: Jayson looked after Jessie and Patrick for the next five weeks, until the case could be argued again, when Dionne was better. His father, Michael Dalton, had come over from WA and helped him with the job. No-one now denies that they cared for the children well. Jayson took time off work and spent lots of money on new clothes, toys and lawyers – borrowing heavily to meet the costs. But he was coming apart at the seams.

VAL DALTON, JAYSON DALTON’S COUSIN: He was crying all the time, 16 hours a day. He wasn’t sleeping at night.

MOLLIE DALTON, JAYSON DALTON’S COUSIN: He kept a very meticulous diary. He noted down everything that happened and the order that it happened, and what people had said and if necessary, where they were standing when they said it.

VAL DALTON: Everything that went on, like people’s expressions, the way you might hold the baby and feed the baby, or play with Jessie, and all phone calls – he started to tape his phone calls.

LIZ JACKSON: Dionne came out of hospital after 10 days, and Jayson allowed her access to Jessie and Patrick for the last two weekends before the case was listed back in the Family Court. When he handed over the children at Southport police station, Jayson had a tape recorder hidden under his shirt so he had proof if allegations or threats were made. Val Dalton went with him.

VAL DALTON: He had his little tape recorder taped, and he was absolutely driven by whether Dionne had looked at him, whether, um, she… Like, handing the baby to her himself, did she look at him? And he would play that tape recorder over 20 times on the way back, and I believe he played it again 20 times in the afternoon.

LIZ JACKSON: Jayson started documenting mosquito bites that Jessie got on access visits as evidence that he was the better parent. Dionne wanted the children back, but Jayson was hoping the court would order a shared care arrangement for the children to spend four days with him, then three days with Dionne, backwards and forwards every week. His family tried to tell him that shared care wasn’t a realistic outcome.

MOLLIE DALTON: Because it was, um… He had no communication with Dionne. He had several DV orders against him with some additions to them, and he wasn’t allowed to approach her house, and he also didn’t really have a lot on his side of the case, because he’d been, as you know, accused of domestic violence, and there was truth in that. So he hoped against hope, I think.

LIZ JACKSON: Jayson was now missing sessions of his separated men’s group, which met at this church hall on a Thursday evening. Daryl Sturgess was the group’s facilitator. When Jayson did turn up, he kept himself to himself.

Did you feel he was guarded?

DARYL STURGESS, FACILITATOR, MENDS: Oh, yes, most certainly. Yes.

LIZ JACKSON: Only a few of the men who were in Jayson’s group could be filmed, as most have cases coming up in the Family Court.

MAN: I knew his court case was coming up. He had high hopes for a good outcome because he had looked after the children for so much. I tried to counsel him that he might only get what everyone else gets or worse.

LIZ JACKSON: Daryl Sturgess says he didn’t know that Jayson had applied for shared care of the children.

DARYL STURGESS: If that is what he did, it would fit my formula of wishful thinking.

LIZ JACKSON: The court case was brought forward to the Friday before the Anzac Day weekend. Jayson’s father had already booked to fly to Mount Isa for a veterans’ reunion. Jayson went to court with just his lawyers. Dionne had her family and friends.

DIONNE DALTON: I remember sitting in court, praying to God to just let me have the kids, let me have the kids. And I was… My solicitor had said, “Dionne, you’ll be fine. You just sit there and smile at the judge.”

LIZ JACKSON: The judge adjourned the court to read Jayson’s affidavit. Dionne’s doctor had said she was well enough now to care for the children, but Jayson had other concerns as well. The judge described them as follows. “She’s a poor mother. She doesn’t look after the kids. They’re filthy. They come back with dirty nappies. She doesn’t care for them.” Both sides, of course, made allegations about the other parent, many of which were disputed. It was hard for the judge to assess who was telling the truth, but he had this problem with Jayson’s case.

JULIE WHERRITT: He said, “But if you’re so concerned about what a terrible mother she is, why do you want her to have them three days a week?” He said, “That doesn’t follow.”

LIZ JACKSON: At midday on Friday, 23 April, the judge made an interim order that Jessie and Patrick would reside with Dionne and spend one weekend every fortnight with Jayson.

DIONNE DALTON: We were just all so excited about the fact that we were going to get the kids back that weekend. When I did get custody, Jayson stormed out of the court and I didn’t think much more about it.

LIZ JACKSON: You weren’t at all worried about the impact that might have on Jayson?

EVELYN DALTON: No, I didn’t think of that, actually.

LIZ JACKSON: Anyone talk to him afterwards?

OWEN PERSHOUSE, FOUNDER, MENDS: I spoke to him on Friday afternoon.

LIZ JACKSON: What did he say?

OWEN PERSHOUSE: I asked him how he was going, and he said, um…he said he was fine. He said that he’d lost the case – that’s the way he framed it. He made some mention that his character was brought into some disrepute in some way in the court. I’m not sure of the details of that, but I mean, that’s the nature of the court.

LIZ JACKSON: Jayson rang his father in Mount Isa. He was reportedly extremely emotional and angry, swearing and nearly incoherent. The judge didn’t understand, and Dionne was trying to destroy him. His father later told police, “He just went berserk.”

OWEN PERSHOUSE: Let’s be real. During separation, normal people become abnormal, and people that are a little big dodgy to start with can become quite dangerous.

LIZ JACKSON: Val and Mollie were at Kelvin Grove looking after the children when Jayson returned from the court case.

VAL DALTON, JAYSON DALTON’S COUSIN: He was sad and flat, but he was distraught about it, and then he picked up Patrick out of my sister’s arms and he said, “He’s my son,” he said. “He’s my son. I have the right to see him grow up. If they go to their mother, I won’t even see them on their birthdays and Christmas.” And he said, “But they’re my children.”

MOLLIE DALTON, JAYSON DALTON’S COUSIN: “Somebody else might be there who doesn’t even know them and that they’re not related to, and I’ll have no say in their lives and I’ll just be working.” So he was very unhappy about that aspect of it, and we tried to point out to him that it wouldn’t always be as bad as that, but really, I mean, we had to agree with him – it wasn’t looking good at all from his point of view. This was his last failure, I guess. Um…he’d lost the business, or at least it was going down the drain, he’d lost his wife, and then with the verdict in the Family Court, he’d lost custody of the children for most of the time.

LIZ JACKSON: Val and Mollie agreed that one of them would go with Jayson on Sunday afternoon when he was due to hand the children over to Dionne. And then they left him with Jessie and Patrick. That night, Friday night, he took this footage.

JAYSON DALTON (ON HOME VIDEO FOOTAGE): We all love each other, don’t we? We had a bad news today about the courts. Yes, you’re gonna miss Daddy, aren’t you?

LIZ JACKSON: The following day, Saturday, Jayson was alone with the children. These are the last photos he took on that day.

(JESSIE AND PATRICK SMILE AT CAMERA)

On Sunday morning, Anzac Day, Val and Mollie tried to ring Jayson. There was no reply. Dionne and Julie went to the dawn service.

DIONNE DALTON: We were just so elated about the fact that, you know, we were going to have the kids back, and then, um…anyhow, we were making preparations all day, vacuuming their bedroom and getting everything straightened out, and putting cots in, and change tables, and all sorts of things.

LIZ JACKSON: On Sunday afternoon, Jayson failed to show at 4:00pm at Southport police station – the time the judge had ordered for the handover to occur.

JULIE WHERRITT: It got to 4:05, and Dionne said, “Come on, we’re going into the police station.” I said, “No, no, don’t panic yet. Give him a chance, give him a chance.”

LIZ JACKSON: By 5:30 in Brisbane, it was getting dark. Val and Mollie went around to Kelvin Grove. They still hadn’t been able to raise a reply from Jayson, nor could his father, his friends, or the police. The lights were off, but Jayson’s car was in the drive. They rang and told Jayson’s father, who rang the police.

MOLLIE DALTON: And they went into the house, and they found them all there, all on the big bed in the main bedroom, and they were all deceased.

LIZ JACKSON: Dionne was still driving up from the Gold Coast. No-one wanted to break the news on a mobile phone.

DIONNE DALTON: I was praying to God all the way up that they would be OK, and anyhow, as soon as we got to Kelvin Grove Road and we came down the crest of Kelvin Grove Road, I saw the, um…all the lights and everything, and I just knew in the back of my mind that the kids were gone. Anyhow, we pulled up on the other side of the road, and I ran across Kelvin Grove Road to where the police were, and I just collapsed in a heap. And, um, I said to them… I said, “Are they alive?” And they said, “No, they’re both dead, and so is Jayson.” And…and it just broke me up how he, um… I just couldn’t believe that he’d actually done that to me, and taken the kids. He knew that the only thing I cared about were my children. My beautiful children who I’d had were just gone out of my life in that one single moment, that one simple, selfish act.

LIZ JACKSON: Jayson wrote a suicide email, which was sent at 8:30 that morning. He would have the last word. Subject – “Goodbye Dionne.” It reveals little more than here was a man who could not see, even in this last terrible act, that what he was doing was wrong. “I never wished we could have gone through this way. I was being fair the whole way through. I believe the children would have been truly affected, and you know Jessie adores me. I love you more than I can say, and had forgiven you up until Friday. Lots of love from us all, Jayson, Jessie and Patrick.”

MOLLIE DALTON: Well, we had the wake here after Jayson’s funeral and cremation ceremony, and I was amazed at the the number of men who were saying, you know, “This all goes back to fathers not having equal rights as far as custody of the children is concerned.” They’d say, um, “You know, the fathers should have justice.”

LIZ JACKSON: Cases like Jayson Dalton’s are used by aggrieved fathers groups to argue that the Family Court is biased. This is the agenda that greets the new Chief Justice of the Family Court, who began in the job just six weeks ago. She can’t comment on particular cases, but rejects the general argument.

DIANA BRYANT, CHIEF JUSTICE, FAMILY COURT: Everyone who hasn’t got what they achieve on the one side is going to be critical of that decision. And that ignores the fact that there was another side that was being put to the court. And you talk about people at the wake, and all the men said this. If you had an objective observer who asked all of the women in those cases what they thought – whether they thought the decision was fair or not – I’m sure that you would get a different response.

DIONNE DALTON: I don’t even blame Jayson. I mean, he was a very sick man, and if I start laying blame on people, it’s not going to achieve anything. It’s not going to bring the kids back.

Family’s emotional tribute to Darcey Freeman

Family’s emotional tribute to Darcey Freeman

Article from: The Courier-Mail

By Paul Anderson and Paul Kent

February 05, 2009 06:00am

YOU see her smile and it just makes it all the harder to comprehend.

Darcey Freeman, the little girl allegedly thrown to her death from Melbourne’s West Gate Bridge last Thursday, is revealed today exactly as you might picture her.

Long blonde hair, a little girl on the edge of life. A little girl for whom we now ache.

She was thrown to her death, allegedly by her father, in a death so shocking it has numbed the nation.

Her family has remained silent since the tragedy but yesterday they opened up to remember a spark of life, a darling little girl named Darcey.

Gallery: The accused and the horror scene

For the first time since her death, her family has spoken about their loss and total sense of incomprehension.

“We all feel an extreme sense of loss and emptiness,” her uncle Tim Barnes told The Courier-Mail.

“We are in deep mourning.”

On behalf of Darcey’s mother Peta and the rest of her family, a written statement was also released to The Courier-Mail.

“We will never understand the reasons why or how,” it said. “Sometimes things in life are just not fair.”

Her death occurred as she was being driven to her first day at school.

Darcey’s father is in custody charged with her murder.

The statement also contains a chilling warning to parents – and a hope that people will take more notice of the plight of children caught in family breakdowns.

“For the past two years the various authorities have been made aware of our fear for the safety of the children and unfortunately no one would listen,” the statement said yesterday.

Mostly, though, the family wanted Darcey remembered for what she was – determined and spirited, a little girl quick to dance.

“Whenever particular music came on, she’d be dancing and wouldn’t even know it,” another uncle, Joe Barnes, said.

“She’d be off in her own little zone.”

That was Darcey, dancing with her big brother Ben, her little brother Jack looking on, smiling.

As the family prepares for a private funeral, it is those fond memories of Darcey they will cling to.

“Even though she was only four, she was determined and strong-willed,” Tim said.

“She knew her own mind and was prepared to always stand up for what she believed in.

“One memory that stands out in my mind was her choice of clothes.

“She would wear what she wanted to wear, end of story – even if it meant wearing pink wellington boots to tennis.”

Joe had similar stories.

“She played Auskick for one season. Tried tennis. She’s given us a lot of fun. She was into everything,” he said.

“She will never be forgotten. She had an effect on everybody.”

The family yesterday described the outpouring of support from around the nation as overwhelming.

They said they hoped the incident would remind all parents that their children are precious and irreplaceable.

“We must now begin to look to the future,” Tim said.

“Our family will strive to provide the best possible care for Peta and Ben and Jack.”

The family, which has been joined by Darcey’s maternal relatives from Western Australia, has also given its support to a call for a Children’s Remembrance Day, similar to Mother’s Day and Father’s Day.

“Our family has discussed some of the issues that have been noted in the media, in particular the reference to the public’s desire to hold a memorial service in memory of Darcey,” the family statement said.

Joe said: “Our family has been overwhelmed by the public support shown to us from around the world. We wish to thank the public for their heartfelt sympathy and well wishes.

“We would also like to thank the Victoria Police and the staff at the Royal Children’s Hospital. Every single person involved has been simply wonderful.

“Words cannot express our appreciation for the wonderful care given to Darcey during her final hours.”

Words cannot express a lot of things.

Sometimes, you just have to move on – and remember the smile.

Save the future Darcey Freemans from judicial abuse

Active petitions in over 75 countries World Times
Stop Judicial Abuse
8 Signatures

Published by Anonymum on Oct 18, 2008
Category: Human Rights
Region: GLOBAL
Target: USA, Australia, UK, Canada and all other participating Family Courts that engage in judicial abuse
Background (Preamble):
Judicial Abuse

Introduction

Judicial abuse occurs when the effects of law itself are damaging to the person access to justice. In the most severe forms, Judicial abuse often occurs involving the most vulnerable members of our world: Children. For some time, judicial abuse has occurred across systems and mostly against mothers and children. Considering that it was not that long ago that both women and children were seen and not heard, just as things were improving it seemed as though humanity was finally valuing each and every prescious human life. Out in the public, such things would and do cause enough outrage for a sense of “natural justice”. Away from the public eye, these human rights atrocities occur almost unseen and unheard like a thief in the night.
Secrecy

There are laws that prevent survivors from speaking out about their experiences. Whilst it is “for the children”, children are not allowed to speak about the proceedings either. The media have written too few articles on the family court. To bring the case to the media, participants must seek permission from the court itself or face imprisonment. Controversially, fathers rights groups were allowed to heavily voice their stories of “no contact”, “falsely accused of child abuse and domestic violence” and few were allowed to challenge that except in utilizing generalist terms and evidence based research. We are aware that most of these stories are not the case at all but are withheld by law to bring the public the truth.
Family Court

In the process of seeking more time with children and promoting what appears to be the most noble cause, has entrenched the rights of mothers and children in their ability to seek safety from violence. Heads have been quoted in the media for stating that “family violence is our core business”. The propaganda that is spread about the voices of children and their access to justice promotes the profitability in manufacturing child abuse and domestic violence. They can do something about it, but it is not within their best economical advantage to do so. This will continue until something is done.

Petition:
We, the undersigned, call to the UN to eliminate judicial abuse globally.

The Stop Judicial Abuse petition to USA, Australia, UK, Canada and all other participating Family Courts that engage in judicial abuse was written by Anonymum and is hosted free of charge at GoPetition.

http://www.canberratimes.com.au/news/local/news/general/child-thrown-from-west-gate-bridge/1419343.aspx

Child ‘thrown’ from West Gate Bridge

29/01/2009 11:31:00 AM
A 36-year-old man has been arrested after a young girl was thrown from a 58-metre high section of the West Gate Bridge into the Yarra River.

Police are questioning the man, reportedly from Hawthorn, who was arrested in the Melbourne CBD.

The man, believed to be the father of the girl, was arrested outside the Commonwealth Law Courts building at the corner of La Trobe and William streets.

The Age believes he had gone with his two other children to the building.

A witness at the court told The Age that the man and his two children were in a “distressed state”.

The Age believes the family was part of a family law dispute in the Federal Magistrates Court earlier this week, and the man returned to the court unexpectedly this morning.

A caller to radio 3AW said he saw four or five police, including one with his gun drawn, surround a man on the ground outside the court building.

Paramedics this morning spent 45 minutes working to resuscitate the girl, aged about 5, who police believe was hurled from the bridge about 9am.

Witnesses have told police a man driving in the inbound lane of the Westgate Freeway pulled up near the top of the bridge and threw the child into the water below.

The girl was pulled from the water close to the western bank of the river on the northern side of the bridge about 9.15am.

Water police and air ambulance units were involved in her rescue.

Homicide squad detectives are travelling to the bridge to take over the investigation.

The inbound left-hand lane of the freeway has been closed for about 500m on the approach to the top of the bridge.

Print
Increase Text Size
Decrease Text Size

http://www.canberratimes.com.au/news/local/news/general/child-thrown-from-west-gate-bridge/1419343.aspx

Child ‘thrown’ from West Gate Bridge

29/01/2009 11:31:00 AM
A 36-year-old man has been arrested after a young girl was thrown from a 58-metre high section of the West Gate Bridge into the Yarra River.

Police are questioning the man, reportedly from Hawthorn, who was arrested in the Melbourne CBD.

The man, believed to be the father of the girl, was arrested outside the Commonwealth Law Courts building at the corner of La Trobe and William streets.

The Age believes he had gone with his two other children to the building.

A witness at the court told The Age that the man and his two children were in a “distressed state”.

The Age believes the family was part of a family law dispute in the Federal Magistrates Court earlier this week, and the man returned to the court unexpectedly this morning.

A caller to radio 3AW said he saw four or five police, including one with his gun drawn, surround a man on the ground outside the court building.

Paramedics this morning spent 45 minutes working to resuscitate the girl, aged about 5, who police believe was hurled from the bridge about 9am.

Witnesses have told police a man driving in the inbound lane of the Westgate Freeway pulled up near the top of the bridge and threw the child into the water below.

The girl was pulled from the water close to the western bank of the river on the northern side of the bridge about 9.15am.

Water police and air ambulance units were involved in her rescue.

Homicide squad detectives are travelling to the bridge to take over the investigation.

The inbound left-hand lane of the freeway has been closed for about 500m on the approach to the top of the bridge.

Print
Increase Text Size
Decrease Text Size

What was the Family Court thinking?: Another Case where the right of the father takes precedent over the rights of the child.

Another Outrageous judgement by the Family Court where they ignored the warning signs, the consequences are fatal.

60% males killed in retalitory killings which were more likely to result in multiple homicides where a parent was also murdered mostly by a non-custodial parent.
(2)

Most child-killers in NSW were men, with 100 responsible or jointly responsible for 106 deaths, of the 37 infants killed, 21 were killed by men
.(1)

Murder-suicide was act of revenge, court hears

By Larissa CummingsJanuary 13, 2009 12:00am
Article from the
Daily Telegraph

A SYDNEY father murdered his teenage daughter before killing himself as an act of revenge to punish his wife for divorcing him, a court has heard.

In an inquest into the tragic murder/suicide, Deputy State Coroner Malcolm MacPherson yesterday found the 53-year-old man, who cannot be identified, strangled or suffocated his 13-year-old daughter in the family’s Pennant Hills home before hanging himself.
The court heard divorce proceedings instigated by the man’s wife were due to be finalised in the Family Court just five days after his “vindictive” act of revenge in January last year.Although the couple, from Iran, lived under the same roof with their two sons, aged 26 and 24, and daughter, they had not spoken to each other for several years.

The court heard the daughter was the only member of the household to communicate with her father and she served as a go-between for her parents.Officer-in-charge of the investigation Detective Senior Constable Martin Wilson told the inquest the man’s wife considered her husband “an abusive and selfish man” who gambled and drank away his wages.The court heard the girl’s body was discovered by her mother and eldest brother when they arrived home on January 3, 2008. She was lying on the loungeroom floor and appeared to have suffered facial injuries.Police found blood in the kitchen sink and a blood-soaked piece of paper towel, plastic wrap and a plastic clip-lock bag in the bin.In the father’s bedroom, bloodstains were found at the foot of his bed and a letter to his wife was on a computer.

It read: “If you look, you may not believe, but that doesn’t change anything . . . I asked you to be my wife after seven years of not being, or choose divorce. You choose (sic) divorce, which means Death Is Very Often Reflecting Catastrophic Events.”The man also left a letter for his younger son, detailing sums of money in his bank accounts and leaving him his car. The man’s body was found hanging from a rope tied to a roof beam in the laundry.Sen-Constable Wilson said he believed the father assaulted the girl before strangling her or suffocating her with the plastic bag.”(The man), for reasons known only to himself, has decided to punish his wife and sons,” he said.”In order to achieve this, he has killed his daughter . . . leaving her body at the foot of his bed (which may be symbolic to him) where she would be found by her mother and brother.”

In what appears to be one final vindictive act, he has written letters . . . to make the recipients believe they were either responsible or could have done something to prevent the deaths.”

Stop the Killings and Write to:
enquiries@familylawcourts.gov.au
complaints@ag.gov.au
flc@ag.gov.au
Suggested letter:
Dear Sir/Madem,
I am writing with concern about the continued negligence practiced toward women and children in the family court that prioritises fathers rights above safety and well being. Recent statistics on child homicide and the death of this thirteen year old girl who is among many victims of a court system that clearly ignores and undermines the value of childrens lives with very little accountability.
In many cases there are warning signs that your courts fail to ignore and trivialise at the detriment of children. I am aware that the 121 secrecy law also prevents child victims from speaking out against these atrocities and may endure continued and relentless exposure to abuse due to the over concern for false allegations that have been published in many articles in very low percentages as 2%. Many international studies reflect this, yet every parent and child who raises it are often ignored and systematically abused. It is an outrage that such barbaric practices continue under the lie of, “best interest of the child”.
Sincerely,
(Your Name)

Most child homicides result from abuse: study

Most child homicides result from abuse: study

Posted 6 hours 31 minutes ago

About 40 per cent of child homicides are the result of physical abuse by a male relative.

About 40 per cent of child homicides are the result of physical abuse by a male relative. (ABC News)

A new report on the instance of child homicide in Australia has found that in most cases it is the result of the physical abuse of children.

A team of psychiatrists from St Vincent’s Hospital in Sydney examined the circumstances surrounding 165 child homicides over a 15-year period to 2005.

Doctor Olav Neilsson says they found that in almost 40 per cent of cases, the homicides were the result of children being physically abused by either a father of stepfather.

“A range from the fatal assault of an infant who wouldn’t stop crying through to ongoing physical violence that finally resulted in a fatal injury,” he said.

Dr Neilson says a large group of offenders were mentally ill and having their first ever episode of psychosis.

He says authorities should intervene in these cases and possibly use the Mental Health Act to force the parent into treatment and remove the child from their care.

“We found that 75 per cent had seen some kind of mental health worker in the previous two weeks, and really it was the failure to intervene that in many cases seemed to result in these tragic events,” he said.

The Facts about Richard Hillmans Case

The Richard Hillman Foundation was created by a man who claims he was falsely accused of Sexual abuse and denied access to his daughter.  The case in its neutral form states many contradictions to his claims and whilst he was not charged, there were some findings of sexual abuse, just not enough to have him put away.  The case below was against the practitioner who helped the child find justice.  He was trying to litigate on the ground that he suffered psychological harm because of the findings against him.  The Richard Hillman Foundation has been funding the mens groups in Australia and much is to be looked into the hypocrisy behind the agenda.   Hopefully this will pose a question to policy makers and key stakeholders.  How much power is given to potential and real perpetrators seeking to obstruct the path of child and adult victims seeking justice?

AustLII[Home] [Databases] [WorldLII] [Search] [Feedback]

Supreme Court of South Australia Decisions

You are here:  AustLII >> Databases >> Supreme Court of South Australia Decisions >> 1996 >> [1996] SASC 5941

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Download] [Help]

RICHARD IAN HILLMAN v TANIA LEONIE BLACK AND OTHERS No. SCGRG 90/1492 Judgment No. 5941 Number of pages - 36 Negligence (1996) 67 SASR 490 [1996] SASC 5941 (17 December 1996)

                 COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA MATHESON, PRIOR and PERRY JJ  CWDS   Negligence - action brought by father of three year old child accused of sexually abusing her - child examined at request of Department of Community Welfare by a medical practitioner at Sexual Assault Referral Centre and later interviewed by a child psychiatrist - allegation that the medical practitioners were in breach of a duty of care owed to the plaintiff - claim that the Department of Community Welfare also acted in breach of duty of care to the plaintiff in failing to ensure that proper assessments of the child were carried out - allegation that the plaintiff suffered a psychiatric illness resulting in part from his separation from his wife and children and that the separation was causally related to the assessments made by the medical practitioners - consideration of Community Welfare Act - failure of the plaintiff to establish that any of the defendants owed him a duty of care - necessary relationship of proximity not proved - witness immunity - appeal dismissed. Community Welfare Act 1972 , referred to. X (Minors) v Bedfordshire CC and Others (1995) 2 AC 633; Stovin v Wise, (Norfolk County Council Third Party) [1996] UKHL 15;  (1996) 3 WLR 388; Jaensch v Coffey [1984] HCA 52;  (1984) 155 CLR 549; Bryan v Maloney (1995) 182 CLR 609; (1989) 12 Adelaide Law Review 93 ; Cabassi v Vila [1940] HCA 41;  (1940) 64 CLR 130, applied.  International law - relevance of treaties adopted by Australia - observations as to the relevance of international instruments entered into by Australia which emphasise the recognition of the family as the natural and fundamental group unit of society and the need to preserve the rights of children. Human Rights and Equal Opportunity Commission Act 1986 Cwth) , referred to. Walsh and Anor v Department of Social Security Perry J, 5 September 1996, judgment No 5795  [1996] SASC 5795; (1996) 67 SASR 143; International Convention on Civil and Political Rights Article 23; The Convention on the Rights of the Child Article 3(2); Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20;  (1995) 128 ALR 353; Jumbinna Coal Mine NL v Victoria Coal Miners Association [1908] HCA 87;  (1908) 6 CLR 309; Polites v The Commonwealth and Anor [1945] HCA 3;  (1945) 70 CLR 60; Ahmad v Inner London Education Authority [1978] 1 QB 36, considered.  HRNG ADELAIDE, 2-3 September 1996 #DATE 17:12:1996 #ADD 3:3:1997  Counsel for appellant:       Mr C J Kourakis with him Mr M S Blumberg  Solicitors for appellant:     Hamilton Lindsay & Hemsley  Counsel for respondents:      Mr M L Abbott Qc with him Ms A Simpson  Solicitors for respondents:   Fisher Jeffries  Counsel for respondent State of SA:       Mr Mr A P Moss  Solicitors for respondent State of SA:    Crown Solicitor  ORDER   Appeal dismissed.  JUDGE1 MATHESON J  1. The appellant is the father of a child called Rebecca  who was born on 29 May 1984. Allegations were made that he had sexually abused her. He claimed damages from the respondents for the psychiatric illnesses he alleged he suffered as a result of the allegations, and as a result of his subsequent separation from his family. His claims were dismissed. He now appeals from the dismissal. The first respondent is Dr Tania Black, a medical practitioner employed by The Queen Elizabeth Hospital, the third respondent, who examined the child at the Sexual Assault Referral Centre ("SARC") of that hospital at the request of the Department of Community Welfare ("the Department"). The second respondent is Dr John Govan, a psychiatrist employed by the Adelaide ChildrenÕs Hospital, the fourth respondent, who assessed the child for the purposes of custody and access claims in the Family Court of Australia. The appellant claims that the first two respondents and the Department owed a duty of care to him, and that the duty was breached when the first two respondents failed to investigate the allegations properly. The appellant claims that the third respondent is vicariously liable for the breach of duty of Dr Black, and that the fourth respondent is vicariously liable for the breach of duty of Dr Govan. He claims that the Department was in breach in not itself realising the deficiencies in the investigations and in not remedying them. The fifth respondent is the State of South Australia, and is sued as the employer of the officers of the Department who were involved in investigating the allegations.  2. I have reached the clear view that the appellant did not establish that any of the respondents owed him a duty of care, and in the circumstances I propose only to summarise the background facts.  3. The appellant was married on 26 February 1982. His wife did not give evidence in these proceedings. A second child called Darren was born on 24 January 1987. Mrs Hillman became depressed after his birth, and the appellant was actively involved in the day to day care of both children, including feeding, bathing and changing nappies. He had taken Rebecca to a doctor on several occasions when she had been examined for an ear infection, tonsillitis and severe stomach pains. She became unsettled after her brotherÕs birth. There was nocturnal bed-wetting, and she climbed into her parentsÕ bed more often than before her brotherÕs birth. On one occasion she had woken up in the night with wet pants, and the appellant told her to get into bed with him and his wife. He did not put any pants on her because he said he could not find any. The next morning his wife asked him whether he had been fiddling with Rebecca which he denied.  4. Mrs HillmanÕs depression got worse, and she was admitted to Glenside Hospital as an in-patient from 18 April to 29 April 1987. On her admission she told a doctor that she had thoughts of knifing her daughter and of cutting her own wrists. She gave a history that for eight years she had had a delusion of having throat cancer and thought she was dying. The appellant told a Glenside Hospital doctor that his wife had accused him of abusing Rebecca, but Mrs Hillman described him as being good with the children. Mrs Hillman said that she had also been upset about the murder/suicide of close friends. During her hospitalisation, the appellant had the care of both children.  5. Mrs Hillman remained depressed when she returned home, and the appellant continued to do much of the household work and child caring. Mrs Hillman continued to see a health worker at Glenside Outreach for her depression. She developed a concern about her heart. The appellant said that his wife used a stethoscope at home to check her heart. On 21 June 1987 she told the health worker at Glenside Hospital - Community Outreach that she suspected the appellant had sexually abused Rebecca. She was given the phone number of the Department of Community Welfare and told to contact the SARC. On 22 June 1987 she was interviewed by Bernadette Dawes who was then employed as a social worker with the Department at Noarlunga. Ms Dawes also interviewed Rebecca on her own. It was what she described as "really just a chatty discussion type interview". She allocated the matter to Mrs Margaret Neumann, a community welfare officer.  6. On 26 June, Mrs Hillman accused the appellant of playing "patient/doctors" games with Rebecca, using a stethoscope and a wooden spoon, and of sexual abuse to her. The appellant denied any abuse. That night Mrs Hillman phoned Crisis Care and spoke to Lucia Snarskis (now Valciukis) who was on duty. Crisis Care is an after hours service of the Department. It was basically a crisis counselling service by telephone. Mrs Hillman was again referred to the SARC, and this time an appointment was made for the following morning, which was a Saturday. Another Crisis Care worker,  Dianna Dibden, drove Mrs Hillman and Rebecca to the SARC at the Queen Elizabeth Hospital. Before the medical examination by Dr Black, Rebecca told Ms Dibden that her father had put a wooden spoon in her bottom, and when asked if it hurt she said that it did sometimes. After the examination, Dr Black and Ms Dibden spoke to Mrs Hillman in the absence of Rebecca. Dr Black said there was no clinical evidence of abuse, but based on what the child had told her and whatever other investigative tool she had, she thought it was more likely than not that there had been some form of molestation. Subsequently, Ms Dibden spoke on the telephone to Detective Mead at the Darlington Police Station and advised him what had occurred. Dr Black also spoke to Detective Mead. The examination by Dr Black at the SARC took almost three hours. Eventually Dr Black prepared a report which was dated 31 July 1987. It contained the following summary:     "In summary Rebecca has given an explicit account of her father's     behaviour, which appear to be inappropriate namely, herself -     rubbing cream on his penis - and him putting a 'stick' into her     genital and anal region.      Rebecca was observed to have unusual knowledge and preoccupation     about sexual parts, in particular her vaginal entrance 'hole'. She     was reluctant to discuss the 'special games' and initially showed     extraordinary fear of being physically examined. She did not speak     during the interview in a way to suggest she had been coached into     making allegations.      A localized area of superficial abrasion and redness was observed     inside the labia, one of the areas where the child indicated she     had been penetrated by the 'stick' ...      It was felt that the child's behaviour, allegations and findings     were consistent with her having experienced some sexual     interference in the pretext of a game, and some influence to not     talk about it. More information needs to be obtained and in view of     the history of nightmares and the demonstration of inordinant fears     and anger, it was felt that play therapy would be appropriate for     this child. It is my experience that during such therapy other     details of abuse are often expressed ..."  7. Dr Black forwarded the report to Ms Neumann on 10 August. The accompanying letter included the following:     "These details are provided in good faith in accordance with the     statutory obligations set out in s91 of the Community Welfare Act     and the report is provided solely for the use of those members of     the Department of Community Welfare and Child Protection Panel     involved in the welfare of the child."  8. After Dr BlackÕs examination, Mrs Hillman took Rebecca to her sisterÕs house and remained there until she moved to her motherÕs house. At no stage did she resume cohabitation with the appellant. On the same day, the appellant was interviewed by Detective Mead. He denied the allegations. No charges have ever been laid in respect of them.  9. On 10 July, Mrs Hillman made an application for sole custody of the two children in the Family Court of Australia. The appellant filed a cross application on 15 July. A Judge of the Court invited the Department to intervene in the proceedings. After being advised by the Crown Solicitor that there was no need to intervene, the Department decided not to play an active role in the proceedings. A separate legal representative to act in the interests of the children was appointed on 13 August 1987. However, the Department decided to arrange for Rebecca to be seen by a child psychiatrist, Dr John Govan, the second respondent, for the purpose of advising on supervised access. His name had been suggested by Dr Black. He first saw Rebecca on 1 September 1987 and in a report provided to Mrs HillmanÕs solicitors on 14 January 1988, he stated inter alia "it is probable that some kind of sexual impropriety took place". He apparently told Ms Neumann on 3 September 1987 that he considered it an open and shut case that abuse had occurred. The appellant declined to be interviewed by Dr Govan.  10. Having regard to the view I have formed about this appeal, I only propose to refer briefly to some of the criticisms that the appellantÕs counsel has made of the investigations of sexual abuse. They included the lack of any investigation of any alternative, innocent explanation, of the extent to which Mrs Hillman had spoken to the child and what she had said, of the extent to which the child was able to provide any peripheral detail, of the role of Mrs HillmanÕs psychiatric illness, and of course counsel stressed that a child of three must always be suspect as an historian. Most of those criticisms related to Dr BlackÕs involvement in particular, but Dr Govan was criticised, inter alia, for relying too much on Dr Black and on Mrs Hillman, and for obtaining no information initially  from Rebecca himself.  11. The respondents derive a great deal of support from a decision of the House of Lords entitled X (Minors) v Bedfordshire CC and Others (1995) 2 AC 633. It actually involved a number of appeals in child abuse cases, but included one which was referred to as "the Newham case", the facts in which bore a striking similarity to the case at bar. The decision of the House of Lords was reported after the decision under appeal in this case. The facts were that a girl born in 1983 and her mother claimed damages against three defendants, the local authority with responsibility for child care services in the area, the local health authority and a consultant child psychiatrist employed by the health authority, for breach of statutory duty and negligence. By their statement of claim, they alleged that in 1987, on the initiative of the local authority, the psychiatrist interviewed the girl in the presence of a social worker employed by the local authority to ascertain whether, and if so by whom, she had been sexually abused; that, having diagnosed the abuse, the psychiatrist and the social worker mistakenly identified the abuser as the motherÕs cohabitee and concluded that the mother could not protect the girl from further abuse; and that in reliance on that assessment the local authority obtained court orders removing her from her mother, placing her in foster care and restricting the motherÕs access to her. The girl and her mother alleged failure to investigate the circumstances with proper care or to discuss them with the mother, and that the local authority had acted in breach of its statutory duty in failing to promote the girlÕs welfare. Both claimed damages for an anxiety neurosis suffered as a result of their separation. A master granted the defendantsÕ application to strike out the claims as disclosing no cause of action  12. On the plaintiffsÕ appeal, a judge affirmed the masterÕs order and dismissed the action. The Court of Appeal were unanimous in upholding the striking out of the claims based on breach of statutory duty simpliciter, but were divided on the issue whether the local authorities and the psychiatrist and the health authority were under any duty of care, whether direct or vicarious. Staughton and Peter Gibson L JJ held that there was no common law duty owed either to the child or to the mother. Sir Thomas Bingham MR, whilst agreeing that the motherÕs claim could not succeed, thought that there could be a duty of care to the child.  13. I propose to quote extensively from the leading speech of Lord Browne-Wilkinson in the subsequent appeal to the House of Lords, which was dismissed, notwithstanding that the appellants there could actually demonstrate that a mistake was made. At p739, before focusing on the relevant legislation, Lord Browne-Wilkinson said at p739:     "... 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 my judgment a     common law duty of care cannot be imposed on a statutory duty if     the observance of such common law duty of care would be     inconsistent with, or have a tendency to discourage, the due     performance by the local authority of its statutory duties."      (See also Stovin v Wise, (Norfolk County Council Third Party) 1996     (3) WLR 388 at p414.)  14. His Lordship referred to the relevant statutory provisions in force at the time, namely the Children and Young PersonÕs Act, 1969 and the Child Care Act, 1980, and. at p747 he observed that:     "... the Acts in question are all concerned to establish an     administrative system designed to promote the social welfare of the     community. The welfare sector involved is one of peculiar     sensitivity, involving very difficult decisions how to strike the     balance between protecting the child from immediate feared harm and     disrupting the relationship between the child and its parents.     Decisions often have to be taken on the basis of inadequate and     disputed facts. In my judgment in such a context it would require     exceptionally clear statutory language to show a parliamentary     intention that those responsible for carrying out these difficult     functions should be liable in damages if, on subsequent     investigation with the benefit of hindsight, it was shown that they     had reached an erroneous conclusion and therefore failed to     discharge their statutory duties.      It is true that the legislation was introduced primarily for the     protection of a limited class, namely children at risk, and that     until April 1991 the legislation itself contained only limited     machinery for enforcing the statutory duties imposed. But in my view     those are the only pointers in favour of imputing to Parliament an     intention to create a private law cause of action. When one turns to     the actual words used in the primary legislation to create the     statutory duties relied upon in my judgment they are inconsistent     with any intention to create a private law cause of action"  15. After upholding the dismissal of the claims for damages for breach of statutory duty simpliciter, his Lordship went on to consider what he called the "Direct common law duty of care owed by the local authorities". The case was based solely on the vicarious liability of the council and the health authority for the alleged negligence of their servants.  16. In discussing the various policy considerations, His Lordship said at p749 that "a common law duty of care would cut across the whole statutory system set up for the protection of children at risk". At p.750, he said in a very important passage, which is very relevant to the instant appeal:     "... 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 childÕs family environment ... if a liability and damages were     to be imposed, it might well be that local authorities would adopt a     more cautious and defensive approach to their duties ... If the     authority is to be made liable in damages for a negligent decision     ... there would be a substantial temptation to postpone making such     a decision until further inquiries had 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 childÕs 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."  17. At p751 his Lordship continued:     "We were not referred to any category of case in which a duty of     care has been held to exist which is in any way analogous to the     present cases. Here, for the first time, the plaintiffs are seeking     to erect a common law duty of care in relation to the administration     of a statutory social welfare scheme. Such a scheme is designed to     protect weaker members of society (children) from harm done to them     by others. The scheme involves the administrators in exercising     discretions and powers which could not exist in the private sector     and which in many cases bring them into conflict with those who,     under the general law, are responsible for the childÕs welfare. To     my mind, the nearest analogies are the cases where a common law duty     of care has been sought to be imposed upon the police (in seeking to     protect vulnerable members of society from wrongs done to them by     others) or statutory regulators of financial dealings who are     seeking to protect investors from dishonesty. In neither of those     cases has it been thought appropriate to superimpose on the     statutory regime a common law duty of care giving rise to a claim in     damages for failure to protect the weak against the wrongdoer:  see     Hill v. Chief Constable of West Yorkshire [1987] UKHL 12;  [1989] A.C. 53 and Yuen     Kun Yeu v. Attorney-General of Hong Kong [1988] A.C. 175. In the     latter case, the Privy Council whilst not deciding the point said,     at p.198, that there was much force in the argument that if the     regulators had been held liable in that case the principles leading     to such liability Ôwould surely be equally applicable to a wide     range of regulatory agencies, not only in the financial field, but     also, for example, to the factory inspectorate and social workers,     to name only a few.Õ  In my judgment, the courts should proceed with     great care before holding liable in negligence those who have been     charged by Parliament with the task of protecting society from the     wrongdoings of others."  18. His Lordship then turned to consider the claim based on vicarious liability. At pp752-753 he said:     "The social workers and the psychiatrists were retained by the local     authority to advise the local authority, not the plaintiffs. The     subject matter of the advice and activities of the professionals is     the child. Moreover the tendering of any advice will in many cases     involve interviewing and, in the case of doctors, examining the     child. But the fact that the carrying out of the retainer involves     contact with and relationship with the child cannot alter the extent     of the duty owed by the professionals under the retainer from the     local authority. The Court of Appeal drew a correct analogy with the     doctor instructed by an insurance company to examine an applicant     for life insurance. The doctor does not, by examining the applicant,     come under any general duty of medical care to the applicant. He is     under a duty not to damage the applicant in the course of the     examination:  but beyond that his duties are owed to the insurance     company and not to the applicant. ...      In my judgment ... the social worker[s] and the psychiatrist did     not, by accepting the instructions of the local authority, assume     any general professional duty of care to the plaintiff children. The     professionals were employed or retained to advise the local     authority in relation to the well being of the plaintiffs but not to     advise or treat the plaintiffs."  19. His Lordship held that the psychiatrist and the social workers were under no separate duty of care to the plaintiffs for breach of which the local authorities could be vicariously liable. He then went on to consider what has been called "witness immunity", and I will consider that later in my reasons.  20. The speech of Lord Browne-Wilkinson, concurred in by three of the other Lords of Appeal, prompts me to assert that if the House of Lords were faced with deciding this appeal, it would inevitably be dismissed. However, Mr Kourakis, counsel for the appellant, has stressed that there has been a difference in approach, particularly in regard to the requirement of a relationship of proximity, in the House of Lords and in the High Court of Australia, a difference which is highlighted, if it does not find its origins, in the judgment of Deane J in Jaensch v Coffey [1984] HCA 52;  (1984) 155 CLR 549. At pp584-585 Deane J said:     "Lord Atkin did not seek to identify the precise content of the     requirement of the relationship of ÔproximityÕ which he identified     as a limitation upon the test of reasonable foreseeability. It was     left as a broad and flexible touchstone of the circumstances in     which the common law would admit the existence of a relevant duty of     care to avoid reasonably foreseeable injury to another. It is     directed to the relationship between the parties in so far as it is     relevant to the allegedly negligent act of one person and the     resulting injury sustained by the other. It involves the notion of     nearness or closeness and embraces physical proximity (in the sense     of space an[d] time) between the person or property of the plaintiff     and the person or property of the defendant, circumstantial     proximity such as an overriding relationship of employer and     employee or of a professional man and his client and causal     proximity in the sense of the closeness or directness of the     relationship between the particular act or cause of action and the     injury sustained: cf. the Ôsignposts or guidelines or relevant     considerationsÕ referred to by Cooke J. in Rutherford v. Attorney-     General [1976] 1 N.Z.L.R. 403, at p.411. The identity and relative     importance of the considerations relevant to an issue of proximity     will obviously vary in different classes of case and the question     whether the relationship is ÔsoÕ close ÔthatÕ the common law should     recognize a duty of care in a new area of class or case is, as Lord     Atkin foresaw, likely to be ÔdifficultÕ of resolution in that it may     involve value judgments on matters of policy and degree.      This does not mean that there is scope for decision in a particular     case by reference to what Jacobs J. called (H. C. Sleigh Ltd. V.     South Australia  [1977] HCA 2; (1977) 136 C.L.R. 475, at p.514 Ôindividual     predilections ungoverned by authorityÕ or that it is a proper or     sensible approach to the requirement of proximity for it to be     treated as a question of fact to be resolved merely by reference to     the particular relationship between a plaintiff and defendant in the     circumstances of a particular case. The requirement of a     Ôrelationship of proximityÕ is a touchstone and a control of the     categories of case in which the common law will admit the existence     of a duty of care and, given the general circumstances of a case in     a new or developing area of the law of negligence, the question     whether the relationship between plaintiff and defendant with     reference to the allegedly negligent act possessed the requisite     degree of proximity is a question of law to be resolved by the     processes of legal reasoning by induction and deduction. The     identification of the content of the criteria or rules which reflect     that requirement in developing areas of the law should not, however,     be either ostensibly or actually divorced from the considerations of     public policy which underlie and enlighten it."  21. In Bryan v Maloney [1995] HCA 17;  (1995) 182 CLR 609, in a joint judgment, Mason CJ, Deane and Gaudron JJ said pp617-619:     "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 as Ôattracting a     duty of care, the scope of which is settledÕ. 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 Ônotion of     proximity ... is of vital importance ...      As was pointed out in the recent majority judgment in Burnie Port     Authority v. General Jones Pty. Ltd. [1994] HCA 13;  (1994) 179 C.L.R. 520, the     overriding requirement of a relationship of proximity represents the     conceptual determinant and the unifying theme of the categories of     case in which the common law of negligence recognizes the existence     of a duty to take reasonable care to avoid a reasonably foreseeable     risk of injury to another. There is no decision of the Court which     directly determines the question whether the relationship between     Mr. Bryan, as the builder of the house, and Mrs. Maloney, as a     subsequent owner of it, possessed the requisite degree of proximity     to give rise to a duty, on the part of Mr. Bryan, to take reasonable     care to avoid the kind of economic loss sustained by Mrs. Maloney.     Necessarily, as has been indicated, the resolution of that question     requires the articulation of both the factual components of the     relevant category of relationship and the identification of any     applicable policy considerations. Ultimately, however, it is a     question of law which must be resolved by the ordinary processes of     legal reasoning in the context of the existence or absence of the     requisite element of proximity in comparable relationships or with     respect to comparable acts and/or damage. Accordingly, it is     appropriate to approach the question through a consideration of some     related situations."  22. Cases such as these indicate that in the High Court of Australia policy considerations are to be taken into account in considering whether a relationship of proximity has been established, whereas in England they appear to be separate elements. (See the illuminating article by Mr J F Keeler in (1989) 12 Adelaide Law Review 93.)  23. Like the trial Judge, I find it convenient to consider the appellantÕs case against the Department/State of South Australia first, and that necessarily involves referring to the relevant "statutory framework" in the Community Welfare Act, 1972 ("the Act"). The preamble of the Act reads:     "An Act to promote various aspects of community welfare in this     State; to repeal the Social Welfare Act, 1926-1971; the Aboriginal     Affairs Act, 1962-1968; and the ChildrenÕs Protection Act, 1936-     1969; and for other purposes."  24. "Child" is defined to mean "a person who has not attained the age of 18 years";  "Department" is defined to mean "the Department for Community Welfare"; "Minister" is defined to mean "the Minister of Community Welfare". (See s6.)  25. Section 10, so far as relevant, reads:     "10(1) The objectives of the Minister and the Department under this     Act are -     (a) to promote the welfare of the community generally and of     individuals, families and groups within the community;     and     (b) to promote the dignity of the individual and the welfare of the     family as the bases of the welfare of the community,     in the following manner:     (c) - (d) ...     (e) by providing, assisting in the provision of or promoting     services designed to assist migrants, members of ethnic communities,     aboriginals, children, youth, aged persons, unemployed persons,     women, mentally or physically handicapped persons, single parents,     persons who live in isolated areas or any other section of the     community to overcome the disadvantages suffered by them, and to     participate to the greatest possible extent in the life of the     community;     (f) - (q) ...     (r) by doing such other things as may be necessary or desirable for     the purposes of achieving those objectives.      (2) - (4) ...      (5) The Minister, for the purpose of giving effect to the provisions     and objects of this Act, may -     (a) employ the resources of the Department in such manner as he     thinks fit;     (b) - (c) ...     (d) perform any other action that may be necessary or expedient for     that purpose."  26. Part IV of the Act is headed "Support Services for Children", and Division I thereof is headed - "Principles to be observed", and includes s25 which states:     "25. A person dealing with a child under or by virtue of any of the     provisions of this Part -     (a) shall regard the interests of the child as the paramount     consideration;     (b) shall seek to secure for the child care, guidance and support     within a healthy and balanced family environment;     (c) shall deal with the child in a caring and sensitive manner;     (d) shall have regard to the rights of the child, and to the needs     and wishes expressed by him;     and     (e) shall promote, where practicable, a satisfactory relationship     between the child and other members of, or persons within, his     family or domestic environment."  27. Division II of Part IV is headed "The Care and Protection of Children", and contains provisions for placing a child under the guardianship of the Minister, for the establishment of facilities for young offenders and children in need of care, foster care agencies, licensed ChildrenÕs Homes and the like.  28. Division III of Part IV is headed "The Protection of Children. Sections 86 - 90 inclusive provide for the establishment and functions of regional and local child protection panels. The Southern Metropolitan Regional Child Protection Panel seems to have been involved here. Division III also includes the following relevant sections:     "91.(1) Where a person suspects on reasonable grounds that an     offence under this Division has been committed against a child, that     person -     (a) if he is not obliged to comply with this section - may notify an     officer of the Department of his suspicion;     or     (b) if he is obliged to comply with this section - shall notify an     officer of the Department of his suspicion,     as soon as practicable after he forms the suspicion.      (2) The following persons are obliged to comply with this section -     (a) any legally qualified medical practitioner;     (b) any registered dentist;     (c) any registered or enrolled nurse;     (d) any registered psychologist;     (e) any pharmaceutical chemist;     (f) any registered teacher;     (g) any person employed in a school as a teacher aide;     (h) any person employed in a kindergarten;     (i) any member of the police force;     (j) any employee of an agency that provides health or welfare     services to children;     (k) any social worker employed in a hospital, health centre or     medical practice;     or     (l) any person of a class declared by regulation to be a class of     persons to which this section applies.      (3) - (4) ...      (5) Where a person acts in good faith and in compliance with the     provisions of this section, he incurs no civil liability in respect     of that action.     ...      92.(1) Any person having the care, custody, control or charge of a     child, who maltreats or neglects the child, or causes the child to     be maltreated or neglected, in a manner likely to subject the child     to physical or mental injury, shall be guilty of an offence and     liable to a penalty not exceeding one thousand dollars or     imprisonment for a period not exceeding twelve months.      (2) - (3) ..."   Finally, I refer to s235a which states::     "235a.(1) A person shall not incur any civil liability for any act     or omission done by him in good faith in the exercise or discharge     of his powers, functions, duties or responsibilities under this Act.      (2) A liability that would, but for subsection (1), lie against a     person shall lie against the Crown."  29. After referring to the Act, the learned trial Judge said in the following passage with which, with respect, I agree:     "I have no difficulty in accepting the proposition that carelessness     on the part of officers of the department in investigating a     complaint of sexual abuse may well cause damage to the person     accused. There are obvious dangers in accepting and acting upon such     allegations without a proper investigation. As a matter of fairness     it is essential that those conducting enquiries into allegations of     child sexual abuse do so objectively and with an awareness of the     injustice which can result from giving weight to false or tenuous     allegations. However, as the authorities to which I have referred     make clear, this consideration of itself does not give rise to an     action in negligence. It is necessary to look further at the     relationship between the plaintiff and this defendant in the context     of the facts and circumstances which it is claimed give rise to a     general duty."  30. And like the trial Judge, I consider the authorities, including recent High Court dicta, compel the conclusion that the necessary relationship of proximity was not proved. In so saying,  I do not overlook those provisions of the Act which stress the importance of not disrupting the relationship between a child and its parents, but I have found that similar policy considerations to those articulated in the Newham case are very persuasive here also.. It has not been suggested that any officer of the Department acted without good faith. As Lord Hoffman observed in Stovin v Wise, supra at pp408-409, a public body:     "may have discretionary powers which enable it to do things to     achieve a statutory purpose notwithstanding that they involve a     foreseeable risk of damage to others. In such a case, a bona fide     exercise of the discretion will not attract liability ..."  31. Mr Kourakis, counsel for the appellant, submitted, but did not develop the submission, that the presence in the Act of ss91 and 235 somehow served to establish a relationship of proximity between officers of the Department and the appellant, but I am unable to understand that submission.  32. I also agree with the learned trial Judge that the appellantÕs claim against the first two respondents fails. They were not retained to advise the appellant, and did not assume a duty of care to him. It was for Rebecca alone that they were invited to exercise their professional skill and judgment. The appellant was not their patient.  33. It is necessary now to refer to further arguments that were based on s91(5) of the Act. The learned trial Judge said:     "Mr Abbott QC for Drs Black and Govan advanced a further argument     that these two defendants were entitled to the immunity provided by     s91(5) of the Act, the wording of which I have set out above. The     immunity applies where a person, acting in good faith, notifies an     officer of the department of his or her reasonable suspicion that an     offence under that Division of the Act has been committed. I have no     doubt that both defendants acted in good faith throughout, but I do     not think that their actions can be characterised as reports of the     type contemplated by the Act. The departmental officers sought an     opinion from Dr Black in the light of the allegations. The opinion     was forwarded under cover of a document which purported to be a     report pursuant to s91, but communicating in this manner about a     matter already known to the department and which had been brought to     the attention of the doctor by the department does not constitute a     report to the department. I hold the same view in relation to the     report provided some months later by Dr Govan."  34. On appeal, Mr Kourakis adopted what his Honour had said but pursuant to a "Notice of Alternative Contention", Mr Abbott argued that the judgment should be upheld for the reasons given by his Honour, and:      "in the alternative and additionally upon the following grounds":      2. The First and Second Respondents were entitled to immunity     provided by section 91(5) of the Community Welfare Act, 1972.      3. The actions of the First and Second Respondents in reporting to     the Fifth Respondent, should be characterised as notifications of     the type contemplated by s.91 of the Community Welfare Act 1972.      4. The reports of the First and Second Respondents to the Fifth     Respondent were notifications pursuant to s.91(1)(b) of the     Community Welfare Act 1972 and consequently the First and Second     Respondents were entitled to the immunity provided by s.91(5) of the     Community Welfare Act 1972."  35. Mr Moss, counsel for the fifth respondent, agreed with Mr AbbottÕs argument as far as Dr Black was concerned, but argued that Dr Govan could not invoke s91(5), as  he was not acting under the Act and was not in any sense "notifying an officer of the Department of his suspicion". He was asked to forward his report to the solicitors appointed to act for both children in the Family Court. In my opinion, the submissions of Mr Moss are clearly correct. Dr Black only is entitled to immunity under the section.  36. Mr Abbott  also sought to rely on s235a, but again I agree with Mr Moss that neither Dr Black nor Dr Govan were exercising or discharging "powers, functions, duties or responsibilities under [the Act]."  37. I come now to deal with the further argument of Mr Abbott particularised in his clientsÕ Notice of Alternative Contention that the first and second respondents were "entitled to immunity from civil suit afforded to witnesses or potential witnesses". This was not really pleaded in the relevant defences, but I accept that Mr Abbott in his submission to the learned trial Judge that there was no case to answer, both orally and in writing, relied on the plea, and that he did so in his final address. The learned trial Judge did not refer to it in his judgment, perhaps understandably as he had found in favour of the respondents on other grounds. Moreover, at the time he published his reasons the judgment of a majority in the Court of Appeal in (Minors) v Bedfordshire CC and Others (supra) had not been upset on this point by the House of Lords.  38. Lord Browne-Wilkinson dealt with the argument in his speech at pp 754-755. His Lordship said:     "It is clear from this history that the Court of Appeal were under a     misapprehension. They were under the impression that the     psychiatristÕs opinion was not given in evidence at any stage and     held that the law did not provide immunity to Ôthose who have never     become involved in the administration of justiceÕ ... Apart from     this factual misapprehension, in my judgment the Court of Appeal     decision placed too narrow a limit on the principle of witness     immunity.      The immunity of witnesses from any action founded on their evidence     was originally designed to ensure in the public interest that     witnesses would not, through fear of later civil proceedings, be     inhibited from giving frank evidence in court. This immunity was     widened by this House in Watson v. MÕEwan; Watson v. Jones [1905]     A.C. 480 to cover information and reports given by a potential     witness to the legal advisers of a party for the purpose of     preparing a proof.      In Evans v. London Hospital Medical College (University of London)     [1981] l W.L.R. 184 Drake J. held that the immunity extended to     communications by the defendant to the Director of Public     Prosecutions of the results of a post mortem investigation which     they had been instructed to make for the purpose of possible     criminal proceedings."  39. His Lordship referred to the reasoning of Drake J which he said he found compelling at least in relation to the investigation and preparation of evidence in criminal proceedings, and continued:     "In my judgment exactly similar considerations apply where, in     performance of a public duty, the local authority is investigating     whether or not there is evidence on which to bring proceedings for     the protection of the child from abuse, such abuse frequently being     a criminal offence ...      In the present case, the psychiatrist was instructed to carry out     the examination of the child for the specific purpose of discovering     whether the child had been sexually abused and (if possible) the     identity of the abuser. The psychiatrist must have known that, if     such abuse was discovered, proceedings by the local authority for     the protection of the child would ensue and that her findings would     be the evidence on which those proceedings would be based. It     follows in my judgment that such investigations having such an     immediate link with possible proceedings in pursuance of a statutory     duty cannot be made the basis of subsequent claims."  40. The leading High Court of Australia case is Cabassi v Vila [1940] HCA 41;  (1940) 64 CLR 130. At p141, Starke J said that "the rule of law is that no action lies against witnesses in respect of evidence prepared ... given, adduced or procured by them in the course of legal proceedings. The law protects witnesses and others, not for their benefit, but for a higher purpose, namely, the advancement of public justice ..." See also Rich ACJ at 139, and Williams J at 149.  41. In the case at bar, Dr Black became involved on 27 June 1987 for the purpose of investigating whether Rebecca had been sexually assaulted. The visit was organised by the Department. Dr BlackÕs written reports were sent to the Department. The Department is charged under the Act with the responsibility of providing support services for children and with the care and protection of children. It is the Government agency to which certain persons, including medical practitioners, must notify their suspicions of abuse pursuant to the provisions of s91. Ms Dibden gave evidence that it was a matter of departmental practice to inform the police if it was thought that sexual abuse might have occurred. Dr Black must have known that if sexual abuse was substantiated, and the identity of the abuser discovered, proceedings by the mother or the Department or both for the protection of the child, or criminal proceedings against the alleged abuser, or both Departmental and criminal proceedings, would ensue. Further, she must have known that her findings would be the evidence upon which such proceedings would be based. On 14 July 1987, the police advised the Department that they were not going to prosecute the appellant. Dr BlackÕs first report to the Department was dated 31 July 1987. There was no evidence that she was informed of the closing of the criminal investigation prior to sending her first report. It is therefore uncertain whether her written reports were made in contemplation of criminal proceedings. However, she must have been aware of the likelihood of Family Court proceedings, and the use for which her written reports would be used, either by the mother or by the Department. She was cross-examined about the method she used to take patient histories, and said "the way in which we go about it, has been set up with the Crown Law Department and has to be done that way in order to be prepared with the possibility of criminal court action. The SARC was not set up solely with inter-familial alleged abuse in mind."  42. As far as Dr Govan is concerned, the referral to him was made specifically for the purpose of the proceedings in the Family Court. He was asked to send his report to the independent legal representatives for the child (although a copy of the report was also sent to the solicitors for the parents). Dr Govan also gave evidence in the Family Court. He was called by counsel for the children in relation to access. Dr Black also gave evidence in the Family Court. Excerpts from the evidence of both medical witnesses were tendered before the learned trial Judge (see Exhibits P34 and P35).  43. Lord Browne-Wilkinson said that witness immunity attached because the investigations had "such an immediate link with possible proceedings in pursuance of a statutory duty". In my opinion, such immediacy exists here too. In my judgment, the investigations of Drs Black and Govan can not be made the basis of subsequent claims.  44. It is unnecessary, upon my view that the respondents did not owe a duty of care to the appellant, to consider whether a breach of that duty was established. The criticisms that were made of the investigations would provide scope for cross-examination of Departmental officers and the doctors if the appellant was charged with an offence, but my tentative view is that the evidence fell short of proving any breach. The appellant had further difficulties in proving causation and proving damage, but it is unnecessary to discuss those issues.  45. I would dismiss the appeal.  JUDGE2 PRIOR J  46. These proceedings arose out of events which followed allegations that the appellant had sexually abused his three year old daughter. The appellant claimed that two medical practitioners and officers of the Department for Community Welfare were in breach of duties of care owed to him. He said he suffered "great shock, anguish and emotional distress", an anxiety depressive state and distress at separation from his wife and daughter.  47. I add a little to the summary of the facts in the judgment of Matheson J.  48. The appellant was permitted periods of supervised access to both his children from October 1987. Unsupervised access was introduced in August 1990. His application for guardianship and control of both his children was dismissed. His wife was given sole custody and guardianship. The allegations of sexual abuse have not been adjudicated upon. Issues of custody and access began in the Family Court but the parties reached agreement after several days of hearing, in February 1990. A consent order was made adjourning the trial and permitting the appellant continued access to his children.  49. The appellant's case included evidence from Dr Le Page. He gave the appellant psychiatric treatment over a considerable period of time, from November 1987. Dr Le Page's view is that the appellant suffers from a reactive anxiety depressive state with psychosomatic manifestations and some elements of a post-traumatic stress disorder. The doctor said that the condition had resulted from a number of stressors, most of them associated with the allegations of sexual assault and the separation from his family.  50. In dismissing the appellant's claim, the trial judge found that no defendant owed any duty of care to the appellant. The trial judge also expressed the view that even if, contrary to his view, there was a duty of care owed by any defendant to the appellant, then there had been no breach of any such duty. Further, the trial judge said that it was also his view that the appellant had not proved a sufficient causal link between the conduct complained of and the injury and loss claimed by him. In His Honour's view there was considerable vagueness about the appellant's case on the issue of causation. It was His Honour's view that there was no indication of the causative steps necessary to link a breach of duty and loss.  51. In his judgment, the trial judge made reference to many authorities. He properly began with a reference to the notion of proximity as explained by Deane J in Jaensch v Coffey [1984] HCA 52;  (1984) 155 CLR 549 and subsequently adopted by a majority of justices of the High Court sitting in Cook v Cook [1986] HCA 73;  (1986) 162 CLR 376 and San Sebastian v Minister Administering The Environmental Planning and Assessment Act 1979 and Another  [1986] HCA 68; (1986) 162 CLR 340. A duty of care only arises where a relationship of proximity between a plaintiff and defendant is shown to exist. Policy considerations are not excluded: Gala v Preston [1991] HCA 18;  (1991) 172 CLR 243 at 253. In Jaensch v Coffey [1984] HCA 52;  (1984) 155 CLR 549 at 584, 585, Deane J said that the notion of proximity:     "...is directed to the relationship between the parties in so far as     it is relevant to the allegedly negligent act of one person and the     resulting injury sustained by the other. It involves the notion of     nearness or closeness and embraces physical proximity (in the sense     of space and time) between the person or property of the plaintiff     and the person or property of the defendant, circumstantial     proximity such as an overriding relationship of employer and     employee or of a professional man and his client and causal     proximity in the sense of the closeness or directness of the     relationship between the particular act or cause of action and the     injury sustained: cf. the 'signposts or guidelines or relevant     considerations' referred to by Cook J, in Rutherford v Attorney-     Genera1 [1976] 1 NZLR 403 at 411. The identity and relative     importance of the considerations relevant to an issue of proximity     will obviously vary in different classes of case and the question     whether the relationship is 'so' close 'that' the common law should     recognise a duty of care in a new area or class of case is, as Lord     Atkin foresaw, likely to be 'difficult' of resolution in that it may     involve value judgments on matters of policy and degree."  52. In Sutherland Shire Council v Heyman (1985) 157 CLR 425 at 497 and 498 Deane J pointed out that the notion of proximity is obviously inadequate to provide an automatic rigid formula for determining liability. This was not a disadvantage, so much as:-     "It has been the flexibility of fundamental concepts and principles     which has enabled the common law to reflect the influence of     contemporary standards and demands and which has in no small part     underlain its genius to provide a living element of the social     compact of civilisation for different peoples through different ages     and in different parts of the world".  53. After referring again to what he said in Jaensch v Coffey about both the identity and the relative importance of the factors which are determinative of an issue of proximity being likely to vary in different categories of case, Deane J continued:-     "That does not mean that there is scope for decision by reference to     idiosyncratic notions of justice or morality or that it is a proper     approach to treat the requirement of proximity as a question of fact     to be resolved merely by reference to the relationship between the     plaintiff and the defendant in the particular circumstances. The     requirement of the relationship of proximity serves as a touchstone     and control of the categories of case in which the common law will     adjudge that a duty of care is owed. Given the general circumstances     of a case in a new or developing area of the law of negligence, the     question what (if any) combination or combinations of factors will     satisfy the requirement of proximity is a question of law to be     resolved by the processes of legal reasoning, induction and     deduction. On the other hand, the identification of the content of     that requirement in such an area should not be either ostensibly or     actually divorced from notions of what is 'fair and reasonable' or     from the considerations of public policy which underlie and     enlighten the existence and content of the requirement."  54. In this appeal it is complained that the trial judge erred in denying a duty of care being owed to the appellant by relying upon English authorities which, it was said have developed along a different path to Australia by emphasising policy considerations and pure economic loss criteria rather than focus on proximity.  55. The trial judge spoke of modern authorities providing guidance for determining the existence or otherwise of a duty of care and then said that the present case did not come within any of the established categories of negligence. He therefore said it was necessary to refer to matters of general principle. He referred to Jaensch v Coffey, San Sebastian, Gala v Preston and Sutherland Shire Council v Heyman before referring to any English authority. He referred to provisions in ss10, 25, 90 and 91 of the Community Welfare Act, 1972, after properly observing that the relationship between the appellant and the respondents could not be determined without reference to the provisions of the Act, particularly so in the case of the Department. His Honour said:-     "This is not to say that the statutory function is the only relevant     consideration, but insofar as it explains the role of the Department     it assists in defining the relationship, if any, existing between     the plaintiff and this defendant. It also identifies some issues of     public policy relevant to the question as to whether a duty of care     can be said to exist."  56. His Honour then dealt with what he described as the broad thrust of the appellant's case against the Department. The argument put to the trial judge was that the Department either misinterpreted the work of Dr Black or ought to have realised itself the deficiencies in the investigation. It was said that the Department failed to check for itself that Dr Black was adopting reasonable scientific methodology when investigating abuse. Furthermore, the appellant's case was that the Department referred the appellant's daughter to Dr Govan for treatment when such a referral was not reasonable and contra indicated.  57. His Honour then said:-     "I have no difficulty in accepting the proposition that carelessness     on the part of officers of the department in investigating a     complaint of sexual abuse may well cause damage to the person     accused. There are obvious dangers in accepting and acting upon such     allegations without a proper investigation. As a matter of fairness     it is essential that those conducting enquiries into allegations of     child sexual abuse do so objectively and with an awareness of the     injustice which can result from giving weight to false or tenuous     allegations. However, as the authorities to which I have referred     make clear, this consideration of itself does not give rise to an     action in negligence. It is necessary to look rather at the     relationship between the plaintiff and this defendant in the context     of the facts and circumstances which it is claimed give rise to a     general duty.      Any investigation into the alleged sexual abuse of a child     instigated or undertaken by the department's officers under the     provisions of the Act must have as its central objective the welfare     of the child. Not only is this specifically provided for in s25(a)     of the Act but it is to be inferred from the functions and powers     contained in Part IV of the Act.      Although, as I have said, a person accused of sexual abuse may be     affected by the investigation, it is hardly accurate to speak of a     relationship between the department and the person accused in any     relevant sense. Injury to a person accused resulting from an     inadequate assessment of sexual abuse allegations may well be     foreseeable, but a coexisting duty to the person accused would tend     to conflict with the clear statutory duty to act in the interests of     the child."  58. His Honour then referred to an English and a New Zealand authority (Clark v Bruce Lance & Co (1988) 1 All ER 364 and Garside v Sheffield, Young and Ellis (1983) NZLR 37), where potential conflicts of interest resulted in a denial of a duty of care in each case. It was put to the Full Court that these decisions must now be in doubt in light of the High Court's decision in Bryan v Maloney [1995] HCA 17;  (1995) 182 CLR 609. However that may be, His Honour appears most persuaded by the decision in a case he described as "a case closer to the facts of the present case": X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 665 and 666. His Honour's reference was to the decision of the Court of appeal [1995] 2 AC 633 at 651. An appeal to the House of Lords was dismissed after judgment in this case. A mother and child were alleging negligence against a local authority's social worker and psychiatrist for failing to investigate the facts relating to a complaint of sexual abuse with proper care and thoroughness and for failing to discuss their conclusions about an allegation of sexual abuse with the mother. The social worker and psychiatrist wrongly believed that the person responsible for the abuse was the man with whom the mother was then living. The mother excluded the man from her home. The child was made a ward of court and the local authority granted care and control of the child. The court order was that the child should not return home and that the mother's access be limited. The child and the mother claimed that as a result of their enforced separation each of them had suffered a positive psychiatric disorder diagnosed as anxiety neurosis.  59. The trial judge quoted a passage from the judgment of the Master of Rolls, in which Sir Thomas Bingham denied that a duty of care was owed by the psychiatrist to the child's mother [1995] 2 AC 633 at 665 and 666, and said that the psychiatrist's duty was to act in the interests of the child. The trial judge then said:-     "There are also public policy issues which militate against the     recognition of a duty of care in this case. As I have attempted to     point out, the relevant provisions of the Community Welfare Act are     directed towards the protection of children. In order to carry out     this purpose those entrusted with the responsibilities created by     the Act are required to investigate difficult issues of fact and     make decisions based upon judgment and the exercise of discretion.     To impose a duty of care to be exercised in favour of persons in the     position of the plaintiff, thereby placing the department and its     officers at risk of being sued, would tend to inhibit the expression     of opinions and the carrying out of protective measures, thus     impeding the effective administration of the Act."  60. His Honour saw an analogy "in the investigational role of the police". He cited Hill v Chief Constable of West Yorkshire [1988] QB 60 at 75 and  [1950] HCA 27; [1985] AC 53. In that case it was held that the mother of the last victim of a murderer was owed no duty of care by investigating police officers for failing to apprehend the murderer before her daughter's death. Glidewell LJ gave the reason for holding that the police were immune from an action of the kind sought to be pursued as being "similar to those for holding that a barrister may not be sued for negligence in his conduct of proceedings in court" [1988] QB 60 at 75. His Honour also referred to a decision of the Court of Appeal, holding that there was no general duty of care owed by the Crown Prosecution Service to a person prosecuted by it: Elguzouli-Daf v Commissioner of Police; McBrearty v Ministry of Defence [1995] QB 335. Steyn LJ there acknowledged that individualised justice to persons aggrieved by careless decisions of prosecutors militated in favour of the recognition of a duty of care but nonetheless concluded that there were "compelling considerations, rooted in the welfare of the whole community, which outweighed the dictates of individualised justice" [1995] QB 335 at 349.  61. His Honour then referred to Yuen Kun Yeu and Others v Attorney- General of Hong Kong [1988] 1 AC 175. The Privy Council there considered whether a duty was owed by a regulatory agency in favour of a private individual. The agency's functions were said to involve a broader public interest than concern for the protection of individual investors. His Honour quoted the public policy argument referred to at 198 of Their Lordships' Advice. That passage included a reference to sound judgment being less likely to be exercised if the agency were to be looking over its shoulder at the prospect of claims. Its activities were likely to be conducted in a detrimentally defensive frame of mind.  62. The trial judge then said that whilst it might be thought that police and prosecuting authorities come into a special category attracting immunity, the public policy reasoning in those cases and that in the Privy Council case were applicable to cases involving the investigation of child abuse by a statutory authority. His Honour cited some remarks of Peter Gibson LJ in Mv Newham [1995] 2 AC 633 at 681. The passage quoted included the following:-     "If the law were now to recognise a duty of care owed to the     children by the local authority in taking decisions on     interventions, there is a significant risk of the exercise of such     functions being carried on in a detrimentally defensive frame of     mind. I repeat that such decisions are delicate and difficult. I do     not doubt that reasonable persons may often reach different     conclusions on the same matter, and the nature of the matter is such     as to arouse strong emotions. Further, if litigation were encouraged     by a duty of care being held to exist, a major diversion of     resources to defending such actions is likely to ensue. I cannot see     that this is fair, just or reasonable, particularly when one bears     in mind the existence of other remedies."  63. The trial judge then said:-     "In the present case the departmental officers were required to     investigate the complaint which had been reported to them to the     extent necessary in order for them to carry out their duties under     the Act. An important part of the investigation involved the     referral of the child to SARC. Although the need did not arise in     the present matter there would be cases in which the officers would     be required to consider whether recommendation should be made to the     Minister in relation (to) other ministerial powers concerned with     guardianship. They had to decide whether to intervene in the Family     Court proceedings. And in all these respects they were required to     regard the interests of the child as the paramount consideration.      In my view the suggestion of a duty of care owed to the plaintiff in     the circumstances under consideration is incompatible with the     function and purpose of the departmental role. Furthermore, the     incorporation into these responsibilities of a duty to the plaintiff     would have the potential to inhibit to a significant degree the     performance of the duties of the department. As I have said I do not     wish to imply that great care should not be taken in order to avoid     acting upon false allegations. However, I am of the opinion that     this cannot be translated into a duty of care which would allow for     a cause of action of the type claimed by the plaintiff. I find,     therefore, that no such duty exists."  64. His Honour said that the same considerations were relevant to the appellant's case against the two doctors. His Honour's view was that Dr Black was asked to examine the child by Departmental officers in order to assist them in discharging their responsibilities under the Act. His Honour noticed that such examinations are also considered by police in deciding whether to charge any alleged perpetrator with a sexual offence. His Honour said:-     "The possibility of a conflict of interest, the lack of proximity     and the policy considerations to which I have referred in discussing     the case against the department would also deny the existence of a     duty of care to be exercised by Dr Black in favour of the plaintiff.     In this respect I again follow the approach of the court in Newham's     case where it was held that the psychiatrist did not owe a general     duty to the mother of the alleged victim. Although the position of     Dr Govan is somewhat different, I can see no reason why the same     approach should not apply to the case against him. I am satisfied on     the whole of the evidence that the main reason why the departmental     officers asked Dr Govan to examine Rebecca was to obtain his view on     the advisability of access by the plaintiff. Again the possibility     of a conflict between the interests of the child and the interests     of the plaintiff is plainly to be seen. Present also is the     importance of Dr Govan not being inhibited in expressing his view."  65. I agree with the trial judge that no duty of care was owed by any respondent to the appellant. My reasoning is slightly different from that of the trial judge in the four passages last quoted. The English authorities are of assistance in considering the relevant policy considerations. It must be concluded that no duty of care is owed to the alleged perpetrator of sexual abuse by doctors and officers of the Department because there is, on policy grounds. no relationship of proximity between such a person and them. Any, possibility of a conflict of interest is part of both what is fair and reasonable and the policy considerations going to deny any relationship of proximity: Jaensch v Coffey (1985) 157 CLR 425 at 498. To determine the matter in this way is to give effect to the prevailing approach in the High Court which identifies notions of what is fair and reasonable and policy considerations as going to the question of proximity, rather than as separate matters for consideration as in England. When X (Minors) v Bedfordshire County Council went to the House of Lords, Lord Browne- Wilkinson referred to the fact that the local authority accepted that it could foresee damage to the child and her mother if the authority carried out statutory duties negligently and that the relationship between the authority and the child and her mother was sufficiently proximate. The question remaining, consistent with the approach of the House of Lords in Caparo Industries v Dickman [1990] UKHL 2;  [1990] 2 AC 605, was simply whether it was just and reasonable to impose a common law duty of care in all the circumstances.  66. Notions of what is fair and reasonable and policy considerations, considered as a third requirement by the House of Lords in Caparo, are taken into account here to deny a relationship of proximity between the appellant and the respondents. The appellant was not owed a duty of care by any of the respondents. Compelling considerations outweigh the dictates o individualised justice. To acknowledge a duty of care in favour of the appellant would be unfair and unreasonable. It would create risks of a conflict of interest-and duty upon those seeking to carry into effect the protective measures contained in the Community Welfare Act, and impede the effective administration of it. The tendency to inhibit the expression of opinions and action in a detrimentally, defensive frame of mind are but factors contributing to the conclusion that the appellant's alleged right of action must be rejected. Another is the unjustifiable diversion of money and human resources resulting from the existence of such a remedy.  67. The Crown in right of the State of South Australia is not liable to the appellant for any act or omission of its officers done in good faith in the exercise or discharge of powers, functions, duties or responsibilities under the Act. Notwithstanding arguments put to the contrary, Dr Black and Dr Govan are not persons to whom the provisions of s23 5a apply. Nor are they entitled to have the claims against them dismissed because of a particular exemption from civil liability contained in s91(5) of the Act. The trial judge was correct to identify their involvement in this case as different from the situation which attracts that particular immunity. That immunity applies where a person acting in good faith notifies an officer of the Department of a suspicion that an offence under a particular division of the Act has been committed. Here two doctors were asked for opinions by Departmental officers about a matter already known to the Department and brought to the doctors' attention by officers of the Department.  68. I am far from persuaded that the doctors gain immunity by reliance upon the principle of witness immunity either. They were not within a relationship of proximity to the alleged perpetrator of sexual abuse for the reasons already referred to.  69. Suffice it to say that in this case Dr Black's disclosure to the mother could not attract the witness immunity principle and that Dr Govan's opinions were sought with respect to civil proceedings well after a decision not to prosecute was made."  70. The appeal should be dismissed on the ground that no duty of care is owed to the alleged perpetrator of sexual abuse by the Department for Community Welfare or the two doctors in this case. It is neither necessary nor appropriate to deal with the questions of breach of duty and causation.  JUDGE3 PERRY J  71. A statement of the relevant facts appears in the judgment of Matheson J. I will add to that only where necessary to make these reasons intelligible.  72. The case was advanced by the appellant in this way: the two medical practitioners were said to be negligent in the manner they went about the tasks assigned to them; the two hospitals, being respectively the employers of the two medical practitioners, were vicariously liable for their negligence; and the State of South Australia was, through the agency of the Department of Community Welfare ("the DCW"), liable in negligence having regard to the alleged failure by the DCW to carry out its duties and responsibilities pursuant to the Community Welfare Act 1972 ("the Act").  73. Although a reference is made in the statement of claim (para 42) to the DCWÕs "duties and responsibilities generally", the thrust of the plea against the State of South Australia and the presentation of the case based on alleged failings on the part of the DCW is confined to the latterÕs duties under the Act, that is, the alleged negligent performance of its statutory duties. For convenience, I will hereafter refer to the case against the DCW rather than the case against the State of South Australia.  74. The central question raised by the appeal is whether the circumstances were such as to give rise to a duty of care on the part of any of the respondents such as to found a cause of action in negligence against them at the suit of the appellant.  75. The learned trial Judge took the view that in the particular circumstances of the case there was no such duty of care.  76. One starts with the proposition that injury and loss to a parent may clearly be anticipated to result from the careless investigation by authorities such as the DCW into a case of alleged abuse of a child, and it is in that sense foreseeable.  77. But foreseeability alone does not give rise to liability in negligence.  78. In Dorset Yacht Co v Home Office,  Lord Diplock instances a number of examples of acts or omissions which give rise to foreseeable loss or damage but with respect to which the law has consistently denied the existence of a duty of care.  79. In McLoughlin v OÕBrian and Ors,  Lord Wilberforce said: "That foreseeability does not of itself, and automatically, lead to a duty of care is, I think, clear."  80. In the same case he had earlier observed that there was: "... a common principle, namely that, at the margin, the boundaries of manÕs responsibility for acts or negligence have to be fixed as a matter of policy."  81. That dictum was expressly approved by Gibbs CJ in Jaensch v Coffey.  82. In the same case, Deane J said:     "The requirement of a Ôrelationship of proximityÕ is a touchstone     and a control of the categories of case in which the common law will     admit the existence of a duty of care and, given the general     circumstances of a case in a new or developing area of the law of     negligence, the question whether the relationship between plaintiff     and defendant with reference to the allegedly negligent act     possessed the requisite degree of proximity is a question of law to     be resolved by the processes of legal reasoning by induction and     deduction. The identification of the content of the criteria or     rules which reflect that requirement in developing areas of the law     should not, however, be either ostensibly or actually divorced from     the considerations of public policy which underlie and enlighten     it."  83. Deane J developed that view in Sutherland Shire Council v Heyman and Anor. In that case he said:     "The requirement of proximity is directed to the relationship     between the parties in so far as it is relevant to the allegedly     negligent act or omission of the defendant and the loss or injury     sustained by the plaintiff..... The requirement of a relationship of     proximity serves as a touchstone and control of the categories of     case in which the common law will adjudge that a duty of care is     owed."  84. With respect to the particular question at issue in that case, namely, whether or not the cause of action arose out of the discharge by a municipal council of its duties of inspection under the Local Government Act 1919 (NSW), he went on to observe:     "In such a case, the mere fact that a public body or instrumentality     is exercising statutory powers and functions does not mean that it     enjoys immunity from liability to private individuals under the     ordinary law beyond the extent that there can be actually discerned     in the relevant legislation an express or implied intent that the     private rights of individuals be displaced or subordinated. Nor does     it mean that the existence of the statutory powers and functions,     the assumption of responsibility which may be involved in their     exercise, or any reliance which may be placed upon a presumption     that they have been or are being properly exercise is to be ignored     or discounted in determining whether there existed in the     relationship between public body or instrumentality and private     citizen a degree of proximity which was adequate to give rise  to a     duty of care under the principles of common law negligence."  85. In Gala v Preston  in the joint judgment of the majority  appears the following passage:     "The requirement of proximity constitutes the general determinant of     the categories of case in which the common law of negligence     recognises the existence of a duty to take reasonable care to avoid     a reasonably foreseeable and real risk of injury. In determining     whether the requirement is satisfied in a particular category of     case in a developing of the area of law of negligence, the relevant     factors will include policy considerations."  86. Swan v State of South Australia  concerned a claim by an infant plaintiff who alleged negligence on the part of the South Australian Parole Board and parole officers employed by the Department of Correctional Services in failing to supervise the performance of parole conditions by a prisoner who had been released on parole so as to ensure that he did not come into contact with children under the age of 14 years except in the presence of another adult.  87. In his judgment Bollen J (with whom Mohr and Duggan JJ agreed) accepted that in determining whether or not proximity had been established, policy considerations, and in particular those arising from a proper consideration of the Correctional Services Act 1982, fell to be considered.  88. In Bryan v Maloney  Mason CJ, Deane and Gaudron JJ in their joint judgment said:     "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. ...      As was pointed out in the recent majority judgment in Burnie Port     Authority v General Jones Pty Ltd,  the overriding requirement of a     relationship of proximity represents the conceptual determinant and     the unifying theme of the categories of case in which the common law     of negligence recognises the existence of a duty to take reasonable     care to avoid a reasonably foreseeable risk of injury to another.     There is no decision of the Court which directly determines the     question whether the relationship between Mr Bryan, as the builder     of the house, and Mrs Maloney, as a subsequent owner of it,     possessed the requisite degree of proximity to give rise to a duty,     on the part of Mr Bryan, to take reasonable care to avoid the kind     of economic loss sustained by Mrs Maloney. Necessarily, as has been     indicated, the resolution of that question requires the articulation     of both the factual components of the relevant category of     relationship and the identification of any applicable policy     considerations. Ultimately, however, it is a question of law which     must be resolved by the ordinary processes of legal reasoning in the     context of the existence or absence of the requisite element of     proximity in comparable relationships or with respect to comparable     acts and/or damage. Accordingly, it is appropriate to approach the     question through a consideration of some related situations."  89. In the United Kingdom, the authorities suggest that not only must the separate elements of foreseeability and proximity be addressed, but that at least in cases involving what might loosely be described as public policy considerations, there is an added test as to whether or not it is "just and reasonable" that a duty of care should be imposed.  90. For example, in X (minors) v Bedfordshire County Council and Ors Lord Browne-Wilkinson observed:     "If the plaintiffÕs complaint alleges carelessness, not in the     taking of a discretionary decision to do some act, but in the     practical manner in which that act has been performed (eg the     running of a school) the question whether or not there is a common     law duty of care falls to be decided by applying the usual     principles ie those laid down in Caparo Industries Plc v Dickman.     Was the damage to the plaintiff reasonably foreseeable?  Was the     relationship between the plaintiff and the defendant sufficiently     proximate?  Is it just and reasonable to impose a duty of care?  See     Rowling v Takaro Properties Ltd;   Hill v Chief Constable of West     Yorkshire.      However 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."  91. See also Peabody Fund v Sir Lindsay Parkinson & Co Ltd and Ors , Hill v Chief Constable of West Yorkshire  and Yuen Kun Yew and Ors v Attorney-General of Hong Kong.  92. In Elguzouli-Daf v Commissioner of Police of the Metropolis and Anor in which the plaintiffs unsuccessfully sued the Commissioner of Police and others alleging a negligent failure to investigate serious offences against them, with the result that they spent periods in detention, Steyn LJ said:     "And in so approaching the question we must consider the ultimate     question from three perspectives, namely (a) the foreseeability of     the harm that ensues, (b) the nature of the relationship between the     parties, usually called the element of proximity, and (c) the     question whether it is fair, just and reasonable that the law should     impose a duty of care."  93. Although, therefore, the approach of the courts in England differs, the decisions of the courts of that country, including those to which I have referred, are nonetheless illustrative of the kinds of policy considerations which will be taken into account in construing statutory provisions applicable to public authorities sought to be made liable in negligence.  94. At the end of the day, whether the matter is to be approached within the rubric of the test of proximity or as a separate consideration extrinsic to that test, the question nonetheless comes down to one of statutory construction. In particular, the question is whether, having regard to the terms in which the relevant statutory provisions are cast, their operation, having regard to the other relevant circumstances, is such as to exclude tortious liability.  95. So that it is incumbent, conceding the element of foreseeability, to address the question whether the relevant statutory powers and functions which arose under the Community Welfare Act1972 operated, in all the circumstances, in such a way that the element of proximity was not satisfied.  96. Part II, Division II of the Act is headed "Objectives and Powers of the Minister and the Department". Within that Division, s10(1) provides, inter alia:     "(1) The objectives of the Minister and the Department under this     Act are-     (a) to promote the welfare of the community generally and of     individuals, families and groups within the community;     and     (b) to promote the dignity of the individual and the welfare of the     family as the bases of the welfare of the community, ..."  97. The section then goes on to set out the manner in which those objectives are sought to be achieved, which includes: "(e) by providing ..... services designed to assist .... children ...."  98. Part IV of the Act (sections 25-94 inclusive) is headed "Support Services for Children". Within Division I of that Part, which deals with "Principles to be Observed", s25 provides:     "A person dealing with a child under or by virtue of any of the     provisions of this Part-     (a) shall regard the interests of the child as the paramount     consideration;     (b) shall seek to secure for the child care, guidance and support     within a healthy and balanced family environment;     (c) shall deal with the child in a caring and sensitive manner;     (d) shall have regard to the rights of the child, and to the needs     and wishes expressed by him;     and     (e) shall promote, where practicable, a satisfactory relationship     between the child and other members of, or persons within, his     family or domestic environment."   S27 provides the machinery pursuant to which a child may be placed under the guardianship of the Minister. Apart from cases in which applications to that end may be made by a guardian of the child, or in certain circumstances by the child itself, the Minister may act of his or her own initiative and may, by order in writing, place a child under his or her guardianship. He or she may do so, inter alia:     "... where ... a guardian of the child has maltreated ... the child     to the extent that the child has suffered, or is likely to suffer,     physical or mental injury, or to the extent that his physical,     mental or emotional development is in jeopardy; ..."  (s27(3)(a)).  99. Pursuant to s82 of the Act, the Director-General, or any officer of the department authorised by the Director-General, may:     "... where he suspects on reasonable grounds that there is a child     in need of care in any place or premises, enter and remain in that     place or premises for the purpose of inquiring into the     circumstances of the child."  100. Part IV, Division III, headed "The Protection of Children", provides for the establishment of regional and local child protection panels. Pursuant to s88, the functions of a regional panel include an obligation to receive and consider notifications of maltreatment of children and     "to make such recommendations as to remedial treatment or action to     the persons involved in a case of maltreatment and to any     appropriate health or welfare agency as the panel thinks     appropriate, and to facilitate the carrying into effect of that     remedial treatment or action" (s88(a) and (b)).  101. The functions of local panels are defined by s90 and include, inter alia, the provision of: "... guidance, assistance and support to persons involved in the prevention, treatment or management of cases of maltreatment of children;" and the provision of: "... guidance, assistance and support to persons who seek help in relation to the maltreatment of children;"  102. S91 provides     "(1) Where a person suspects on reasonable grounds that an offence     under this Division has been committed against a child, that person-     (a) if he is not obliged to comply with this section - may notify an     officer of the Department of his suspicion;     or     (b) if he is obliged to comply with this section - shall notify an     officer of the Department of his suspicion,     as soon as practicable after he forms the suspicion.      (2) The following persons are obliged to comply with this section-     (a) any legally qualified medical practitioner;     (b) any registered dentist;     (c) any registered or enrolled nurse;     (d) any registered psychologist;     (e) any pharmaceutical chemist;     (f) any registered teacher;     (g) any person employed in a school as a teacher aide;     (h) any person employed in a kindergarten;     (i) any member of the police force;     (j) any employee of an agency that provides health or welfare     services to children;     (k) any social worker employed in a hospital, health centre or     medical practice;     (l) any person of a class declared by regulation to be a class of     persons to which this section applies.      (3) Any such notification must be accompanied by a statement of the     observations and opinions upon which the suspicion is based.      (4) An officer of the Department who has received any such     notification shall forthwith report the matter to the regional panel     constituted for the region in which the offence is alleged to have     been committed.      (5) Where a person acts in good faith and in compliance with the     provisions of this section, he incurs no civil liability in respect     of that action."  103. S92 of the Act creates an offence on the part of any person having the "care, custody, control or charge of a child" who "maltreats or neglects the child, or causes the child to be maltreated or neglected, in a manner likely to subject the child to physical or mental injury".  104. Pursuant to s93, an officer of the department or member of the police force who suspects on reasonable grounds that an offence against Division III (which includes an offence against s92) may on the authorisation of the Director-General cause the child in question to be taken to a hospital or legally qualified medical practitioner for medical examination, if the whereabouts of the guardians of the child are not reasonably ascertainable, or it would be detrimental to the interests of the child to delay medical examination while the consent of a guardian was obtained, or where the guardian has refused or failed to take the child for such a medical examination.  105. Reference may also be made to certain international instruments. As I said in Walsh and Anor v Department of Social Security  with reference to provisions in the Crimes Act 1914 (Cth) which oblige a sentencing court to take into account the probable effect of the sentence on the defendantÕs family or dependants:     "Various international instruments which have been entered into by     Australia emphasise the protection by the society and the State of     the family as the natural and fundamental group unit of society,     and preservation of the rights of children. Although such     international instruments do not form part of Australian law,  they     serve to underscore the importance of provisions such as s16A(2)(p)     of the Crimes Act, which, where possible, should be construed and     applied consistently with them. "  106. There is no reason why such considerations should not apply to State as opposed to Commonwealth legislation. The international instruments to which I there refer run in parallel to and buttress the importance of the corresponding provisions of the Act.  107. At all times the social worker concerned, Ms Dibden, was acting as an employee of the department and in doing so was acting within the scope of the powers and duties conferred by the Act. She was a worker within the section of the department known as "Crisis Care". It was part of her role to attend on families where there had been an allegation of abuse of a child. According to her evidence, it was in the ordinary course of her duties that she accompanied parents with a child to other agencies, including medical practitioners, for the purpose of examination.  108. It was in the performance of that role, and following initial contact by the childÕs mother with the Noarlunga district office of the Department of Community Welfare that Ms Dibden arranged the appointment for the child to see Dr Black on 27 June 1987. That, of course, was a lengthy examination of the child, which included a discussion between Dr Black and the childÕs mother. The upshot of that was that the mother left the matrimonial home with the child on the same day, and did not further cohabit with the appellant.  109. Dr Black only saw the child on the one occasion. Some time later, on 31 July 1987, she gave a lengthy report to the department.  110. The childÕs mother made an application to the Family Court on 10 July 1987 for sole custody of the child. The appellant responded with a cross-application for custody. The Family Court Judge who dealt initially with the applications invited the department to intervene in the proceedings. They took advice from the Crown Solicitor, as a result of which they decided not to play an active role. However, a separate legal representative to act in the interests of the child was appointed on 13 August 1987.  111. The department then decided to arrange for the child to be assessed by a child psychiatrist in order to obtain an opinion as to the advisability of supervised access. Dr Govan undertook that assessment, and saw the child on a number of occasions between 1 September 1987 and 8 August 1990.  112. On the first occasion of contact between Ms Dibden and the child, that is, on 27 June 1987, and following the examination by Dr Black, Ms Dibden telephoned an officer known to her at the Darlington police station. This was in accordance with departmental practice. She had a conversation with the police officer, as did Dr Black. As a result of that, on the same day the police officer attended at the appellantÕs home and interviewed him. He denied the allegations. No charges were brought.  113. Previously a social worker had given written notification of alleged maltreatment of the child to the Noarlunga office of the department. That notification was no doubt given pursuant to s91 of the Act. It was that notification which triggered off the intervention of Ms Dibden and her action in taking the child and the childÕs mother to Dr Black. The childÕs mother consented to the medical examination, but had she not done so, no doubt the department could have insisted upon it by invoking its coercive powers contained in s93 of the Act.  114. In the circumstances which I have outlined, it cannot be disputed that Ms Dibden, and for that matter, the other officers of the department who had contact with the case, were acting within the framework of the Act.  115. Against that background it is necessary to consider whether or not the appellant established the element of proximity necessary to found a cause of action in negligence against the department.  116. In my opinion, the duties arising under the Act, and the obligations cast upon the department, once notified of a case of alleged maltreatment of a child, tell against the recognition by the Court of the necessary element of proximity. The learned trial Judge was right, in my view,  when he said, during the course of his reasons for judgment:     "Any investigation into the alleged sexual abuse of a child     instigated or undertaken by the departmentÕs officers under the     provisions of the Act must have as its central objective the welfare     of the child. Not only is this specifically provided for in s25(a)     of the Act but it is to be inferred from the functions and powers     contained in Part IV of the Act.      Although, as I have said, a person accused of sexual abuse may be     affected by the investigation, it is hardly accurate to speak of a     relationship between the department and the person accused in any     relevant sense. Injury to a person accused resulting from an     inadequate assessment of sexual abuse allegations may well be     foreseeable, but a co-existing duty to the person accused would tend     to conflict with the clear statutory duty to act in the interests of     the child."  117. The recognition of a relationship of proximity such as to give rise to a duty of care towards the parents of a child whose welfare is the subject of investigation by the department in the exercise of its statutory powers and duties would be inimical to the proper and effective discharge by the department of its statutory role. Given that the overriding consideration to which the department must pay regard is the welfare of the child, the imposition of a common law duty of care vis a vis the parents would have a tendency to interfere with the due performance by the department of its statutory duties.  118. As the learned trial Judge put it: "To impose a duty of care to be exercised in favour of persons in the position of the plaintiff, thereby placing the department and its officers at risk of being sued, would tend to inhibit the expression of opinions and the carrying out of protective measures, thus impeding the effective administration of the Act".  119. The learned trial Judge was correct in holding, as he did, that the same considerations are relevant to the appellantÕs case against the two doctors. Their function was to assist the department in discharging its duties under the Act. It would be equally inimical to the implementation of the Act and its effectiveness in attaining the objectives spelled out in the Act with respect to the welfare of children if medical practitioners engaged by the department to furnish reports, or give other assistance with respect to the investigation and treatment of children whose welfare has become the concern of the department, were to be exposed to potential liability vis a vis the parents of a child in carrying out the necessary examinations, reporting to the department and in offering any treatment.  120. Of course, if neither Dr Black nor Dr Govan were liable at the suit of the appellant, the appellantÕs case fails against both of the hospitals who employed the doctors.  121. I would, however, add some comments with respect to a particular matter of concern which arises as to the conduct of Dr Black.  122. While in my view no proper basis was established in the evidence upon which it would be right to advance any criticism of the manner in which she performed her examinations of the child, or the terms in which she reported subsequently to the department, at the conclusion of her examination she had a discussion with the mother of the child and Ms Dibden.  123. Ms DibdenÕs evidence was in part:     "Q. And your only real recollection of any interaction between you     and Dr Black is at the end of some hours of waiting when Dr Black     spoke to you and to Mrs Hillman together.      A. ThatÕs right.      Q. Did Dr Black then have a reasonably lengthy discussion with you     and Mrs Hillman about the results of her examination and interviews     that she had conducted.      A. Yes, she did.      Q. I think she communicated to you a view of whether or not     inappropriate sexual behaviour had occurred.      A. Yes, she did.      Q. And did she tell you that, in her view, the childÕs behaviour,     allegations and findings were consistent with a little child having     experienced some form of sexual interference in the pretext of a     game, or words to that effect.      A. Yes, she did. IÕm not sure about the pretext of a game. I donÕt     remember that, but yes, that was the thrust of her view.      Q. Did Dr Black say that anything that indicated she was definitely     certain that sexual abuse had occurred.      A. No, not that I remember, no.      Q. Would it be fair to say that her expression of conclusions, that     is diagnosis, was obviously a preliminary diagnosis by her.      A. Yes.      Q. How would you describe the way in which she framed her     conclusions.      A. Fairly cautious, which was my experience of Dr Black generally,     fairly careful, but indicating there was clearly cause for concern.      Q. I suggest to you that Dr Black told you really no more than, that     as a result of all her findings, that is as to the childÕs     behaviour, the allegations that had been made and the physical     findings that she had made, all she was able to do was to form the     view that these findings were consistent with the child having     experienced some inappropriate sexual interference.      A. She certainly conveyed that. I think the impression I gained was     that she thought it was a probability that it had occurred, which     may be a little stronger.      Q. Did she also indicate that, in her view, the allegations were     consistent with the father having been involved, that is Mr Hillman     having been involved, as the person responsible for the sexual     abuse.      A. Yes."  124. Following that discussion, according to Ms DibdenÕs evidence, the childÕs mother was adamant that she did not want to go home. She said further that although she had appeared distressed from the time when Ms Dibden had earlier that day picked her and the child up from her home to take her to Dr Black, she "became significantly more distressed after Dr Black had talked to her about her views as a result of the investigation". Later she said (786):     "Q. You told his Honour that after the assessment by Dr Black had     been completed and Dr Black had spoken to Mrs Hillman, that she was     extremely upset.      A. Yes, very upset.      Q. Is it the case that Mrs Hillman was quite adamant she was not     going to return to live with her husband.      A. Yes, thatÕs my memory, that she was quite adamant.      Q. You didnÕt urge her not to return to her husband.      A. Not at all, no.      Q. You didnÕt urge her to separate from him.      A. No.      Q. It was entirely her wish and her decision.      A. Yes."  125. I would have two comments to make about that evidence.  126. In the first place, I do not think that it was a proper discharge of her duties that Dr Black should have spoken of her opinion, albeit a tentative or preliminary opinion, in the presence of the mother. Dr Black was engaged by the department and should have confined her communications as to the result of her examination to the department alone. Indeed, the report which she ultimately forwarded to the department was marked "Strictly Confidential". I must say that there seems little point in marking the report to that effect, given that she had discussed her views with the mother.  127. In the ordinary course, Dr BlackÕs opinion would have been only one of the matters to be taken into account by the department in discharging its statutory role. In her report, Dr Black recommended that further investigations be made. Had events not taken their own course, and the mother departed from the matrimonial home with the child immediately following the examination, presumably there would have been further investigations by the department, at the conclusion of which the department would have made a decision as to whether to encourage the mother to remove the child from contact with the appellant, or to exercise its coercive powers to that end.  128. It was not for Dr Black to assume that any tentative or preliminary opinion which she had formed would be borne out by subsequent investigations by the department. She should have recognised that her opinion would be only one matter to be taken into account, and might be overwhelmed by other considerations or evidence of other matters which might be thrown up as the department proceeded with its investigations.  129. In those circumstances, Dr Black should have recognised an obligation to refrain from discussing her views with the childÕs mother, and should have confined her communication of those views to the department. After all, her retainer was by the DCW, not the mother. Just as is the case, for example, with life assurance examinations by medical practitioners, when such a practitioner is engaged by a person other than the patient, it is to that other person and not to the patient that the results of the examination should be communicated. In X (minors) v Bedfordshire County Council (supra), Lord Browne-Wilkinson referred with approval to the analogy drawn by the Court of Appeal with a doctor instructed by an insurance company, and further observed: "He is under a duty not to damage the applicant in the course of the examination: but beyond that his duties are owed to the insurance company and not to the applicant."  130. On the other hand, in this case if the proper procedure had been followed, it would have been open to the department, once it had received Dr BlackÕs opinion, to have communicated it to the childÕs mother. But in doing so, it would have been necessary for the department to consider whether or not it would have been in the interests of the child to follow that course.  131. Despite the denial by Ms Dibden of having influenced the decision of the childÕs mother to take the child away from the matrimonial home, I find it difficult to accept the proposition that the discussion which took place between the childÕs mother, Ms Dibden and Dr Black immediately following the latterÕs examination of the child, did not precipitate a decision by the childÕs mother to break off cohabitation with the appellant and take the child with her.  132. In the events which happened, instead of a proper and full investigation being conducted, in which the father of the child would have had an opportunity to answer the allegations, the situation was overtaken by the predictable consequence of premature disclosure to the mother, with the result that an orderly and proper investigation could no longer be conducted. Most importantly, this sequence of events, for all practical purposes, had the unfortunate consequence of destroying any possibility of maintaining the family unit, an end related to and ranking in importance with the welfare of the child.  133. In those circumstances, if she had in that way acted outside of the retainer which she had been given by the department, Dr Black might not have been entitled to the benefit of a finding that in those circumstances she owed no duty of care to the appellant.  134. There are, however, two countervailing considerations which, in my opinion, make it unnecessary further to pursue that aspect of the matter.  135. In the first place, the discussion with the mother took place in the presence of Ms Dibden. In those circumstances, it is at least arguable that it took place with the blessing of the department. Although I must add that even if it did, I am not persuaded that it is right practice for any such procedure to have been adopted. Dr BlackÕs duty in such circumstances was to suggest to Ms Dibden that any communication of her views, albeit preliminary, as to the child, should be communicated other than in the presence of the mother.  136. Be that as it may, the matter was dealt with during the course of his reasons for judgment by the learned trial Judge in the following manner (51):     "During his final address Mr Kourakis argued that there were various     ways in which loss occurred by reason of the actions of the     defendants. He said that Dr Black communicated her opinion     concerning the allegations to Miss Dibden and Mrs Hillman after the     assessment and did not mention that further investigations were     appropriate. This, it was said, contributed to Mrs HillmanÕs     decision to separate herself and Rebecca from the plaintiff, thus     contributing, in turn, to the plaintiffÕs psychiatric condition.      Mrs Hillman was present in court at an early stage of the trial but     neither party called her as a witness. Without any evidence from her     I find it difficult to attribute the communication of the opinion as     a substantial contribution to her decision to separate or that it     substantially increased the risk of harm which is said to have     eventuated. In view of the previous marital discord, Mrs HillmanÕs     own suspicions of the plaintiff and, in particular, the fact that     Rebecca had made the allegations it is in the realm of speculation     to attribute significant cause to the conversation. It is true, as     Mr Kourakis has pointed out, that Mrs Hillman wished to read Dr     BlackÕs report at a later stage, but because of the manner in which     Dr BlackÕs opinion was there expressed and the fact that the     decision to separate had been made sometime before, it seems not to     have played any role in the chain of events leading to loss."  137. Having regard to those findings by the learned trial Judge and despite my concern at the action taken by Dr Black, acquiesced in by Ms Dibden, I am unable to go so far as to suggest that the decision should be overturned, at least insofar as the action was dismissed against Dr Black.  138. The conclusions which I have so far expressed are sufficient to dispose of the appeal.  139. It is, therefore, strictly unnecessary to have regard to the fact whether, assuming a duty of care to have existed, there was evidence upon which it would be proper to find that there was a breach of the duty. It is sufficient to indicate that in my opinion the learned trial Judge was correct in his finding that even postulating the existence of a duty of care, the evidence would not have justified a finding that there was any breach of that duty.  140. Furthermore, even if the appellant had surmounted the hurdles of establishing the existence of a duty and its breach, there were serious difficulties in the path of the appellant with respect to causation. It is, however, unnecessary to deal further with those aspects of the matter.  141. I would prefer not to make any comment one way or the other as to the validity of the argument advanced by Mr Abbott QC on the hearing of the appeal as to the alleged entitlement of the two doctors to plead that the rule of law conveniently described as "witness immunity", operated to extinguish any cause of action which might otherwise have been capable of being pursued against them. I think it best that whether or not in circumstances such as this medical practitioners are entitled to the benefit of any such principle is best left to a case where the answer would be determinative of the proceedings.  142. I would dismiss the appeal.     


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/cases/sa/SASC/1996/5941.html