Judge lashes WA government over decision to return boy to abuser

A judge has blasted the decision to return a ward of the state into the home of a child sex predator, and called for a rethink over whether WA wanted to fight a compensation claim against it.

Labor MP Don Punch. Picture: Facebook

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A District Court judge has lashed a decision by West Australian government minister Don Punch to return a ward of the state into the home of a child sex predator as ­“utterly extraordinary” and called on the state to rethink whether it wanted to fight a sex abuse compensation claim against it.

Mr Punch – a Labor MP since 2017 – was in a senior role with the WA Department of Communities when he helped set in train the return of eight-year-old Dion Barber into the care of his mother and her de facto partner in December 1988.

The Children’s Court had found 15 days earlier that, on the balance of probabilities, the de facto partner had sexually ­abused the boy.

Mr Barber was returned to the family home four months later.

He alleges he was then repeatedly sexually abused by his mother’s partner almost immediately.

Mr Barber is suing the state of WA, arguing it failed in its duty of care during his time as a ward of the state.

Opening the government’s defence on Wednesday afternoon, barrister Fiona Stanton said the state admitted it had breached its duties when Mr Punch and his colleague decided to send the boy back to the family home.

Judge Linda Black questioned how, in light of that admission, the state could argue that it was acting in good faith.

“I find it utterly extraordinary that the state would accept that it knew an eight-year-old … had been sexually abused by his stepfather, made a ward of the state, and within a very short … time returned him to the hands of the man who abused him. I find that frankly unbelievable,” she said.

Judge Black said she did not see how that decision could be anything other than an “egregious breach” of the department’s responsibilities.

The statement of claim from Mr Barber also alleges he was subsequently sexually abused by his biological father, his mat­ernal grandfather and the friend of foster parents – all of whom he came into contact with during ­periods when he was a ward of the state. The government has disputed whether all of those instances occurred.

Judge Black asked Ms Stanton to ensure her instructors understood the possibility that Mr Barber could be awarded a significant amount of damages solely due its admitted role in the return of Mr Barber to his stepfather’s care.

“The department is at risk of a sizeable damages award just on what they admit, even when you put aside the things they don’t admit,” Judge Black said. “I do not want the plaintiff to get in the witness box if we can avoid it.”

Ms Stanton argued that the court needed to consider that Mr Barber had already suffered significant harm to his wellbeing as a result of the sexual and physical abuse he had suffered at the hands of not only his stepfather but also, allegedly, his biological father before he was made a ward of the state.

She said Mr Barber had also suffered mental harm as a result of his mother’s decision to take the side of his abuser, who denied ever interfering with the boy, and her efforts to give up her children.

Those other factors needed to be considered when weighing up just how much the state should be held responsible for Mr Barber’s long-term conditions.

Earlier, Mr Barber’s lawyer, Joel Sheldrick, said records from the case management conference led by Mr Punch in December 1988 after the sex abuse allegations were made showed that the department believed only Mr Barber and the mother’s partner “actually knew what happened”, a conclusion he described as one of “appalling negligence”.

He said Mr Punch and his colleague appeared to have given no regard to the evidence from the social workers who investigated the incident, to the medical evidence collected at the time, or to the findings of the Children’s Court magistrate who issued the ward order.

“[Mr Barber was] sent back into the hands of an abuser,” Mr Sheldrick said. “The horror this child went through … should not be underestimated.”

Mr Punch holds the Disability Services, Regional Development, Fisheries, Volunteering and Seniors and Ageing portfolios in the Cook Labor government. He is slated to give evidence to the trial next week.

Mr Punch is the member for Bunbury, a bellwether seat that has almost always been held by the party that forms government in WA.

Mr Sheldrick said the damage suffered by Mr Barber at the hands of his mother’s partner damaged his client “irrevocably”. Mr Barber now suffers from complex PTSD, among a host of other physical and mental conditions.