Stolen Generations appeal tossed out of court

Bruce trevorrow
Image: ABC TV: file photo

March 22nd 2010 ABC News

A South Australian Government appeal against a landmark Stolen Generations claim has been thrown out of court.

Bruce Trevorrow became the first member of the Stolen Generations to successfully sue for damages when he was awarded more than $750,000 in 2007.

He had been removed from his family as a toddler and put in foster care.

The government appealed to the South Australian Supreme Court against the judgment, saying it did not want the money back but wanted to clarify the legal precedent.

Lawyer Claire O'Connor represented Mr Trevorrow's family, who mounted the case after his death in 2008.

She says the latest judgment will not necessarily make it any easier for other children removed from their families to take legal action.

"You have to remember that in 1997 Bruce Trevorrow issued proceedings against the state of South Australia. We're now in 2010," she said.

"Millions of dollars have been spent by both the commonwealth and the state in this matter and for another child to take on the government in this way would be extremely difficult.

"It does uphold that there was a breach of the duty of care towards Mr Trevorrow in the way they removed him and it upholds that the state was wrong in the way that he was removed."

A ruling on who will pay the legal bills is on hold.

The government's lawyer said it would be weeks before he had instructions, given the Attorney-General's decision to move to the backbench after Saturday's South Australian election.

The Aboriginal Legal Rights Movement (ALRM) says the judgment shows the SA Government was wrong to appeal.

Neil Gillespie from the ALRM believes the decision will encourage at least seven other claimants.

"It's quite exciting for those members of the Stolen Generations, it gives them hope, hope that they didn't have before once the State Government appealed its decision," he said.

Stolen Generations compo payout upheld by appeal court

Gavin Lower, Matthew Franklin
The Australian
March 23, 2010

Cootamundra Aboriginal Girls Training Home

The only successful compensation case brought by a member of the Stolen Generations has been upheld by South Australia's highest court, sparking renewed calls for schemes to compensate Aboriginal people taken from their families as children.

It is unclear whether the South Australian government will appeal the decision to the High Court or settle other compensation claims by members of the Stolen Generations, because it remains in caretaker mode following Saturday's state election.

The Full Court of the Supreme Court yesterday dismissed an appeal by South Australia against the 2007 judgment that found Bruce Trevorrow, an Aboriginal man from the Coorong region, south of Adelaide, was taken from his parents when he was a baby in 1957.

Aboriginal leaders praised the decision and hoped it would push the states to follow Tasmania's example and offer compensation to the Stolen Generations, a key recommendation of the 1997 Bringing Them Home report.

Former ATSIC chairwoman Lowitja O'Donoghue welcomed the judgment, saying: "I'd like to see state governments set up a tribunal themselves, and deal with these issues out of court."

One of Trevorrow's lawyers, Claire O'Connor, said outside court the commonwealth and state governments had spent millions of dollars on the case, and it was time for the state government to consider a compensation scheme.

"Now it's time to spend money on indigenous people, not on white lawyers," she said.

Trevorrow, who died in June 2008, was awarded $775,000 compensation after a judge found he had been removed from his parents without their consent.

South Australia's Aboriginal Legal Rights Movement has more than 100 members of the Stolen Generations on its books, and seven cases lodged with the courts.

Chief executive Neil Gillespie said the success of the case gave members of the Stolen Generations new hope, and showed that "removing kids just because they were Aboriginal was just plain wrong".

One of the key findings upheld in the case was that the Aborigines Protection Board, which arranged for Trevorrow to be placed in white foster care when he was 13 months old, did not have the power to remove him from his parents without their consent.

Julian Burnside QC, who also represented Trevorrow, said the decent thing for governments to do was to introduce a simple compensation scheme.

Referring to Kevin Rudd's apology to the Stolen Generations in 2008, Mr Burnside said: "I would have thought if you say sorry, that you've committed a moral wrong that's caused harm to people, the next thing you have to do is compensate them for the harm."

Trevorrow's older brother Tom, who still lives in the Coorong region, said the judgment was good news.

The federal government last night ruled out any possibility of a national scheme for compensating members of the Stolen Generations.

Report from the original judgement - in 2007

In a scathing judgment, Justice Thomas Gray found the state guilty of breaching its duty of care, misfeasance in public office and false imprisonment. The state was found negligent in every aspect of its dealing with Trevorrow, including the method of his removal, placement in foster care and the manner of his return to his natural family.

Trevorrow was awarded a total $525,000 in damages, comprising $450,000 for pain and suffering and $75,000 in exemplary damages to emphasise the court's disapproval of his removal, which was done "knowingly unlawfully".

One stolen life restored

Jill Singer The Australian August 03, 2007

Jill Singer is a Walkley award-winning journalist, author and broadcaster who has followed Bruce Trevorrow's case from the beginning.

Thora Frances Lampard and her de facto husband Joe Trevorrow had been together for eight years when their fourth child, Bruce Allan Trevorrow, was born at Adelaide's Queen Victoria Hospital on November 20, 1956. The birth was traumatic for both mother and babe.

Lampard suffered from severe pre-eclamptic toxemia, a potentially life-threatening condition, and her newborn developed a common condition, neonatal sepsis, that responded to treatment. When he was almost two weeks old he was transferred to the Adelaide Children's Hospital while Lampard was sent to the Royal Adelaide Hospital for further care.

Despite a difficult start to life, Bruce was soon discharged from hospital and went home to live with his mother, father and three siblings at One Mile Camp, a former Aboriginal settlement 150km from Adelaide.

Home was a shack built by Joe Trevorrow from flattened tin drums and lined with hessian bags. He had regular paid work and also kept busy fishing. He would take his two oldest boys, Tom and George, hunting for kangaroos and emus and taught them how to live off the land. The children adored their dad and as adults have fond memories of him.

When viewed through non-Aboriginal eyes however, Joe Trevorrow's parental worth was reduced. One welfare officer, Marjorie Angas, noted in 1957 that "we understand" Joe was illiterate and a "habitual drunkard". After meeting him six years later, she reported he was an honest, genuine type of man who did quite a good job of keeping his family.

But Angas took issue with the fact he had not divorced his previous wife and Lampard was "living improperly" with him.

Joe Trevorrow's three eldest children with Lampard, Hilda, Tom and George, swear their dad was never a boozer. They explain that a recorded note suggesting he would nurture his children with alcohol was based on nothing more than his occasional practice of giving them a teaspoon of brandy when they were sick. They further testified that their parents cared for them well, that they never went hungry and were never left without an adult to care for them. The children also lived among a vast network of relatives and friends.

Life passed uneventfully for the family until Christmas Day 1957. With the help of relatives, Joe Trevorrow was caring for his four children while Lampard was away on a week's visit to friends and family at Tailem Bend.

Although a defence expert witness in 2005 diagnosed Bruce Trevorrow as suffering from cerebral palsy, the diagnosis remains unconfirmed and contested. Whatever the case, he was never a robust child.

During Lampard's absence he succumbed to infectious diarrhoea, which was then endemic across South Australia. It must have hit suddenly because a local police officer's report noted no problems when he visited the family several days before Christmas.

The same policeman, F.E. Liebing, later reported Joe Trevorrow came to him that fateful Christmas day and asked him to call an ambulance for his 13-month-old son, who had stomach pains. The father insisted it was a "case of great urgency". Liebing refused. Without adequate transport and with three other children to care for, Joe Trevorrow asked a neighbour with a decent car to transport Bruce to hospital. It would be the last time he would see his son.

The neighbours were Mr and Mrs Evans, a white man married to an Aboriginal relative of Lampard who, as Bruce Trevorrow's legal team said, for some unknown reason had a "dim view" of Joe Trevorrow and Lampard.

The Evanses took the baby to the Adelaide Children's Hospital where, unbeknown to his family, his admission sheet wrongly recorded he was a "neglected child without parents".

Meanwhile, Welsh-born migrant Martha Florence Davies had spotted a newspaper advertisement placed by South Australian authorities calling for foster parents for allegedly abandoned and neglected Aboriginal babies and children.

Davies and her husband, Frank, already had two children of their own, but she was of the opinion that black babies could be every bit as good as white ones and seemed prepared to practise what she preached. On January 6, 1958, the Davieses opened their home to 13-month-old Bruce without his parents knowledge or permission.

It is clear authorities were aware he was not an abandoned child. Nine days after the Davieses took him, the secretary of the Aborigines Protection Board wrote to Meningie police station wanting to know the details of how Bruce Trevorrow was placed in the Children's Hospital.

Liebing replied to the board, noting Bruce was the son of Thora Lampard and Joseph Trevorrow of Meningie.

The authorities also knew the child was not neglected. Three months after his removal the Aborigines Protection Board received a report from welfare officer John Weightman stating: "The house on the Coorong occupied by Joe Trevorrow and Thora Lampard was visited. The surroundings of the house were observed to be reasonably clean and tidy ... I could not recommend that any child be committed due to the unsatisfactory state of the home."

Eighteen months after Bruce's removal, Constable Goldie of Meningie Police reported the child's siblings were well kept, were fit, happy and wanted for nothing.

Despite constant contact with the Aborigines Protection Board, Joe Trevorrow and Lampard were denied the truth about their youngest son's whereabouts. Five months after they had last seen him, Lampard sent a handwritten letter to Angas. It was clearly not her first attempt to have her son returned. "I am writing to ask if you will let me know how baby Bruce is and how long before I can have him home as I have not forgot I got a baby in there and I would like something defenat about him this time trust you will let me know as soon as possible," Lampard wrote.

She didn't get a reply for three weeks and when it came it was a lie. Lampard was told her son was still sick and under medical care: "Bruce is making good progress but as yet the doctor does not consider him fit to go home."

The suitability of the Davieses as foster parents was not assessed until many years after they got Bruce Trevorrow. They had left behind an 18-year-old retarded foster child when they migrated to Australia.

The Davieses would eventually be classified a "closed house" and they lost their licence to foster children.

Martha Davies appears to have treated Bruce as one of her own children. She took him to school, to church and to be circumcised three months after he came into her care.

She reared him to believe he was white, even though he didn't look it.

He recalls being taunted at school by his exclusively white fellow students and being called boong and darkie. Davies's advice was "just tell people you've got some dark relatives in another country".

The child certainly caused her a lot of worry, exhibiting considerable behavioural problems and symptoms of emotional disturbance. She threatened him on occasion that she would give him away if he didn't behave. When he got too much for her the state handed him back to his natural family after denying for almost a decade it knew his whereabouts.

When Bruce returned home, Joe Trevorrow was dead and Lampard was heavily pregnant and married to another man. The mother and child reunion was fraught with problems and the state placed the boy, then aged 10, into institutional care.

Bruce Trevorrow has recollections of a bleak childhood and the cold panic that still wakes him at night: he is a child again, trapped and alone. There are bars on the windows. It is cold. The boy wants to break free and run. He has no place to run to and no one who wants him.

As he grew up he acquired a criminal record and an alcohol addiction fed by a sense of isolation. He says he has always felt worthless, ever the loner struggling to belong.

Haunted by the thought that he could have been abandoned, he wanted to know why he was fostered, then institutionalised. So he started searching for answers about his confused white and black heritage.

Early in 1994 he approached Joanna Richardson, then a legal practitioner with Aboriginal Legal Rights Movement SA. On April 6, 1994, Richardson wrote to the SA Department for Family and Community Services seeking information about Trevorrow's removal from his mother. A flood of information was unearthed and legal proceedings began in July 1998. The legal team was eventually bolstered by prominent human rights lawyer Julian Burnside QC and a savvy junior counsel, Claire O'Connor. In all, 21 volumes of documents were filed -- state records in the main -- that provide a comprehensive official record of Trevorrow's traumatic childhood.

According to the defence case, "the plaintiff has engaged in binge drinking, taken drugs, been the subject of head trauma, has had periods in institutions, prisons, hospitals, has several siblings and half siblings who also spent times in institutions, nephews and nieces that sadly committed suicide and has been diagnosed with cerebral palsy".

When I meet up with Trevorrow, he has face-ache after having seven rotten teeth extracted the day before. It's a cold winter's day and "the wife" has dropped him off at our rendezvous, a roadside cafe, 3 1/2 hours' drive east of Melbourne on the South Gippsland Highway. Trevorrow is 50 but he looks older. His hair is thick and white: a stark frame for his black, lined face. He walks with a limp, aided by a walking stick, and groans as he sits down. He's married, has four children and lives in a neat, mortgaged, brick-veneer house in the town of Bairnsdale.

"People say you're lucky, you got a house. But a house don't mean nothing, it's just a house." he says.

Apart from some work at a local community centre, his income prospects are limited. Unskilled labour requires a more robust constitution. He does occasional volunteer work for the local police, helping other Aborigines who get drunk and obstreperous.

A self-confessed violent drunk, he's good company when sober, insightful and amusing.

Spelled out across the fingers of Trevorrow's left hand is the word love, a tattooed reminder of his many stints in institutions. He says he has never told anyone he loves them and marvels at his one stroke of luck, that his wife, Veronica, has stuck by him.

But unlike his biological brothers and sister, Trevorrow is not proud of himself. Hilda, George and Tom were reared by their Aboriginal family and were emotionally strong enough as youngsters to survive life's vicissitudes. They've gone through rough times, too, but they're fine parents and grandparents. He admits he's jealous of them.

Junior counsel O'Connor has come to know Trevorrow's siblings and notes his brothers are among the most respected people in the state, working for recognition of the Ngarrindjeri people. Their views are frequently sought by the media and government. The trio have lived a world apart from their estranged and troubled youngest brother, the baby their dad used to sing about, the one who was stolen.

Trevorrow found dealing with his civil claim against the state hard going.

He says it was awful to hear the defence tear into his parents' alleged inadequacies, though it felt "bloody good" being in court and not being the defendant.

On Wednesday Trevorrow become the first person to win a stolen generations claim in an Australian court when the Supreme Court of South Australia found he had been unlawfully taken from his family in 1958.

In a scathing judgment, Justice Thomas Gray found the state guilty of breaching its duty of care, misfeasance in public office and false imprisonment. The state was found negligent in every aspect of its dealing with Trevorrow, including the method of his removal, placement in foster care and the manner of his return to his natural family.

Trevorrow was awarded a total $525,000 in damages, comprising $450,000 for pain and suffering and $75,000 in exemplary damages to emphasise the court's disapproval of his removal, which was done "knowingly unlawfully". When the stunning judgment was delivered, Trevorrow was in court surrounded by his family, including his biological siblings, a happy and vindicated man.

Trevorrow says one of the benefits of his successful court case is that his own children look at him with a modicum of respect rather than just "the old man who gets pissed and flies off the handle all the time".

Jill Singer is a Walkley award-winning journalist, author and broadcaster who has followed Bruce Trevorrow's case from the beginning.