A v Secretary, Department of Communities and Justice (No. 4)

[2019] NSWSC 1872

Supreme Court

New South Wales

Medium Neutral Citation:	A v Secretary, Department of Communities and Justice (No. 4) [2019] NSWSC 1872
Hearing dates:	10, 11, 12 and 13 December 2019
Date of orders:	20 December 2019
Decision date:	20 December 2019
Jurisdiction:	Equity
Before:	Lindsay J
Decision:	Summons Dismissed
Catchwords:	CHILD WELFARE — Family Law — Children in need of care and protection — Dismissal of appeal from Children’s Court in care proceedings.
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 NSW Children’s Court Act 1987 NSW, Children’s Court Regulation 2014 NSW
Cases Cited:	A v Secretary, Family and Community Services (No. 2) [ 2019] NSWSC 43 A v Secretary, Family and Community Services (No. 3) [2019] NSWSC 369 [2018] NSWSC 1925 Briginshaw v Briginshaw (1938) 60 CLR 336 Department of Family and Community Services (DFaCS) and Nicole [2018] NSWChC3 M v M (1988) 166 CLR 69 NU v NSW Secretary of Family and Community Services [2017] NSWCA 221 The Secretary of the Department of Communities and Justice (DCJ) and Fiona Farmer [2019] NSWChC5
Texts Cited:	-
Category:	Principal judgment
Parties:	First Plaintiff: A (Mother of children, C and D) Second Plaintiff: B (Husband of A, step father of C and father of D) First Defendant: Minister for Families, Communities and Disability Services Second Defendant: Secretary, Department of Communities and Justice Third Defendant: C (a 13 year old child) Fourth Defendant: D (a 2 year old child) Fifth Defendant: E (Birth father of C) Sixth Defendant: Children’s Court of NSW
Representation:	Counsel: Plaintiffs: Self Represented First and Second Defendants: MW Anderson Third Defendant: C Sperling Fourth Defendant: M Voncina, Solicitor Fifth Defendant: No appearance Sixth Defendant: Submitting Appearance   Solicitors: Plaintiffs: Self Represented First and Second Defendants: Crown Solicitor’s Office Third Defendant: Robert Tricca & Associates Fourth Defendant: M Voncina Fifth Defendant: No appearance Sixth Defendant: Submitting Appearance
File Number(s):	2019/00298471

Judgment

EDITORIAL NOTE

1. In this judgment, in order to conform to orders made on 3 April 2019 by Schmidt J in a short judgment published as A v Secretary, Family and Community Services (No. 3) [2019] NSWSC 369 in separate but related proceedings in the Common Law Division of the Court, members of the family at the centre of the proceedings are identified by letters of the alphabet.

2. Her Honour’s judgment “No. 3” was incidental to her earlier, substantive judgment published on 5 February 2019 as A v Secretary, Family and Community Services (No. 2) [2019] NSWSC 43.

3. That judgment refers to a still earlier judgment of Harrison J, published to the parties on 14 December 2018 with the Medium Neutral Citation of [2018] NSWSC 1925, not readily accessible to the public on the Caselaw website. That judgment, I assume, was intended by Schmidt J to serve as judgment “No. 1”.

4. In these proceedings, in the Equity Division, I adopt a case name that conforms to her Honour’s model, with a designation as judgment “No. 4”.

INTRODUCTION

5. By a summons filed on 24 September 2019 and amended on 28 October 2019 the plaintiffs (A and B), pursuant to section 91 of the Children and Young Persons (Care and Protection) Act 1998 NSW (“the Care Act”), appeal from final orders made by the Children’s Court of NSW (“the Children’s Court”) on the 23 September 2019, pursuant to section 79 of the Care Act, in respect of two children (both girls), C and D, respectively the third and fourth defendants.

6. The orders made in relation to the child C (born in October 2006 and now aged 13 years) provide for all aspects of parental responsibility for the child to be allocated to the Minister administering the Care Act (the first defendant) for a period of two years and thereafter to the father of the child (the fifth defendant, E), who resides in New Zealand, to the exclusion of her mother, A.

7. The orders made in relation to the child D (born in July 2017 and now aged two years) provide for parental responsibility for the child to be allocated to the Minister until she attains the age of 18 years, thus displacing from responsibility for her care both her mother (A) and her father (B).

8. An appeal lies to this Court from the orders of the Children’s Court because the orders under appeal were made by the President of the Children’s Court: Children’s Court Act 1987 NSW, section 22A; Children’s Court Regulation 2014 NSW, clause 5. Normally, appeals of this nature lie to the District Court of NSW.

9. Section 91 of the Care Act provides a right of appeal to a person who is dissatisfied with an order (other than an interim order) of the Children’s Court. An appeal under the section is by way of a new hearing. In disposition of an appeal, the Court may confirm, vary or set aside the decision under appeal. The Court has all the functions and discretions of the Children’s Court material to a disposition of the appeal.

10. The plaintiffs (A and B) are self represented. The children, C and D, are each separately represented by a legal representative appointed pursuant to section 99 of the Care Act. C’s father, E, did not appear in the present proceedings although, for a short time (on 23 September 2017), he did appear in the Children’s Court as an observer without direct participation in the proceedings in that court. Counsel for the Minister and the Secretary, Department of Community and Justice (the first and second defendants respectively) informs the Court that the Secretary has kept E informed of developments in this Court.

11. Given that a section 91 appeal is a new hearing, the Secretary accepted responsibility for carriage of the proceedings on appeal, and the onus of proving the case for care orders. The standard of proof required is proof on the balance of probabilities (Care Act, section 93), having regard to the principle (associated with Briginshaw v Briginshaw (1938) 60 CLR 336) that the degree of proof required by this civil standard may vary with the gravity of the fact to be proved: NU v NSW Secretary of Family and Community Services [2017] NSWCA 221 at [52]-[54]; M v M (1988) 166 CLR 69 at 76-77.

12. The Secretary’s primary submission was that the plaintiffs’ amended summons should be dismissed and the Court should order that the orders of the Children’s Court be confirmed. The legal representatives of C and D supported the Secretary’s case and joined in the making of that submission.

THE COURSE AND NATURE OF PROCEEDINGS

13. The children, C and D, were removed from the care of the plaintiffs on 15 September 2017. The proceedings in the Children’s Court were commenced by the Secretary on 20 September 2017 by the filing of an application initiating care proceedings pursuant to section 61 of the Care Act, together with a report of the same date in support of the application. The application sought care orders on a single ground (for which section 71(1)(c) of the Care Act provides); namely, that each child has been, or is likely to be, physically or sexually abused or ill-treated.

14. The central concern of the Secretary (which, having reviewed the evidence and heard from both plaintiffs, I share) is that:

1. the child C has complained, in a credible manner, that (i) she was sexually abused by her stepfather, B, between mid-2016 and the time, in September 2017, when she was removed from the plaintiffs’ care; and (ii) her mother, A, did not, and does not, believe her but has sided with B in denying that she was sexually abused at all and in contending that her complaint is a fiction without foundation;

2. B is a person who is likely to physically or sexually abuse or ill-treat the children;

3. the mother, A, is a person who cannot be relied upon to protect the children from physical or sexual abuse or ill-treatment; and

4. C has been so distraught by (i) her experience of sexual abuse; (ii) as she sees it, betrayal by her mother; (iii) her mother’s opposition to her going to live with her father in New Zealand; and (iv) the pendency of these proceedings, that she has entertained suicidal thoughts.

15. C has been diagnosed (during an admission to Westmead Children’s Hospital on 15-17 October 2019) as having “an adjustment disorder with a depressed mood”. The Hospital’s assessment is that she “likely suffers from PTSD [Post Traumatic Stress Disorder] and has ongoing issues relating to abandonment”.

16. In my assessment, the mother, A, is an intelligent, well-intentioned, caring mother; but, sadly, since no later than 11 September 2017 (when C’s complaint was officially drawn to her attention) she has been, and she remains:

1. unreasonably convinced that C suffered no sexual abuse at the hands of B, and that C’s complaint to the contrary is a lie;

2. either wilfully (recklessly) blind to the possibility that C has been sexually abused by B or totally lacking in insight into that possibility; and

3. either incapable, or unwilling, to take steps which, prudently, might be necessary to protect C and D from physical or sexual abuse or ill-treatment at the hands of B or another partner.

17. B’s denial that he sexually abused C has been accompanied by a competing narrative (advanced by him, with A’s active support) that C has made, and maintained, her complaint against him as retaliation for an attempt by him (on 28 July 2017) to discipline her for engagement in sexually explicit communications via the internet with a boy, or boys. In advancing that narrative, B has made (as I find) false statements to the police, and in an affidavit read in the Children’s Court (and in this Court), to the effect that C had engaged in sexually inappropriate behaviour by transmission of “nude” photographs of herself via the internet.

18. The mother, A, does not recognise her dependency on B for information about the allegedly lewd behaviour of C relied upon by B as a refutation of C’s complaint of sexual abuse. In my assessment, she is not open to acceptance of any criticism of B, even when she professes otherwise. She is too thoroughly convinced of B’s rectitude (and C’s propensity to lie) to acknowledge any truth in C’s complaint.

19. On 22 September 2017 the Children’s Court made interim orders allocating parental responsibility for the two children to the Minister until further order.

20. On 12 December 2017, by consent but without admissions, Blewitt CM found that the children were in need of care and protection, a foundational finding (pursuant to section 71 of the Care Act) that “established” the jurisdiction of the Children’s Court to consider what orders should be made (having regard to sections 72, 78, 80 and 83 of the Care Act) in “placement” of the children in care. Cf, Department of Family and Community Services (DFaCS) and Nicole [2018] NSWChC3 at [13], [23]-[25] and [28].

21. In April 2018 the plaintiffs applied to have Blewitt CM’s findings set aside. Crompton CM dealt with their application as one to have the question of whether the children were in need of care and protection (the jurisdictional, “establishment” phase of care proceedings, for which section 71 of the Care Act provides). On 23 August 2019 the plaintiffs’ application was dismissed.

22. The Secretary then sought to pursue an application for final care orders.

23. Before that application could be heard, the plaintiffs applied to this Court for orders (seeking administrative law relief and invoking the Court’s parens patriae jurisdiction) challenging the Children’s Court’s findings that the children are in need of care and protection. That application was dismissed by Schmidt J on 5 February 2019: A v Secretary, Family and Community Services (No. 2) [2019] NSWSC 43.

24. The President of the Children’s Court heard the Secretary’s application for final orders on 20, 21 and 22 May and 23 September 2019. In substance, he granted the Secretary’s application in relation to both children.

25. By these proceedings, the plaintiffs seek orders to the effect that the children (or, at least, the younger child, D) be restored to their care. As illustrated by their amended summons, they have exhibited some hesitation about the orders sought in respect of the older child, C. At various times, they have conceded that she is in need of care and protection and that, having regard to her expressed wishes, it would be difficult to give practical effect to any order for restoration.

26. C has expressed, and reiterated, a strong wish to live with her father (E) and his family in New Zealand.

FAMILY RELATIONSHIPS

27. Both plaintiffs were born in 1982 and are now aged 37 years. Their marriage is, for both of them, a second marriage. A is the mother of both children, C and D. B is the stepfather of C and the father of D.

28. C is the child of A’s first marriage, to E. That marriage ended in a separation in 2010 and, subsequently, divorce. After the separation, A moved to Australia from New Zealand. E continues to live in New Zealand with his current wife and a child of their marriage. He was born in 1979 and is now aged 40.

29. The plaintiffs were married in a religious ceremony in January 2015 and, in law, in February 2016. In between those times, B’s divorce came through. D is the child of the plaintiffs’ marriage.

30. B has three children by a first marriage. They live with his former wife in Fiji. He left Fiji in 2014. He has not returned to Fiji since that time.

31. Both plaintiffs were born in Fiji. They are ethnically Indian. They identify themselves as devout Muslims, the faith in which they have endeavoured to raise the children, C and D. E, also, is a Muslim.

32. The plaintiffs live in an outer suburb of Sydney.

33. At the time C was allegedly sexually abused by B (mid-2016-September 2017) she was on the point of entry to puberty. She was in Years 5 and 6 at school. She has this year completed Year 8.

THE ORDERS UNDER APPEAL

34. The orders of the Children’s Court under appeal in respect of the older child (C), and associated formal findings, are to the following effect:

“The court finds that:

A. Pursuant to section 83(5) of the Care Act, the Court accepts the assessment of the Secretary that there is no realistic possibility of restoration within a reasonable period of the child, C, to the care of her mother, A;

B. Pursuant to section 83(5) of the Care Act, the Court accepts the assessment of the Secretary that there is a realistic possibility of restoration within a reasonable period of the child (C) to the care of her father, E; and

C. Pursuant to section 83(7) of the Care Act, permanency planning has been appropriately and adequately addressed.

The Court orders that:

1. Pursuant to section 79(1)(b) of the Care Act, all aspects of parental responsibility for the child, C, are allocated to the Minister for a period of two years;

2. At the expiry of order 1, pursuant to section 79(1)(a) of the Care Act, all aspects of parental responsibility for the child, C, are allocated solely to the father, E, to the exclusion of the mother, A; and

3. Pursuant to section 2 of the Care Act, the Secretary shall provide to the Court, 4 and 11 months from the making of order 1, a report concerning the suitability of arrangements for the care and protection of the child, addressing:

a.   C’s progress in her placement with the father, E;

b.   the general health, well-being and welfare of C;

c.   the level, nature, frequency, duration and type of contact between C, A and D, and any significant others;

d.   the general educational and developmental progress of C, together with copies of any reports; and

e.   the general suitability of the arrangements for the care and protection of C.”

35. The orders of the Children’s Court under appeal in respect of the younger child (D), and associated findings, are to the following effect:

“The Court finds that:

A. Pursuant to section 83(5) of the Care Act, the Court accepts the assessment of the Secretary that there is no realistic possibility of restoration within a reasonable period of the child, D, to the care of her mother, A or her father, B; and

B. Pursuant to section 83(7) of the Care Act, permanency planning has been appropriately and adequately addressed.

The Children’s Court orders are as follows:

1. Pursuant to section 79(1)(b) of the Care Act, all aspects of parental responsibility for the child, D, are allocated to the Minister until the child attains 18 years of age; and

2. Pursuant to section 82 of the Care Act, the Secretary shall provide to the Court 4 and 11 months from the making of order 1, a report concerning the suitability of arrangements for the care and protection of the child, addressing:

a.   D’s progress in her placement;

b.   the general health, well-being and welfare of D;

c.   the level, nature, frequency, duration and type of contact between D and her parents, C and any significant other;

d.   the general educational and development progress of D together with copies of any reports; and

e.   the general suitability of the arrangements for the care and protection of D.”

36. In the course of hearing the Secretary’s application for final orders, the President, on the application of the plaintiffs, allowed the “establishment” phase of the proceedings to be re-opened. On 20 May 2019 he held, with short reasons in support of his finding, that there was sufficient evidence before the Court to enable him to be satisfied that continuation of the intervention of the State had been and was justified in the interests of the safety, welfare and well-being of the children. He was satisfied, in short, that the children had been, and continued to be, in need of care and protection.

COMPLAINT OF SEXUAL ABUSE : FACTUAL MATRIX

The Origins of C’s Complaint against B : A ROSH Report, 11 September 2017

37. C (and, indirectly, D) came to the notice of the Secretary’s Department on Monday 11 September 2017 when a counsellor at C’s school (a faith-based private school at which C was then a Year 6 student) submitted a Risk of Significant Harm (ROSH) report (of the type for which section 29 of the Care Act provides) which reported that C had disclosed to the counsellor a pattern of sexual abuse experienced by C, at the hands of B, dating back to mid-2016.

38. The counsellor’s report arose out of a telephone call received by her on Sunday 10 September 2017 from a member of the school’s staff who reported that, earlier that day, the staff member had received information from two of C’s school friends that (at a sleep over on the night of Friday 8 September 2017) C had told them that she had been sexually abused by B.

39. On the morning of Monday 11 September 2017 the school counsellor cautiously engaged C in conversation, providing an opportunity for C to open up.

The School Counsellor’s First Session with C (11 September 2017)

40. The counsellor’s typed “Session Notes” of the day include a statement by C that “there’s been a lot going on at home” and observations to the following effect:

“Next, we discussed [C’s] relationship with her mother. [C] reported that she was very close to her mother as she lived with her alone in New Zealand since age 3 when her parents separated. [C] also reported that she lived in NZ till 2 years ago when she came to Australia.

Next we discussed her relationship with her step-father. [C] reported that ‘I don’t like him’. She also reported that she found him ‘very irritating’, and lastly reported that ‘he does stuff to me that I can’t share’. I queried why she could not share, to which she responded ‘I don’t know’. I then expressed that if she had concerns that consequences would arise from sharing this information, that there were qualified authorities who would ensure her safety. I highlighted that her safety was paramount, and I explained the role of family and community services in Australia to ensure that children were safe.

[C] then said she had something to tell me. She proceeded with the following notes which were reported by [C] during the session and I typed as she spoke:

▪   ‘While my mum is sleeping at night, my step-dad comes in my room and he touches me in inappropriate places (such as my chest area)’. [C] stated: ‘probably has paedophilic desires’.

▪   ‘Comes into my room, he shakes me to wake me up. I tell him to stop but he doesn’t stop’.

▪   [Last incident?]: ‘Last time it happened, a few weeks ago. It was 12.30am on a weekend, he came into my room (mum was asleep). I was awake on my ipod talking to my friends (snapchat), he jumped on my bed and he took off some of my clothes. Pulls up top to the neck, and he pulls pants down’.

▪   ‘Touches me with his hand. I ask him to stop, he doesn’t stop. If I start screaming, he covers my mouth’.

▪   ‘Room very far from mums, so mum won’t hear’.

▪   ‘At the beginning of the year, April or May. Mum was at work. It was a Tuesday, during the school holidays. I was in my room and then he called me to his room. I thought he wanted water or something. But then he told me to watch tv with him. Out of nowhere, he just started to take my clothes off. I was fully naked, head to toe. And he told me to close my eyes. I tried kicking him, it didn’t work. [Counsellor clarified meaning here and she reported that there was rubbing of his privates on hers]. Lasted 20-30 minutes, then he told me to go have a shower. I sent and had a shower. Then he had a tow truck job and he didn’t want to leave me alone, so he took me with him in the truck’.

▪   ‘I’ve also tried telling my mum when he went to Melbourne 2 weeks ago. On a Sunday at 8pm. Mum started crying. Called and spoke to step-father. They had a big fight. Overheard their phone call, ‘If you actually did that I don’t want to be with you’. Then the next day when he came, he told me off. I felt hopeless. I was giving up on myself. She’s acting like everything is normal. I’m trying to talk to her, but I can’t. We were so close and I don’t feel that anymore’.

▪   ‘Then he came back. Everything’s back to normal, but he hasn’t been speaking to me’.

▪   [When did this start?] ‘Began mid last year. He used to oil my back and then he would make me turn over and oil the front’.

▪   ‘Last month, he did it every night. Would come into my room’.

▪   ‘I don’t like being in that household. I’ve been wanting to go to NZ since last month’.

▪   ‘FRIDAY AFTER SCHOOL He called me to his room (mum was present). He said I was showing attitude. Said he will put me through year 6 again. Said no, left and went to room. Parents shouting. Parents came in. He gave me a hug’.

▪   Anyone else that is aware: four female friends in year 6.

▪   ‘Just started periods for the first time last week’.

▪   Wellbeing:

▪   Mood = 1/10

▪   ‘Crying myself to sleep at night’.

▪   Sleep = difficulty sleeping, up till 1am – 7am.

▪   Appetite = appetite decreased, been eating less. Breakfast: Tea, sandwich, Don’t eat recess/lunch. Dinner – less than a full plate.

▪   Energy = tired, but may be due to periods.

▪   Anhedonia = ‘If I’m doing something like playing a game or playing with cat, I’m always overthinking. Don’t find activities as enjoyable. Constantly worrying’.

▪   ‘Wave of panic attacks me’ (hasn’t had panic attack).

▪   Suicide: Always think about harming myself. ‘I feel like I’m not supposed to be here, so why not just commit’.

▪   When = ‘During mental breakdowns, have thoughts of ending my life. Whenever he does that’.

▪   Plan: ‘no, not really’.

▪   Intent: ‘6/10’.

▪   Protective: ‘Religion, and Family in NZ’.

▪   ‘Having thoughts of running away, if mum doesn’t let me go to NZ. Plan: ‘pack my stuff and leave. Not sure where I would go’.

Safety/supports:

▪   ‘School is the only thing keeping me happy right now’.

▪   ‘Friends have been checking up on me’.

▪   Has an aunty (not biological) that can stay with, but maybe mum might not let. Lives in …

Right now reports:

▪   Feel uncomfortable going back home with him present.

▪   Feeling unsafe to go home because mother wants her [C] to apologise to her father.

▪   If he apologies, afraid that he will think its ok and he will do it to her again.

▪   If she does not apologise, mum will force her to.

▪   No current fear of parents becoming violent. …”.

The Events of 11 September 2017 and soon after : Children taken into Care

41. During the course of 11 September 2017:

1. at the request of the counsellor, C prepared handwritten notes of incidents of sexual abuse experienced by her.

2. C was interviewed by police of the NSW Police Child Abuse Squad, who recorded the interview (later transcribed by the Secretary’s Department).

3. the plaintiffs were interviewed by the Police, at which point (with the support of A) B denied any misconduct on his part and the plaintiffs offered their alternative narrative of events as an explanation of C’s complaint.

4. officers of the Secretary’s Department spoke with C (at which time C stated, inter alia, that she did not feel safe in the company of B and that she was worried that when D is older B will sexually harm her) and with A (who adhered, in substance, to the plaintiffs’ alternative narrative).

5. arrangements were made between the Departmental officers and the plaintiffs for B to leave the family home for a short time, in the interests of C’s safety, to allow the Department to continue its assessment of the case.

42. The school counsellor’s “Session Notes” for 12 September 2017 record a telephone conversation she had that morning with a Departmental officer who reported that, the previous evening: (a) C had maintained the version of events she had reported to the Departmental officer and the police on 11 November 2017; (b) C “had also reported that she was in a relationship with a 15 year old boy in New Zealand who she had met online”; and (c) C had “reported that she was not feeling part of the family since the baby [D] was born”.

43. The same Notes record advice by the Departmental officer about a meeting the officer had had with A. The mother was “reportedly adamant that she [did] not believe the disclosure [by C of sexual abuse]. She reported that there was an element of truth in [C’s] disclosure, regarding the massage by the step-father, but that it was in the presence of [A] and not sexual in nature.

44. On 15 September 2017 Departmental officers met with A for several hours, in the absence of B, at the conclusion of which they served on A an order for removal of the children from the plaintiffs’ care.

The Course of a Police Investigation (September 2017)

45. On 19 September 2017 the Police advised the Department that they had completed investigations into C’s complaint and decided that, in the absence of additional supporting evidence to confirm C’s allegations, no formal action would be taken on the complaint.

46. A NSW Police Force “COPS” transcript provides a record of the course of the police investigation.

47. The police officers who interviewed C on 11 September 2017 recorded that she “presented as a highly intelligent young child she was very clear in understanding truth and lies, [she] was highly articulate and displayed wisdom well beyond her years”. When cross examined on the hearing of the appeal, B agreed with that general assessment of C.

48. The COPS entry for 11 September 2017 records that, after the completion of their interview with C, the police investigators spoke with A and, then, with B. The record includes observations to the following effect:

“[A] advised she knew the reason for Police attendance [at C’s school] and that was because of the issue surrounding [C] and her IPAD and other technological devices. She went on to disclose that two (2) months ago [B] discovered messages of a sexual nature on C’s ipad. The messages were to an alleged 15 year old boy in New Zealand along with other unknown male persons.

[A] said [B] questioned [C] about the messages and told her to stop, however over the coming months [C] continued to engage in sexually explicit messages with the 15 year old male and other male persons. During this time [C] expressed her desire to move back to New Zealand. It was around this time [B] advised [A] what was occurring, however he told her not to worry and he would handle it.

Shortly after becoming aware of the inappropriate messages [A] walked in on [C], [C] had her ipad on the floor and was standing over it. [A] believes [C] was taking pictures/videos of her vagina, however she never checked the images.

At this point in time [A] was advised the ipad was not the reason for police attendance, she was informed of the allegations made by [C]. She advised this was the first time she heard the allegations and [C] had never spoken with her about it. [A] has recently given birth six weeks ago and has not been paying as much attention to [C] as she normally would and believes her behaviour could be as a result of this. Before the birth of her sister, [C] had been an only child.

After speaking with [A], [B] arrived where he was spoken to by police. He agreed to attend […the] police station for a voluntary interview, he advised he had found inappropriate messages on [C’s] ipad and believed this is why police were at [C’s] school. [B] said he wanted to go home and get [C’s] ipad so he could show investigators the context of the messages.

[B] was introduced to the Custody Manager who advised him of his rights. [B] was taken into an interview room…. During the interview he denied sexually and indecently assaulting [C] and gave the following version of events.

Around two months ago he was vacuuming [C’s] room when he saw a number of messages flashing on [her] ipad, which was situated on her bedside table. What got his attention was the fact that the messages appeared to be of a sexual nature and there were multiple messages. Later on he questioned [C] about the messages, [C] started to cry and said they were just her friends. [B] told her he wouldn’t tell her mother, just make sure it doesn’t happen again.

Over the coming weeks [B] continued to monitor [C’s] ipad where the messages continued and they began to escalate with one message saying words to the effect of

[C] said – ‘I will be coming for a holiday in December’.

Male said – ‘Will you catch up with me?’

Male said – ‘Will you sleep with me?’

[C] said – ‘Will you put your thing in me?’

[B] confronted [C] about the messages with [C] saying words to the effect of ‘if you do or say anything I will ruin your life’. [B] didn’t tell [A] and confiscated [C’s] ipad for some time. [B] eventually returned [C’s] ipad, however he limited her screen time.

[B] continued to monitor the ipad and approximately two (2) weeks ago he discovered [C] was sending emails that contained images of herself in a state of undress to male persons. It was at this stage [B] advised [A] about the continuous messages as the situation was getting out of control.

Both [B] and [A] both spoke to [C] about the messages with [C] storming off saying words to the effect of ‘I am done with you, I want to go back to New Zealand’.

During the interview [B] showed investigators [C’s] ipad and gmail account, Investigators saw a series of emails between [C] from her email address … to email address … .

Tuesday 6 June 2017 at 11.25pm

‘OK Im waiting’.

Tuesday 6 June 2017 at 11.28pm

‘Your sexy beautiful send me some more please’

Tuesday 6 June 2017 at 6.24am [C]

‘Will do’

Tuesday 6 June 2017 at 6.27am [C]

‘Picture message sent’

After the completion of the interview Investigators seized [C’s] Pink Apple ipad, White ipod and [B’s] mobile phone ([C] had accessed her emails on phone) for the purpose of obtaining evidence in relation to the [C] being groomed online from email address …. Signed consent was obtained from [B] and [A].

Investigators believe [C] has acted out in retaliation due to [B] informing [A] about the messages and confiscating her ipad and other technological devices. [C’s] version of events was inconsistent to that of the original report. [B] and [A] provided investigators with ipad which corroborated the versions that were given by [A] and [B]. Investigators believe [C] is being groomed online through various social media networking sites.

[C’s] mother does not want the matter to progress any further and Investigators cannot prove the offence of Sexual and Indecent assault beyond reasonable doubt.

Investigators contacted the call Detective … from the Child Exploitation Unit where advice was obtained in relation to the emails. [C] devices were placed in a Faraday Bag to prevent [C] from logging on to her accounts and erasing any potential evidence.

[C’s] devices will be examined by specially trained Police, pending what information is found. The Child Exploitation Unit may take carriage of the matter and assume [C’s] identity online.

Investigations continuing into the grooming offences and possible CAM”.

49. There is no evidence before the Court that the police, having determined at any early stage to take no action against B, continued their inquiries. The COPS transcript records (against the date 3 October 2017) a status report, “No further investigation”. The police appear to have treated C’s complaint as an allegation of “sexual intercourse – vaginal” and, a case of “online grooming”.

50. The evidence in the Children’s Court proceedings, and on appeal in this Court, did not include a screen shot of any electronic messages or images, or a technical analysis of any electronic equipment attributable to A, B or C. In the absence of such evidence the Court cannot exclude, or embrace, a suggestion (advanced by the defendants) that B may have been the ultimate source of vulgar emails attributed to C and “boys” with whom C was said to be corresponding. She, herself, spoke only of correspondence with a single 15 year old boy.

51. As expressed in the report made by the Secretary in support of the Secretary’s Application Initiating Care Proceedings, notwithstanding the decision taken by the Police, Departmental officers: (a) “are of the strong belief [that C’s] disclosures are reliable, and supported by information provided by the family, school and other parties”; and (b) “continue to be satisfied, based on the information available at the present time, that sexual harm has been caused to [C] by [B]”.

52. In the Court’s analysis of the evidence no weight is given to statements of belief, opinion or conclusion by the police or Departmental officers. Their evidence is important insofar as it explains the sequence of events or reports of statements made (in particular) by C, A or B; but the Court is bound to form an independent, objective view of the evidence, not simply to rely on views expressed by others.

C’s Complaint : Her Handwritten Notes of 11 September 2017

53. C’s handwritten notes of 11 September 2017 deal with two separate incidents, respectively numbered “1” and “2”. The notes relating to the second incident are incomplete because the police arrived to interview C before she finished them.

54. The notes relating to “incident 1” are to the following effect:

“My step-father, the one who caused this incident, he started touching me in inappropriate areas mid last year. The first time he ‘touched’ me, he asked me to come to his room so he could oil my back. Really I hated it when he used to oil me. I thought he would just oil my back, [but] he told me to turn over so that he could oil the front part of my body too. I didn’t want to turn over, but eventually I had to. So I turned over, he then took my crop top of [sic] that revealed my chest area. I told him to leave it and let me go back to my room, but he just started to oil my breasts. I told him to stop he didn’t listen, he continued. He [then] pulled my pants down and he put his hand on my private area and he started to oil that. I then began to cry and tell him to stop but my mum wasn’t home so I knew yelling wouldn’t help. He continued to rub my private area. He continued to do that for about 10 mins. He went back to my breasts and started massaging them I told him to stop again but he didn’t once again. Eventually he stopped and told me to go have a shower. This incident was taken place mid-last year.

He did this, this year as well he did it at least once a week, maybe even twice. But he did it at night while my mum was sleeping.”

55. C’s notes relating to “incident two” are to the following effect:

“This incident took place this year during the school holidays, I remember it was a Tuesday. My mum was at work. My step-father he called me to his room to watch television with him. I agreed to watch tv with him. So I sat on the bed. I was lying down and suddenly he asked me if he could oil me. I said no but he did it anyway. He started to take my clothes of. I was left in my underwear and […]”.

C’s Complaint : The Transcript of her Police Interview on 11 September 2017

56. C was interviewed by two police officers on 11 September 2017. One (“officer 1”) was female. The other (“officer 2”) was male.

57. They commenced their interview by exploring C’s understanding of the difference between “truth and lies”, which was correct. They also secured her agreement to “talk [only] about the truth and what really happened”, an agreement acknowledged at the end of the interview when C confirmed that she had told the officers the truth, without lies.

58. The transcript of the police interview provides an elaboration of C’s handwritten notes which is consistent with the notes.

59. When asked by officer 1 what had happened with B, C responded: “He I don’t know how to say it, uhm he has pedophilic desires”. Later in an answer to officer 2, C explained what she meant by “pedophilic desires” as “when an older, man or woman who is over the age of 16, they are having sexing desires with a younger [person]”.

60. Under questioning by officer 1, C described a pattern of conduct which progressed from B oiling her back, to massaging her breasts and touching her vagina and, for that purpose, removing her clothes. She also described the experience of B rubbing his penis against her vagina (without penetration); exposing himself to her fully naked; inviting her to touch his penis; and sucking her breast. The transcript makes graphic reading.

61. Most of it is directed to C’s description of encounters between herself and B. However, in the course of the interview C disclosed that she had reported B’s behaviour to two school friends and, about a fortnight before the interview, to her mother. In those disclosures C described what B is said to have done to her as “rape”, an expression which C defined as “touching, even touching me in an inappropriate way”.

62. The transcript records the following questions and answers on the topic of C’s disclosure to A:

“Police 1:   And when did you tell mum?

C:      I’m not sure but I think it was two weeks ago.

Officer 1:   And where were you when you told mum?

C:      At home just in the lounge.

Officer 1:   And what did you say to her?

C:   Uhm I said that he’s been doing these things to me and he did that, that he raped me but …

Officer 1:   And what did mum say?

C:   Mum got really surprised and she didn’t believe me the first time I said that, I said that he was doing touching me uhm on another day and she started crying but ah all she did was that she told my dad not to go to my room, so he just did it at night when she was sleeping.

Officer 1:   OK, so you said you told mum about two weeks ago, uhm when you were at home, uhm and she told [B] not to go into your room, but he would come into your room, so when you told mum how many times did [B] do it after you told mum?

C:   After I told my mum the first time, he did it, he started doing it every week, once or twice a week. And then I told my mum the next time he went to Melbourne again [with his trucking business] that he’s been, that he’s still coming into my room I told her I don’t like it when he comes to my room and I’ve been getting, I’ve been wanting to go back to New Zealand because I used to live there, I came here two years ago, so I told her I want to go back to New Zealand and I don’t want [to] stay here and yeah.

Officer 1:   OK and what did mum say?

C:   She said you can’t go to New Zealand but I will tell him, I will discuss this with him so she then called him up and then asked him if he actually did that and then he said, he lied he said I have never done that before. I was and then my mum uhm I think she took his side and didn’t believe me…”.

C’s Complaint : A Second (2018) ROSH Report

63. On 20 September 2018 (a year or so after the end of the police investigation into C’s complaint against B, and much the same distance from when the children were taken into care) the Secretary’s Department received a Risk of Significant Harm (ROSH) report which stated that C had made disclosures beyond her initial disclosures. The Department decided not to explore the further disclosures because C was safe in Out of Home Care and, believing her initial disclosures, the Department did not wish to traumatise her further by having her re-interviewed by case workers.

64. A redacted form of the 2018 ROSH report was in evidence before the Children’s Court, and on the hearing of the appeal. Counsel for the Secretary explained that the report was redacted (in a manner consistent with section 29 of the Care Act) to protect the identity of the person who made the report to the Department.

65. Under the heading “Reported Information”, the redacted report included observations to the following effect:

“… [C] left her mother and step father’s care last year on 16th September [sic]. The main concerns are around [C]. [D] is ok, no harm or risk issues reported. …

[C] told … what happened as well but she was very upset. She was sitting there at first, but then she couldn’t hold back and she started crying but this cry was a totally different cry. …

This is the first time [C] has opened up… about what happened to … in the care of her mother [A] and step father [B]. FACS [the Department] got involved and she was removed from [A and B’s] care. She went to school and disclosed information and she never returned home from school.

… this is what was said:

[C]: ‘I told mum (pauses and cries), I wanted an Apple watch so I asked [B] if I can have one. He asked why and I said because most of the students in school have them. 2 days later he walks into my room and closes the door. He said, do you really want a smart watch?”

[C] said ‘Yes, he comes and sits on my bed and holds my hand, and he goes, ‘Well you can get one’.

[C] got excited, then [B] said, ‘But if you let me touch you’.

[C] asked, ‘Where’s mum?’

[B] said, ‘she’s grocery shopping so it’s just me and you’.

[C] said, ‘he gets very close to me and starts touching me’.

Caller [the Department’s informant] asked her ‘where?’

[C] said, ‘Its all over the place. It’s the first time it happened. I get my Apple watch. The first time he did that I told mum about it. Mum cried and that was it’.

‘Today, mum has gone to work and I am home with him. I was talking to my friend on the phone when he walks into my room and asks me to come to his bedroom to watch movies. I don’t remember which movie it was, he was holding my hand or something. I can’t really remember and then he asked me to take off my top. He was stroking my arms and then he asked me to take off my shirt. The rest of my clothes including my undies and lay down’.

The caller asked her, ‘Did you lay down?’

[C] said ‘Yes I did’.

The caller said ‘Didn’t you say no?’

[C] said ‘I did’.

‘Caller asked, ‘what did [B] say?’

[C] said, ‘he said nothing, he just told me to close my eyes. He takes his pants off and also his underwear. He then puts his private part into my private part’.

[C] was crying non stop when she disclosed this. The caller said, ‘did you tell mum the next time it happened?’

[C] said, ‘no, because [B] told me not to’.

Caller said, ‘Why?’

[C] said, ‘Otherwise he will tell mum that I have been talking to this boy on social media. I got very scared so other times he used to tell me don’t tell mum don’t tell mum or else I will tell her what you’ve been up to’.

The caller said she could stop there and lets not talk about it any more. … [C] spoke about what happened to her and what [B] did.

… told her to call the Help Line and report, because nobody else can speak on behalf of [C] except ….

Her disclosure came around …..

No medical testing occurred after these incidents. The case is still in court….”

The Reliability of C’s Version of Events, Recantation and Family Pressure

66. C’s chronology of events, and other details, were challenged by the plaintiffs during the hearing of their appeal (not entirely without cause) but there is a broad consistency in C’s description of her experience of B, corroborated by incidental details.

67. Importance can attach to seemingly incidental detail. An example of this is that C’s complaint came to attention not through design on C’s part but through friends who reported a private disclosure to a school teacher who, in turn, reported it to a school counsellor. Exposure of a recantation by C of her complaint against B as a “lie” came to notice via a similar path, not by premeditation on C’s part. A’s pressure on C to withdraw her complaint against B also emerged in a casual conversation, not by formal means. A lack of premeditation on C’s part is inconsistent with the plaintiff’s theory that C has been driven by an urge to retaliate against B’s disciplinary restriction of her use of social media.

68. After the children were taken into care, A had regular opportunities to speak to C in circumstances which were required to be supervised. The Department’s inquiries suggest that, contrary to its expectation, the system of supervision may have broken down, providing to A opportunities to speak to C without the participation of a third party supervisor. A denies that she spoke to C at any time without direct supervision.

69. The school counsellor’s “Session Notes” for 27 October 2017 record that C presented herself to the counsellor for the purpose of recanting her allegations of sexual abuse. The notes record entries to the following effect:

▪   “[C] presented to me on Friday 27th and requested to speak with me. [C] came to me on her own today and appeared a little distressed. She said she needed some time to think about what she had to say. After a few minutes, [C] said ‘nothing happened’. I inquired about what she meant, and she reiterated that nothing she reported to myself or the police had happened. My session was interrupted …. I told [C] I would see her shortly….

▪   … Following on from the previous meeting, I inquired about [C’s] reasons for reporting the incident if ‘nothing happened’. [C] stated that ‘my mother had just had a baby and I wasn’t getting a lot of attention’. I explained to [C] that it was not my position to investigate whether this was true and that I would be passing this information on to [a Departmental officer known to C]. I asked [C] whether she wanted to speak to [that Departmental officer] to explain this herself, and she said no. [C] also added that the reason why she came to tell me now was that ‘things had gone out of hand’. She reported that she felt relieved to have said it to somebody. I assessed her overall well-being. Sleep good (9.30-6), eating, concentrating in class, mood 6-7/10, no friendship concerns and continues to have a supportive friend who will be sleeping overnight tonight. Discussed with her she has been seeing mum and communicating with her. She explained that she communicated with mum every morning and afternoon, and ‘whenever I feel like it’. I inquired about whether the calls are supervised and she said yes”.

70. The counsellor’s “Session Notes” for 3 November 2017 record an entry to the following effect:

“[C’s] best friend made a spontaneous disclosure to me that [C] had reportedly told her that she was ‘lying to the counsellor to get back with her mother earlier’. She reported that she did not know what she had said to the counsellor, but that she was lying”.

71. The counsellor’s “Session Notes” for 13 November 2017 record an entry dealing with an individual counselling session with C that day. The entry includes observations to the following effect:

“[C] said she told [her Departmental Case Manager] that ‘nothing happened’ and [the case manager] said this wouldn’t change the case. [C] reported feeling trapped in the situation, unable to do anything, and couldn’t use things she likes such as the internet. [C] also stated that she felt ‘guilty’ about her sister being with her [in foster care] and away from mum. Her sister had reportedly stopped crying and adjusted. [C] also stated that mum was back with step-father after [C] had said that ‘nothing happened’.

72. About a year after her recantation C told her foster carer that A had counselled her to withdraw her complaint about B. The carer, on 23 October 2018, reported statements made by C to C’s Departmental Case Manager in an email (with the subject heading, “Cover-Up”) to the following effect:

“On the day of contact with mum [A] towards the end of last year, I [C] had [X] as my contact worker.

I went to the parents room with my mum and X had stayed outside of the parents room.

So mum took the opportunity to talk to me about telling [a Departmental officer] and my lawyer that all the things I had accused [B] of had never taken place.

She said that FACS [the Department] will return [D] and I back to mum and [B].

It was a constant reminder while I was at […] as the phone conversations were not monitored.

So mum use to say stick to my story and you an [D] will be home soon”.

Evidence of the Children’s Carer

73. On 22 May 2019 the President of the Children’s Court received evidence from the children’s carer by telephone. She was cross examined by A and by the legal representatives of C and D.

74. In cross examination by D’s legal representative, the carer was asked about the circumstances in which she came to send the email of 23 October 2018 extracted above. An exchange to the following effect (not responsive to the question) is recorded in the transcript of evidence:

“Question:   Well, do you remember sending that email?

Answer:   Yes.

Question:   Where did you get that information from?

Answer:   From [C].

Question:   How did [C] come to tell you about that? Did you ask her question [sic] or did she volunteer it?

Answer:   No, she didn’t actually – on –

Question:   Sorry, what did she say?

Answer:   On 19th of September, [C] comes home early from contact.

Question:   So [C] returned from contact on 19 September?

Answer:   Earlier than the usual time.

Question:   Yes?

Answer:   And she is very upset because she has had an argument with her mother in regards to her biological father.

Question:   Which occurred during contact?

Answer:   Yes.

Question:   What did she say to you?

Answer:   Actually, she opened up and told me exactly what happened with her and what [B] did to her.

Question:   What did she say?

Answer:   (No verbal reply) …

Question:   What did –

Answer:   Give me a minute, please. She told me the first time it happened with her she told her mother. They both cried together. Mother confronted [B]. [B] told the mother that [C] has basically misinterpreted the whole thing. It all started with the Apple watch that [C] wanted and [B] told her she can get it if she agreed to his terms and conditions.

Question:   Did she say what they were?

Answer:   One day she goes, he walked into her room, sits on my bed, on [C’s] bed and he said that you can get the Apple watch on one condition and the condition is that you let me touch you. At first, [C] thought he was just playing around with him but the look in his eyes had something else which meant he was really serious about it. That’s the first time it happened, he’s touched me all over while she was fully dressed. The next day, she gets the watch. And from that time on, basically [B] kept grooming her, grooming her, grooming her –

Question:   “Kept” what was that word?

Answer:   Grooming.

Question:   Is that a word that [C] used?

Answer:   Yes.

Question:   Anything else?

Answer:   And one day, [C’s] mother wasn’t home, she thinks that she has gone to the market but wasn’t sure, he asked – [B] asked [C] to – if she wanted to watch a movie with him. So he took her to his room, they sat down to watch a movie –

Question:   Yes?

Answer:   She said the touching started and then [B] asked [C] to close her eyes and when [C] asked him ‘Why?’, he said ‘Don’t ask questions, just close your eyes and let me do’. I asked [C], ‘Did you ask him to stop?’, she said ‘Yes, multiple times’. He said ‘If you just close your eyes and take off your panties’. She said, ‘I did’. He takes off his pants –

His Honour:   I just think for the record, can I record that [the carer] appears to be crying?

[Counsel for The Secretary]:    Yes, your Honour.

His Honour   

Question:   Keep going.

Answer:   [B] asked [C] to spread her legs and said to her that ‘Now I’m going to put my private parts into yours but I’m not going to go right in otherwise it’s going to be considered raping you’. I’m sorry.

Question:   Keep going.

Answer:   Once [B] is done, he tells [C] to go for a shower and joined her in the shower and told her multiple times not to tell her mum. [C] said in the building, it was like small dots and the small dots turned into bigger dots and much bigger and much bigger and this was the biggest dot of her life. She said ‘I trusted him as a father’, she said ‘If fathers are like this, I’d rather have not have one then’.

At the very end, she cried and while she was telling me all of this, she cried right through it and said ‘What really worries me the most is the first time it happened, I went and told mum. If mum would have believed me this would have never happened to me’ and so [A] give this information, I totally believe every word [C] told me.

At the end of the day, I’m a mother, I never had daughters, I have boys. I have never raised girls but raising these two girls and knowing especially what [C] has been through, I wish upon nobody not even my enemies to go through what [C] has been through. She used to have nightmares, day in, day out. She used to sleep with me in my own bed a couple of nights per week. She was so traumatised, so scared, the anxiety level in her life – I cannot imagine a 12 year old going through all this. The emotional and mental stress she had is beyond anybody’s imagination, seriously.

Question:   Anything else?

Answer:   No.”

C’s Wishes

75. In performance of his statutory role (for which section 99D of the Care Act provides) C’s legal representative placed before the Court formal “Statements of Wishes” dated 14 March 2019 and 13 August 2019 recording C’s “wishes” as to what should happen in these proceedings. Counsel for C informed the Court, from the bar table, that C’s wishes remained as set out in the Statement dated 13 August 2019.

76. At core: (a) C does not wish to live with A and B, principally because of the presence of B, but possibly also because she is concerned that A does not believe her; (b) in circumstances in which A continues to live with B, her preferred option is to live with E in New Zealand; and (c) she requests the Court to make an order that her ipad and ipod be returned to her, and that she be entitled to use social media.

77. Two observations about C’s perspective in the Statement dated 14 March 2019 provide elaboration on why C’s preferred option is to live with E in New Zealand. First, the Statement records, C “did not wish to be separated from her sister [D] but understands that that is likely to happen”. Secondly, C “has come to understand that [a placement of her to live with A, provided that B does not reside with A] will not happen because her mother [A] will not separate from [B]”.

78. C’s appreciation that she and D are likely to be separated in future care arrangements is a significant, but qualified, development. Her discharge summary from The Children’s Hospital on 17 October 2019 confirms that she has a strong protective connection with D, having assumed something of a parental role in relation to her. Separation from D, should C move to New Zealand, remains a primary concern for her. Her mental state is, in part, a function of a profound sense of hopelessness about her family situation and a protective urge vis a vis D and their mother as against B. C harbours a sense of guilt about the ongoing exposure of A and D to B.

79. C’s preference to live with her father [E] in New Zealand may be taken to have been informed, at least in part, by her two visits to New Zealand to spend time with her father this year. She visited him, in supervised circumstances, during trips to New Zealand on 26-28 January and 13-19 July 2019.

80. C’s Statements of Wishes canvass a number of issues of importance to her beyond the central question of her placement. A notable one concerns her access to social media, a question best left to those who have parental responsibility for her. The focus for attention in this judgment is upon whether the orders under appeal should be displaced, and if so, with what consequential orders.

81. In addressing those questions, in the context of C’s expressed wishes, account needs to be taken of one specific piece of evidence.

82. Following a contact visit on 15 October 2019, C expressed her wishes, and her vulnerability in a dramatic fashion, as recorded in the affidavit of a Departmental officer (to the following effect):

During [a] phone call, [C] disclosed that she was having thoughts of self-harm and suicide and that she ‘had a plan’. [C] also disclosed that she was having trouble sleeping. [C] stated that she was worried about leaving [D] and her mother. She stated ‘I don’t want to live my life anymore, I don’t care anymore, I want to be happy but I can’t’. [C] also expressed anger towards [B], stating that it was unfair that he was ‘having the time of his life’ and that ‘he is supposed to be in jail not me’”.

83. Observations of this type about B make it unlikely that when (on 20 March 2018) C referred to “Dad” when asked in an age-sensitive questionnaire, “Is there anyone you would like to be seeing that you are not?”, she was referring to B. Her full answer to the question was “My Dad (probably not gonna let)”. I take this, in truth, to be a reference to E, to whom A was antagonistic.

D’s Wishes

84. At the age of two years, D is not in a position to provide the Court with a Statement of Wishes such as those relating to C.

The Plaintiffs’ Evidence in the Appeal

85. The plaintiffs’ withdrew from the proceedings before the President in the Children’s Court without submitting themselves to cross examination on their affidavits. This they did, ostensibly, because E arrived at court to observe the proceedings, much to the consternation of A. However, on the hearing of the appeal, A explained that they withdrew from the proceedings because of an apprehension that the President was likely to rule against them.

86. Both plaintiffs gave evidence on the hearing of the appeal. Their Children’s Court affidavits were in evidence on the appeal, as was all other evidence adduced before the Children’s Court. In giving their evidence on appeal, they were each allowed an opportunity to make a sworn opening statement in the witness box and, after cross examination, to make a closing statement analogous to what might have been done in re-examination had they been legally represented. They were, in turn, cross examined by counsel for the Secretary, counsel for C and the legal representative for D.

87. In giving their evidence, each plaintiff endeavoured to be responsive to the case advanced by the Secretary and on behalf of C and D. In both giving evidence and making submissions, the more articulate of the plaintiffs was A. On the whole, with B’s express acquiescence, she had carriage of the plaintiffs’ submissions.

88. In giving their evidence, and in making submissions, both plaintiffs adhered to their case that: (a) C’s allegations against B are simply not true, but a fiction; (b) C is in need of counselling of some indeterminate type to help her to come to an understanding that her allegations are fictional; (c) although nothing is said against the suitability of E and his wife in a parental role vis a vis C, there is an unacceptable risk that, if allowed to live in New Zealand, C will engage in improper contact with her 15 year old boyfriend or other boys; (d) although it would be difficult for C to return to the family home to live with them as a couple, that is the most desirable outcome of these proceedings; and (e) if both children cannot be restored to their care, D at least can and should be. At various times the plaintiffs seemed reconciled to a probability that C could not return to their home, but would go to New Zealand to be with her father; but they were not entirely at peace with such an outcome.

85. A personal fear B expressed in his evidence is that, if C moves to New Zealand to live, on the basis of a finding that he has sexually abused her, and their community comes to regard him as a sexual abuser of children, his personal safety may be at risk. Whether such a fear is realistic was not explored in the evidence or submissions.

86. In giving her evidence, and in making submissions, A demonstrated a passionate concern for the welfare of her children, subordinated to an unwillingness or inability to believe any of C’s criticisms of B, and an unquestioning loyalty to B. Her unwillingness or inability to believe C, or to disbelieve B, is beyond her capacity to acknowledge in any meaningful way.

87. Having thanked this Court for helping her to look afresh at issues raised by the proceedings, A finished her evidence with a concession that she would probably not believe that B had sexually abused C even if he were to be convicted of an offence of having done so. To a degree apparently not accepted by her, A’s “knowledge” of the nature and course of the relationship between B and C appears to have been dependent upon what, how much and when B told her about his contact with C.

88. In cross examination, A’s confident assumption that she had discovered C taking a picture of her vagina to send to a boy, or boys, via social media was shown to be open to challenge; no such pictures were ever seen by A, and C’s device could well have been placed on the floor, not far from her body, not to take pictures of her vagina, but simply put aside as she endeavoured to hold shut a door A was endeavouring to open against her. This confrontation between mother and daughter can be explained in terms of C’s determination to enjoy social media and A’s determination to limit her access to social media: a battle of wills between parent and child. C’s conduct can be explained as typical of a juvenile, without the necessity of attributing to her sexual impropriety of any kind.

89. In giving his evidence, B was at pains to convey the idea that A was “the boss” of the house and he merely submitted to her domestic rule. That does not sit comfortably with evidence that he took charge of “discipline” for C, even if allowance is made (as it must be made) for the fact that, in mid-2017, A was preoccupied in coping with D’s recent birth.

90. Much of the cross examination of B was directed to confirmation that: (a) B had substantial opportunities to be alone with C when, for example, A was engaged in paid employment; (b) B had opportunities, which he took, to monitor C’s use of social media, providing opportunities for him to groom C; and (c) contrary to statements made by him in an affidavit, and to the police, there were never any “nude photograph” of C or images of her “in a state of undress”. In my assessment, each of these points can fairly be taken to have been confirmed during the course of B’s cross examination.

91. B’s attempts to explain his false statements about “nude photographs” or the like were particularly troubling.

92. In cross examination, he was driven to concede that there were only ever two photographs of C to which he referred in his responses to C’s complaint, both of which depicted C’s clothed upper body, wearing standard clothing of a type purchased for her by her mother. There never was a literally “nude” photograph of C, or anything close to that. Nor was there any photograph depicting her “in a state of undress”.

93. B’s justification of his statements to the contrary (that they were a function of “our culture”) does not do justice to the facts that: (a) C was in each picture fully clothed, wearing clothes acceptable at home; and (b) B made his statements to people in authority, not necessarily attuned to his “culture”, in an endeavour to persuade them, and A, that C was in some way lewd, in need of ordinary parental discipline.

94. Accepting that the plaintiffs’ “culture” may prioritise female “modesty” outside the home, and that a concerned parent of any “culture” might have misgivings about an 11 year old daughter having email chats with a 15 year old boy, the vice in B’s statements is that they were intended to disparage C, to discredit her in the eyes of her mother and inquiring minds outside the family circle, and to deflect any investigation of his conduct. At a time when candor was imperative, he was less than candid.

ANALYSIS

99. The plaintiffs invited the Court, on appeal, to consider the question (generally regarded as referable to section 71 of the Care Act) whether any jurisdiction for the State’s intervention had been “established” (by a finding that the children were “in need of care and protection”) as well as the later “placement” phase of care proceedings said to be referable to sections 72 and 83, and ancillary provisions, of the Care Act.

100. The orders under appeal depend upon findings adverse to the plaintiffs (challenged by the plaintiffs) in both the “establishment” phase and the “placement” phase of care proceedings. It is necessary, therefore, to consider both. Nevertheless, in management of an expedited hearing of the appeal, I declined the plaintiffs’ application that I deal with the proceedings in two separate, procedural stages. The establishment phase and the placement phase of the proceedings were dealt with in the one appeal hearing.

101. The primary focus of the appeal was on the operations of section 71 and 72 of the Care Act. Detailed, separate consideration was not given to the Secretary’s “care plans” for the children (Care Act, section 80) or the Secretary’s “permanency planning” for them (Care Act, section 83), although attention was given to the section 83(1) question “whether there is a realistic possibility of [the children] being restored to their parents within a reasonable period”.

102. Section 83(1) of the Care Act is in the following terms:

“83 Preparation of permanency plan

(1) If the Secretary applies to the Children's Court for a care order (not being an emergency care and protection order) for the removal of a child or young person, the Secretary [and, in due course, the Court] must assess whether there is a realistic possibility of the child or young person being restored to his or her parents within a reasonable period, having regard to--

(a) the circumstances of the child or young person, and

(b) the evidence, if any, that the child or young person's parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care.”

103. As before the President in the Children’s Court: (a) the permanency planning for C proposes that she be placed in the permanent care of her father, E, in New Zealand; (b) the permanency planning for D proposes that she remain in the care of authorised carers; and (c) the plaintiffs oppose the Secretary’s permanency planning and seek restoration of both children to their care, thereby focussing attention on whether the Court (upon a consideration of the Care Act, section 83) should accept the Secretary’s assessment that there is no realistic possibility of the children being restored to the plaintiffs within a reasonable period.

104. Conformably with section 7 of the Care Act, guidance in disposition of the appeal is available in sections 8 and 9 of the Act. Those sections are in the following terms:

“8 What are the objects of this Act?

The objects of this Act are to provide--

(a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and

(a1) recognition that the primary means of providing for the safety, welfare and well-being of children and young persons is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles, and

(b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and

(c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.

9 Principles for administration of Act

(1) This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount.

(2) Subject to subsection (1), the other principles to be applied in the administration of this Act are as follows--

(a) Wherever a child or young person is able to form his or her own views on a matter concerning his or her safety, welfare and well-being, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child or young person and the circumstances.

(b) In all actions and decisions made under this Act (whether by legal or administrative process) that significantly affect a child or young person, account must be taken of the culture, disability, language, religion and sexuality of the child or young person and, if relevant, those with parental responsibility for the child or young person.

(c) In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child's or young person's development.

(d) If a child or young person is temporarily or permanently deprived of his or her family environment, or cannot be allowed to remain in that environment in his or her own best interests, the child or young person is entitled to special protection and assistance from the State, and his or her name, identity, language, cultural and religious ties should, as far as possible, be preserved.

(e) If a child or young person is placed in out-of-home care, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the child's or young person's circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement.

(f) If a child or young person is placed in out-of-home care, the child or young person is entitled to a safe, nurturing, stable and secure environment. Unless it is contrary to his or her best interests, and taking into account the wishes of the child or young person, this will include the retention by the child or young person of relationships with people significant to the child or young person, including birth or adoptive parents, siblings, extended family, peers, family friends and community.

(g) If a child or young person is placed in out-of-home care, the permanent placement principles are to guide all actions and decisions made under this Act (whether by legal or administrative process) regarding permanent placement of the child or young person.”

105. The paramountcy principle identified in section 9(1) of the Care Act has fundamental importance upon consideration of questions relating to the welfare of children. It serves as a reminder, for example, that the object of care proceedings is to ensure that children are afforded care and protection for their safety, welfare and well-being, not as a vehicle for punishment of family members who may be perceived as having fallen short in their provision of care and protection for a child: M v M (1988) 166 CLR 69 at 75-76.

106. Sections 71 and 72 of the Care Act are in the following terms:

“71 Grounds for care orders

(1) The Children's Court may make a care order in relation to a child or young person if it is satisfied that the child or young person is in need of care and protection for any reason including, without limitation, any of the following--

(a) there is no parent available to care for the child or young person as a result of death or incapacity or for any other reason,

(b) the parents acknowledge that they have serious difficulties in caring for the child or young person and, as a consequence, the child or young person is in need of care and protection,

(c) the child or young person has been, or is likely to be, physically or sexually abused or ill-treated,

(d) subject to subsection (2), the child's or young person's basic physical, psychological or educational needs are not being met, or are likely not to be met, by his or her parents or primary care-givers,

(e) the child or young person is suffering or is likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he or she is living,

(f) in the case of a child who is under the age of 14 years, the child has exhibited sexually abusive behaviours and an order of the Children's Court is necessary to ensure his or her access to, or attendance at, an appropriate therapeutic service,

(g) the child or young person is subject to a care and protection order of another State or Territory that is not being complied with,

(h) section 171 (1) applies in respect of the child or young person.

(1A) If the Children's Court makes a care order in relation to a reason not listed in subsection (1), the Court may only do so if the Secretary pleads the reason in the care application.

(2) The Children's Court cannot conclude that the basic needs of a child or young person are likely not to be met only because of--

(a) a parent's or primary care-giver's disability, or

(b) poverty.

(3) This section does not apply to or in respect of a contact order made under section 86 (1A) (b).

72 Determination as to care and protection

(1) A care order in relation to a child or young person may be made only if the Children's Court is satisfied that the child or young person is in need of care and protection or that even though the child or young person is not then in need of care and protection--

(a) the child or young person was in need of care and protection when the circumstances that gave rise to the care application occurred or existed, and

(b) the child or young person would be in need of care and protection but for the existence of arrangements for the care and protection of the child or young person made under section 39A (Care responsibility on death of guardian or carer with full parental responsibility), section 49 (Care of child or young person pending care proceedings), section 69 (Interim care orders) or section 70 (Other interim orders).

(2) If the Children's Court is not so satisfied, it may make an order dismissing the application.”

107. The case advanced by the Secretary, with support from the legal representatives of C and D, focusses attention on section 71(1)(c) of the Care Act.

108. During the hearing of the appeal, the plaintiffs conceded (for example, in written submissions marked as MFI P15, paragraphs 9-13) that, consistently with a rejection of C’s complaint of sex abuse against B, a finding could be made that C was in need of care and protection on the ground (for which section 71(1)(b) of the Care Act provides) that they acknowledge that they have had serious difficulties in caring for C because, on their case, she has made unfounded allegations against B and they have been unable effectively to control her.

109. The plaintiffs’ approach accommodates C’s now insistent desire to live with her father, E, in New Zealand as the only practical option available to her; their inability, as a couple, to cope with C; and her growing despair at A’s refusal, or inability, to believe her.

110. What it does not, and cannot, do is to sidestep (as the plaintiffs seek to do) the question whether B did, in fact, sexually abuse C. In my assessment, this question can, and should, be confronted in these proceedings even though prudence may generally require a court to refrain from making a positive finding of sexual abuse in care proceedings (M v M (1988) 166 CLR 69 at 76); and a positive finding of sexual abuse is not, of itself, required in care proceedings where the focus for attention is on the ultimate question whether a child would be exposed to an unacceptable risk of harm if restored to the care of a parent (NU v NSW Secretary Family and Community Services [2017] NSWCA 221 at [46] and [55]).

111. To sidestep this question in these proceedings would not assist A, in particular, to come to terms with the truth of what has happened to her children. Nor would it assist rehabilitation of C, much of whose welfare is tied to her distress at being disbelieved by A. Finally, it would not assist B to understand the standards required of a paternal figure in contact, particularly, with a young female. It might, perversely, encourage him to think that he can get away with abusive conduct.

112. The Secretary bears the onus of proving that the section 71(1)(c) ground upon which reliance is placed is made out by the evidence. Intrinsically, that ground requires consideration of whether C’s complaint of multiple incidents of sexual assault upon her by B can, and should, be accepted as factually correct.

113. In his reasons for judgment the President of the Children’s Court declined to find that C’s disclosures of sexual abuse were concocted. On the contrary, his findings included the following:

“[65]   … I am satisfied that [B] did in fact perpetrate sexual abuse upon [C] in the way she described. But even if the evidence had not sufficiently amounted to discharge the onus, on the civil standard – even taking into account the special considerations that are required to attend such allegations on the civil onus as set out in Briginshaw – there is sufficient material before me which is credible to satisfy me that [B] poses an unacceptable risk of harm, not just to [C] but also to [D] as she gets older.

[66]   Similarly, the mother’s failure to be able to accept the disclosure by her daughter, but more particularly her refutation of her position and her adherence to [B], indicate that she is incapable of taking any appropriate protective measures to look after either [C] or [D], and she also therefore, in my view, poses an unacceptable risk of harm to those children.

[67]   … I am satisfied on the balance of probabilities that [C’s] retraction of her allegations [against B] was a result of intervention and manipulation on the part of the mother [A].

[68]   More importantly, it seems to me, is the second limb set out in section 83 [of the Care Act], namely the circumstances of the children, especially [C]. So not only have I had regard to and am satisfied as to the fact that neither [A] nor [B] are likely to be able to satisfactorily address the issues that have led to the removal of the children from their care, but I am also satisfied having regard to the circumstances of those children, that they should not be restored, or that there is no realistic possibility of restoration of them to those persons.

[69]   It is clear to me, as it must have been clear to [A] and [B], that the issues that led to the removal of the children from their care [were] in fact the sexual abuse perpetrated by [B] and … I think they are very clear. And it is also very clear that neither of those persons will be able to satisfactorily address those issues, or cannot currently address those issues, nor will they be able to do so within a reasonable time, if ever.”

114. Having reviewed the evidence that was before the President, and having heard the evidence and submissions of the plaintiffs, my independent assessment of the Secretary’s case is essentially the same.

114. In my opinion, the evidence of C’s disclosures of sexual abuse at the hands of B, in the context in which those disclosures were made (and, over time, reaffirmed notwithstanding pressure on C by A to withdraw them) compels a finding (which I make) that B did sexually abuse C (between about mid-2016 and September 2017 or thereabouts) in substantially the way C described her encounters with him. In making that finding I am conscious of the gravity of an allegation of sexual abuse as it affects the plaintiffs, as well as the importance of the paramountcy principle in care proceedings: M v M (1988) 166 CLR 69 at 75-77.

115. In my opinion, C’s disclosures have a ring of truth about them which cannot be discounted by criticism of particular aspects of her version of events or by the fact that, in a state of emotional turmoil, she at one time retracted her complaint against B in order to appease A. As B himself conceded in his oral evidence, the terms in which C articulated her complaint against him on 11 September 2017 were out of character for the young lady C was. The length of the period over which, since September 2017, C has maintained her complaint against B is such as to undermine the plaintiffs’ contention that she was simply motivated by a desire to retaliate against B for his restriction of her use of social media. She has maintained her complaint against him despite her distress in being separated from A and D.

116. In my assessment, the credibility of C’s disclosures is reinforced by B’s self-serving attack (based upon false statements about “nude” photographs or the like) designed to discredit C, coupled with A’s demonstration of an unquestioning loyalty to B even at the expense of her children. I do not accept, as A would have it, that she has simply applied an independent, rational mind to an objective assessment of C’s disclosures; she has been blinded by her dependency for information upon, and her devotion to, B. B’s conduct, as related by C, marks him out as a persistent predator, exposing both children to an unacceptable risk of harm. A’s continued refusal, or inability, to deal empathetically with C and her unwavering support for B, mark her out as incapable of providing protection for the children and, therefore, also an unacceptable risk of harm.

117. Although I accept that, in common with youngsters of her generation, C may (as her mother firmly believes) have something akin to an “addiction” to social media, in the absence of evidence of screen shots and technical analysis of her equipment and that of B I am not comfortable with attributing to C any social (let alone sexual) “impropriety” beyond having email contact with a single 15 year old boy.

118. It needs to be said, however, that, even if C had been sexualised by contact with one or more vulgar, adolescent males, that could not, in my assessment, explain the graphic detail of her allegations of sexual abuse against B or, still less, justify conduct vis a vis her of the type she attributes to B.

119. In my opinion, the ground for care orders for which section 71(1)(c) provides has been made out in relation to both children, not merely C. C has been “physically or sexually abused or ill-treated” (and, if returned to the plaintiffs’ care, would be likely to be) at the hands of the plaintiffs, and, although she has not yet been physically abused, D is “likely to be” as she grows older. A lack of insight into child protection concerns and a lack of preparedness to engage with responsible authorities can justify a finding (which, in these proceedings, I make) that each child is in need of care and protection: Department of Family and Community Services (DFaCS) and Nicole [2018] NSWChC3 at [31].

120. The children were in need of care and protection at the time they were taken into care in September 2017 and, but for the arrangements made after they were taken into care, they would still be in need of care and protection today for substantially the same reasons. Each of the plaintiffs, for the reasons identified, is and was at all material times an unacceptable risk of harm to the children such that an order for restoration of the children to their care (jointly or severally) should not be made: M v M (1988) 166 CLR 69 at 77-78; The Secretary of the Department of Communities and Justice (DCJ) and Fiona Farmer [2019] NSWChC5 at [67]. The pre-condition for a care order for which section 72 of the Care Act provides is satisfied.

121. I accept the Secretary’s submission (as did the President) that neither plaintiff is likely to be able satisfactorily to address the issues that led to removal of the children from their care in September 2017. Despite the passage of time they remain deeply, and perhaps irretrievably, in denial. They have no coherent plan for how to deal with C’s fear of restoration to a household of which B is a member. Nor have they demonstrated an openness to professional assistance should they encounter difficulties with the children.

122. In the context of section 83 of the Care Act, I am satisfied that the children should not be restored to the care of the plaintiffs, jointly or severally, and that there is no realistic possibility of restoration of the children to them, jointly or severally, within a reasonable time, if ever.

123. I am satisfied, that there is a realistic possibility of restoration of C to the care of her father, E, thus providing a foundation for the Secretary’s permanency planning for C. On the hearing of the appeal there was no real criticism of the parenting skills of E or the domestic environment in which E and his wife care for their child, and propose to care for C. C looks to life with E, in New Zealand, as her best available option for safety and stability in her home life.

124. Having reviewed the whole of the evidence (including the evidence before the Children’s Court and the additional evidence adduced on appeal), and having considered the parties’ submissions on appeal, I am satisfied that the formal findings and orders made by the President on 23 September 2019, in relation to each child, are correct and ought to be confirmed.

125. Accordingly, I order that:

1. the orders made by the Children’s Court on 23 September 2019, in respect of the children C and D, be confirmed.

2. the plaintiffs’ amended summons filed on 28 October 2019 be dismissed.

127. Dismissal of the plaintiffs’ summons carries with it a release of the Minister from an undertaking to the Court not to allow C to travel outside NSW (as intended, to New Zealand) without prior notice to the plaintiffs.

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Decision last updated: 20 December 2019