AG & TG v Director for Child Protection Litigation & Anors
[2017] QChC 14
•21 September 2017
CHILDRENS COURT OF QUEENSLAND
| CITATION: AG & TG v Director for Child Protection Litigation & |
| PARTIES: AG (first appellant) and TG v DIRECTOR FOR CHILD PROTECTION and LYRENE WIID |
| FILE NO/S: 74/16; 75/16 |
| DIVISION: Childrens Court (Judge) |
| PROCEEDING: Appeal |
| ORIGINATING COURT: Ipswich Childrens Court (Magistrate) |
| DELIVERED ON: 21 September 2017 (ex tempore) |
| DELIVERED AT: Ipswich |
| HEARING DATE: 21 September 2017 |
| JUDGE: Judge Horneman-Wren SC |
| ORDER: 1. The appeals are dismissed. 2. The decisions of the Children’s Court are |
| CATCHWORDS: APPEAL – CHILD PROTECTION ACT 1999 – where |
| COUNSEL: D P Gardiner for the first appellant |
| SOLICITORS: Bradley Munt and Co for the first appellant |
HIS HONOUR: On 5 September 2016, an Acting Childrens Court Magistrate made orders granting the long term guardianship of LMG and ARG to the Chief Executive until each child turns 18. Each of the child’s mother and father, who were the respondents to the application, appeal those orders to this Court.
The children at the time of the orders were aged eight and four respectively. An appeal to this Court must be decided on the evidence and proceed before the Childrens Court: s 120(2) of the Child Protection Act 1999. Although this Court may order the appeal be heard fresh in whole or in part, no application has been made for that to occur in this case.
The Court’s powers on the appeal are set out in s121 of the Act. They are that the Court may:
(a) confirm the decision appealed against; or
(b) vary the decision appealed against; or
(c) set aside the decision and substitute another decision; or
(d) set aside the decision appealed against and remit the matter to the Magistrate or Childrens Court that made the decision.
The appellant mother’s grounds of appeal are:
(1) the Acting Magistrate erred in finding that the youngest daughters were at significant risk of suffering future sexual abuse;
(2) the Acting Magistrate erred in ordering that the daughters be placed in the long term care of the Department of Communities, Child Safety and Disability Services.
The appellant father’s grounds of appeal are stated somewhat differently. They are:
(a) that the learned Childrens Court Acting Magistrate erred in determining an issue central to the applicant’s case, namely, that there was a risk of sexual abuse occurring based on no corroborative evidence of sexual abuse actually occurring;
(b) that the learned Childrens Court Acting Magistrate erred in finding that the children LMG and ARG were at an unacceptable risk of sexual abuse occurring in that the finding was not supported by, and was at odds with, the evidence presented at the hearing.
The learned Acting Childrens Court Magistrate commenced his reasons by setting out the relevant provisions of the Child Protection Act, particularly, that s104 required him in the exercise of his jurisdiction to have regard to the principles stated in ss 5A to 5C to the extent that they were relevant. He set out that the principle in s 5A that for administering the Act the safety, wellbeing and best interests of the child are paramount. He set out the other general principles contained in s 5B.
He also set out the matters of which s 59 requires the court to be satisfied before a child protection order may be made. Those matters include, at s 59(1)(a), that the Childrens Court may make a child protection order only if it is satisfied:
(a) the child is a child in need of protection and the order is appropriate and desirable for the child’s protection.
The learned Acting Magistrate referred to the definition of a “child who is in need of protection” in s10. It is:
A child in need of protection is a child who:
(a) has suffered harm, is suffering harm or is at unacceptable risk of suffering harm; and
(b) does not have a parent able to willing to protect the child from the harm.
His Honour then referred to the definition of harm set out in s 9. It provides:
What is harm:
(1) Harm to a child is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing;
(2) it is immaterial how the harm is caused;
(3) harm can be caused by:
(a) physical, psychological or emotional abuse or neglect; or
(b) sexual abuse or exploitation;
(4) harm can be caused by:
(a) a single act, omission or circumstance; or
(b) a series or combination of acts, omissions or circumstances.
His Honour also referred to s 105 which governed evidence in the proceeding before him. It provides:
(1) In a proceeding, the Childrens Court is not bound by the rules of evidence but may inform itself in any way that it thinks appropriate.
(2) If, on an application for an order, the Childrens Court is to be satisfied of a matter, the court need only be satisfied of the matter on the balance of probabilities.
The Magistrate then set out the child protection history of the G family and the particular child protection concerns. In that regard, he noted that the applications before the Court had been precipitated by allegations of one child of the marriage, S, that she had been sexually abused by her father including having been raped by him. His Honour noted that the father had been charged with numerous sexual offences, being four rapes and a charge of maintaining an unlawful sexual relationship with his daughter as a child, and that he had been acquitted of all counts.
He noted that despite the father’s acquittal it remained the position of the Director that S had been sexually abused by him. He also observed that it was the clear and strenuous position of each of the mother and father that sexual abuse of S did not occur.
At the time of the hearing S had reached adulthood and was 18 years of age. She was not, however, called as a witness in the applicant’s case. That is a matter upon which the appellants place particular emphasis on the appeal.
The Magistrate had observed earlier in his reasons that at the close of the applicants’ case the mother indicated that she would not give evidence or call any evidence. The father called one witness, his sister, but did not himself give evidence.
Having raised with the parties that each of the mother and father had filed affidavits by themselves and that there were many other affidavits filed in support of their case, counsel for each indicated that those affidavits would not be relied upon. His Honour did not consider that material in light of those submissions.
His Honour identified the main issue which the Court was called upon to resolve as being whether the two girls were at an unacceptable risk of harm caused by sexual abuse. There is no real contention that his Honour identified the wrong issue. The real contention is that his Honour wrongly concluded it.
His Honour considered that it was not necessary that a positive finding of sexual abuse having occurred be made. His Honour reached that conclusion having considered the High Court’s judgment in M v M (1988) 166 CLR 69. On the appeal, the appellants contend that his Honour erred in that conclusion. They contend that in this case a positive finding of sexual abuse against S was necessary before a child protection order for LM and AR could be made.
His Honour then set out the evidence called in the proceedings. His Honour referred to it as a brief summary given the volume of material filed and that the hearing had been conducted over five days. Nonetheless, his Honour’s summary appears, with respect, comprehensive and thorough. No issue is taken on the appeal with the summary of the evidence.
The evidence heard by his Honour and summarised in his reasons included evidence from various experts and professional report writers. The evidence included that of a psychologist in private practice, Ms LD. Ms D had been engaged to provide two reports. The first was an early social assessment report dated 12 February 2013. From it, his Honour drew a number of observations which included:
· Mrs G demonstrated a lack of capacity to consider how she might respond if a child disclosed sexual abuse to her. Her response was that it would not occur should she would not consider the question (sic). Ms D noted that this was particularly concerning given the present circumstances. Further, Mrs G’s response that if she observed physical signs of child abuse she would take the child to the doctor. She did not identify the Department or police as agencies that she would contact.
· Mrs G demonstrated no insight into child protection concerns. She blamed S and Mr G’s sister for making false allegations against him. She was described as displaying disbelief, rejection and anger towards S.
His Honour particularly noted paragraph 12.4.1 of the report which read:
It is important to note that it is not within the scope of this assessment to investigate the allegations of sexual abuse by S towards Mr G (ie, to determine whether sexual abuse did, in fact, occur). In relation to these allegations, however, the following is noted: S is noted to have verbalised the allegations towards Mr G on multiple occasions since the start of 2012 with the content of these allegations remaining constant over this period. In addition, S’s emotional reactions both past and current (ie, reported anger, fear, anxiety), particularly her observed reactions with the presence of Mr G in the vicinity of PsyCare office are congruent with exposure to sexual harm.
Ms D’s second report was an independent psychological and parenting capacity report of Mrs G dated 2 April 2015. His Honour noted, amongst other matters, the following:
“Mrs G states again that she is certain that allegations of sexual abuse made by S and by two of Mr G’s sisters are not true.
Mrs G stated that S having recanted her allegations against Mr G proves that it is not true. On being provided material as to why a child or a young person might recant truthful allegations (ie, lack of support from non-offending parent, significant consequences of disclosure) Mrs G denied this would have played a part. The allegations were untrue.
Mrs G had no understanding of the term grooming and could not identify any behaviours that could be considered grooming.”
His Honour also noted Ms D’s summary at paragraph 10.3 of the report which read:
“In summary, I hold significant concerns that Mrs G’s profound lack of capacity to understand risk and act protectively towards her children despite intervention in combination with her passive parenting and dependence upon Mr G (all of which are closely related to her apparent intellectual disability) provides an ideal environment for abuse to occur. If, indeed, it is accepted that Mr G poses a risk to children (which will be informed by an updated assessment of his risk through the forensic psychology centre), it is my view, having considered the available information, that Mrs G is not in a position to hold responsibility for ensuring the safety of her children. With regard to risk from Mr B (sic) or for effecting significant and meaningful change in the family, it is my view that the interventions that have been provided have been appropriate, however, unfortunately, largely ineffective with Mrs G due to the issues noted above, and it’s my opinion that significant changes should not be expected through any further intervention to improve her protective or general parenting capacity.”
His Honour also noted Ms D’s oral evidence and particularly the opinion she expressed when cross-examined by counsel for Mr G that, notwithstanding S having recently recanted her allegations against her father and having returned to the family home, she was of the view that sexual abuse had occurred.
At paragraph [79] of his reasons the learned Acting Children’s Magistrate summarised Ms D’s evidence as follows:
“In summary, Ms D outlined concerns of risk of sexual abuse by Mr G, Mrs G’s inability to protect from that, and also concerns as to Mrs G’s general parenting capacity, particularly if forced to parent the children alone. Her observation was that Mr G had more capable general parenting capacities.”
His Honour set out the evidence of Mr T, another psychologist. His opinion was based upon 23 sessions he conducted with Mr and Mrs G over a one-year period. His Honour observed Mr T’s position was that, despite the work he had conducted, he had concerns as to the parents’ level of insight and the ability to demonstrate protective behaviours in the household. Much of this was because of Mrs G’s low IQ and learning difficulties.
Dr LM is a clinical forensic psychologist. He prepared two reports dated 4 March 2015 and 4 May 2015, the purpose of which was to provide a risk of sexual offending assessment in relation to Mr G and to assess the protective capacity of Mrs G. The report in respect of Mr G contains a “risk statement” which his Honour set out. It said:
“Mr G displays evidence of some risk factors associated with sexual offending behaviour. He has some cognitive distortions relating to sexual offending (against women and children), lacks self-awareness, problems with willingness to engage in treatment and supervision requirements and has low cognitive functioning. His alleged offending (recent and historical) also suggests a possible sexual deviancy. On the positive side, however, Mr G’s general criminal history is limited, and he has never actually been convicted of a sexual offence. In addition, he has remained in a long-term committed relationship with an adult partner. He cannot be diagnosed with antisocial or psychopathic personality. Finally, it is important to note that the category of intra-familial (incest) sex offender has been identified within the literature to be the least likely offender type to reoffend. Taken together, Mr G’s risk of reoffending could be considered low.”
Of Mrs G’s protective capabilities he said:
“Concerns relate to her dependency upon the alleged offender, her isolation, her cognitive ability and limited social support. Mrs G has a compromised personal history and blames and rejects the alleged victim in this matter. She is unwilling to consider possible implications for her or her family should the allegations be true, and she is unwilling (or unable) to identify strategies for managing any potential risk in the family home. In addition to these concerns, broader systemic factors exist for her, including social disadvantage, financial stress and crowded living quarters. Combined, these factors place her in a highly vulnerable situation and indicate that she would be predisposed to ignore signs of sexual abuse, disregard any risk management and supervision recommendations made by external agencies.”
An addendum report provided a year later reported no change and that her capacity to protect was “as good as it was going to get.”
There was also evidence of two social workers and a child and adolescent psychologist. The Acting Magistrate noted that each of them supported long-term guardianship orders for each of the girls.
His Honour observed that in cross-examining a number of the professional report writers it was put to them that they had completed assessments accepting the veracity of the information provided by the department, including the fact that S had been sexually abused by her father. His Honour repeated observations which he had made during closing addresses when that issue had been raised. He said:
“The report writers and their background information speak of allegations of sexual abuse and the fact Mr G was acquitted. While the department was of the view that sexual abuse occurred, I would think that professional report writers are quite capable of dealing with this as being simply the view of the department. As I say, they were aware of the allegations and the acquittal at trial. I do not see that their professional assessments have been compromised in any way.”
His Honour commenced his discussions of the issues in his reasons by restating that the issue of main contention was that of the two girls being at unacceptable risk of suffering harm for sexual abuse. However, his Honour said that this was not the only issue and that he had concerns regarding the general parenting capacity of the parents, their commitment to ensuring the children’s developmental deficits (including speech and language) are properly addressed, and also in the level of aggression shown by both parents in their interactions with departmental officers. All of those concerns, in my opinion, validly arose on the various evidence before his Honour which his Honour identified in his reasons.
However, notwithstanding those comments, his Honour again stated that his view remained that the issue of risk of harm through sexual abuse was significant as forming the basis for the long-term orders sought in respect of the two girls. This was because very different, temporary, orders had been consented to in relation to four male children.
His Honour then considered whether a finding of whether sexual abuse of S occurred could be made. Of the particular evidence of S, he said at paragraph [126]:
“Having said that, S has not given evidence in this proceeding. While the transcript of her interview with CPIU officers has been tendered, no transcript of the trial is before the court, so the court does not have information upon which to gauge her evidence, either upon the criminal trial or directly in this proceeding. Specifically, no assessment can be made of her credit as a witness, either directly or by a review of the trial transcript which would include her cross-examination at trial.”
His Honour then went on at [127] to [129] to say:
“[127] The court, though, has other information it can draw upon. This includes the fact that two of Mr G’s sisters have made sexual abuse allegations against him from when they were children. I note, though, that only the facts that these allegations has been made is before the court. There is no detail, and neither of the complainants have supplied an affidavit in the proceedings. Again, this prevents any forensic assessment of the allegations. [128] Also relevant and able to be considered is the assessment of Ms LD, a psychologist, who has reviewed the case material and interviewed S. Her assessment is that sexual abuse occurred. I would note here that assessments of professionals have been held to be relevant and appropriate. The factor A will be taken into consideration.
[129] Also relevant is the assessment of Dr LM which is concerning in that he assesses that Mr G possesses some attitudes that are supportive of offending behaviour. I will say something more about Dr M’s assessment of future risk later in these reasons.”
Having noted that counsel’s submissions had been split on whether a finding of abuse of S could be made, his Honour concluded at [131] and [133] as follows:
“[131] On balance, I would find that applying the civil standard and giving due deference to the Briginshaw scale that the court is not able to make a positive finding that sexual abuse of S occurred. I think it would be unfair to make that finding on the evidence before the court, particularly where the complainant has not given evidence, and only the transcript of a police interview (but not a trial transcript) is before the court.
“[132] Accordingly, this is a case where it cannot be found that sexual abuse either did or did not occur, but there remains very serious concerns about whether it occurred.”
“[133] On the appellant’s case, having reached that conclusion, his Honour should have dismissed the applications.”
The learned Children’s Magistrate then returned to a consideration of the paramount question, that is, were the girls at an unacceptable risk of harm. His Honour’s reasons on this question, set out at paragraphs [134] to [147] warrant setting out in full. They were:
“[134] This is the ultimate or paramount question for the court. Are the girls at unacceptable risk of suffering harm by way of risk of sexual abuse?
[135] The question entails a reconsideration of the same matters considered in the immediately preceding section of these reasons in respect of whether the court can be satisfied that S was sexually abused. Without repeating that content again, I would note that it is significant that three persons have made sexual abuse allegations against Mr G. Further, a psychologist has assessed S and formed a professional opinion that her allegations of sexual abuse are true.
[136] There are also a number of other factors that are relevant. These include a notification made in 2004 from information received from Mrs G that Mr G sexually abused all of the children.
[137] The detail of this notification is that given in the affidavit of HD and can be summarised as: Notifier sees mother crying and swearing at children in shopping centre. Notifier approaches mother and asks what is wrong. Mother states that she is sick of father abusing her children, that he “wails into them” when they are naughty. Mother talks about not being able to protect the children all the time when asleep (half asleep). She hears the children crying and her husband is not in bed with her. Mother said to the notifier that the father touches them sexually, all of the children, including the baby. Mother was very distressed and wanting help.
[138] Notifications by both S and LM of sexual abuse or at least inappropriate behaviour by the boys within the household. The detail of the disclosure of S is that her brothers T and M touch her inappropriately and that one of her brothers held her down and covered her mouth while her other brother touched her down below, her vagina. In respect of LM she has disclosed to her counsellor, Ms IK, that her brothers used to kiss her on the mouth.
[139] Evidence of sexualised behaviours of LM of kissing a boy in her placement.
[140] Evidence of displays of sexualised behaviour by AR which have been reported from several sources.
[141] A report of Mr G having been observed showering naked with LM.
[142] A report of when moving houses in 2015 a box falling over and pornography magazines spilling out, the children looking at them and not overtly responding and Mrs G not seeming to be concerned.
[143] These are just some additional matters that add to the material already canvassed in the review of the evidence set out in their reasons.
[144] The assessments of the professional report writers are of particular relevance in determining future risk. I would highlight that while Dr M assessed Mr G as being low risk of reoffending, that assessment was dynamic, and the tenor of his evidence was that he would be concerned as LM and AR became older. I would note that LM will shortly be turning nine and that the allegations of abuse in respect of SG commenced when she was about 10 or 11 years of age.
[145] Without repeating all the details, Dr M also found some concerning attitudes and beliefs in his assessment of Mr G which have been set out earlier in the reasons. He concluded that he would have significant concerns for the safety of the children should the Department cease involvement with the family.
[146] In conclusion, while no positive finding of sexual abuse of SG has been able to be made, there remain very significant concerns in that regard. In considering the whole of the evidence I find that there is an overwhelming basis for a finding that LM and AR are at an unacceptable risk of suffering harm in terms of risk future sexual abuse.
[147] In coming to this finding the immense detriment that can flow from the harm if it were to occur has been taken into account.”
In respect of each of those matters, his Honour identified the evidence of them before him.
His Honour then considered whether there was a parent able and willing to protect the children from harm and concluded that there was not. He considered the matters under s 5A and 5B and found himself satisfied of the matters required by s 59.
On that basis he made the orders.
The appellants each advanced the same submissions in their written submissions. They contend that the making of a long term guardianship order in respect of these young girls is the most draconian order that can be made and should only be made if there is compelling evidence warranting such an outcome.
As to ground 1 as set out in the submissions, that the Acting Magistrate erred in finding the girls were at an unacceptable risk of suffering harm in terms of future sexual abuse, they submitted the importance and gravity of the consequences flowing from such a finding required greater care in scrutinising the evidence than that taken by the Acting Magistrate as revealed by objective analysis of paragraphs [123] – [147] inclusive of the reasons for decision: see Shaw v Wolf [1998] 83 FCR 113 at pages 124 – 125 per Merkel J. In support, as I have observed, they have cited the reasons of Merkel J in Shaw v Wolf.
In that case, his Honour said of a case in which the relevant finding to be made was whether a person was an Aborigine:
“I have carefully considered these matters and arrived at the conclusion that in the present case the importance and gravity of the consequences flowing from a finding that any of the defending respondents is not an Aboriginal person is a consideration which, using the words of Dixon J in Briginshaw at 362, “must affect the answer to the question whether the issue has been proved” or, in Sodeman at 261, makes it proper to require “great care in scrutinising the evidence”.”
The reference to Briginshaw was to that part of the judgment of Dixon J where his Honour had said:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved.”
The learned Acting Magistrate had discussed Briginshaw in the context of making a finding as to whether sexual abuse of S had occurred at paragraphs [25] to [28]. Whilst the learned Magistrate did not repeat those matters in his discussion at paragraph [123] to [147], his reasons reveal that he was proceeding on the basis that what he referred to as “the Briginshaw scale” applied. That is apparent from his Honour’s acceptance that the test in M v M drawn from similar considerations in the Family Court, applied. In any event, the appellants’ submissions can be met by three observations.
First, an objective analysis of paragraphs [123] to [147] of his Honour’s reasons does reveal that his Honour took great care in scrutinising the evidence. As I have already noted, he specifically considered that the only evidence of S’s allegations was the transcript of interview with CPIU officers and that the trial transcript was not in evidence. He observed that on that basis the Court did not have information on which to gauge her evidence either on the criminal trial or directly in the proceeding before his Honour. He specifically observed that no assessment could thus be made of her credit, either directly or indirectly.
Secondly, the appellants do not develop what greater care in scrutinising the evidence should have been exercised, or what they say would have been revealed, or what his Honour would have been led to conclude had there been such greater care in scrutiny.
Thirdly, and perhaps most decisively, having carefully scrutinised the evidence his Honour determined that he could not conclude whether abuse did or did not occur.
In their oral submissions, counsel for each of the appellants contends that the learned Acting Magistrate erred at law in concluding that it was not necessary that a positive finding of sexual abuse having occurred be made. They say that his Honour misapplied the judgment of this Court in T v Department of Child Safety [2013] QChC 1 in that regard.
The argument ran that in this case such a finding was necessary as without a positive finding of sexual abuse there would be no cogent evidence upon which a finding of unacceptable risk could be made. Having stopped short of finding that S had been sexually abused, there was no cogent evidence to find that the two girls were at an unacceptable risk from Mr G.
In my view, the matters to which his Honour referred in reaching that conclusion in paragraphs [135] to [147] do provide a basis for the conclusion to be reached that the girls were at an unacceptable risk. It was, therefore, not necessary for a positive finding of sexual abuse to be made.
The Magistrate’s reasoning is consistent with the reasons of the President in T at paragraph [40] where his Honour reached a similar conclusion on the facts of that case. The fact that Mr G was acquitted was well understood by the Magistrate. That acquittal did not, however, render a consideration of the allegations irrelevant to a consideration of whether abuse was established to the civil standard but, as I have said, in any event, the Magistrate could not be satisfied that it had. Those allegations remained relevant, though, to be considered with all the other relevant evidence as to whether the Magistrate was satisfied to the requisite standard that the girls were at an unacceptable risk.
This ground has not been made out.
Ground 2 is expressed in the written submissions as “The Acting Magistrate further erred in not drawing an inference that the failure of the applicant to adduce evidence from S meant that her evidence would not have assisted the applicant’s case.” The written submissions state:
“The applicant bore the onus of proof in these proceedings which it failed to discharge. It was patently obvious that the role played by S in these proceedings was extensive and protracted, so much so that at one stage the Acting Magistrate openly contemplated allowing S to address him from the well of the Court without being sworn which precluded any opportunity to cross-examine her. The allegations of sexual abuse were made by her as is apparent from evidence called by the applicant making the failure to call her permitting an adverse inference to be drawn. At trial she was 18 years of age.”
This ground can be dealt with quite briefly.
As I have already set out the Magistrate was cognisant of the deficiencies in S’s evidence being restricted to only the statement to CPIU officers. He was mindful of the lack of Court transcript and appreciated that he was not in a position to assess her credit. He thus approached her statement with caution, but again, he did not, in any event, act on her evidence to find that she had, in fact, been sexually abused.
In my view, the appellants’ submission that a Jones v Dunkel[1] inference should have been drawn, that is, that S’s evidence would not have been helpful to the applicant’s case, should be rejected.
[1] (1959) 101 CLR 298
As Mr Parrott for the Director submits, an explanation was advanced before the Magistrate as to why S was not being called. That was, essentially, to preserve her from having to be cross-examined about those issues again, she already having given evidence at the trial.
In my view, there is another reason the rule in Jones v Dunkel does not apply. As was observed by Glass JA in Payne v Parker [1976] 1 NSWLR 191 at 201 to 202:
“Whether the principle can or should be applied depends upon whether the conditions for its operation exist. These conditions are three in number:
(a) the missing witness would be expected to be called by one party rather than the other;
(b) his evidence would elucidate a particular matter;
(c) his absence is unexplained.
The first condition is also described as existing where it would be natural for one party to produce the witness, see Wigmore, paragraph 286, or the witness would be expected to be available to one party rather than the other, O’Donnell v Richard, or where the circumstances excuse one party from calling the witness but require the other party to call him or where he might be regarded as in the camp of one party so as to make it unrealistic for the other party to call him.”
It was common ground that by the time of the hearing S had recanted and had returned to live at home with her parents. She is their daughter. There is no reason at all to conclude that at the time of the hearing she was somehow more aligned with the applicant than the respondents.
Furthermore, to the extent that her evidence in the criminal trial contained many inconsistencies, as suggested by Mr Seaholme in his submissions for the appellant father, which could have demonstrated the unreliability of S’s account as given to CPIU officers, a transcript of that evidence could easily have been tendered by the respondent parents at the hearing below. Section 105 would easily have permitted its reception.
That ground has not been made out.
The third ground as set out in the written submissions is: the Acting Magistrate erred when considering as relevant the assessment by LD, a psychologist that sexual abuse had occurred. The written submission in support of it is:
“The error made by the Acting Magistrate appears from an objective appraisal of paragraph [128] of the reasons for decision and the reports of LD which are part of the evidence in the applicant’s case. In summary, there is no cogent basis for the conclusion expressed in paragraph [128] (see M v M [1988] 166 CLR 69).”
The basis for this submission advanced by counsel in oral argument is that, unlike the expert in M v M, Ms D lacks sufficient expertise to form or express the opinion recited by his Honour at paragraph [128]. That submission should be rejected for several reasons.
No issue was taken with Ms D’s qualification in the proceedings below. Those qualifications and her experience were set out in her curriculum vitae, which was exhibit A to her affidavit. She identifies a number of areas of experience within the realm of child protection. Whilst child sexual abuse is not expressly referred to, one would readily infer that her experience in that area would extend to such matters.
Furthermore, the opinion which Ms D expressed and which is referred to in paragraph [128] in his Honour’s reasons was only expressed when elicited by counsel for the father in the proceedings below. Ms D’s report, for the reasons which she had identified at paragraph 12.4.1, had not extended to expressing her opinion as to whether S had been sexually abused. However, counsel for the father directly asked her to express her opinion on that matter.
The exchange was as follows, at page 2-35, line 17 of the transcript, concluding at page 2-36, line 11:
“Q: Do you have a concluded view as to whether sexual offending had occurred or not?
A: Do I have a what, sorry?
Q: Concluded view as to whether sexual offending had occurred or not?
A: Well, my opinion, based on her presentation, her comments, the
consistency of her allegation and the psychological – I guess what
we would – what I would term to be the sequale of what we know
that can occur for a young person who has experienced sexual abuse–
all of that was very consistent with a person who has experienced
sexual abuse. So in considering balance of probabilities, it would be
my view that that had occurred.
Q: Okay. So a finding of not guilty really has no bearing upon that concluded view. Is that right?
A: Certainly that’s information to consider but having considered the broad – all of the information, including S’s presentation over a number of years and her disclosure over a number of years, it would be my view that – the balance of probabilities, as I said, that that abuse had occurred.
Q: You say her disclosures over a number of years. What – it was only on one occasion she disclosed sexual abuse, wasn’t it?
A: She had disclosed sexual abuse initially, and then had repeated those disclosures further to myself, included, so that’s what I was referring to.
Q: Did you ever see the disclosures that she made to the police?
A: I don’t believe so. I couldn’t be sure about that. If they were referred to in the affidavits that are reviewed to this – that earlier report, then I would say I had, but I wouldn’t be able to, with confidence, say that I had or hadn’t.
Q: You never saw any of the evidence she gave in the trial?
A: I don’t believe so.
Q: And if even, of recent times, she had said to someone, who is not a member of the family, that these things that she alleged had not occurred, would that effect your opinion at all?
A: I think it’s important – I mean, in terms of considering why somebody might recant an allegation. It’s very – in this particular case, it’s really worthwhile considering the really significant and profound impact of the pressure that S has experienced from the family over a number of years. She, in my view, was very clearly blamed and scapegoated for the family’s involvement with departmental services. That pressure on a young person to – who has, you know, “ruined the family” really can’t be underestimated and certainly, from a clinical experience point of view, I’ve seen a number of young people or children who have experienced sexual abuse that may or may not have been proved criminally, who might then recant or say that their allegations were untrue in the face of wanting things to return how they were, pleasing people, or under that pressure.”
No objection to the expression of such an opinion was taken by Mr Gardiner, who appeared for the mother below and who does so on the appeal and who now submits that Ms D lacks qualification. Having heard that opinion, and Ms D’s quite detailed and considered reasons for holding it, I am of the view that the magistrate was entitled to take it into consideration in his overall assessment of the evidence on the issue of whether there was a unacceptable risk to the girls in the manner in which he did.
None of the grounds advanced by the appellants have been established. No error has been demonstrated in the learned acting-magistrate’s reasons.
The appeals are dismissed.
MR SEAHOLME: Thank you.
MR GARDINER: Your Honour, I’m just unsure whether, in the reasons you’ve given, whether you have dealt with – and I say this with respect, of course – ground 1 of the – my client’s submissions in response to the DCPL’s outline of argument. That is, whether you have determined, with respect, whether a finding of sexual abuse has to be made before any determination to whether there’s an unacceptable risk of harm, in that context, be made. I’m just unsure whether your Honour’s
HIS HONOUR: Just let me get the document in front of me. Now, sorry, so this is
MR GARDINER: This is page 10 of the bundle of documents.
HIS HONOUR: Just let me get that. Yes.
MR GARDINER: I’m just unsure, having heard your Honour’s oral reasons, the decision – whether that particular ground has been addressed.
HIS HONOUR: Lest it be unclear in the reasons which I have so far delivered, for the reasons which I have already expressed, his Honour’s ultimate conclusion, that there was an overwhelming basis for a finding that the girls were at unacceptable risk of suffering harm, was not made in error. The reasons I have already set out demonstrate why that is so, even in light of his Honour’s finding that it could not be found that sexual abuse did or did not occur. One should not lose sight of the fact that his Honour’s reasons, as it is plain from a reading of the reasons in full, make it clear that the ultimate decision reached and what his Honour considered to be an overwhelming basis for finding such risk, included the lack of protective mechanisms on the part of Mrs G, which, when impacted upon by the risk of sexual offending, were matters relevant to his consideration.
MR GARDINER: Thank you, your Honour.
HIS HONOUR: Yes. Is there anything else? Yes, adjourn the Court. Thank you.
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