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  • Voice for society's most vulnerable
  • By Farah Farouque
  • The Age
  • 27/01/2007 Make a Comment
  • Contributed by: admin ( 59 articles in 2007 )
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A FACE is burnished in John Fogarty's memory. It is from his early days in the law. He was working on an inquiry at the Turana boys' home in Parkville and had taken to having a break each day by the playground.

A boy kept watching the young barrister. "He was a pale and quiet boy, never replied when I spoke to him." Yet each day, the child returned to keep vigil. The boy eventually began to sit, still not speaking, at the end of the bench where Fogarty ate lunch each afternoon.

It was the late 1960s, and Turana was a place for what were deemed "uncontrollables". Orphans were sometimes housed there, too. The boy, about seven, seemed to be in this category. "I wondered about him, he never seemed to have obvious friends," says Fogarty.

After two months, the inquiry came to a sudden halt. There was no opportunity to tell the boy. Fogarty is reluctant to call it an epiphany, but the face he saw during those eight weeks helped lead him to a path of social activism.

"I started to think of that young boy as someone I'd deserted," Fogarty says. "I began to feel that I'd been cowardly; he was lonely and sad and I could have made some inquiries about him. But I didn't. That left its impression on me and that's the source of my interest in children and general unfairness."

The quiet voice becomes agitated. "There was some unfair reason that the boy was there, some unfair reason that he longed for some male company and didn't have it. It wasn't that he wanted me personally, it was what I represented. But I just disappeared on him I've tended to channel that feeling of failing into trying to help other children."

John Fogarty is 73, a grandfather who wears a pacemaker. His quiet demeanour "I'm a grey figure," he says is accompanied by enduring concern for children's rights. His critics call him obsessive and one-eyed. He doesn't much like to talk about himself, preferring to keep to the issues, but agrees to this interview so he can highlight what he regards as serious deficiencies in Victoria's care for the vulnerable: the creaking foster care system.

A report by the Australian Institute of Health and Welfare this week confirmed that more than 4500 Victorian children were living in the care and protection of the Department of Human Services, mostly in fostering arrangements. It's not so much the numbers being removed that worries Fogarty he accepts some children can't live with their biological parents but the quality of alternative care on offer.

"Foster care is the end of the funnel in child protection," he explains. "The detection of child abuse has improved, the legislation is better. There's more money around to fund it. But, at the sharp end are still the children who can't go home to their parents, who have to go somewhere else either temporarily or permanently.

"There are fewer and fewer people prepared to take on that fostering role. These are difficult children to start with. Children are being shunted from one placement to another. There is a serious lack of support by the State Government for the children and the foster parents."

Fogarty retired as a founding justice of the Family Court of Australia nearly a decade ago, but he retains a judicial authority when he enters such public debates. He is a strong-minded man, convinced of the merits of his arguments.

Railing against what he regards as a trend towards inadequate sentences in child-bashing deaths, last month he also condemned "pathetically low" punishments imposed on child killers when compared with other similar offenders. Judges as much as prosecutors were in his sights in a forceful opinion piece he wrote for The Age.

"Other types of murder are seen for what they are," he wrote. "The rape and murder of a young woman, the killing of an elderly person at home during a break-in gone wrong, vicious assaults in taxis or public places attract charges of murder and heavy sentences why is the killing of a defenceless baby by gross and sustained violence to be treated differently?"

This strident rhetoric can irk members of the legal profession who prefer to go through more traditional forums of debate and use more cautious words. But Fogarty, who paired judicial duties with chairing the Institute of Family Studies, has always been less concerned with process and more with achieving results for his constituency: children who can't speak for themselves.

His work chairing child protection inquiries in the late 1980s and 1990s, including inquiring into the death of serially battered Daniel Valerio, helped lay the foundations for long-term changes to child protection in the state. Today, he is patron of several charities for children including the family support agency Family Life and the Mirabel Foundation. What's little known is that he is also the architect of the original child support scheme, a system that revolutionised financial support for children in Australia after relationship breakdown.

Child support has been much maligned by fathers' rights groups and adjustments were recently made to the formula. While Fogarty has publicly kept out of this argument he does not relish the prospect of becoming a rent-a-quote on the issue he believes the Federal Government has overall swung the pendulum too far towards fathers' rights in the administration of family law.

"It's all right for the Parliament to state the generally held social norm that it's good for children to see as much as is possible of both parents," he says. "The problem is that when it comes to making a decision in court, you have to make a decision based on an individual family. You can't just pick a social question and drop the individual circumstances of a family in on that."

Fogarty, more so than other men of his years, is personally attuned to the dynamics of individual families. His circumstances were not typical for a man of his generation. He was a sole parent to three sons for many years after his first wife, Noel, died from encephalitis following a long period of ill-health after a car accident.

Fogarty was made keenly aware of the need to balance work and family life. His mother-in-law helped with the care of his three then-young sons, but in keeping with his strong views on parental involvement he made work adjustments so he could be at home for them. He refused barrister's briefs in the country and generally avoided the after-hours socialising commonplace at the Victorian Bar.

The domestic load was not something he was prepared for. Fogarty concedes his parenting style veered towards the "firm", which posed difficulties for his sons. Along with his current wife, Alicia, whom he married 25 years ago, he has become a doting grandparent. Yet, for all his involvement in children's causes he is not someone to get sentimental about childhood.

His own childhood was a happy and unexceptional one. The son of a railway signalman, Fogarty studied with the Christian Brothers at St Kilda. He was popular and excelled at football. The family expectation was that he would do a leaving certificate and work in an insurance company or bank, as befitting a boy of his background.

"It came as a big shock to my parents when I wanted to do law. They kept telling me that other jobs were more secure and I did not know anyone in the law which was true."

A Commonwealth scholarship and part-time office work helped fund his law studies. After graduating, he went straight to the Bar, where he started with the usual run of petty criminal work. In those early years, he says, he was conscious of social inequities but was never one of the crusaders of the Bar. That opportunity came when he was appointed to the Family Court and discovered a powerful platform.

One of the pleasures of ageing, Fogarty says, is that many of the views that were considered reformist in the 1970s such as sexual and racial discrimination laws have become mainstream legal opinion. But not all progress pleases him. These days, he detects inertia in the community about social change. It's a form of complacency that prevents such issues as foster care coming to the fore of public debate.

"People tend to accept an unjust situation simply because it's there," he says. "Society has become selectively unkinder. People work very hard and deserve what they get but as they go through they seem to say, 'We work very hard and bugger everyone else.' As a community, I feel there is a feeling of less sympathy for people down the bottom.

"It's strongly assumed, for example, because unemployment is low anyone can get a job. That's not quite right, is it?"

Long ago, it was another young boy one whose name he can't even remember who taught John Fogarty it was worth challenging the verities others took for granted.

At his Christian Brothers school, corporal punishment was common. Being slightly dyslexic, he would often come to the attention of a more robust English teacher for failing a daily mandatory spelling test.

"We were in about grade six and this teacher would give us 10 words a night to learn by rote and test the class the next morning. You had to swap your test paper with the boy next to you and for each one you got wrong, you got the strap. The maximum was six.

"The task was beyond me so I always got the maximum."

One day, however, the boy who sat next to him a good speller refused to mark him down for the usual six. "He only crossed two words as wrong. Of course, the teacher didn't believe it. He looked at my test and saw I got more than six wrong. I got the six cuts and so did the boy next to me.

"But the one act of rebellion by that boy, I can't even remember his name, really undermined the teacher's authority in the class. One person rebelled that day against the system and he had a big influence."

It was a lesson for John Fogarty's life.

Yet it's that other more silent boy from the playground in Turana to whom he owes a greater allegiance, he says.

"When you get older like me, your mind tends to siphon off experiences. It tends to concentrate on a few instances. Obviously, like most people, I've been through exhilarating experiences, sad ones, funny ones, but if I sit down with a blank sheet it tends to be that image of that little boy who keeps coming back to me."

Farah Farouque is the Age's social affairs editor.


BORN Benalla, June 9, 1933

EDUCATION Christian Brothers College,

St Kilda; Law degree, University of Melbourne

PERSONAL LIFE Married Alicia. Three sons.

CAREER Long-time advocate of children's rights; Judge, Family Court of Australia, 1976-1998; Chairman of the Family Law Council 1983-86; Chairman of the Australian Institute of Family Studies 1986-90; Member of the Order of Australia (1992).

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