“B” v The Secretary, Department of Family and Community Services (No 2)

[2018] NSWDC 174

District Court

New South Wales

Medium Neutral Citation:	“B” (No 2) v The Secretary, Department of Family and Community Services [2018] NSWDC 174
Hearing dates:	28, 29 & 30 May, 1, 4, 5, 6 & 7 June 2018
Date of orders:	29 June 2018
Decision date:	29 June 2018
Jurisdiction:	Civil
Before:	Judge Levy SC
Decision:	The appeal succeeds. See paragraph [631] for orders
Catchwords:	CHILD CARE APPEAL – de novo hearing of a care proceedings to determine the appropriate allocation of parental responsibility and ancillary orders – analysis of manner and extent to which FaCS considered and investigated relevant disclosures of historical child sexual abuse in the father’s extended family – FaCS report file on those disclosures was “closed at triage” due to “competing priorities” – reconsideration of the issues in light of relevant evidence admitted at the re-hearing but erroneously excluded due to a ruling made at the hearing in the Children’s Court
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998
Cases Cited:	“B” v The Secretary, Department of Family and Community Services [2015] NSWDC 267 Bradshaw v McEwans Pty Ltd (1952, unreported) (1951) 217 ALR 1 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Fox v Percy [2003] HCA 22; 214 CLR 118 Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58 Strinic v Singh [2009] NSWCA 15
Category:	Principal judgment
Parties:	The Secretary, Department of Family & Community Services (FaCS) “B” -The child “C” - Mother of the child (Applicant) “D” - Father of the child
Representation:	Counsel and Solicitors: Ms G Mahony instructed by Crown Solicitor for NSW (FaCS) Mr M Boys (Solicitor for the applicant mother) Ms A Fawaz (Solicitor for the father) Ms S Ross (Solicitor, Independent Legal Representative of the child)
File Number(s):	2017/386548
Publication restriction:	Restriction on publication of names and identifying details other than litigation pseudonyms: s 105 of the Children and Young Persons (Care and Protection) Act 1998

Judgment

Table of Contents

Nature of case	[1] – [2]
Suppression order	[3]
Litigation pseudonyms	[4]
Representation	[5] – [6]
Introduction and summary of conclusions	[7] – [37]
Overview	[38] – [43]
Some background	[44] – [70]
The parties	[71] – [86]
Sentinel incident on 1 January 2016	[87] – [104]
Polarised positions of the parties	[105] – [116]
Nature of the appeal	[117] – [119]
Findings of the Children’s Court	[120]
Orders made by the Children’s Court	[121] – [122]
Orders now sought on appeal	[123]
Grounds of appeal	[124] – [131]
Procedural background	[132] – [137]
Evidence in the appeal	[138] – [140]
Issues calling for decision	[141] – [142]
Credibility and reliability of testimony	[143] – [445]
(1) Evidence of the mother “C”	[145] – [213]
(2) Evidence of the father “D”	[214] – [260]
(3) Evidence of the FaCS caseworker “H”	[261] – [318]
(4) Other witnesses not required to be called	[319] – [320]
(5) Absent evidence – caravan letting agent	[321] – [326]
(6) Absent evidence – the sister “E”	[327] – [343]
(7) Absent evidence – the paternal step-grandfather “F”	[344]
(8) Absent evidence – the paternal grandmother “G”	[345] – [347]
(9) Evidence of the Children’s Court Clinician, Mr Hawton	[348] – [422]
(10) Evidence of treating psychologist, Ms Hagedorn	[423] – [445]
Issue 1 – Jurisdictional question – s 90 of the Care Act	[446] – [450]
Issue 2 – Aboriginal and kinship issues	[451] – [455]
Issue 3 – Allegations of historical child sexual abuse	[456] – [492]
Issue 4 – Reliability of report of Children’s Court Clinician	[493] – [495]
Issue 5 – Domestic violence alleged against the father “D”	[496] – [505]
Issue 6 – Disputed alcohol abuse and volatility	[506] – [522]
Issue 7 – Disputed finding on better standard of care	[523] – [549]
Issue 8 – Possibility of psychological harm	[550] – [559]
Issue 9 – Concern over possible contact difficulties	[560] – [572]
Issue 10 – Balancing consideration for dispositive orders	[573] – [618]
Procedural observation	[619] – [621]
Implementation of orders	[622] – [624]
Recommendation to the Secretary, FaCS	[625] – [628]
Disposition	[629]
Costs	[630]
Orders	[631]

Nature of case

1. These reasons concern contentious child protection and placement issues arising in an appeal in care proceedings regarding the allocation of parental responsibility for a six year old boy. The proceedings were vigorously contested over the course of eight hearing days in this Court on circuit in Lismore, NSW, between 28 May and 6 June 2018.

2. The appealed decision relates to proceedings that had incrementally progressed over a 14 month period, which commenced with a hearing in the Children’s Court at Tweed Heads, on 27 October 2016, and which then continued part-heard, in non-consecutive segmented hearings that took place on 27 January 2017, 2 March 2017, 28 April 2017, and 20 July 2017. The reserved decision under present appeal was delivered, on 15 December 2017.

Suppression order

3. At the commencement of the hearing an order was made pursuant to s 105 of the Children and Young Persons (Care and Protection) Act 1998 (“the Care Act”), prohibiting the publication of the name of the child the subject of these proceedings, or the publication of any information or details of any other parties, witnesses or persons named in evidence, that would tend to identify that child.

Litigation pseudonyms

4. To preserve anonymity of the child the subject of the appeal, the following litigation pseudonyms have been assigned instead of using actual names:

“B”   The child the subject of the appeal, now aged 6 years;

“C”   The mother of the child, now aged 50 years;

“D”   The father of the child, now aged 54 years;

“E”   The sister of the child’s father, the paternal aunt, now aged 50 years;

“F”   The step-father of the child’s father, the paternal step-grandfather, now aged 75 years;

“G”   The paternal grandmother, now aged 77 years;

“H”   The supervising Family and Community Services (FaCS) caseworker.

Representation

5. Respective solicitors represented the parents. The solicitor for the mother “C” represented her on a pro bono basis in this appeal. The solicitor for the father “D” was legally aided. The child’s interests were represented by a solicitor as the Independent Legal Representative (“ILR”). The Department of Family and Community Services (“FaCS”), was represented by the Crown Solicitor, who briefed counsel to appear for the Minister and his delegate, the Secretary of FaCS. In these proceedings the legal representation for FaCS was different to that in the Children’s Court hearing.

6. Despite several attempted Dispute Resolution Conferences convened with a Children’s Registrar made available by the Children’s Court, both prior to the commencement of the hearing of the appeal, and also during the course of the hearing, the parties have, for whatever reason, found themselves unable to reach a tolerable compromise for a consensual resolution of the matters in dispute concerning the safety, welfare and well-being of the child the subject of the appeal.

Introduction and summary of conclusions

7. The appellant is the mother of the child “B” who is the subject of this appeal. In summary, I have concluded that she is justifiably dissatisfied with the decision of the Children’s Court delivered at Tweed Heads, NSW, on 15 December 2017. That decision refused an application by the mother “C” for parental responsibility for her child “B”, to be reallocated to her following the removal of that child from her care on 16 October 2013.

8. It is appropriate at this point in my reasons, which are necessarily lengthy because of the voluminous materials requiring consideration, that in the paragraphs that immediately follow, I identify the essential basis for my conclusion that the appealed proceedings had miscarried in the Children’s Court.

9. This occurred for several reasons, starting with some background events in the lead up to the hearing in the Children’s Court concerning some evidentiary matters, and related evidentiary and procedural rulings made on objections taken on the second day of the hearing in that Court, on the advice by FaCS in the course of the hearing in the Children’s Court: Exhibit “A”, Vol 1, Tab 37, p 33.38.

10. The first reason for concluding that the proceedings miscarried in the Children’s Court concerns the manner and circumstances in which FaCS, a presumed model litigant, obtained what has been demonstrated in this appeal, to be a materially flawed report from a Children’s Court Clinician. At the Children’s Court hearing, the mother “C” was prevented from introducing evidence and argument which would have exposed that position. In these proceedings, in light of my conclusions on the credibility and the reliability of testimony, I have found the previously excluded evidence, which was available for consideration in the appeal hearing, to be determinatively persuasive.

11. In these proceedings, the Clinician’s report has been exposed as having been unfortunately procured in circumstances that involved rectifiable deficiencies identified in the briefing materials that were provided to the Clinician by the responsible FaCS caseworker “H”. This meant that certain materials of relevance were not provided to the Children’s Court Clinician in circumstances where FaCS knew of the existence of those other materials, and where FaCS must be taken to have known of their relevance to the task to be undertaken by the Clinician.

12. The deficiencies in those materials comprised, first, the absence of full details of the record of serious criminal convictions of the father “D”, secondly, the absence of a psychological testing and assessment report that had previously been commissioned by FaCS, which revealed the father “D” to be affected by significant cognitive impairments, and thirdly, the absence of a copy of a highly relevant clinical communication letter from a consultant psychiatrist, which recorded details of alleged perpetration of historical child sexual abuse involving relevant family members of the father “D”.

13. That letter from the psychiatrist related to the father’s sister “E”. Four years before the events in question in this case, in a therapeutic setting, the father’s sister “E” had revealed to a consultant psychiatrist, a history of having endured childhood sexual abuse, allegedly inflicted upon her by her stepfather, the paternal step-grandfather “F” in this case.

14. The relevance of those circumstances to this case, if correct, is that the step-grandfather “F” had ready access and frequent contact with the child “B”, who is the subject of this appeal. This raised a most important child protection issue that was, in my view, insufficiently investigated and considered in this instance. This occurred because a FaCS file relating to relevant reported events was prematurely “closed at triage” and where “competing priorities” meant the required investigation was left in an unsatisfactory and incomplete state.

15. The excluded material, which was sought to be tendered in the Children’s Court proceedings, comprised a disclosed history of the alleged childhood abuse, as recorded by a consultant psychiatrist, Dr WS Wright, in a letter dated 20 March 2012, which was addressed to a colleague, Dr C Braganza, the treating psychiatrist of the sister “E”, in the terms of the following extract:

“…

Her history is complex and really raises doubts about the diagnosis of ADHD/ADD.

She described her upbringing as ‘colourful’. Her brother has spent much of his adult life in jail. Her parents separated when she was very young. She said that she had been sexually abused by her step father from an early age (precise age unknown) until she left home at 14. Mrs [“E”] said that she had complained to her mother and was sent to grandmother for one month.

Over the next few years she was ‘sent to grandmother a lot’. Her step father was described as insane. He was not violent to her but did threaten her.

…”

[Exhibit “A”, Vol 2, Tab 46, Annexure A]

16. Other evidence that was tendered in the appeal indicated that the disclosed history of alleged sexual abuse disclosed by the sister “E” occurred over a period when the sister “E” was aged between 4 and 14 years: Exhibit “A”, Vol 1, Tab 36, p 23; Annexure “H” to the affidavit of the caseworker “H”, p 24 and Annexure “L”, p 35.

17. All of the above matters were obviously relevant considerations in care proceedings and were relevant to the consideration required of the Clinician, yet they were not provided to him, either by FaCS, or by any other party.

18. Those deficiencies have plainly influenced the outcome of the proceedings in the Children’s Court. This has materially disadvantaged the child “B” and the mother “C”. Those deficiencies, when revealed, have the consequential effect that the report, the opinions, and the recommendations of the Children’s Court Clinician, on key matters in dispute, have been exposed as being deficiently skewed, and unreliable.

19. The contentious opinions and recommendations of the Children’s Court Clinician were nevertheless adopted in the findings and in the conclusions of the Children’s Court Magistrate.

20. The second reason for concluding that the proceedings miscarried in the Children’s Court concerns certain rulings made by the presiding Children’s Court Magistrate, the effect of which prevented the solicitor for the mother “C” from introducing into the evidence in those proceedings, the plainly relevant document comprising Dr Wright’s cited in the extract set out in paragraph [15] above.

21. That ruling had the consequential effect that a related series of otherwise admissible and relevant questions aimed at demonstrating the inherent flaws and the unreliability of the Clinician’s stated opinions, were also excluded.

22. The subject matter of the excluded correspondence and questions concerned a described course of conduct, over a period of 10 years, of alleged childhood sexual abuse on the part of the child’s step-grandfather “F” towards his stepdaughter “E”, the paternal aunt of the child “B”, who is the subject of these proceedings.

23. Justifiably, those revelations have considerably perturbed the mother “C” because the paternal step-grandfather “F” had access to the child “B”. However as a result of the cited rulings, the solicitor for the mother “C” was prevented from adequately ventilating those matters before the Children’s Court Magistrate.

24. Those matters were excluded from consideration in the Children’s Court because of objections by the opposing parties. Those objections were upheld, wrongly in my opinion, having due regard to the gravity of the issues to be considered and decided in care proceedings, and also having regard to the child protection consequences at stake for the child, and for his parents.

25. As a result of those rulings, when the solicitor for the mother “C” was unsuccessful in his attempts to raise the flawed nature of the report of the Children’s Court Clinician, he sought a mistrial ruling from the presiding Children’s Court Magistrate on the grounds that the Clinician’s report was flawed. That application was deflected in short terms: Exhibit “A”, Vol 1, Tab 38, p 12.44.

26. In this appeal it was revealed that the objection taken by FaCS to that material was taken on the instructions of a FaCS manager: T360.30. This apparently occurred when the solicitor who appeared and represented FaCS in the Children’s Court proceedings (who is not the same solicitor who represents FaCS in the appeal or who represented FaCS in a s 90 application determined on 13 November 2015) had been asked for advice on the matter of Dr Wright’s letter dated 20 March 2012, and FaCS took the course suggested by that advice: Exhibit “L”.

27. Despite searches conducted by FaCS, a copy of that solicitor’s advice has not been located: T348.12 – T348.18. The effect of that advice was that the 20 March 2012 letter from Dr Wright as cited at paragraph [15] above should be the subject of objection. Consequently, the objection was taken and upheld.

28. Without the opportunity of reviewing the basis and content of that advice, it is difficult to identify a justifiable basis for the position taken by FaCS on that matter. However, on the identified material that I have reviewed in this case, I remain at a complete loss to see how a proper basis could be said to exist as justification for excluding that document from tender, and from the consideration at the Children’s Court hearing, where the principal issues to be determined concerned matters of child protection.

29. When those matters were ventilated in these proceedings, the solicitor for the mother “C” made the vehemently emphatic submission that: “the department’s entire behaviour, demeanour and conduct in this matter has been disgusting”: T362.27 – T362.31. It is not necessary for me to make a finding on that particular submission. The facts, as laid out, will speak for themselves. My task on this rehearing is to make what I consider to be the proper decision, based on the evidence presented, concerning the allocation of parental responsibility, with reasons for that decision.

30. In summary, the conclusion I have reached in my consideration of this appeal is that I have found that fundamental flaws have occurred in the lead up to, in the course of, and therefore, in the miscarried disposition of, the proceedings in the Children’s Court.

31. As a result, in my consideration of the evidence tendered in these proceedings, I have come to very different conclusions to those arrived at by the Children’s Court Magistrate. A material difference in the body of the evidence before the Children’s Court and in the appeal was a cognitive assessment report commissioned by FaCS and dated 19 September 2015 which identified some cognitive difficulties affecting the father “D”: Exhibit “P”. That report had not been provided to the Children’s Court Clinician or to the Children’s Court Magistrate.

32. I here identify my conclusion that on this fresh hearing, the result of the proceedings should be determined to the opposite effect that was ordered by the Children’s Court Magistrate. However, I consider that a number of additional facilitative orders should be made concerning the safety, welfare and well-being of the child “B” who is the subject of the appeal. This will be reflected in the orders I will make.

33. I intend that the immediate effect of my orders is that parental responsibility for the child “B”, until his age of majority, should be forthwith restored and allocated to the mother “C”; that the father “D” should have reasonable access; and that in view of the described toxic communication difficulties that exist between the parents, for the next five years, the Minister should retain parental responsibility for any access arrangements sought by the father “D”. Some important ancillary steps will be required for those matters to be properly managed.

34. I have also concluded that in view of the insufficiently, and therefore, incompletely investigated allegations made about the historical conduct of the paternal step-grandfather “F” as cited at paragraph [15] above, which concern alleged sexual abuse by him of his stepdaughter “E”, who is the aunt of the child “B” and the sister of the father “D”, the paternal step-grandfather “F” should not be allowed to have unsupervised access to the child “B”, under any circumstances without the full approval and satisfaction of the mother “C” as to any reasonable arrangements she requires to be put in place for the protection of the child “B”.

35. My reasons for each of those conclusions will be set out in more detail for the understanding of the parties after I have set out an overview of the proceedings and after I have identified the nature of the appeal, as well as identifying the relevant findings of the Children’s Court Magistrate, and identifying the issues calling for decision.

16. In that process, I will also set out my reasons for the assessments that I have made concerning the credibility and the reliability of the respective witnesses, and my related assessments of the relevant documents, and of the oral evidence. I will then proceed to examine each of the issues which call for determination in the proceedings. My dispositive orders appear at paragraphs [629] to [631] of these reasons.

17. My overview and analysis now follows.

Overview

38. The appealed decision arose from earlier proceedings whereby, pursuant to s 90 of the Children and Young Persons (Care and Protection) Act 1998 (“the Care Act”), the appellant mother obtained leave to bring the proceedings that are the subject of the present appeal: “B” v The Secretary, Department of Family and Community Services [2015] NSWDC 267.

39. That leave was granted on 13 November 2015, because the mother had, at that time, satisfied the required threshold for establishing that there was a realistic possibility for the child “B”, to be restored into her care.

40. At the time such leave was granted, it was indicated to the appellant mother, that in order to succeed in an ultimate application seeking that outcome, it would be necessary to provide cogent evidence to satisfactorily establish the fact of a successful rehabilitation on her part concerning her past drug and alcohol issues: “B” v The Secretary, Department of Family and Community Services [2015] NSWDC 267, at [40] – [43].

41. In these proceedings, the appellant mother “C” claims that she had satisfied those requirements such that she is able to care for her child “B” as a “good enough parent”, but she complains that view was not reflected in the appealed decision of the Children’s Court Magistrate, whose findings, were based on the materially flawed opinions of a Children’s Court Clinician.

42. Instead, in reliance upon that flawed report, the Children’s Court Magistrate preferred the father “D” as opposed to the mother “C”, when allocating parental responsibility for the child “B”.

43. The proceedings are governed by the provisions of the Care Act, s 9(1) of which requires that the Court’s determination must be made according to the paramount principle of the child's safety, welfare and well-being, where that paramount consideration is the child’s best interests according to those criteria.

Some background

44. The child “B”, who has Aboriginal heritage from his mother’s side, has been under the parental care and responsibility of the Minister, FaCS, since his removal from parental care on 16 October 2013. That removal occurred after the mother “C” had made a disclosure to FaCS personnel that she was struggling with drug addiction, and wanted help with her rehabilitation. Since then, largely due to her own efforts, the mother “C” has successfully undergone significant rehabilitation, and has successfully remained drug free for the past four and-a-half years.

45. In that time, both parents, who no longer live together, have each obtained various forms of assistance and support to help them make efforts to improve their parenting and personal situations. Following those commendable efforts, the supervising FaCS caseworker “H” has conceded that both parents have fulfilled the expectations of FaCS concerning the achievement of “minimum outcomes”, and it is conceded that each of them have become “good enough parents”.

46. Until the unfortunate occurrence of some sentinel events at a residential caravan park on 1 January 2016, FaCS had been supporting the application of the mother “C” for the child “B” to be restored to her care. That support apparently continued, to the knowledge of the mother “C”, until June 2016: T81.25.

47. Notwithstanding that earlier position of FaCS as described in the preceding paragraph, after the receipt of the Children’s Court Clinician’s report dated 8 July 2016, FaCS changed its view and approached the Children’s Court proceedings from the standpoint that it would be recommending to the Children’s Court Magistrate that the child should be restored to the father “D”, and not to the mother “C”. In his findings, the Children’s Court Magistrate accepted and adopted that approach.

48. Since the appealed 15 December 2017 decision of the Children’s Court, the child “B” has been under the parental responsibility of his father “D” generally, but also under that of the Minister, with the latter limited to only contact arrangements with the mother “C”.

49. The child “B” has not been present at Court at any stage of the hearing. Prior to the hearing of the appeal, it appears that no efforts had been made to seek to ascertain the wishes of the child “B” on the question of his placement.

50. According to the evidence given in the appeal by the FaCS caseworker “H”, who has had only one contact with the child “B” over the years of her involvement in the case, she understood that the child “B” had been told, or believed, that the question of his placement had already been decided and finalised on 15 December 2017, and therefore, he was apparently unaware of this appeal until the eighth day of the hearing.

51. In a courtroom discussion that arose during the hearing of the appeal, the representatives of the parties raised what were ultimately accepted as valid concerns over the utility of the child “B” being brought to court to enable a sense to be obtained of him, and of his presentation. Consequently, there was no order made requiring the child “B” to be brought to court for the purposes of s 96(1) of the Care Act.

52. On the eighth day of the hearing, the ILR sought to tender a document which was stated to be the product of an interview that she had undertaken with the child “B” on that very morning.

53. Objections and concerns were raised by the parties as to the content of the answers by the child “B” to the questions which appeared in that document. This was in circumstances where the ILR had written down the answers given by the child “B” in response to a series of pre-formulated questions, some of which were either closed or were leading in their nature. The interview had not been the subject of a video or an audio recording.

54. The content of that document, some of which was plainly unhelpful to the case of the mother “C” in seeking restoration of the child “B” to her, raised significant questions that suggested there may have been some coaching of the child “B” in respect of some of his answers relating to his attitude to his mother “C”, and also as to the outcome of the appeal. By that stage, it was clear that he had become aware of the present proceedings.

55. There was no suggestion that the ILR had coached the child “B”. The application to tender the document was withdrawn in circumstances where it became apparent that the ILR might have to become a witness in the proceedings. It has not become necessary to make findings as to the source of the apparent coaching of the child “B” as referred to in this context.

56. Subsequently however, the document in question was ultimately admitted into evidence as Exhibit “O”, but for a very limited purpose, namely to understand the basis of some questions that I had directed to the father “D” in the final stages of his evidence, when aspects of that evidence were being explored. At this point in my reasons I wish to make it clear that Exhibit “O” is not to be regarded as a reliable source of evidence of any preference by the child “B” as to which of his parents he may wish to reside.

57. Accordingly, the analysis and the assessments that I must make in this case will be based on the oral testimony, and on the other relevant documentary evidence tendered in the proceedings, including the broad range of evidence that was placed before the Children’s Court Magistrate.

58. The assessment and determination of this appeal became unfortunately complicated by the effluxion of time that has inevitably occurred between when the appealed Children’s Court proceedings had commenced and when they were determined, as identified at paragraph [2] above.

59. The deleterious effect of that entire period of time during which the proceedings remained unfinalised, some 14 months, was the subject of much criticism by the mother “C”. She claimed that the effect of that prolonged period of time had disadvantaged her case, where, by default, she had been deprived of meaningful parental contact for an excessive period of time, where that process had been precipitated in circumstances that were not only unfair to her, but also unfair to the child “B”.

60. In order to understand that complaint, it is at this point relevant to identify some surrounding events that occurred in the chronology of events between 16 October 2013 and 23 November 2015, the latter date being when the appealed proceedings were filed in the Children’s Court.

61. As at 13 November 2015, the parents were living together and were proceeding along their respective rehabilitation pathways. The child “B” was in the parental control of another family member, and then lived with the paternal grandparents, with the availability of access for the parents. At that time, the mother “C” knew nothing about the historical allegations of child sex abuse involving the paternal step-grandfather “F”.

62. After 13 November 2015, pursuant to the leave granted to her on that date, the mother “C” was preparing her application to the Children’s Court for the re-allocation to her of parental access responsibility for the child “B”.

63. In those events, despite their past and interpersonal difficulties, which will be reviewed in further detail later in these reasons, the parents managed to achieve a relatively harmonious existence whilst sorting out their respective issues.

64. On 1 January 2016, whilst the parents were living in a rural caravan park, a sentinel event occurred between them, in which, shortly stated, the mother “C” alleged that after a conversation which caused the father considerable anger, the father “D” assaulted her, following which he took the child “B” away. I will return to those sentinel circumstances to describe them in some further detail, as an understanding of those events is of some importance to the resolution of the issues that have arisen in this case.

65. Following those sentinel events, the child “B” then remained at the home of his paternal grandparents, with ready access by the father “D” who later moved in to live there until the appealed decision of the Children’s Court was delivered on 15 December 2017. On that latter date, the Children’s Court allocated to the father “D” parental responsibility for that child “B” except as to contact, where the Minister retained parental responsibility for access. Since then the father “D” and the child “B” have moved to multiple various accommodation locations until he finally settled in Housing Commission accommodation about eight weeks before the present hearing: T310.27.

66. Although the outcome of the Children’s Court proceedings has undoubtedly disadvantaged the mother “C” concerning matters such as her contact with the child “B”, and her connection with the child’s development, in these proceedings, the interests of the child “B” must take precedence over the interests of the parents.

67. Since the 15 December 2017 decision, the parties appear to have remained relatively inactive from the perspective of the preparation of the forensic issues and evidence gathering in respect of which this appeal hearing is primarily concerned. In that time, the mother “C” has had minimal contact with the child “B”. Reasonably, she has expressed her consternation about that matter because she has had only 4 contact visits with the child “B” in 2018.

68. This was despite an earlier indication given to the mother by FaCS prior to the appealed decision, to the effect that it was proposed to support the allocation of parental responsibility to her, which turned out not to be the case, where the decisions and the actions taken by FaCS, have had the effect of favouring the father “D” on the question of the allocation of parental responsibility for the child “B”.

69. Before setting out my findings on the issues calling for decision, I will set out some relevant matters on the following topics:

1. The situation of the parties;

2. Sentinel incident involving the parties on 1 January 2016;

3. The polarised position of the parties;

4. The nature of the appeal;

5. The findings of the Children’s Court;

6. The orders made by the Children’s Court;

7. The orders now sought on appeal;

8. The grounds of appeal;

9. The procedural background;

10. The evidence in the appeal;

11. Issues calling for decision;

12. Credibility and reliability of testimony.

70. In view of the unfortunate history of the matter, there is now a pressingly urgent need to address the paramount consideration that must be applied in this case, as is required by s 9(1) of the Care Act.

The parties

71. The principal opponents in the proceedings are the natural parents of a boy now aged 6 years. The impression I gained during the course of the hearing was that a substantial focal element of the proceedings was that of the parents seeking to secure their own positions, with the child’s needs at times being given a less prominent focus. This was perhaps understandable given the prevailing dynamics that have subsisted between the parties.

72. The child’s most recent 2018 school report suggests that he is acquiring some basic achievements in core subjects at school, with progressive improvement. However, concerns have been expressed by a FaCS caseworker, and by a Clinician, but not yet formally tested to the point of diagnosis, that the child “B” might have some characteristics or features on the autism spectrum. He has not yet been professionally assessed, either medically, psychologically, or educationally, concerning such matters.

73. The father “D” is presently aged 54 years and the mother “C” is presently aged 50 years. The father “D” has two other children, adults aged 25 and 31 from a previous marriage. The father “D” and the mother “C” have each led chaotic personal lives, which to varying degrees, has in turn led each of them into significant conflict with the criminal law, particularly concerning drug use and related issues.

74. According to the record of criminal convictions of the father “D”, as an adult, he has a past history of convictions for offences relating to the possession of unlicensed firearms, driving offences, assault, possessing, cultivating, and manufacturing prohibited drugs, and for resisting a police officer in the execution of duty. In the years 2013 and 2014 he has served sentences of imprisonment totalling 12 months in relation to some of those offences: Exhibit “D”.

75. According to the record of criminal convictions of the mother “C”, as an adult, she has a past history of convictions for stealing, assault, being a passenger in a vehicle that was used without the permission of the owner, possession of a prohibited drug, receiving and disposing of stolen property, and driving whilst unlicensed: Exhibit “D”.

76. The parents have each had an unfortunate background history of significant trauma in their lives. The mother “C” convincingly described a history of domestic violence occurring in the course of her relationship with the father “D”, a matter to which I shall return in due course because of the manner in which that issue was dealt with in the Children’s Court.

77. The father “D” had suffered a head injury at the age of 13 years: T252.34. As an adult, in his thirties, he has experienced two cerebral haemorrhages due to ruptured cerebral aneurysms. He has had cranial surgery for those problems. Those events have apparently caused him to incur some “minor” brain damage. Psychological testing carried out on the father “D” at the request of FaCS in 2015 has revealed him to have difficulties with general knowledge, difficulty with speed of information processing, and difficulty with verbal fluency, difficulty with verbal reasoning, and difficulty with comprehension. Those difficulties must be seen to be significant in the context of this case: Exhibit “P”.

78. In that regard, the psychologist who assessed the father “D” estimated him to have a low to average cognitive ability. His verbal comprehension skills have been assessed to be in the borderline range. Some of his overall scores on psychological testing for cognitive ability were said by the psychologist to be difficult to interpret, but his executive functioning was nevertheless estimated by that psychologist to be in the average range.

79. Of significance to the issues in this case, on the basis of her assessment of the father “D”, and at a time when the child “B” was aged 3 years, the assessing psychologist stated that there was no evidence to suggest the father “D” had an impairment that would impede his ability to care for young children: Exhibit “P”. The nature of that contemplated care was not defined in that report, which detracts from its reliability.

80. In view of the lack of supporting explanation behind that opinion, the cogency of the reasoning underpinning that view must be carefully examined in the appropriate context.

81. The mother “C” has had an unfortunate history of having been repeatedly raped by her elder brother when she was aged 11 years. Those experiences were unfortunately then followed by her own mother’s lack of acknowledgment and lack of support to her concerning those events. Those circumstances have been described as representing a secondary trauma that has been visited upon her, this being in the nature of a maternal betrayal by the very person who should have been protective of her in those circumstances.

82. Understandably, those events have caused the mother “C” to suffer significant psychological problems. Those problems have been largely influential in her historical use, abuse, and reliance on drugs and alcohol, to which she has in the past resorted as a means of psychological escape from the emotional ill-effects of those events. In that affected state, she met the father “D” and a relationship then ensued between them. She said he was her drug dealer, a matter he denied.

83. The mother “C” has had a total of four children from different relationships. In addition to the child “B”, her other children are respectively aged 17, twins aged 28, and 32 years. Her 17 year old son had been removed from her care many years earlier when she demonstrated parental unfitness. He has behavioural issues. There is no dispute that in the past, the mother “C” had shown poor mothering skills. The solicitor for the father “D” sought to make much of those circumstances, in my view too much, because the current situation of the mother “C” concerning her insight and capacity, has changed significantly since those much earlier chaotic times.

84. It appears that only in relatively recent times, in the course of each parent pursuing therapeutic and rehabilitation pathways in the context of the presently litigated childcare issues, that they have, to varying degrees according to their respective capacities, obtained better insights into the origins and the deleterious effects of their troubled earlier circumstances. Those matters will be analysed in the appropriate context at a later point in these reasons.

85. In the appeal, each parent, in opposition to the other, variously took defensive positions aimed at seeking to obtain orders securing parental responsibility for their son, to the exclusion of the other, except as to contact arrangements. In their evidence, they did not speak entirely well of each other on their respective parenting capacities.

86. The entire process leading up to this appeal has resulted in the accumulation of several thousand pages of material for consideration, comprising files, the transcripts of several hearings, voluminous affidavits, reports, file notes, and related documents. The length of my reasons, is an unfortunate function of the bulk of the materials requiring consideration, as also related to the breadth and the compass of the identified issues calling for decision.

Sentinel incident on 1 January 2016

87. On 28 December 2015, whilst the child’s parents “C” and “D” were living at a caravan park, a conversation took place between the mother “C” and “E”, the sister of the father “D”, who at the time also lived with her husband in another caravan at the same caravan park.

88. The mother “C” stated that whilst she was in conversation with the sister “E”, in the presence of her brother, namely the father “D”, the sister “E” had confided in her that her stepfather, the paternal step-grandfather “F”, had repeatedly sexually molested her during her childhood years.

89. Notwithstanding that the father “D” has denied that a conversation took place in the terms stated by the mother “C”, and notwithstanding affidavit evidence from the sister “E” in which she denied making such a disclosure to the mother “C”, for the reasons that I will outline later in my judgment dealing with the credibility and reliability of testimony, on the balance of probabilities, even though the sister “E”, and the alleged perpetrator “F” gave no oral evidence in any of the proceedings, I accept as more probable than not, the account given by the mother “C” relating to that disclosure by the sister “E” of that historical sexual molestation by the paternal step-grandfather “F”.

90. On either the evening of 31 December 2015, or in the early hours of 1 January 2016, in a conversation she had with the father “D”, the mother “C” raised with the father “D” the subject of the disclosure of alleged historical sexual molestation of the sister “E” by her stepfather “F”, in the context of child protection issues concerning their own child “B”.

91. Up until that time, the parents “C” and “D” had been living together relatively harmoniously, and they were working at their respective rehabilitation efforts. In that regard, they were successfully achieving the minimum outcomes that had been set for them as goals by FaCS as a precursor to a consideration of the restoration of the child “B” to them, or more accurately, to the mother “C”. I say more accurately restoration to the mother “C” because at that time, she was the only permitted applicant for seeking such an outcome for varying the previous orders of the Children’s Court.

92. The prevailing relatively harmonious existence had continued to be maintained whilst the mother “C” participated in a residential drug rehabilitation programme and the father “D” had served a term of imprisonment.

93. For the reasons that will be stated later in my judgment, I have accepted as credible, the account given by the mother “C” concerning the disclosure by “E” of those historical matters, notwithstanding the denials given in evidence by the father “D”, and notwithstanding an affidavit from the sister “E” filed in the Children’s Court proceedings, in which she also denied those matters. The sister “E” did not give any oral evidence so that those denials could be tested against other evidence, particularly the earlier cited contemporaneous letter from Dr Wright dated 20 March 2012 as cited at paragraph [15] above.

94. I accept that the mother “C” had decided, some time before 1 January 2016, to put their past chaotic and adverse life history behind her, and to concentrate on more positive matters of rehabilitation, living as a family, and having the child “B” restored into their care again following his removal from her care on 16 October 2013, which coincided with the release of the father “D” from gaol. With professional assistance, she had embarked on a significant pathway aimed at achieving effective rehabilitation.

95. I accept the evidence of the mother “C” about her efforts and her aims at rehabilitation around that time, despite her having had a past history of physical and emotional events in their relationship that amounted to historical domestic violence that had occurred over time.

96. The apparent serenity and progress of those circumstances changed shortly after the paternal grandparents “F” and “G” brought the child “B” to the caravan park to visit his parents “C” and “D”, at around New Year’s Eve 2015.

97. Shortly afterwards, and after the described disclosures to the mother “C” by the sister “E”, whilst still at the caravan park, the mother “C” raised with the father “D”, some child protection issues concerning the paternal step-grandfather “F”.

98. On either the evening of 31 December 2015 or in the early hours of 1 January 2016, after the couple “C” and “D” had consumed some celebratory alcoholic drinks, I accept the evidence of the mother “C” to the effect that she raised with the father “D”, her concerns over the subject matter of the disclosure by the father’s sister “E”, of alleged childhood sexual molestation by her stepfather, the paternal step-grandfather “F”.

99. The parties “C” and “D” are in dispute about that matter, and about what subsequently occurred.

100. According to the mother “C”, in that conversation, the father “D” became angry with her when she raised the identified disclosure by “E”. She claimed that in those events she was then physically assaulted by him and he had injured her in the course of his angry response to the subject matter she had raised with him. The mother “C” stated that in those events, whilst in a dishevelled state which others have apparently interpreted as being due to intoxication and not assault, she went to seek help from other residents of the caravan park in order to call the police, but she received little assistance in that regard.

101. In contrast, the father “D” has given varying accounts of those events. Those accounts ranged from an initial denial that there had been any conversation between the sister “E” and the mother “C” in which the described sexual abuse disclosures were made. In that initial version, the father “D” asserted that the mother “C” simply woke him up and then started to assault him in “a drunken rampage”, a matter denied by the mother “C”.

102. The father “D” later varied that earlier account, to later acknowledge that some disclosures of sexual abuse had been made by the sister “E”, but they were untrue. In my view that vacillation on the part of the father “D” was a significant indicator that is telling against the reliability of his testimony.

103. Following my assessment of the credibility and the reliability of the respective testimonies, and having regard to the evidence as a whole, for the reasons that will be made plain, I have accepted the truthfulness of the account given by the mother “C” concerning those disputed sentinel events of 1 January 2016.

104. This case is concerned with the unfortunate aftermath of those events as they have, and will continue to have, an impact on the safety, welfare and well-being of the child “B”, as well as on the future relationships that child is likely to have with his parents “C” and “D”.

Polarised positions of the parties

105. The parents, who had been together as a couple since 2005, have been separated on less than amicable terms since the occurrence of the sentinel domestic violence event that occurred in their relationship on 1 January 2016 as described above.

106. Consequently, each of the parents has sought, for themselves, the allocation of the parental responsibility for the child the subject of the appeal.

107. In the case of the father “D”, that meant seeking to preserve the status quo for parental responsibility, which at present rests with him, as was ordered by the Children’s Court on 15 December 2017. However, in evidence, the father “D” has, somewhat belatedly in my view, acknowledged there is a need for the mother “C” to have an increased level of access and contact with the child “B”. One is left wondering why this was not remedially addressed by the father “D”, and by FaCS, at a much earlier point in time during the lead up to the hearing.

108. In the case of the mother “C”, she simply seeks a reversal of the orders made by the Children’s Court on 15 December 2017.

109. The ILR, who had neither met nor spoken with the child “B” prior to the last day of the hearing, along with FaCS, supported the position that the father “D” should retain parental responsibility for the child “B”. Those two parties argued that the decision of the Children’s Court should not be disturbed other than for a variation that provides for an increased level of contact for the mother “C” whilst the parental responsibility for the child “B” should remain with the father “D”.

110. Ultimately, the ILR and FaCS have conceded that, at the present time, each parent was considered to be a “good enough parent” from the perspective of allocating parental responsibility for the child: T466.11; T437.7.

111. The Children’s Court Magistrate approached his evaluation on the basis of a balancing exercise between the two parental options, guided or more properly described, misguided, as I have found, by the report and opinions of the Children’s Court Clinician.

112. In the consideration that is required in this appeal, it is well recognised that in general terms, any changes made, to the presently appealed orders made in the Children’s Court, should not be undertaken lightly, because of the potential for the child “B” to suffer possible resultant psychological harm if the care arrangements change.

113. During the course of the hearing, the evident antipathy that existed between the child’s parents flowed into the evidence that they each gave about the other. Their past communications, without overstatement, are properly and regrettably described as terrible (T420.22 – T420.34) and comprising entrenched toxicity: T353.4. This is also evident from the content of some copies of text messages that were tendered in evidence. It is plain that the parents of the child “B” have reached an absolute low point in their ability, or more properly, inability to communicate with each other: T72.5 – T72.22.

114. It is particularly regrettable that FaCS, which for the purpose of contact arrangements, had the clearly identifiable opportunity to try and resolve or at least reduce some of that inter-parental conflict by arranging for the intervention of an external independent and skilled social worker who was well experienced in the management and attempted resolution of family conflict of that kind, did not follow through with available resources and action taken along those lines.

115. That did not eventuate because a FaCS management level decision had been made not to pursue that course. The decision not to continue with such conflict management intervention on account of the likely cost, was confirmed as recently as 27 April 2018. Evidence in the appeal revealed that some sessions would be required, each at a cost of a few hundreds of dollars plus travel expenses: T350.30 – T350.32. It was also revealed in evidence that FaCS had access to a special fund for such purposes (T355.2) but that was not pursued or made available in this case.

116. In my opinion, those management decisions by FaCS were plainly not within the spirit of facilitating, administering or maintaining the requirements of s 9(1) of the Care Act. The effect of the decision not to pursue that intervention has without doubt adversely affected the already significantly troubled interpersonal dynamics of the parents in this case.

Nature of the appeal

117. This is an appeal commenced as of right by an originating summons filed on 20 December 2017, pursuant to s 91 of the Care Act. The appellant, the mother “C” has the right to pursue this appeal because she is dissatisfied with the decision made by the Children’s Court concerning the allocation of parental responsibility for the child “B”.

118. The originating summons which commenced this appeal has been superseded by an amended summons filed on 24 January 2018. That amended summons was later superseded by a further amended summons filed on 8 March 2018.

119. Although the appeal has proceeded as a hearing de novo pursuant to s 91(1) of the Act, in view of the positions taken by the parties it is nevertheless necessary to refer to the dispositive reasoning of appealed care proceedings in the Children’s Court. This is because the father “D” sought to support those reasons

Findings of the Children’s Court

120. The essential findings of the Children’s Court, as challenged by the mother “C”, but which were sought to be maintained by the father “D” in this appeal, were as follows:

1. The historical allegations that the paternal step-grandfather “F” had sexually abused his stepdaughter “E”, the child’s aunt and sister of the father “D”, were not accepted: Exhibit “A”, Tab 40, p 8.3 – 8.21;

2. The allegations made by the mother “C” of the father “D” having perpetrated domestic violence against her were not accepted: Exhibit “A”, Tab 40, pp 8.36 – 9.10;

3. It was found that the appellant mother “C” had been continuing to abuse alcohol at the end of 2015, and was therefore more likely to be a person of greater volatility than the father “D”: Exhibit “A”, Tab 40, p 9.12 – 9.21;

4. It was found that the father “D” would be in a position to provide a better standard of care than would the mother “C”: Exhibit “A”, Tab 40, p 9.24 – 9.30;

5. It was found that given that the child “B” has, until the time of the appealed decision in the Children’s Court, been in the care of the paternal grandparents for almost 18 months, along with contact with the father “D”, a transfer of the child’s care to the mother “C” would in those circumstances give rise to a risk of psychological harm to the child “B” as a result of any changed care arrangements: Exhibit “A”, Tab 40, p 9.32 – 9.39;

6. It was found that if the mother “C” was allocated parental responsibility for the child, given the poor relationship between the parents, there would likely be difficulties for the father “D” to maintain contact with the child “B”: Exhibit “A”, Tab 40, p 9.41 – 9.48.

Orders made by the Children’s Court

121. The Children’s Court Magistrate went on to make the following formal dispositive findings:

“Having regard to my findings that I am satisfied that having regard to the paramount principle that in every decision the health, safety and well-being of the child is paramount and having regard to my finding that Ms [“C”] would be in the circumstances less capable of caring for [“B”] than that of Mr [“D”] and having regard to the risk of psychological harm if a change to the young person’s current placement were to occur, it seems to me that on balance the most appropriate decision for the Court to make is to make a finding that [“B”] is better served by the care plan which has been developed by the secretary.

IN THOSE CIRCUMSTANCES THE APPLICATION TO RESCIND OR VARY THE CURRENT ORDERS MADE BY THE COURT ON A PREVIOUS OCCASION SHOULD BE UPHELD. BUT THAT IN ACCORDANCE WITH s 79(1) I SHOULD MAKE AN ORDER ALLOCATING ALL ASPECTS OF PARENTAL RESPONSIBILITY FOR [“B”] TO HIS FATHER [“D”[ UNTIL HE REACHES THE AGE OF 18, EXCEPT FOR THE PARENTAL RESPONSIBILITY FOR CONTACT WHICH IS TO BE ALLOCATED TO THE MINISTER FOR A PERIOD OF FIVE YEARS FROM TODAY AFTER WHICH IT WILL REVERT TO [“D”].

IN ACCORDANCE WITH s 76(3A) I PROPOSE TO PLACE [“B”] UNDER THE SUPERVISION OF THE SECRETARY FOR A PERIOD OF TWO YEARS. IN ACCORDANCE WITH s 76(4) I REQUEST THAT THE SECRETARY PROVIDE REPORTS AT INTERVALS OF 12 AND 18 MONTHS FROM TODAY.”

[Exhibit “A”, Tab 40, p 10.6 – 10.30]

122. In my opinion, for the reasons that will be made plain, the dispositive findings of the Children’s Court should not remain in force or effect in this case.

Orders now sought on appeal

123. The variation of orders made by the Children’s Court is to the effect that the mother “C” seeks for the child “B” to be placed into her parental care, so that he should reside with her, rather than residing with the child’s father “D”.

Grounds of appeal

124. In seeking a different outcome to that which occurred in the Children’s Court, the solicitor for the appellant mother “C” filed 16 grounds of appeal that covered wide-ranging matters, not all of which were relevant to the consideration that I am required to undertake. In my view, in essence, those wide-ranging grounds of appeal may be conveniently summarised as follows:

1. Whether the Children’s Court Magistrate erred in allocating the care of the child to the father “D” in circumstances where the father “D” had not beforehand filed a s 90 application for rescission or variation of existing orders, and where no prior leave had been sought for such an application by him. (“Jurisdictional question”);

2. Whether the Children’s Court Magistrate failed to give due weight to the question of the child’s Aboriginality and Kinship as required by s 12 and s 13 of the CareAct such that a consideration of those matters required a different outcome to that which was decided by the Children’s Court Magistrate. (“Aboriginality and kinship issues”);

3. Whether a disclosed perception or views of the Children’s Court Magistrate concerning the incidence of lying, in instances of domestic violence revealed a procedural error. (“Views on the phenomenon of lying in the dynamics of domestic violence cases”);

4. Whether the Children’s Court Magistrate placed undue weight on the evidence of the mother’s historical drug abuse and post-traumatic stress disorder where, in the opinion of the FaCS caseworker, that was not an issue in the proceedings, and where the mother had already undergone treatment and rehabilitation for those matters. (“Undue concern over mother’s mental health and drug history”);

5. Whether the hearing in the Children’s Court miscarried because of a decision by the Children’s Court Magistrate to exclude a relevant line of questioning of the Children’s Court Clinician, and because of the exclusion of related documentary evidence, and whether, if such material had been admitted into evidence, such matters would have had a significant or influential impact on the proper decision to be reached in the proceedings. (“Wrongful rejection of evidence”);

6. Whether the evidence of the Children’s Court Clinician, which the mother “C” claimed was seriously flawed, and which had the effect of casting doubt on the stability of the mother “C” and her mental health status, and her suitability and parental capability to care for the child, was reliably supported by cogent and acceptable reasons. (“Reliance on flawed opinion of Children’s Court Clinician”).

125. During the course of the hearing of the appeal, the solicitor for the appellant mother “C” accepted that the further amended grounds of appeal, as filed, could be conveniently distilled into a formulation along the above lines, albeit ranked in a different order.

126. That said, the grounds of appeal, as filed, including as summarised above, are not necessarily determinative of the proceedings. It is therefore not necessary to give full analytical consideration to all of those matters as set out in the above distillation. This is because it is not necessary for the appellant to demonstrate error in the decision of the Children’s Court Magistrate for that decision to be varied on appeal.

127. However, because the father “D”, FaCS, and the ILR, each sought to support the decision of the Children’s Court Magistrate except as to some concessions as to the future level of contact with the mother “C”, it is necessary to analyse particular aspects of those reasons in light of the evidence, and in light of what I consider to be a patent flaw that entered into the process, which has had the effect of undermining the cornerstones that serve as the foundations for that decision.

128. Accordingly, some relevant components of the above cited formulation will be incorporated into the list of issues that I will shortly identify as calling for decision after I have reviewed the procedural background of the proceedings and identified the evidence tendered and adduced in the appeal.

129. The effect of this de novo hearing is that the evidence before the Children’s Court, as tendered in the appeal hearing, together with the further evidence introduced in the course of the appeal hearing, must be analysed as to merit in the hearing on appeal, having regard to the paramount requirements of s 9(1) of the Act.

125. The ultimate issue to be determined on the appeal is the paramount consideration of the safety, welfare and well-being of the child the subject of the appeal: s 9(1) of the Care Act.

126. In the course of the hearing, it was apparent that at times, amidst the dust of conflict, that the parents, if not their legal representatives, appeared to have lost sight of that paramount issue.

Procedural background

132. These appeal proceedings are the latest in a series of five sets of care proceedings relating to the child “B” following his removal from parental care on 16 October 2013. That process has occupied much in the way of public and private resources. For the sake of the child the subject of this appeal, it is hoped that at the conclusion of these proceedings, the history of legal disputation by the parents will come to an end. The historical detail of those five sets of proceedings is briefly summarised as follows.

(1) – 4 June 2014 – determination of first proceedings

133. On 4 June 2014, the Children’s Court at Lismore made final orders which placed the child “B” in the parental responsibility in the Minister for Family and Community Services until the child reached the age of 18 years. Those proceedings had their origins in the removal of the child “B” from parental care on 16 October 2013. Until that date, which coincided with the father’s release from prison, the child “B” had resided with his mother “C”. On removal, the child “B” was assigned to live with the paternal grandparents, which included the step-grandfather “F”, about whom some relevant allegations have later emerged. During that time another adult son of the mother “C” had a carer’s role for the child “B”.

(2) – 4 March 2015 – determination of second proceedings

134. On 23 January 2015, pursuant to s 90(2) of the Care Act, the mother “C” applied to the Children’s Court at Lismore for leave to pursue an application to seek to vary or rescind the final orders made on 4 June 2014. In those proceedings, she sought the allocation of parental responsibility to herself. That application was refused by the Children’s Court at Lismore on 4 March 2015. That refusal was stated to be because the mother “C” had not at that time demonstrated a significant change in her circumstances to warrant a grant of the leave that she sought. The mother “C” was dissatisfied with that decision.

(3) – 23 November 2015 – determination of third proceedings

135. On 11 March 2015, the mother “C” appealed against the 4 March 2015 decision of the Children’s Court. On 13 November 2015, that appeal was heard and determined by me at Lismore. The appeal was allowed for the reasons published at that time, and the mother “C” was granted leave to apply to the Children’s Court for a variation of the earlier orders that had been made on 4 March 2015: “B” v The Secretary, Department of Family and Community Services [2015] NSWDC 267.

(4) – 15 December 2017 – determination of fourth proceedings

136. On 23 November 2015, consistent with and pursuant to the leave granted on 13 November 2015, the mother “C” filed an application in the Children’s Court seeking variation or rescission of the previous orders of the Children’s Court delivered on 4 March 2015: Exhibit “A”, Vol 1, Tab 1. The records show that on 28 January 2016, the father “D” also filed a similar application: Exhibit “A”, Vol 1, Tab 16. Those applications were determined by the Children’s Court on 15 December 2017, with the result that the parental responsibility for the child “B” was allocated to the father “D”, as earlier described. That result dissatisfied the mother “C”, who then proceeded to lodge the present appeal.

(5) – The present appeal – determination of fifth proceedings

137. On 20 December 2017, the mother “C” filed the present appeal as of right. The hearing of the present appeal proceeded before me over 8 days at Lismore, between 28 May and 6 June 2018.

Evidence in the appeal

138. In the appeal, two volumes of the foundation documentary evidence were tendered. Those volumes comprised Exhibit “A”, Volumes 1 and 2, with a tabbed index of 48 segments. These materials included the entire range of evidence that was before the Children’s Court Magistrate. Further documents in the series Exhibit “B” to Exhibit “P” will be referred to in these reasons where it becomes relevant to do so.

139. The oral evidence in the appeal was given by the mother “C”: T46 – T173; Mr Michael Hawton, the assessing psychologist and Children’s Court Clinician: T182 – T230; the father “D”: T242 – T260; T400 – T428; and the FaCS caseworker “H”, whose evidence was, for her convenience, interposed in the midst of the father’s evidence: T330 – T387.

Issues calling for decision

140. As already observed at paragraphs [126] to [127] above, not all of the grounds of appeal as filed required analysis and consideration for the disposition of the issues calling for decision.

141. An example of one such matter is the complaint made on behalf of the mother “C”, to the effect that the disclosure or general observation by the Children’s Court Magistrate to the effect that in some cases involving domestic violence, interested parties had been known on occasion to tell lies. That view is one which is well within the experience of courts dealing with contested cases concerning disputed matters of fact litigated in the context of inter-personal difficulties. A general observation to that cited effect does not of itself give rise to a meritorious ground of appeal as it does not directly involve a dispositive finding concerning the resolution of a particular dispute.

142. In my view, drawing upon the matters outlined at paragraphs [120] and [124] above, the determinative issues calling for decision in the appeal are set out as follows:

1. A jurisdictional question was raised as to whether the allocation of parental responsibility to the father “D” was a result that was open to be determined by the Children’s Court in circumstances where the standing of the father in a s 90 application for rescission or variation of previous orders was questioned: Issue 1;

2. Whether an Aboriginality and kinship question, as was required to be considered and according to s 12 and s 13 of the CareAct, was duly considered or was overlooked by the Children’s Court Magistrate: Issue 2;

3. Whether historical documentary evidence suggestive of relevant child sexual abuse in the extended family of the father “D” was appropriately considered, namely the historical allegations of sexual abuse involving the paternal step-grandfather “F”, as allegedly perpetrated against his stepdaughter “E”, as was disclosed by her to her treating psychiatrist, and whether those questions, as well as a contemporaneous document relating to such matters, were wrongly rejected in the Children’s Court hearing: Issue 3;

4. Whether the report, opinions and evidence of the Children’s Court Clinician provided a reliable basis for casting doubt upon the stability of the mental health status of the mother “C”, and her parental capacity and suitability, and whether that evidence, when read in the light of other relevant evidence, formed a reliable guide for making the decisions required to be made in this case concerning the allocation of parental responsibility for the child “B”: Issue 4;

5. Whether positive findings should be made concerning the history of alleged domestic violence by the father “D” as claimed by the mother “C” : Issue 5;

6. Whether the findings made by the Children’s Court Magistrate concerning the continued abuse of alcohol by the mother “C”, and the alleged volatility of the mother “C”, were justified on the evidence: Issue 6;

7. Whether the findings made by the Children’s Court Magistrate concerning the perception expressed that the father “D” would provide better care to the child “B”, were justified: Issue 7;

8. Whether the findings made by the Children’s Court Magistrate concerning the possibility of psychological harm to the child “B” in the event of changes to the parental responsibility, were justified: Issue 8;

9. Whether the findings made by the Children’s Court Magistrate concerning the possibility that the mother “C” would make contact for the father “D” difficult, were justified: Issue 9;

10. The balancing consideration for dispositive orders: Issue 10.

Credibility and reliability of testimony

143. The respective agendas of the parents in this case have led them, through their legal representatives, to make credit challenges to each other’s testimonies. To varying degrees, FaCS and the ILR joined in some of those credit challenges. There was also a challenge made on behalf of the mother “C” to the reliability of the Children’s Court Clinician, Mr Hawton.

144. In the paragraphs that follow, I set out my evaluation and review of the credibility and reliability of the evidence either adduced or otherwise tendered in the proceedings, as follows:

1. Evidence of the mother “C”;

2. Evidence of the father “D”;

3. Evidence of the FaCS caseworker “H”;

4. Other witnesses not required to be called;

5. Absent evidence – caravan park letting agent;

6. Absent evidence – the sister “E”;

7. Absent evidence – the paternal step-grandfather “F”;

8. Absent evidence – the paternal grandmother “G”;

9. Evidence of Children’s Court Clinician, Mr Hawton;

10. Evidence of treating psychologist Ms Hagedorn.

(1) Evidence of the mother “C”

145. In the paragraphs that follow, I set out my analysis and the basis for my conclusions concerning the attacks made to the credibility and the reliability of the evidence of the mother “C”.

146. The evidence of the mother “C” was in the following form:

1. An affidavit affirmed on 23 November 2015: Exhibit “A”, Vol 1, Tab 3;

2. An affidavit affirmed on 7 January 2016: Exhibit “A”, Vol 1, Tab 4;

3. An affidavit affirmed on 9 February 2016: Exhibit “A”, Vol 1, Tab 5;

4. An affidavit affirmed on 16 March 2016: Exhibit “A”, Vol 1, Tab 9;

5. An affidavit affirmed on 4 August 2016: Exhibit “A”, Vol 1, Tab 10;

6. An affidavit affirmed on 22 September 2016: Exhibit “A”, Vol 1, Tab 11;

7. An affidavit affirmed on 25 October 2016: Exhibit “A”, Vol 1, Tab 14;

8. An affidavit affirmed on 8 March 2018: Exhibit “A”, Vol 2, Tab 46;

9. An affidavit affirmed on 29 May 2018 and filed in Court on 30 May 2018;

10. Transcript of oral evidence given in the Children’s Court on 27 October 2016: Exhibit “A”, Vol 1, Tab 35;

11. Transcript of oral evidence given in the Children’s Court on 27 January 2017: Exhibit “A”, Vol 1, Tab 36;

12. Transcript of oral evidence given in the Children’s Court on 2 March 2016: Exhibit “A”, Vol 1, Tab 37;

13. Oral evidence given in the appeal: T46 – T106; T110 – T173.

147. In essence, the evidence of the mother “C” was to the effect that until the described sentinel events of 1 January 2016, all was progressing well in the relationship between herself and the father “D”. They were working on their rehabilitation and their fitness for parenting of the child “B” by achieving the minimum outcomes required of them by FaCS for that to occur.

148. The mother “C” said that this all changed after she brought up with the father “D” the subject of the disclosure by “E” of alleged historical sexual abuse by the paternal step-grandfather “F” towards “E”, and the impact of this on the safety of their son, the child “B”.

149. The mother “C” said that following that discussion, the father “D” reacted badly to the content of that discussion, assaulted her, and took away the child “B”, at which time her relationship with the father “D” had irretrievably broken down.

Attack on mother‘s credit as made by the solicitor for the father

150. The cross-examination of the mother “C”, as was initially undertaken on behalf of the father “D”, covered a number of matters of challenge, each of which were, in my assessment, convincingly rebutted by the mother “C” in her answers to those questions.

151. It was first suggested that the claim by the mother “C” of having been assaulted and injured by the father “D” in the earlier described sentinel event on 1 January 2016 was an unlikely occurrence as it was not reported to the police until 4 days after the alleged occurrence.

152. In her response, the mother “C” resoundingly rebutted that suggestion, including by noting that, although she was more interested in reporting allegations of sexual abuse relating to the paternal step-grandfather “F”, as had allegedly been committed on his stepdaughter “E”, the police nevertheless took photographs of her “horrific” injuries on that occasion: T100.9. The reporting delay is adequately explained by the intervening public holiday period.

153. The cross-examiner unfortunately cut off an answer that the mother “C” was endeavouring to give in response to a challenge to her evidence on that topic, as is evident in the following emphasised extract of the evidence:

“FAWAZ: ...

Q. You didn't tell the police about any other details except what had occurred, what you say occurred between you and [“E”] and [“D”]?

A. I can't remember exactly what the context of my conversation was with the police what questions I was asked, what questions I gave, I can't remember if I told them about that or not, I can't say yes, I can't say no, because I really can't remember, I was asked about the assault and I was asked about the allegations made against [“F”] by [“E”] and that's -

Q. You didn't tell -

HIS HONOUR

Q. Just a minute, so what was the substance of what you told the police on those matters?

A. I told the police about the allegations that were made against [“F”] by [“E”], I told them that and I told them about the assault and I told them there, I also told them too your Honour that I didn't know whether [“B”] was in any danger, I didn't feel like [“B”] was in any danger, I told the police that, I also told the DOCS worker that and the hot line, the children's hotline, I also told them that. The police were actually the ones, they saw the bruises on my arms, the police officer did and he asked me how they got there and I told him that that was how it all occurred, it was an all a build up of what had happened.

FAWAZ

Q. And the injuries I put to you yesterday that the injuries according to the police were not consistent with your version of what occurred?

A. Well there are photographs why don't we get them and have a look.”

[Emphasis added]

[T115.48 – T116.28]

154. The suggestion within that last response by the mother “C”, as made to the cross-examiner, to the effect that the police photographs should be inspected in order to check the veracity of what she was saying, was not taken up by the cross-examiner. That cited evidence of the mother “C” was not glaringly improbable, and it was not relevantly rebutted by the tender of police records.

155. In my view, the fact that the police ultimately decided not to proceed with charges that had been laid against the father “D” concerning the alleged assault was an irrelevant consideration as to the truth or otherwise of the allegations of assault made by the mother “C”. In my view, that matter was an erroneous basis for the finding of the Children’s Court Magistrate. It is noteworthy that the apprehended violence order that the police had taken out against the father “D” following the complaint made by the mother “C” remained in place.

156. A speculative suggestion was raised in the Children’s Court to the effect that the mother “C” could have caused injury to herself. I do not accept that proposition, especially absent a viewing of the photographs as taken by the investigating police officers with regard to those injuries. That suggestion is also inconsistent with the fact that the police took out an apprehended violence order against the father “D” even though they did not proceed with the charge of assault that was initially laid against him.

157. On the subject of the disclosure by the sister “E” of alleged sexual abuse by the paternal step-grandfather “F”, the mother “C” was challenged in cross-examination on behalf of the father “D” in a number of respects concerning the matters that flowed from the described sentinel events in a caravan park on 28 December 2015 and 1 January 2016.

158. In light of the analysis of the evidence regarding the sexual abuse allegations concerning the paternal step-grandfather “F” having molested his stepdaughter “E”, I consider that the challenges to those allegations as made through the denials by the father “D” as to those disclosures, should not be accepted in the absence of corroborative oral evidence of such denials, at least from the sister “E”, if not also from the paternal step-grandfather “F”, neither of whom were called to give oral evidence in these proceedings.

159. The course of the rehabilitation of the mother “C”, the aim of which was that the child “B” be restored to her, changed after the sentinel events on 1 January 2016. Until that time, FaCS had led her to believe that they were working towards restoring the child “B” into her care: T118.23 – T118.44. To that effect, both she and the father “D” were issued with a list of minimum outcomes they were expected to achieve for this to occur: Exhibit “C”; T341.38.

160. Ultimately, each of the parents was considered by FaCS to have achieved those minimum outcomes but for the occurrence of the sentinel events of 1 January 2016: T382.24 – T383.17.

161. The problem for restoration of the child “B” to the mother “C” after 1 January 2016 was that she and the father “D” were no longer living together as a couple: T118.40; T119.41; T120.7 – T120.10. Beforehand, the s 90 application to this Court, as determined on 13 November 2015, had only been made in the name of the mother “C”: T119.8: “B” v The Secretary, Department of Family and Community Services [2015] NSWDC 267.

162. A further avenue of credit attack that the solicitor for the father “D” made to the evidence of the mother “C” in cross-examination, was the suggestion that when that s 90 application went to a hearing in November 2015, the mother “C” “in a sense” was “conspiring [with the father “D”] to give … false information”: T119.25. The suggestion was that a false picture of domestic harmony was being portrayed to the Court.

163. In that regard, I accept the evidence of the mother “C” where she rejected that proposition, stating that she and the father “D” were together at that time, they had a good and harmonious relationship going between them, and that continued to be the case until the occurrence of the sentinel events of 1 January 2016, following which their relationship ended.

164. The solicitor for the father “D” sought to suggest to the mother “C” that her solicitor was representing both of them at the s 90 application to this Court in November 2015. The mother “C” has in my view satisfactorily rebutted that assertion in the following terms:

“Q. Because Mr Boys was representing both of you?

A. No and Ms Fawaz, you know that's not true, you were you were [“D”] solicitor and you're the one who informed him that he couldn't get Legal Aid, so that was why he never had representation. He was working and getting the pension and earning too much money and Legal Aid was not granted to him, so and we're both aware of that.”

[T121.14 – T121.19]

165. There was no answer to that cited rebuttal by the mother “C”. I accept her rebuttal in those stated terms.

166. In seeking to undermine the effect of the content of the historical medical record dated 20 March 2012, which is cited at paragraph [15] above, and which comprised clinical correspondence between treating psychiatrists, the sister “E” was noted to have made allegations of sexual abuse against the paternal step-grandfather “F”, on behalf of the father “D”, Ms Fawaz suggested to the mother “C” that she had been taking drugs with the father’s sister “E” in 2012, a suggestion denied by the mother “C”: T101.48 – T102.1.

167. That challenge proceeded upon the basis that the suggested motive for “E” disclosing such sexual abuse, was that the sister “E” had lied about having been abused by “F” in order to obtain drugs from her treating medical specialist. That suggestion was also denied by the mother “C”: T103.33 – T103.45.

535. In considering those matters, it is difficult to see how the required process of preference could be properly weighed toward the father “D”, who has the significantly disadvantageous and identified cognitive problems, as opposed to the mother “C”, who shows no signs of those problems, and who on the contrary, appears articulate, insightful, caring, appropriately informed on childcare issues, and who seems able to express herself without difficulty, including on matters where there might be a need to advocate for the child.

536. In my assessment, when the identified cognitive difficulties afflicting the father “D” are given proper consideration, in particular with regard to his expressive difficulties, from an educational perspective alone, it is difficult to see how the long term care of the child “B” would be better provided by the father “D” in comparison to the mother “C”, where she has shown herself to be relevantly articulate, insightful and protective.

537. The activities by the father “D” in taking the child “B” swimming and running, whilst beneficial to his development, are but only small aspects of the broader consideration required in the context of this case when viewed over the longer term of the next 12 years until the majority of the child “B”. There are many other facts to consider, notably matters of insight into the needs of the child “B”, other things being equal.

538. In my view, the objectively identified and acknowledged communication difficulties that affect the father “D”, must be seen as being an influential factor to be taken into account in any dispositive findings concerning the allocation of parental responsibility for the child “B”.

539. The mother “C” has impressed me as being a good advocate and protective carer for the child “B”. Her present accommodation, whilst not satisfactory for living with a child in her care, is only temporary. She has identified satisfactory temporary options pending the allocation of suitable housing, as has previously occurred in the circumstances of the father “D”.

540. The mother “C” has attended appropriate courses to improve her parenting skills to the point where she should be regarded as a good enough parent. A concession to that effect by FaCS would not have been made lightly. Her income is from a pension, which is little different to the economic position of the father “D”. She has taken steps in seeking professional assistance to inform herself of the evolving special needs of the child “B”. She intends to ensure that the child “B” maintains his current schooling.

541. None of those described circumstances are suggestive of the mother “C” being inadequately equipped for parenting, or of having an inadequate consideration of the needs of the child “B”.

Issue 8 – Possibility of psychological harm

550. As a specialist jurisdiction, the Children’s Court is well placed to understand and to appreciate that it is possible for a risk to arise that might affect the safety, welfare and well-being of a child, whereby a child might suffer psychological harm when existing parental attachments are disturbed or disrupted by transferring an already established regime of care from one parent to another by an order of the Court.

551. The Children’s Court Magistrate correctly identified that risk: Exhibit “A”, Vol 1, Tab 40, p 9.32 – 9.39. In this case, unlike in other jurisdictions, it is not necessary to have expert evidence to sustain a general conclusion to the effect that such a risk was thought to exist in the generic sense: Strinic v Singh [2009] NSWCA 15.

552. In this case, absent specific evidence of any specific risk due to specifically identified intrinsic factors specific to the child “B”, either in the form of an opinion from an expert, or otherwise, the argued issue of risk if there were to be a change of care arrangements in this case seems to me to be restricted to a generic risk, which is not determinative.

553. For a risk to be determinative, where the undisputed evidence is that the child “B” was adequately attached to each parent, something more than speculation of the kind undertaken by Mr Hawton and adopted by the Children’s Court Magistrate, was required to tip the balance in favour of the finding that a change in the allocation of parental responsibility was likely to cause the child “B” to incur psychological harm: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352; Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1.

554. In light of the above analysis, I consider that there is no reliable evidence, other than generalised speculation, to support the conclusion that a generic risk of harm should be assigned a determinative importance in this case, as was contended by the father “D”, FaCS, and the ILR.

555. In the present case, the factors that militate against the generic risk being given a determinative significance are that the mother “C”, who has no cognitive impairments, is loving and protective of the child, she has engaged and continues to be willing to engage in facilitative services for the avoidance of conflict, she intends that the child’s schooling not be changed or disrupted, she does not engage in conduct or conversation that is in derogation of the father “D” in her dealings with the child “B”, and she recognises the importance to the child “B” of having a positive contact relationship with his father “D”. She is also in a better and more committed position than the father “D” to develop and to maintain the connection between the child “B” and his Aboriginal heritage.

556. The mother “C” has reached that point of insight with the assistance of the psychological counselling and therapy that she has received to date. She has decided to step away from the negative aspects of her former relationship with the father “D”. This could only be supportive of the child “B”.

557. In those circumstances, absent specific evidence of any particularly identifiable vulnerability of the child “B” to psychological harm from a changeover of care, I consider that in this case the submitted risk, which is generic, is non-determinative. In my opinion, to focus a decision on a generic risk represents an invalid and unreliable reason for maintaining the status quo where other more significant determinative considerations reveal that the conclusion should be otherwise than that which was decided on 15 December 2017.

558. In reaching the above conclusion I have taken into account, and have not overlooked, the fact that the child “B” has had only minimal contact with the mother “C” over the last 2 years. In my view that unsatisfactory fait accompli is not a negative indicator that should operate against the mother, especially where there are other concerns to consider with regard to the safety, welfare and well-being of the child whilst in the care of the father “D”, in circumstances where the paternal step-grandfather “F” might have some access to the child “B”, a matter that is of concern, as was expressed by the mother “C”.

559. As a consequence of the foregoing analysis, absent specific expert evidence on the issue, I reject the submission that there is a significant risk that psychological harm would be likely to occur to the child “B” if his care was to be transferred from his father to his mother.

Issue 9 – Concern over possible contact difficulties

560. The Children’s Court Magistrate found that if the mother “C” was allocated parental responsibility for the child, given the poor relationship between the parents, there would likely be difficulties for the father “D” in maintaining contact with the child “B”: Exhibit “A”, Vol 1, Tab 40, pp 9.41 – 9.48.The implication of that finding is that the poor state of inter-parental communication is the fault of the mother “C”, which I consider to be an oversimplification in this case.

561. In contrast to that finding, in evidence, the mother “C” expressed her own concern that at the end of any compulsory supervision period by FaCS, as ordered by the Children’s Court Magistrate, after FaCS closes its file, the father “D” would then proceed to deny her access to her son. She also expressed her concern that the father has done very little to ensure the child “B” maintained any connection to his Aboriginal heritage: Affidavit of the mother “C” sworn 29 May 2018.

562. Having studied the evidence, based on past events, I consider it more likely than not, that if the father “D” retained parental responsibility for the child “B”, his relative inaction and his apparent inability, without external assistance, which has not yet been engaged, to seek to remedy the parlous state of inter-parental communication difficulties, is likely to continue. That can only be to the detriment of the child “B”. He appears to have been waiting for FaCS to sort out the problem instead of taking any initiatives himself.

563. I am led to that view by the plainly limited insight that the father “D” has displayed in relation to that issue to date. In that regard, not only are his proffered excuses for his inaction unacceptable, such as not having unpacked, after moving house some time ago, but they cast significant doubt upon his motivation and upon problem solving skills, where the psychologist Dr Purkis identified problem solving as being one of his few cognitive strengths: Exhibit “P”.

564. For the foregoing reasons, I am comfortably satisfied that the conclusion of the Children’s Court Magistrate, in which concerns were expressed about contact difficulties that might arise for the father “D”, was based on unwarranted speculation. In my assessment of the evidence adduced in this de novo hearing, the converse of that concern is more likely to be the case if parental responsibility remained with the father “D”.

565. I am satisfied that the difficulties the mother “C” has herself experienced, such as contact limitations that she has had to accept at significant times, such as at Christmas, and on birthdays, are unlikely to abate if the father “D” continues to have the allocation of parental responsibility.

566. The perceived difficulties contemplated by the decision of the Children’s Court Magistrate appears to have only arisen because of the unaddressed antipathy that has developed between the parents, which FaCS has well recognised and understood, yet has left unaddressed. This has been despite the availability and the opportunity for appropriate resources to be employed to arrange for remedial expert intervention regarding that problem, in the paramount interest of the child.

567. In my view, in those circumstances, there is a compelling obligation on FaCS, morally if not legally, to redress that problem, which needlessly became exacerbated when FaCS denied approval for the further engagement of Ms Olivia Starr, or someone of like qualifications, skill and experience, to remedially work with the parties on their difficult family issues. Facilitative orders are required concerning contact and conflict management issues.

568. It is reasonable to conclude from the evidence of the FaCS caseworker “H”, that the assistance of Ms Starr, or someone of like qualification, skill and experience, will be available to assist with working on and dispelling the misperception that the father might possibly encounter “difficulty” over contact in the future.

569. Accordingly, I do not accept the notion that if the mother “C” was to be allocated parental responsibility for the child “B”, the father’s ability to maintain contact with the child “B” would be made difficult. In my view, an unduly adverse view of the mother “C” was taken in that regard, perhaps influenced by Mr Hawton’s report, which I find to be unreliable as a guide to determining such matters.

570. That adverse view of the mother “C” does not coincide with my assessment of her, or her attitude to her responsibility to ensure the child “B” continues to have relevant and meaningful contact with his father “D”. In my view, the mother “C” has adequately educated and equipped herself on that matter, and she appears to me to have a much more insightful attitude to that question, compared to the father “D”.

571. However, for more abundant caution, and to ensure that proper contact arrangements are made and maintained, as indicated to the parties during the hearing, I propose to make a facilitative order for the practical involvement of FaCS on contact matters, for a further 5 years: T355.40.

572. Consequently, in the common interest the parents have in the safety, welfare and well-being of their child, they will have no choice but to establish a working relationship of comity in that regard. To ensure that occurs, the parents will need to establish and maintain a working relationship with a new FaCS caseworker for that purpose, which will continue for the ensuing five years. In light of the history of inter-parental conflict, it seems that this would be best implemented with the assistance of Ms Starr, or someone of like qualifications, skills and experience.

Issue 10 – Balancing consideration for dispositive orders

573. Having reviewed the historical and factual circumstances as disclosed in the evidence in this case, and having addressed the issues calling for decision in the above analysis, it now remains necessary to address the balancing consideration of the final issue, namely the appropriate allocation of parental responsibility for the child “B”, including the need for ancillary orders as to contact arrangements for the parent who will not be allocated parental responsibility.

Balance considered by the Children’s Court Magistrate

574. In the Children’s Court proceedings, that balancing consideration was undertaken pursuant to s 90(6) of the Care Act, as follows:

1. The child “B” had been in the care of his paternal grandparents for almost a year and-a-half since 26 July 2016, with almost daily contact with his father “D”: s 90(6)(c) of the Care Act;

2. The child “B” had an attachment of equal strength to each of his parents: s 90(6)(d) of the Care Act;

3. On the question of parental capacity, FaCS had formed the view that the best interests of the child “B” would be served if he was to be placed in the parental capacity of the father “D”, with allowance for contact rights for the mother “C”: s 90(6)(e) of the Care Act; Exhibit “A”, Vol 1, Tab 40, p 7.18 – 7.37;

4. Since the child “B” has been in the care of his paternal grandparents for almost 18 months, with regular and extensive contact with the father “D”, if care were to be transferred to the mother “C” there would be a risk of psychological harm to the child in such circumstances: s 90(6)(f) of the Care Act.

575. The assessment of the Children’s Court Magistrate, which balanced those considerations, went on to find that the mother “C” is “continuing to address her mental health issues” arising from her childhood, and he focussed upon the concern of Mr Hawton about the volatility of the mother “C”: Exhibit “A”, Vol 1, Tab 40, pp 7.39 – 8.3.

576. That assessment was followed by a critical finding made on the balance of probabilities, in which he could not find that the paternal step-grandfather “F” had been assaulting his stepdaughter “E”, and in the face of conflicting evidence, he could not be satisfied that the sister “E” had disclosed the fact of such alleged childhood sexual abuse, as claimed by the mother “C”: Exhibit “A”, Vol 1, Tab 40, pp 8.5 – 8.21.

577. On the issue of the credit of the mother “C”, the Children’s Court Magistrate indicated “it would seem to me very suspicious that [the mother “C”] has made the allegations [of the disclosures of sexual abuse against the step-grandfather “F”] and that it was “likely that those allegations were made for her benefit”: Exhibit “A”, Vol 1, Tab 40, p 9.7 – 9.10.

578. After dealing with contested issues of alleged domestic violence, which (at Exhibit “A”, Vol 1, Tab 40, p 9.5) were not accepted, and after making findings on alleged alcohol abuse and volatility on the part of the mother “C”, and on the risk of psychological harm as analysed in connection with Issue 6 above, the following critical finding was made:

“I take into account those findings and having regard to that evidence and those findings it seems to me that having regard to taking into account the capacity of the parents to provide an adequate standard of care it is likely in my mind that [the mother “C”] could provide [the child “B”] an adequate standard of care, that would seem to be attested by her other children, however on balance I would think the evidence supports the conclusion that [the father “D”] would be in a position to provide a better standard of care than that of [the mother “C”].”

[Exhibit “A”, Vol 1, Tab 40, p 9.24 – 9.30]

579. The Children’s Court Magistrate also found that if the child “B” was in the parental care of his father “D”, “it is more likely that [the father “D”] would take action to ensure that [the child “B”] did maintain his relationship with his mother” rather than it being “likely that there would be significant difficulties in [the father “D”] maintaining contact with [the child “B”]” if he were to be in the parental care of his mother “C”: Exhibit “A”, Vol 1, Tab 40, pp 9.47 – 10.1.

580. The factual bases of almost all of those assessments were challenged in the appeal hearing, except as to the acceptance of the acknowledged parental capacity of the mother “C” and the equality of attachment to the respective parents. I have found that the remaining challenges made by and on behalf of the mother “C” were appropriately sustained on the evidence adduced, such that the cited findings of the Children’s Court should not stand.

581. The Children’s Court Magistrate accepted the parental allocation recommendation as made by FaCS. In contrast to that position, I find myself unable to accept that recommendation as it was based on a process of incomplete investigation of serious matters raised. The FaCS recommendation was also based on a Clinician’s report that did not consider relevant matters of cognitive difficulties of the father “D”, the disclosures of Dr Wright’s letter dated 20 March 2012, and the fact that the FaCS investigation was “closed at triage” where relevant matters were not followed up due to “competing priorities”.

Balancing consideration in this fresh hearing

582. In arriving at my conclusions, I have also had the benefit of the significant additional evidence that the Children’s Court Magistrate did not have before him when he undertook his consideration and reached his conclusions, which are summarised at paragraphs [574] to [579] above. That exercise, which must now be undertaken afresh, now follows.

Relevance of ill-founded concerns over past mental health issues of the mother “C”

583. The suggestions that the mother “C” has ongoing mental health issues, and that she would be likely to make contact with the father “D” difficult, were, on my analysis, ill-founded.

584. I consider that the mother’s past mental health issues, as arising from her childhood sexual trauma, and her related addiction issues, have been adequately dealt with, as explained by her treating psychologist, Ms Hagedorn. There was no credible or reliable evidence to the contrary. I do not accept Mr Hawton’s suggestions to the contrary, as already explained in my analysis of his evidence at paragraphs [348] to [422] above.

Assumed difficulties over contact arrangements if father was not allocated care

585. In contrast to the stated prediction of likely difficulties in the father “D” maintaining contact, as cited at paragraph [579] above, that issue has adversely impacted on the mother “C”. The problem seems to relate to the apparent inability of the father “D” to find an appropriate way, either with or without assistance, to move away from those difficulties.

586. As explained at paragraphs [241] to [245] and [251] to [252] above, the father ceased therapy and seems to have taken the position of relying on FaCS to resolve his communication difficulties. As he said in a moment of candour, he is still learning about such matters: T313.25.

587. As a result, the mother “C” and the child “B” have had inadequate contact. FaCS was seemingly unable to resolve that problem, and have ceased funding Ms Starr’s efforts at seeking to address aspects of the interpersonal difficulties which fuelled that problem. That state of inadequate contact cannot be allowed to continue to have an adverse impact on the child “B”.

Impact of cognitive difficulties on insight and parenting capacity

588. There is no dispute that the mother “C” is capable of providing the child “B” with an adequate standard of care. That was the effect of the finding of the Children’s Court Magistrate as cited at paragraph [574] above. I have also reached the same conclusion on that question.

589. In my view, the matter of great significance, which the Children’s Court Magistrate did not have before him, was the objectively identified cognitive difficulties that have affected, and which will in my view continue to affect, the father “D”. Exhibit “P”.

590. In my opinion, in the circumstances that prevailed at the Children’s Court hearing, the issue of the parenting capacity of the father “D” was significantly obscured from full consideration because the psychological testing report of Dr Purkis, dated 19 September 2015 (Exhibit “P”), was not made available for the consideration of either the Clinician or the Children’s Court Magistrate.

591. In my opinion, the cognitive difficulties identified as affecting the father “D”, as set out in Exhibit “P”, do not auger well for his long-term care of the child “B”, whose evolving needs for insightful and focussed parental support and guidance, including with regard to his schooling, will increase as he matures towards adulthood.

592. In my view, the mother “C”, who does not have any such cognitive difficulties, has the greater insight, and is able to articulate and appropriately advocate to best meet the needs of the child “B”.

593. In comparison, the ability of the father “D” to meet that avenue of need is limited by his cognitive difficulties, as is evidenced by his relative inarticulateness, and his need for assistance to be provided to him by the school to assist his son to progress with school work. In my view, given the cognitive difficulties that are evident as defined in Exhibit “P”, the ability of the father “D” to adapt and to meet the increasing challenges the child “B” will face in his education, is doubtful. Without intending any disrespect to the father “D”, he is an unsophisticated person whose abilities are unlikely to increase commensurately with those evolving challenges.

594. In reaching that conclusion I have not overlooked the submission made on behalf of the father “D” that his cognitive difficulties, which were concealed at the first hearing, and which were only revealed belatedly in these proceedings, should not form the basis for orders that would penalise him or which would be discriminatory of him on that account. Whilst I generally agree with that sentiment, in my view, that submission diverts from the true issue that must be considered in this case.

595. The cited submission on behalf of the father “D” clearly has the interests of the father “D” as its focus, whereas, instead, the proper focus should be on the paramount question, and the needs of the child “B”: s 9(1) of the Care Act.

596. On that approach, I consider the needs of the child “B” are best served if parental responsibility were to be allocated to the mother “C”. If the submission of the father “D” were to prevail on account of the argued discriminatory consideration, I consider that needless disadvantage would be occasioned to the child “B”.

Matters of candour, probity and self-interest

597. The evidence in this case has revealed that, in particular circumstances, each parent has, for differing reasons, concealed matters calling for truthfulness, and has not been entirely forthcoming on the subject of the past incidence of domestic violence in their relationship. This has raised questions of candour and probity, as such matters have the potential to adversely impact upon what otherwise might be good or adequate parenting of the child “B”.

598. In the case of the mother “C”, she had in the past lied about her experience of domestic violence in her former relationship with the father “D”. As outlined at paragraphs [175] to [186] above, she explained that she did so at a time when she thought that to reveal that history, would have served no purpose, as the relationship in question was over. In these proceedings, I consider that she had the insight to appropriately acknowledge and to apologise for that earlier lack of candour. I consider those circumstances are unlikely to have an impact on the child “B” at this time.

599. In the case of the father “D”, more serious considerations arise over his candour, probity and insight in the face of a self-interest issue that arose in these proceedings, namely, his desire to retain parental responsibility for the child “B”.

600. Whilst it is true that, as the Children’s Court Magistrate observed, the phenomenon of parties telling lies in the context of allegations of domestic violence is not new, where such matters have the potential to adversely impact on child protection issues, a benign view cannot be taken of statements that misrepresent the true circumstances where there is a potential for an adverse impact on the safety, welfare and well-being of the child “B”.

601. In my assessment, as explained below, the father “D” has relevantly misrepresented the truth in relation to such circumstances.

602. That view is evidenced by the vacillating denials and concessions made by the father “D” as to whether there had been disclosures made by his sister “E” of historical childhood sexual abuse by the paternal step-grandfather “F”. Those matters have been analysed at paragraphs [341] to [342] and [484] above. I have found the evidence of the denials by the father “D” on those matters to be unreliable, and I have not accepted them.

603. It is relevant to observe that those disclosures of alleged childhood sexual abuse of the sister “E” by the step-grandfather “F” have been objectively corroborated by the contemporaneous correspondence from Dr Wright, yet they have been left under-investigated by FaCS.

604. For that reason, in my view, there is no room for compromise on this question where the paternal step-grandfather “F” has had ready access to the child “B”. If parental responsibility remains with the father “D”, that access is likely to continue, and in my view, on the evidence that I have cited in my reasons, in the circumstances of the incomplete investigation that now prevails, contact with him would plainly constitute an unacceptable risk of significant harm to the child “B”.

605. In light of those matters, I cannot be satisfied that if concerns over such allegations arose again, and where the child “B” might be at a relevant risk of significant harm, that the father “D” would display complete candour, such as has in the past occurred in relation to the disclosures that the sister “E” has made about the paternal step-grandfather “F”. On the evidence, I cannot be satisfied that in any response by the father “D” he would not again proffer dismissive protective denials, which, if accepted, would deflect from any issue of concern that arose.

606. Putting to one side questions of whether the vacillating factual positions of the father “D” on such matters as reviewed at paragraphs [341] to [342], and [484] above, were either deliberate statements of untruth aimed at securing an advantage, or whether they should be more benignly characterised as merely involving limited insight on his part, it gives rise to what I consider to be a real concern over a potentially unacceptable risk of significant harm to the child “B”, which if it occurred, would be difficult to monitor.

607. In the paramount interest of the child “B”, the need for candour on an important issue of child protection ought not be the subject of a compromise finding. In my view, in this case, there is no room for any benefit of a doubt to be given to the father “D” in such circumstances.

Other factors to consider

608. It is common ground that the child “B” is equally attached to both parents. There is no reliable evidence other than generic considerations, to suggest that any change in the allocation of parental responsibility from the father “D” to the mother “C” would produce actual psychological damage to the child “B”. There is no professional assessment to the contrary.

609. In my view, any such generic risk of psychological harm is a matter that may be appropriately addressed by the provision of skill and assistance being made available to all concerned parties. That is an avenue of assistance that has been cut off until now.

610. The first instance findings as to the length of time that the child “B” has lived with the father “D”, and his parents, insofar as it could be a relevant factor, is in my view, materially outweighed in this case by the incomplete investigation of the disclosure of allegations of child sexual abuse by the step-grandfather “F”. In those circumstances, I consider that if the child “B” were to remain accessible to the paternal step-grandfather “F”, those circumstances would, on the present evidence, represent an unsatisfactory situation.

611. It is true that at present, and only relatively recently, the father “D” has acquired better accommodation than the mother “C”. This occurred because he has been lately assisted into a Housing Commission house.

612. In contrast, the present accommodation of the mother “C” in a boarding house is less satisfactory. However, that situation should be seen as being only temporary: T45 – T50. I am satisfied that if she was allocated parental responsibility, she would have access to other temporary and more suitable options available to her. Also, given that she has been on the waiting list for Housing Commission accommodation for 19 years it is likely she would get the same consideration in that regard as was given to the father ”D”: T62.43.

613. In light of the parental responsibility orders that I propose to make, I consider that her housing situation will be unlikely to remain as an outstanding issue for long.

614. I accept the evidence of the mother “C” where she stated that she is committed to maintaining the present schooling arrangements. She has been acquiring relevant information and insight into meeting the evolving special needs of the child “B”. The mother “C” has also continued to maintain her sobriety and her drug free state. She has readily available and committed access to the skilled support of Ms Hagedorn, and she has shown willingness and insight into engaging with appropriate avenues of assistance.

615. In addition to the factors outlined above, I consider that it is more likely the mother “C”, rather than the father “D”, would pursue a concerted commitment to ensuring the child “B” continues to discover and maintain a connection to his Aboriginal heritage.

Conclusion on allocation of parental responsibility

616. There are no contraindicating factors for allocating parental responsibility of the child “B” to the mother “C”.

617. In balancing those matters, I conclude that on the question of which parent would be in a better position to provide a better standard of care, a comparison between the situation of the mother “C” and the father “D” compels me to the view that this criterion is best met by the allocation of parental responsibility to the mother “C”.

618. However, I consider it prudent in the circumstances to add the proviso that, in view of past communication difficulties, and to ensure safety and stability in the contact handovers, as already indicated to the parties, that for the next 5 years, the Minister should have parental responsibility in respect of contact arrangements with the father “D”.

Procedural observation

619. In this case, as observed at paragraphs [433] to [437] above, with some forethought by the parties in advance of the hearing, either with or without directions, the divergence of opinions between experts could have been explored and resolved more efficiently through the readily available procedure of requiring expert witnesses who held differing opinions to meet in order to try and reach consensus on issues capable of agreement, and to identify the factual basis of any residual areas of disagreement. Their evidence could have been given concurrently before undertaking the task of making such findings.

620. Although the Uniform Civil Procedure Rules 2005 which provide for such processes do not apply to care cases, there appears to be no sound reason why such an approach could not be adapted and tailored for implementation in proceedings in the Children’s Court, or in a care appeal.

621. It is unfortunate that in their respective preparations, the parties did not approach the matter with that process in mind. Perhaps this problem could be addressed in an appropriately framed Practice Direction that would require the parties in such cases to give case-managed pre-hearing consideration to such matters, in consultation with the Court at an interlocutory stage. In the absence of agreement on such matters, directions could readily be made to facilitate the process in the event there is disagreement as to the procedure to be adopted.

Implementation of orders

622. The process of transferring parental responsibility from one parent to the other by an order of a court is well recognised as a source of mixed feelings and reactions. The expectation of the Court is that in the best interests of the child “B”, the parents will co-operate in a civil manner to ensure a smooth and non-traumatic handover of care when implementing the orders made in this case.

623. The immediate expectation is that the mother “C” should have a sensibly staged increasing level of unsupervised contact with the child “B”, with reasonable but not disruptive frequency, until she obtains suitable accommodation for the child “B” to commence living with her full time at her premises.

624. In the event difficulties arise in achieving a consensus on those matters I grant leave to the parties to apply, on short notice, supported by affidavit evidence, for facilitative orders and directions to be made for the implementation of orders.

Recommendation to the Secretary, FaCS

625. Having identified in my reasons some concerns over inter-parental communication difficulties, pursuant to s 85 of the Care Act, I recommend to the Secretary, Family and Community Services, to engage Ms Olivia Starr, or a person of like qualification, skill and experience, forthwith to therapeutically work with the father “D”, the mother “C” and the child “B” on the following matters:

1. The implementation of these orders;

2. Communication issues between the parents;

3. Reducing conflict between the parents;

4. Formulating suitable and agreed care consistent with these orders.

626. I make that recommendation in the paramount interests of the child “B” who has undoubtedly been adversely affected by the protracted process of this litigation, including by having been influenced against the mother “C” as is evident from the content of Exhibit “O”, as referred to at paragraphs [52] to [56] of these reasons.

627. The combined effect of the terrible and toxic state of inter-parental communications, as referred to at paragraphs [33], [113] and [251] in these reasons, has to be dismantled and reshaped into a co-operative working arrangement. This will require professional assistance, as has been observed at paragraphs [255], [318], [567] to [568] and [572] above.

628. The urgent need for the recommended intervention now arises in this case because although it had been provided on a previous occasion, as observed at paragraph [252] above, it was terminated, evidently for cost reasons notwithstanding that a special fund exists for that purpose: T355.20. This has had an exacerbating effect on the now entrenched communication difficulties experienced by the parents. FaCS has acknowledged that the problem cannot be resolved independently by the parents: MFI “7”, par 78. That problem needs to be urgently addressed in the paramount interests of the child “B”, who must, as best as is practicable, have an enduring relationship with both of his parents.

Disposition

629. The appeal must be allowed and the decision of the Children’s Court delivered at Tweed Heads on 15 December 2017 must be rescinded and set aside. Consequential facilitative arrangements reflective of the changed circumstances are now required, in conformity with my findings.

Costs

630. No costs submissions were made at the hearing. Exceptional circumstances must be shown to exist before a costs order may be made in these proceedings: s 88 of the Care Act. I will hear the parties if any such order is sought.

Orders

631. I make the following orders:

1. Pursuant to s 90(7)(a) of the Care Act, the orders made in proceedings numbered 2017/206220 in the Children’s Court at Tweed Heads on 15 December 2017 concerning parental allocation and contact issues, are rescinded and set aside;

2. Pursuant to s 90(7)(b) of the Care Act, the mother “C” is to have sole parental responsibility for the child “B” until the child “B” reaches the age of 18 years, save as to the terms of order (3) which follows;

3. Pursuant to s 90(7)(b) of the Care Act, The Minister, Department of Family and Community Services, is to have parental responsibility for the child “B” for all issues concerning contact between the child “B” and his father “D”, for the next 5 years from today’s date, after which all parental responsibility for the child “B” until he reaches the age of 18 years, will revert to the mother “C”;

4. A new care plan is to be prepared that provides for the implementation of the above orders, including for contact arrangements between the child “B” and the father “D”;

5. Pursuant to s 86(1)(b) of the Care Act, any contact arrangements proposed between the paternal step-grandfather “F” and the child “B” are to be supervised, to the satisfaction of the mother “C”;

6. The parties are to prepare a minute to reflect the above orders;

7. I will hear the parties on the question of costs;

8. The proceedings are stood over to 10.00am on Friday 13 July 2018 or such other varied date as may be ordered, for the purpose of approving any consequential or ancillary orders that may be required;

9. Liberty to apply on short notice for further or other orders if required.

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Decision last updated: 29 June 2018