The Anglican Church of Australia Sydney Diocese
PSU v Drew
Drew and Pippa: A timeline of frustration as well as devastation
By Louise Greentree
Introduction
In the blog post on 12 May 2015 I wrote about what was happening – or rather, what was not happening: I wrote that the hearing set down for 23 and 24 April 2015 did not go ahead. It appears that there was agreement between the Archbishop of Sydney the Most Rev. Glenn Davies, the Deputy President of the Disciplinary Tribunal the Hon. Acting Judge Peter Young AO QC and Mr. Lachlan Bryant, director of the PSU Sydney diocese of the Anglican Church of Australia that the case should not proceed to a hearing on those days, ostensibly so that there could be settlement discussions.
But there was disagreement with complainant 1 who wrote directly to the Hon. Acting Judge Peter Young AO QC asking him to decide the case as a sole arbitrator as he, complainant 1 needed the case to be decided by 23 April 2015. He described himself to Acting Judge Young as the victim in the case for the past 18 months – that is, not the victim of Drew’s actions but the victim of the diocesan bungling of the case! It is a good thing for complainant 1 to experience much the same frustration and impatience as that experienced by Drew and Pippa (and their advisers and supporters) about the failure of the diocesan representatives – particularly Lachlan Bryant and Michael Easton, barrister – to get on with proper conduct of settlement discussions and get the case finalised so that everyone can get on with their lives.
The timeline:
- The accusation:
| 2002 – 2004 | The accusations relate to non-sexual (as admitted by complainant 1) mentoring by Drew over this period when complainant 1 was aged 16 to 18 and working with Drew as a paid part-time assistant in the youth ministry. |
| 2004 – 2008 | Complainant 1 (aged 18 – 22) continues to work with Drew in this position until he completes his tertiary education and moves to a youth ministry position in a different parish in 2008. |
| 2009 | Complainant 1 asks Drew to lead prayers at his wedding. |
- Complainant 1 makes a complaint to the Sydney diocese Professional Standards Unit without first approaching Drew
| November 2012 | Complainant 1 sends text messages to Drew and Pippa (individually and without prior warning) accusing Drew of child abuse. In the messages he says he does not want to speak to Drew again and he wants to make sure |
- Bungling of the complaint by PSU director and the rev. Peter Barnett leads to gross injustice: Drew and Pippa challenge the director PSU.
| November 2012 – October 2013 | Drew and Pippa challenge the bungling of Lachlan Bryant and the rev. Peter Barnett in the initial interviews, the announcement to the parish, and his referral to the Professional Standards Committee without warning and without allowing Drew to present his defence to the complaints. |
- The referral to the Disciplinary Tribunal
| October 2013 | The PSC, against the earnest entreaties of the Archbishop of Sydney refers the case to the Disciplinary Tribunal (by a recommendation to the Archbishop which he has no choice but to accept and implement according to the provisions of the Discipline Ordinance 2006), and despite the fact that the evidence discloses no sexual abuse and the only charge can be brought is ‘disgraceful behaviour’ which the facts do not support. |
- The commencement of proceedings
| March 2014 | In the intervening 5 months the diocesan representatives had to draft two statutory declarations and the actual ‘charges’ under the terms of the Discipline Ordinance 2006. The result are ‘charges’ that Drew’s mentoring behaviour was ‘disgraceful if performed by a youth minister and that it caused or, if known at the time would have caused a scandal’. There is no mention of child abuse nor child sex abuse, despite the fact that Mr. Lachlan Bryant and the rev. Peter Barnett accused Drew of these in the first meeting. |
- ‘Suspension’ of proceedings to try to settle
| December 2014 – 23 April 2015 | At the fourth directions hearing the case is set down for a three-day hearing commencing 23 April 2015. Mr. Easton starts to ‘explore’ the possibility of settlement but nothing is commenced until 2015.
In February 2015 Drew and Pippa have an interview and telephone conversations with the Archbishop, who proposes some form of mediation or facilitated settlement discussions with a senior churchman. Complainant 1 (by now ordained as a deacon in Sydney diocese) refuses to participate in a mediated settlement and reconciliation discussion despite this being a proper request by his Archbishop. Complainant 1 writes direct to the Hon. Acting Judge Peter Young AO QC, who is Deputy Chair of the Tribunal and who has already ‘heard’ four directions hearings to persuade him to ‘hear’ the case as sole arbitrator and describing himself as a ‘victim’ of the process. There is confusion among the various representatives of the diocese as to whether the case would proceed to a hearing on 23 April 2015. At the last moment it is confirmed that it is not going ahead to a hearing on 23 April so that settlement can continue to be explored. The case has not been relisted to obtain a fresh set of hearing dates. |
- Some anniversaries
| 11 November 2015 | It is three years since complainant 1 started the whole mess with his ill-considered mass SMS to former members of Drew’s youth ministry, encouraged by Mr. Lachlan Bryant to do this to obtain supporters of his claims of child abuse and child sex abuse. |
| As at 30 October 2013 | The PSC recommended to the Archbishop over his earnest pleas not to do so, that he refer the case to the Disciplinary Tribunal. |
| As at 14 November 2015 | Drew’s case is the longest-running case before the Disciplinary Tribunal, 540 days.
The previous record according to the Hon. Acting Judge Peter Young AO QC is 306 days. |
Where we are now?
Generally speaking, nowhere! The interesting thing is that it is approaching a full year since the dates for hearing the case were set down and by December 2014 Mr. Easton was proposing settlement discussions, although nothing was commenced until 2015. It is some nine months since gestation of a willingness on the part of the diocesan representatives to consider settlement during which there has been nothing but backwards and forwards of drafts and re-drafts without the relief of the birth of an agreement. And whose fault is this? Well, it certainly is not the fault of Drew and Pippa who diligently and exhaustively respond to every bit of drafting that the diocesan representatives put forward. And, as I discuss below, it is the drafting on the part of the diocese and complainant 1 that makes no compromise and demands that Drew should compromise his position that stands between everyone involved in this case, because it is not based on any real attempt to use appropriate processes to obtain an agreement in the first place.
The two settlement documents
There are two documents that the diocesan representatives want Drew and Pippa to agree to:
The first is a Statement of Agreed Facts: the hysterical thing about this is that the parties cannot agree on a statement of agreed facts. And yet the diocesan representatives (and complainant 1?) continue to insist on it.
Surely by this time it should be abundantly clear that neither can agree to the various drafts because they do not in fact agree on the view taken by the diocesan representatives versus Drew and Pippa’s view.
The diocesan view is that, despite the lies and misrepresentations by Mr. Lachlan Bryant and the rev. Peter Barnett to Drew and Pippa and the subsequent collapse of their accusations of child abuse and child sex abuse when it came to drafting the ‘charges’, Drew must have done something wrong. Quite what that would be they have had to scramble to try to make church law in amendments to the Discipline Ordinance 2006 after the commencement of their case against Drew, using the vague and non-proscriptive clauses of Faithfulness in Service to try to frame some sort of wrongdoing out of actions that are not in themselves wrong.
Drew and Pippa reject that view. They take the view that the facts disclosed by complainant 1 (and complainant 2) are either denied or, especially taken in their proper context, do not disclose any wrongdoing. Drew and Pippa’s view inescapably leads to the conclusion that, as there are some 19 or so statutory declarations from other members of the youth groups in Drew’s youth ministry who have been treated in the same way and who have found no reason for a complaint, complainant 1 is neurotic in his perception of Drew’s behaviour as opposed to the reality of it. As I have written about in other articles, it is inappropriate for church law to allow a person to rely on their own subjective, faulty perception of behaviour: secular law requires that where there is a complaint it must be of a nature that a reasonable person would regard as objectionable and who would anticipate that it would cause distress and humiliation to the complainant. Neither is the case here.
The second incorporates the Terms of Settlement which sets out the agreed actions that each party will take, or refrain from taking as a result of the settlement of the case. But the representatives of the diocese cannot agree with Drew and Pippa on these either. The inability to agree on these arises from the fundamental disagreement on the significance of the facts which would be set out in the so-called Statement of Agreed Facts, if they could be agreed.
Briefly: if Drew and Pippa are correct in their view that the facts contained in the evidence before the Tribunal do not disclose any wrongdoing in accordance with the Discipline Ordinance 2006, and therefore that the ‘charges’ have not been proved by Mr. Bryant as the promoter of the charges, then they are entitled to expect that the diocesan representatives will take all proper and appropriate steps to make good the damage they have done by allowing the complaint to be received in the first place (wrongfully called child abuse and child sex abuse) and then to proceed with an altered ‘charge’ of disgraceful conduct, despite the fact that it was conduct that was known about at that time and which did not cause a scandal.
This must, as a matter of fairness, include paying Drew’s legal costs.
But, if the diocesan representatives are correct that there is wrongdoing in accordance with the Discipline Ordinance 2006 disclosed in the evidence before the Tribunal and therefore that the ‘charges’ have been proved by Mr. Bryant as the promoter of the charges, then they are entitled to expect that Drew will agree to various terms including refraining from applying for any position in youth ministry in the diocese ever again, and to forfeit any claim for even a contribution to his legal costs.
In the absence of agreement reached in a reasonable time the diocesan representatives can confidently relist the case for hearing by the Tribunal. But they will not do this. They simply batter on attempting to get themselves and those of the diocesan representatives who have done wrong out of the hole they have dug themselves.
This two views cannot be reconciled simply by passing back and forth between the diocesan representatives and Drew and Pippa’s barrister various versions of these two documents, nor by any attempt at ‘blocking’ any acknowledgment of the foundation of the differences between the two views.
So where can this case go from here?
Well, there is much to consider here:
Firstly: the diocesan representatives require that Drew agree to ‘punishment’ for his innocent actions.
Unless Drew agrees that he should be punished for carrying out what were entirely innocent actions, not unlawful, not immoral, not contrary to Biblical precepts, not in breach of ecclesiastical law, and not harmful, then the diocesan representatives, having painted themselves into a corner, are unable to settle the case without tremendous loss of face and admitting that they were wrong right from the beginning and also courting legal action from complainant 1 who has already laid the foundation for this by writing direct to the presiding Chair of the Disciplinary Tribunal describing himself as a victim – not of Drew but of the (then) 18 months of the diocesan process[1].
Drew will not agree to accept any form of punishment nor make any concession that his actions were harmful or abusive. He has filed a statutory declaration of complainant 1’s admission to an independent person of high repute that he never did think that there was any sexual abuse or intention in Drew’s actions. Nor is there any actual allegations of child abuse or child sexual abuse in complainant 1’s statutory declaration. Which is why the diocese found it could not proceed with a charge of child abuse or child sexual abuse. Nor adult abuse or adult sexual abuse. And, for the same reasons, the case should never have been brought at all because complainant 1’s evidence did not even establish actions that could be termed disgraceful and because it was never able to point to particular harm (apart from ‘uncomfortableness’ – another example of subjectivity that is rightly rejected by secular law).
Secondly: Lachlan Bryant and Peter Barnett have behaved with gross impropriety in this case:
The diocesan representatives have the problem that the behaviour of Mr. Lachlan Bryant and the rev. Peter Barnett in the first interview with Drew and Pippa was so grossly inappropriate and improper, involving bullying, lies and deceit, that Drew could be entitled to sue both of these men, to recover at least all his costs of dealing with the complete bungling these two men perpetrated: legal costs, restoring his reputation and being compensated for actual financial loss. The publicity, which could not be restrained, would cause considerable reputational damage to both the diocesan organisation (which is already smarting from publicity arising out of the Royal Commission) and to complainant 1 who will not be able to have his name suppressed because he is not a victim of child abuse or child sex abuse.
Thirdly, complainant 1 is the thorn in the side of the PSU:
When Complainant 1 texted / posted on Facebook to former members of the youth group messages to the effect that Drew was guilty of child and child sex abuse he defamed Drew and he set in train events leading to suicidal thoughts and what could have been a dreadful tragedy. Subsequently the PSU has not been able to ‘charge’ Drew with any such offences. Therefore the Disciplinary Tribunal can only make recommendations to the Archbishop in relation to this charge: that Drew performed actions that were disgraceful if performed by a youth minister and that they caused or, if known at the time, would have caused, a scandal.
Drew’s supporters produced about 19 statutory declarations that answer this comprehensively in favour of Drew.
This leaves complainant 1 in the unenviable position whereby the Disciplinary Tribunal will not be able to bring down a finding that supports and exonerates his complaint if it acts judicially and not just as an extension of the ‘kangaroo court’ that has been instituted by Mr. Lachlan Bryant and the rev. Peter Barnett. Therefore complainant 1, in the teeth of the evidence (or rather, the lack thereof) is using his position as the self-described victim in the case, no doubt supported by his legal advisers, that should he be successfully sued by Drew or Pippa on their own behalf or on behalf of one or more the their children for post-traumatic stress disorder, or he has suffered in a similar fashion himself, he would have a claim against Mr. Lachlan Bryant for having misrepresented to him, if that is the case, that Drew’s mentoring actions were child abuse.
It is generally agreed between competent lawyers that it is best to obtain an agreement before spending time and money on drafting the terms of that agreement.
Instead of taking appropriate steps to actually reach an agreement BEFORE trying to draft the terms of that agreement into documents that can be signed by the parties, Mr. Easton continues in an apparently leisurely manner simply to set out the positions adopted by the diocesan representatives to protect the reputation of ‘the church’ (meaning the diocesan organisation of the Anglican Church Sydney diocese) and its’ servant Mr. Lachlan Bryant, its’ consultant the rev. Peter Barnett and complainants 1 and 2 (although the last barely gets a look in), successive Registrars, the Archbishop, and members of the Professional Standards Committee, the Safe Ministry Board and the Disciplinary Tribunal (among others).
One of the problems with this approach is that Mr. Easton’s position comes and goes with almost every draft – appearing to agree to omit one point, but then insert it again in a much later draft.
And as I have written in articles on this website (and taught in numerous post-graduate courses of Alternate Dispute Resolution over many years) simply reiterating positions is futile. What has to happen is that the parties are moved to an appreciation of their own and the other party’s interests – and from there to finding a resolution that honours the overarching truth and justice of these interests. Not only is it good lawyer-ing, it is also good Christian lawyer-ing.
Conclusion
So we are back to the situation I wrote about and published earlier this year: the necessity to obtain a mediated settlement from which can be drafted terms of settlement and any statement of agreed facts that might be agreed to[2].
Which means taking to heart the issues I raised and points I made in my two articles published on this website: ‘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 In the case of Sydney PSU v Drew’.
Now, as the astute and faithful reader will know, I have been writing about the deficiencies of the Sydney Anglican church’s discipline processes both in general and in particular cases for some time now. It is clear to me as well as others who have read my articles that the Anglican church in Sydney diocese is continuing to place itself in a very un-Christian position when it insists on resolving disputes in the old-fashioned, ruthless and arrogant way of the secular legal world: force the church member to take the relevant people of the clergy hierarchy and staff to the secular court; admit nothing; lie if you can get away with it (‘the church has done nothing wrong’); use tactics to exhaust your opponent’s financial and mental resources; refuse mediation as a standalone method of resolving the dispute before allowing the situation to develop where the church member has no alternative but to go to the secular court; and even there refuse mediation until ordered to attend by a Court when the case is about to be set down for hearing, many months and some tens of thousands of dollars (on both sides) later.
This attitude is not worthy of a church organisation because it is not God-honouring.
And it does not even achieve its aims: it does not protect the church organisation; it thrusts it further into the quagmire from which it will, sooner or later, emerge covered in evil-smelling dung, and often with maximum secular publicity over which the church has no control.
It is time for the clergy and lay persons of the church to reclaim the right to require all persons representing the diocese in any way to behave in a manner that honours God. And that includes lawyers.
It is time for lawyers representing the clergy and the church organisation to behave in every way that honours God. One thing about mediation as a stand-alone process is that it puts an end to tactics and seeks a truthful and honourable resolution.
None-the-less I do not hold my breath for those lawyers deeply entrenched in commercial law tactics and litigation to open their minds and their practice of the law to what lawyers in other areas of practice have known for many, many years: mediation is a process where the parties retain control of their dispute and take responsibility for the honourable and elegant resolution of it; the lawyers are at a second table simply to give advice to their clients but not to intervene in the mediation process; costs are contained and not used as a weapon; apologies where appropriate can be given and received in private and there is the possibility of Christian reconciliation between the parties. Let us try this in Drew’s case.
End Notes
[1] What the diocesan representative Mr. Easton says is that the diocese has to settle the case on terms that would be ‘approved’ by the Office of the Children’s Guardian (OCG) and that this, somehow, makes it impossible for the diocese to agree that Drew is not guilty of any wrongdoing. The flaw in this argument will be apparent to any discerning reader: if the diocese cannot proceed against Drew for a breach of ecclesiastical law, and the NSW Police, although notified right at the beginning, have not found a case for Drew to answer in criminal law, then it is difficult to see how the OCG could go behind this to try to overturn these decisions. On the other hand, trying to protect the diocese from legal proceedings against it, and its reputation, seems a much more compelling argument.
[2] Or not agreed to, in which case any further attempts to obtain such a ‘statement of agreed facts’ should be simply abandoned.