The Anglican Church of Australia
Sydney diocese
In the case of Sydney PSU v Drew
Sydney PSU has nowhere to go in this case.
By Louise Greentree[1]
Introduction
In this case matters have come to a stand-still. Readers will remember from my previous articles that at the fourth directions hearing in December 2014 this case was given a hearing date – for 2 whole days – on the 23rd and 24th April 2015. By that time Mrs. Brigden was expected to have returned from leave after having a baby, and the other two members of the Disciplinary Tribunal, the deputy President the Hon. Acting Judge Peter Young AO QC and the rev. Mark Charleston confirmed that they were available for the hearing.
After that directions hearing two highly respected and high profile members of the church who had attended that directions hearing at Drew and Pippa’s invitation made strong representations to the Sydney Anglican Archbishop the Most Rev. Glenn Davies about the rudeness and the lack of Christian process demonstrated there.
Looking back, it is clear that it was never intended that the case go to a hearing. The referral to the Disciplinary Tribunal by the members of the Professional Standards Committee (PSC) in the teeth of the Archbishop’s pleas was just part and parcel of the culture of bullying intimidation and harassment that started in the Professional Standards Unit (PSU) and which has spread throughout the disciplinary and professional standards processes in Sydney diocese.
Drew and his wife Pippa had had the temerity to complain about the bullying, lies and intimidation heaped on them by Lachlan Bryant, director Sydney PSU and Peter Barnett, director PSU Bathurst and The Riverina Dioceses among other things, in the first two meetings. Therefore the PSU hit back even though Lachlan Bryant has had to confess to ‘errors’ in his handling of those meetings. Despite being ‘on notice’ that Drew had been driven to the point of intending to commit suicide by the lies of the two PSU directors the PSU adopted a course of action almost guaranteed to cause him to complete his intended actions.[2]
The reduction of the case from being characterised, wrongfully, by Lachlan Bryant and Peter Barnett (two PSU directors) as child sex abuse to the actual ‘charges’ brought in the Disciplinary Tribunal as conduct that is ‘disgraceful if performed by a youth minister’ and which caused or, if known would have caused a scandal means that the whole time and expense of having a Disciplinary Tribunal 2-day hearing is in itself scandalous. How could a fair and just hearing conclude that actions that are lawful, not immoral, not against Biblical or church law and which had largely been experienced by many other youth group members who have given statutory declarations that they found the actions helpful, were ‘disgraceful’? How can there be a finding that these actions caused a scandal when they were widely known at the time and did not cause a scandal?[3]
By this time surely someone sensible, not being committed to trying to protect Lachlan Bryant and Peter Barnett even at the cost of injustice to the respondent has had a good hard look at the case for the PSU and another good hard look at the complainants, particularly complainant 1, and adjudged whether their complaints would stand up to proper scrutiny, and concluded that they would not. Nor would the complainants be likely to stand up to the sort of cross-examination that they will need to face if the case proceeds. Neither would receive any tender treatment because neither of them are alleging victimisation in the nature of sexual abuse.
A negotiated settlement?
As by the end of the directions hearing in December 2014 it was clear that the deputy President the Hon. Peter Young AO QC had failed in the task of trying to scare off the respondent and his legal team from pursuing their defence, the only course of action available then was to try to negotiate a settlement.
Mr. Easton opened some half-hearted negotiations for a proposed settlement in December 2014 and resumed after the Supreme Court’s return to work in February 2015, but as the ‘offer’ meant that Drew was required to submit to a penalty and also bear the bulk of his considerable legal costs himself, this was firmly rejected. Things languished until three things intervened.
The first thing was, in March 2015, an invitation from Archbishop Glenn Davies to Drew and Pippa to meet him to discuss the case. They met and also spoke again in a telephone conversation after the Archbishop had spoken to complainant 1. The tenor of the meeting was to try to find a Christian resolution to the case. He recommended mediation (of a sort: involving either himself or another senior and respected member of the church as the ‘mediator’).
The second thing was he then invited complainant 1 to meet Drew in his presence, who, he reported to Drew and Pippa, said ‘No, no, no, no, no.’
The third thing was that complainant 1 wrote on 18 March 2015 to the deputy President asking him to deal with the case as the sole arbitrator. This was a bit confusing: it was unclear whether he intended by that that there still be a full hearing but without the other two members of the tribunal, or whether this was going to be simply an ‘arbitration on the documents’. The latter is another form of alternative dispute resolution that is less costly: while the legal advisers do have to be involved to prepare written submissions there is no hearing and no cross-examination of the complainants and witnesses. Complainant 1 stated that he needed to have ‘a finding made’ and his proposal would enable the case to be dealt with faster. Drew and Pippa rejected this (although it was never formally proposed) in view of the many comments made by the Hon. Peter Young AO QC during the directions hearings indicating that he had already pre-judged the case and his behaviour, attempting to intimidate the respondent and his legal team into walking away[4] was seen as disgraceful and unlikely to produce a just and trustworthy outcome.
The case cannot go forward to a settlement in the negotiations presently being conducted by Mr. Easton:
Mr. Easton cannot get Drew to admit wrongdoing and to accept a penalty:
While Mr. Easton, Barrister appearing for the PSU director and also Deputy Chancellor of the diocese (which compromises any pretence of objectivity,) continues to insist that Drew agree to a formal finding of fact by the Disciplinary Tribunal that he is guilty of – something, well anything really – and agrees to accept a penalty, then from the point of view of the lawyers for the PSU there can be no settlement. Nor, for that matter, can there be for Drew, because he has not done anything wrong. He is no longer going to buckle to pressure[5].
Secondly, Lachlan Bryant has a problem with the notifications he has sent to the Office of the Children’s Guardian:
In addition, if the case is concluded without Drew’s acceptance of guilt for something, and without acceptance of a penalty, Lachlan Bryant, (still director Sydney PSU) will be in the embarrassing position of having to write for the third time to the Office of the Children’s Guardian (OCG) to advise that the first notification was entirely in error and, now on completion of the ‘incomplete investigation’ he referred to in his second letter, he will be forced to admit that there was no ‘serious physical assault or sexual misconduct or grooming’ even complained of, let alone made the subject of a finding. I have quoted the actual words of the definition of actions relating to children that must be made the subject of a notification by a reporting body (such as the Anglican Church) to the OCG, according to the enabling legislation.
Now diligent readers – all of you, really – will surely be a bit perplexed by Lachlan Bryant’s notification(s) to the OCG. After all, it has been manifestly clear right from the start that nothing that has been complained of falls within the definitions of serious physical assault of a child or child sex abuse or grooming in the criminal law and nor in church law. Drew has done nothing wrong, no matter how much Mr. Easton wishes to represent to him (in an uncanny echo of the representations made by Peter Barnett and Lachlan Bryant in the first interview) that he has.
In addition, there was no investigation carried out by the PSU at any time, notwithstanding what Lachlan Bryant said in the first notification he lodged with the OCG. He has misled the OCG on this. Instead, we are told that he authorised complainant 1 to ‘conduct an investigation’ of sorts by contacting as many former members of the youth groups under Drew’s care from time to time as he could, accusing Drew of child abuse and child sex abuse, and asking them, firstly, to make a complaint to the PSU, and, secondly, to pass the message on to as many others that they knew. This produced at least one response strongly denying that Drew was guilty. A couple of related men and an old school mate complainant 2 fronted up. The complaints by the related men were rejected, leaving just complainant 2 whose ‘evidence’ is now discredited.
Nor has the PSU conducted any investigation now: the burden of this has fallen on Drew, at a very considerable cost. So Lachlan Bryant has again misled the OCG when he says that the reference in the first notification should have been to an incomplete investigation. And again, when he has to make another amendment to the original false notification to the OCG, he will have to come clean about the lack of a complaint let alone evidence of any conduct of the type that is required to be reported.
The Case cannot go ‘backward’ to a hearing in the Disciplinary Tribunal:
In my article ‘Twenty-one reasons why the case promoted by Sydney PSU Director Lachlan Bryant against Drew cannot and should not be allowed to go to a hearing.’ I pointed out that the case had been compromised in so many ways.
Most importantly it does not in any way shape or form even allege child abuse or child sex abuse. Lachlan Bryant has to prove that each action complained of was ‘scandalous if performed by a youth minister AND that it caused or, if it have been known about at the time, it would have caused, a scandal.’ Lachlan Bryant is not able to prove this.
In so many other ways it is clear that the case was only referred to the Disciplinary Tribunal in a process designed to try to protect Lachlan Bryant from taking responsibility for his and Peter Barnett ‘s improper and incompetent handling of the complaint and to protect the diocese from the financial consequences of this.
Apart from seeking protection for financial and other consequences of his improper behaviour, Mr. Bryant ensured that the complaint was referred by the PSC to the Disciplinary Tribunal in circumstances of deceit: Lachlan Bryant unscrupulously and dishonestly characterised an unconditional apology to each of the two complainants that was wrung out of him while he was suicidal as a result of the combined lies and bullying perpetrated by Lachlan Bryant and Peter Barnett at the first hearing, as admissions. If there had been admissions they would have been improperly obtained, not only because of false ‘inducements’ based on Bryant’s and Barnett’s lies and misrepresentations, but also because Bryant and Barnett failed to follow the requirements of the Discipline Ordinance 2006 to give Drew the opportunity to obtain legal advice before making any admissions and 21 days in which to make a response.
They said at the end of the interview that they thought that the Discipline Ordinance 2006 did not really apply which, if they honestly held to that interpretation of the Discipline Ordinance 2006 meant that they had no jurisdiction at all to meet Drew and Pippa at all let alone subject them to the harassment and bullying that they carried out.
The complaint has been exposed as a sham once the complainants were forced to make statutory declarations, and the respondent filed more than 21 statutory declarations in support of him and his actions and undermining the allegations made by the complainants.
Talk about using a sledgehammer to break open a nut. To even think that the complaints warranted the time of three busy people, two lawyers and a clergyman, as well as the that of the deputy chancellor, a barrister, and Lachlan Bryant, a solicitor indicates how determined the members of the PSC were to uphold Lachlan Bryant, or at least how deluded they were by him.
The Archbishop has been forced to apologise to Drew and Pippa for what they have been put through by the many errors in the way the complaint has been handled and how they have been treated by the diocesan personnel involved in the process.
Drew and Pippa and their supporters have already had to pay an large amount of money for legal representation – both a solicitor and a barrister – as well as the costs of an expensive investigation which the PSU should have made (and paid for). And all they have to show so far for the legal costs is attendance at four directions hearings, and two hearing date cancelled to allow settlement discussions to proceed. They are continuing to incur legal costs for the half-hearted and fruitless discussions between Mr. Easton and their barrister, and for their solicitor reviewing documentation of some statements of agreed facts to which Drew has no intention of agreeing, all over the last 9 months. To now inflict the further legal costs of preparation and conducting a hearing for 2 days is nothing short of disgraceful behaviour.
And in my articles ‘It’s a funny Thing … about the Disciplinary Tribunal’ I make it clear that the Disciplinary Tribunal as presently constituted could not be acceptable to hear the case. And the deputy president has acknowledged that the process of the tribunal is a waste of time and money. However, instead of trying to intimidate Drew and his legal team to ‘walk away’ from the case, leaving the tribunal the chance to make what could only be spurious findings and making a recommendation to the Archbishop that could only be unjust and untruthful, it is time for the deputy President and/or the Archbishop (as President of the Tribunal) to make a strong stand in favour of the PSU walking away from the case on just and proper terms as to the dismissal of the case and full reimbursement of Drew’s legal costs for a case that should never have been contemplated in the first place.
The only possible way for the PSU to go back to the Disciplinary Tribunal would be to take the unethical, unjust and dishonest pathway of making new legislation to plug the gaping holes in the first, insert clauses approving Lachlan Bryant’s bullying and lying behaviour and protecting him from criticism or liability, and then making it all retrospective and actually having the gall, and unconcern for wider publicity, to try to proceed on that. Not that this would have any ‘force and effect’ outside the diocese, and very little within. It would simply lead to more disgust with diocesan processes and by implication with the ‘leaders’ in the church among an increasing number of faithful Christian people.
Mediation between the Principals really is the only way out of this.
Drew and Pippa have spent some time in the earlier part of this year urging that complainant 1 (and complainant 2 if he wished to press his complaint) and Lachlan Bryant should have separate mediation sessions with Drew and Pippa. In my articles ‘Twenty-one reasons why the case promoted by Sydney PSU Director Lachlan Bryant against Drew should, and in a just world must, go to mediation’ and ‘The Benefits of the Mediation Process’ I emphasised that it was only through mediation that the real issues could be identified and discussed and a truly Christian resolution reached. Peter Barnett, the architect of the devastation wrought by his improper behaviour in the first meeting is another who should be prepared to be involved in this, he being an ordained Baptist minister.
Both complainant 1 and Lachlan Bryant have proved to be too cowardly to face Drew and Pippa and seek Christian reconciliation through resolution of their differences. Complainant 1 would appear to be still under the delusion that a ‘finding’ against Drew will be made in some sort of tribunal process. Time is long overdue for him to be disabused of this notion.
Mr. Barnett bolted to his solicitors when contacted by Drew and Pippa seeking an apology for his involvement in the first two meetings, and hiding behind the solicitors like a child behind his mother’s skirts, he is denying all liability. How dishonest: he owes the liability of one Christian to another. It is not as if Drew and Pippa are seeking massive financial compensation, merely a Christian response to his wrongdoing.
The PSU should stop favouring complainants 1 and 2
As to complainant 1: the time is overdue for the PSU to wear whatever disappointment that complainant 1 might incur, because, either, he was pursuing a private vendetta against Drew and has dishonestly used and abused the PSU process, or he was seriously misled by the PSU as to the nature of his imagined sense of offence and injury and he was drawn into the flawed diocesan process with a groundless complaint. Complainant 1, having trained as a youth minister and ordained deacon is now researching a thesis for a PhD through Moore College, Sydney. If he is thinking of a career as an academic theologian, he needs to have this case resolved in a Christian way so that his name does not remain for ever (or as long as the internet and virtual reality exists) as a man lacking true Christian qualities.
He clearly wants the case to be over, as he complained to the Deputy President in his letter dated 26 March 2015. What he needs now is the strong dose of a reality check. He needs to ‘man up’ and face the man he has brought his complaints about and start to behave like the mature Christian that Drew had hoped he would turn into when he carefully mentored and trained him.
As there is no sexual quality to any of the complaints there is absolutely no reason why he should not be directed to attend mediation. As he is ordained there is no reason why he should not obey his Archbishop as he vowed to do to God as well as his bishops and the Archbishop.
As for complainant 2 he should be invited to withdraw what remains of his complaints, on the basis that he can be proved to have lied about a major one, and this taints the rest of his complaint with the suspicion of dishonesty. Complainant 2 has a career with a NSW government agency and is vulnerable to any formal finding in a quasi-judicial process that he has lied once the veil of anonymity is lifted.
Come on, it’s time to do the thing properly:
Come on, Mr. Easton: how about demonstrating that in your work as a deputy Chancellor of the diocese as well as barrister in this case the emphasis is for more on ‘Christian’ than ‘lawyer’ in your description.
Come on, Lachlan Bryant, face up to your various serious derelictions of duty: make things right in Christian terms, then resign and go and pursue a career outside the church. Do not let this massive error of judgment and competence colour the rest of your working life as well as your journey into Christian maturity.
Come on, Peter Barnett, let us see whether your ordination vows mean anything at all. Let us see whether you put obedience to God and truth and justice ahead of your own personal and financial interests. Let us see that you have accepted responsibility for the debacle that was that first meeting with Drew and Pippa, and that you seek reconciliation in the true Christian spirit. Let us see that you are now wiser and not so ready demonise people who have done nothing wrong.
Come on, Archbishop Davies, although Synod has done its’ best to strip you of power, you still hold God’s authority. And you are responsible to Him, not to men. Even if you are powerless under diocesan ordinances, speak out about every instance of cruelty and injustice, and that includes within the diocesan offices towards Drew, Pippa and his family. And while you are at it, you might call for a review of the other cases I have written about where innocent people have had their lives destroyed by the culture of incompetence, witch-hunting and vulnerability to improper pressure from powerful interests within the diocese that characterises the Sydney PSU.
There are some heads that should roll. By all means let them go quietly, but make sure that they go and that no-one remains under any illusion but that these people have let down the trust that was placed in them and they have behaved badly. In some cases their refusal to repent and seek forgiveness, their continuing demonization of people already cleared of all wrongdoing and their refusal to obey their bishop or archbishop continues as a serious stain on the reputation of the diocese.
Endnotes
[1] Louise Greentree BA LLB LLM(Hons) ProfCertArb Admitted to the Supreme Court of NSW and to the High Court as a solicitor(now retired). Former partner of Sydney city firm of solicitors. Lately law academic with special interest in Legal Professional Conduct, Alternative Dispute Resolution and restorative processes. Professional training includes Real Justice Restorative Conferencing and Collaborative Law.
[2] That he did not is a testament to the courage and faith of his wife and to God’s mighty help and strength. The fact that the latter was available to him is something that those self-described Christians in the diocesan offices should consider as another sign that they were far off course in designating this man a child sex abuser on the basis of no evidence whatsoever.
[3] See my article ‘Twenty-one reasons why the case promoted by Sydney PSU Director Lachlan Bryant against Drew cannot and should not be allowed to go to a hearing’ on www.churchdispute.com .
[4] See my articles ‘It’s a funny thing … about the Disciplinary Tribunal’ on www.churchdispute.com
[5] See his article ‘Prophetic Perseverance’ on the same website.