Australia Court awards Sydney mothers $2m after landmark abuse case authorities refused to prosecute

22:11  23 november  2020
22:11  23 november  2020 Source:   abc.net.au

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All charges were dropped against Rodney Bird. (Supplied) © Provided by ABC NEWS All charges were dropped against Rodney Bird. (Supplied)

Two mothers have been awarded $2 million in damages in a landmark civil case they brought against a family-owned childcare centre, after authorities declined to pursue criminal charges for child sex abuse.

Sydney women Angela* and Karen* took matters into their own hands to make sure Rodney Raymond Bird was held accountable after an 18-month police investigation ended in all charges being dropped.

The pair took a major financial risk to embark on a "horrific" 10-year fight which ended in the NSW Supreme Court in October when Acting Justice Monika Schmidt concluded Rodney Bird had most probably touched the girls in inappropriate ways and the centre was liable.

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Bird had worked at, and been part owner of, Footprints Childcare Centre in Sydney's south, which Angela and Karen's daughters attended.

"The 10 years we have been through have been horrific, but not as horrific as it would have been to give up," Angela said.

Karen said she first noticed something was wrong in 2010 when her daughter was four years old.

"My daughter had gone from loving the centre to crying every night, saying she didn't want to go there anymore because someone there hurt her," she said.

"I couldn't work out what was going on."

In November 2010, Bird, then 68, was charged with indecently assaulting children between 2008 and 2010 at Footprints, which was then owned by his family, but has since been sold.

Bird's daughter Lisa Clancy was a 99 per cent shareholder in Little Pigeon Pty Ltd, the company that owned the centre, and he owned the other 1 per cent.

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After disclosures were made by four children, 18 months of police interviews followed, before the Director of Public Prosecutions (DPP) dropped all charges.

Bird never stood trial for any criminal offence.

His duties included safety management, cooking and supervising the playground, meaning he had access to children, which was meant to be supervised.

Karen described the civil prosecution as "the last avenue we had" after the DPP, Department of Family and Community Services, and the NSW Ombudsman declined to take action.

'It's about compensating a victim'

Lisa Flynn from Shine Layers, who represented the two mothers in the civil case, said just because police do not lay charges or the DPP does not follow through, does not mean abuse has not occurred.

"The criminal justice system fails victims of sexual abuse because these crimes are committed in private, where there is no other evidence apart from the word of the victim against the perpetrator," she said.

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"In a criminal case the prosecution has to prove beyond reasonable doubt and that's a very high standard because a presumption of innocence applies.

"In a civil case we need to prove the abuse occurred on the standard of probabilities and that's a lower threshold.

"A civil court is not about punishing a perpetrator, it's about compensating a victim, giving them a sense someone has been held accountable."

Following a complex trial that relied heavily on recorded past police interviews, a judgment handed down in October this year awarded the women damages totalling over $2 million.

Angela and Karen's daughters, who are now teenagers, were not required to give evidence in person at the trial but provided written statements.

The court found that, on the balance of probabilities, the two girls were abused and that Footprints Childcare Centre was liable for the mental harm and stress the abuse caused the girls and their mothers.

The judgment hinged on admissions Bird made to police in 2010, suggesting he had a tendency for inappropriate conduct with children in his care, including "patting" and "scrunching" their bottoms, kissing them on the lips, letting them sit on his lap and touching them under their clothes.

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Acting Justice Schmidt found that children at the centre made similar disclosures to police and their mothers about him touching them in sexually inappropriate ways when he was alone with them.

Bird admitted to being affectionate with the children, saying he treated them as he would his own grandchildren and that if he had touched some parts of their bodies inappropriately, it was not intentional.

He described how children lined up for him to massage them and said he got on better with them than the other staff because they didn't spend "quality time" with them.

"He plainly considered he did not have to be constrained in his behaviour," Acting Justice Schmidt said.

"I am satisfied Mr Bird's admissions establish his moral compass failed him."

Footprints Childcare Centre argued it had a supervision policy to ensure Rodney Bird was never alone with the children, but the court found it was not enforced.

Acting Justice Schmidt said Footprints did not ensure a regulatory regime was complied with "in their pursuit of profit".

She said Bird must be dissuaded from further "opportunist" and "damaging" behaviour.

"There are many others now in Mr Bird's position, given access to the youngest and most vulnerable members of our community, while they are being cared for in centres such as Footprints, where their parents must leave them in order to work for the overall economic good of our society," the judge said.

Since the 2017 findings of the Royal Commission into Institutional Responses to Child Sexual Abuse, the three-year time limit for reporting child sex abuse has been dropped.

*Names changed for legal reasons

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