CD and EF v Chief Executive Officer, Department for Child Protection and Family Support - [2017] WASC 126

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: CD AND EF -v- CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT [2017] WASC 126

CORAM: PRITCHARD J

HEARD: 1 AUGUST 2016

DELIVERED : 5 MAY 2017

FILE NO/SD : SJA 1035 of 2015

BETWEEN: CD AND EF
Appellants
AND
CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT
First Respondent
DD
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P HOGAN
File No  :CC 4646 of 2012, CC 4647 of 2012

Catchwords:

Children and Community Services Act 2004 (WA) - Order that CEO of Department have parental responsibility for child - Where likely that child would suffer grooming for sexual abuse or sexual abuse

Appeals - Evidence - Application to rely on new evidence - Whether new evidence should not be admitted

Leave to appeal - Principles - Whether grounds of appeal have reasonable prospects of success - Whether learned Magistrate erred in assessment of weight to be given to evidence - Whether learned Magistrate erred in applying the requisite standard of proof in proceedings under the Act - Whether proceedings in previous criminal trial were relevant to proceedings under the Act - Whether learned Magistrate erred in making protection order (until 18)

Legislation:

Children and Community Services Act 2004 (WA), s 3, s 6 - s 10, s 44 - s 46, s 57, s 59, s 151
Children's Court of Western Australia Act 1988 (WA), s 42(1)
Community Protection (Offender Reporting) Act 2004 (WA)
Criminal Appeals Act 2004 (WA), pt 2 s 7(1), s 8(1), s 9(1) - (2), s 14(1), s 39(1) & (3), s 40(1)(e)
Evidence Act 1906 (WA), s 36C

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellants:     In person
First Respondent           :     Ms C Thatcher
Second Respondent      :     No appearance

Solicitors:

Appellants:     In person
First Respondent           :     State Solicitor for Western Australia
Second Respondent      :     No appearance

Cases referred to in judgment:

Cramphorn v Bailey [2014] WASCA 60
De La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549
Farnell v Chanbua [2016] FCWA 17
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513
House v The King [1936] HCA 40; (1936) 55 CLR 499
In the Matter of J (A Child) v Paskos (1992) 8 WAR 561
KLR v Director General for Community Services [1992] ACL Rep 205 WA 5
Leeder v The State of Western Australia [2008] WASCA 192
Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605
MJL v Chief Executive Officer of the Department for Child Protection [2010] WASCA 69
MJW v Chief Executive Officer of the Department for Child Protection [2012] WASC 66
PVS v Chief Executive Officer, Department for Child Protection [No 2] [2011] WASC 318
Rinaldi v The State of Western Australia [2007] WASCA 53
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
YPW v CEO, Department for Child Protection and Family Support [No 2] [2015] WASC 294

Table of Contents

1. The factual and procedural background, and the statutory basis for a protection order

The Application made by the Department in relation to JD and DD
Allegations of sexual abuse by CD which were made prior to the commencement of the Application
The Department's case in respect of DD
The case advanced by CD and EF at the trial
The trial
The application for leave to appeal
The statutory basis for a protection order

2. An overview of the Reasons

The learned Magistrate's characterisation of sexual abuse
Findings in relation to allegations by AD
Findings in relation to allegations by MB
Findings in relation to the allegations made by M
Findings in relation to the allegations made by SR
Findings in relation to the allegations made by KD
Expert evidence in relation to CD's propensity to engage in sexual conduct in relation to pubescent women
The learned Magistrate's findings in relation to propensity
Findings as to the extent to which counselling mitigated the risk of CD acting on his propensity to sexually abuse pubescent females
Findings as to the effect of [Suppressed] on his risk of acting on his propensity to sexually abuse pubescent females
Findings as to the effect of EF's influence on the risk of CD acting on his propensity to engage in sexual abuse of pubescent females
The learned Magistrate's finding as to whether the risk that CD would act on his propensity to sexually abuse pubescent females was outweighed by protective factors

The learned Magistrate's conclusion as to whether a protection order should be made with respect to each of the children

3. The grounds of appeal, and the requirement for leave to appeal

The requirement for leave to appeal

4. Why CD and EF should not be permitted to rely on the new evidence
5. Why leave to appeal should be refused in respect of all of the grounds of appeal.

(a) Why leave should be refused in respect of the Revised Grounds of Appeal concerning the learned Magistrate's conclusion that DD was likely to suffer harm by being exposed to grooming behaviour for sexual abuse, or sexual abuse, by CD

Grounds 1, 2 and 4 of the Revised Grounds of Review
Grounds 3, 5, 6, 7 and 8

(b) Why leave should be refused in relation to grounds 9 to 16 of the Revised Grounds of Appeal ‑ which concern the learned Magistrate's conclusion that EF was not likely to be able to prevent harm to DD from occurring, by ameliorating the risk that DD would be exposed to grooming behaviour for sexual abuse, or sexual abuse, by CD

(c) Why leave should be refused in relation to grounds 16 to 22 of the Revised Grounds of Appeal - which concern the learned Magistrate's conclusion that a protection order (until 18) should be made in the circumstances

The contention that the learned Magistrate erred in making a protection order (until 18) because there was no evidence that CD posed any current risk of harm to DD
The contention that the learned Magistrate gave insufficient weight to the expert evidence that DD would suffer harm as a result of the making of a protection order (until 18)
The contention that the learned Magistrate erred in making a protection order (until 18) in that he failed to consider whether a less intrusive option to ameliorate the risk of harm to DD could have been adopted

Conclusion

PRITCHARD J:

(In this published version of the judgment, the names of the parties and some of the witnesses have been anonymised, and portions of the text have been redacted. That has been done because the publication of that material would permit the identification of the children concerned, or of complainants in proceedings for sexual offences (contrary to s 237 of the Children and Community Services Act 2004 (WA) and s 36C of the Evidence Act 1906 (WA)). The redactions have been necessary because the factual circumstances are such that the use of pseudonyms alone may not be sufficient to avoid the risk that the children and complainants involved may be identified.)

The Appellants are the natural parents of the second respondent, DD, who was born in [Suppressed] 2011. On 31 March 2015, the Children's Court made an order that 'the Chief Executive Officer of the Department have parental responsibility for [DD] until [DD] reaches 18 years of age' (the Order). The Order was made pursuant to s 57 of the Children and Community Services Act 2004 (WA) (the CCS Act).
The Court refused an application for a similar order in respect of DD's younger brother, JD (who is also the natural child of CD and EF).
The Order was made following a lengthy trial in the Children's Court, and the basis on which the Order was made was set out in detailed reasons given by the learned Magistrate (the Reasons).
CD and EF have appealed against the making of the Order. (There is no cross-appeal by the First Respondent (the Department) against the Court's refusal to make an order in relation to DD's brother.) CD and EF require leave to appeal in order to bring the appeal. Corboy J ordered that the application for leave to appeal be heard at the same time as the appeal itself.
In the course of the hearing of the appeal, CD and EF sought to rely on additional evidence, namely six articles written by academics dealing with either the psychological harm to children which can arise as a result of a disturbance in their attachment to their parent in early childhood, or with aspects of the behaviour of child sex offenders (the new evidence). CD and EF require the leave of the Court to rely on the new evidence.
For the reasons set out below, leave to rely on the new evidence will be refused, leave to appeal will be refused and consequently the appeal is taken to be dismissed.
In these reasons for decision I deal with the following matters:
1.The factual and procedural background, and the statutory basis for a protection order;
2.An overview of the Reasons;
3.The grounds of appeal, and the requirement for leave to appeal;
4.Why CD and EF should not be permitted to rely on the new evidence; and
5.Why leave to appeal should be refused in respect of all grounds of appeal.
The applicants for leave to appeal are referred to herein by [Suppressed], as they have been in the appeal generally, and DD is referred to by her initials (pursuant to orders made on 17 September 2015). The remainder of the witnesses are referred to in these reasons by [Suppressed]. I intend to hear from the parties in due course in relation to whether it will be practicable to publish these reasons for decision, even if pseudonyms are used for the names of the parties, the children and other witnesses related to them (some of whom included persons who were child complainants in criminal proceedings concerning alleged sexual offences). Publication of the reasons, even in that form, may not be possible because the rather distinct nature of some of the facts ‑ [Suppressed] ‑ may permit the children involved to be identified, contrary to the requirements of the CCS Act, and to the requirements of the Evidence Act 1906 (WA) s 36C.
Because a number of the witnesses from CD's family share the same surname, I have referred to those witnesses by their first names. No disrespect is intended.

The factual and procedural background, and the statutory basis for a protection order

CD and EF are in a de facto relationship. CD was 45 years old at the date of the trial. EF was 21 years old at the time. They have two children together ‑ DD and JD (the Children). Their relationship commenced in early 2010 when EF was 16 years and 2 months old.[1] [Suppressed] JD was born in [Suppressed] 2010. [Suppressed] DD was born in [Suppressed] 2011.
[1] Reasons for decision [54].
The Department's applications for protection orders in relation to JD and DD (the Application) were brought against a background of allegations of sexual abuse against CD made [Suppressed], some of which were the subject of criminal prosecutions. It is appropriate to set out some of that background in order to give some context to the discussion (below) of the evidence given at the trial of the Application.
Although the Department's case at the hearing concerned both DD and JD, in the discussion which follows, I have primarily focused on the Application, and the facts, in so far as it concerned DD.

The Application made by the Department in relation to JD and DD

[Suppressed]
[Suppressed]
[Suppressed]
[Suppressed]
In December 2012, DD and JD were taken into provisional protection and care by the Department. The Department then made the Application, initially pursuant to s 44 of the CCS Act, seeking orders (known as time limited protection orders) to be made in respect of both DD and JD for a period of two years. The Application was later amended to seek protection orders in respect of both DD and JD until they reached the age of 18 years, pursuant to s 57 of the CCS Act.

Allegations of sexual abuse by CD which were made prior to the commencement of the Application

[Suppressed]
[Suppressed]
[Suppressed]
[Suppressed]
[Suppressed]
[Suppressed]
[Suppressed]

The Department's case in respect of DD

The ground for the Application made by the Department in respect of DD was that she:[2]
is a child in need of a protection order until 18 years of age and is a child in need of protection pursuant to s 28 of the [CCS Act] as a child likely to suffer harm and the detrimental effects of a significant nature to the child's well being by being exposed to grooming behaviour for sexual abuse or sexual abuse which behaviours might be committed by [CD] and is at risk of harm pursuant to s 28(2)(c)(ii), (iii) and (iv) of the Act.
[2] Reasons for decision [9].
In summary, the Department's case in respect of DD was that it was likely that she would suffer grooming for sexual abuse, and sexual abuse carried out by CD, at some stage in the future, because CD has a propensity to sexually abuse female pubescent children, and because EF was not likely to protect DD from that grooming and abuse.
The Department's case at the trial thus had two major planks. The Department called evidence to prove that CD had carried out sexual abuse in the past and to support the conclusion that he was likely to do so again because he has a propensity to sexually abuse young pubescent women. The Department adduced evidence from [Suppressed] (the complainants) who gave evidence that they had been sexually abused by CD. The Department also adduced evidence from two clinical psychologists ‑ Ms Mary Anne Martin and Dr Philip Watts - who assessed the risk of harm that CD posed to DD, and the ability of EF to protect DD from any grooming for sexual abuse, or sexual abuse, by CD. In addition, the Court heard evidence from Mr Bill Christman, a clinical psychologist appointed by the Court, who assessed the risk posed to the children by CD and of EF's ability to protect the children from any risk. In so far as EF was concerned, the Department sought to prove that EF believed CD in his denials of past sexual abuse, and therefore contended that EF would not believe and protect DD in the future if CD began to sexually abuse DD or to groom her for sexual abuse.

The case advanced by CD and EF at the trial

The case advanced by CD and EF in relation to DD was that CD had not engaged in sexual abuse of the complainants [Suppressed], that CD did not pose any immediate risk to DD so that either no order, or a 2‑year order only, should be made in relation to her, that EF was a loving and protective mother who would ensure that DD was protected against any sexual abuse by CD, and that CD and EF had taken steps to minimise any risk that CD would sexually abuse DD.
CD and EF adduced evidence which sought to cast doubt on the evidence of the complainants [Suppressed] and to establish CD's good character. CD's cross-examination of the complainants was directed to demonstrating that their evidence was not credible or reliable, and sought to cast doubt on their evidence, for example by demonstrating that their recollection was inaccurate, or that they had not complained about CD's conduct promptly after they claimed it occurred, or that they were not of good character.[3]
[3] Reasons for decision [24].
In addition, CD and EF called a therapist, Ms Alison Wolf, and a social worker, Ms Christabel Chamarette, who gave evidence that CD and EF had undergone counselling with a view to minimising any risk of sexual abuse which CD might pose, and to equip EF with the skills to identify and guard against any such risk.

The trial

The Application was the subject of a trial which involved 20 days' of evidence and submissions. Thirty witnesses gave evidence, and voluminous documentary and other evidence was tendered. The evidence included three visually recorded interviews (VRIs) which three of the complainants had recorded for the purposes of the prosecution of CD. That evidence was treated by the learned Magistrate as part of the evidence-in-chief of the complainants in question.[4] Although I have reviewed the voluminous evidence adduced at the trial I do not intend to try to summarise that evidence. It is not necessary to do so to deal with the grounds of appeal. I have referred to the evidence below only in so far as it is necessary to do so to clarify or explain my reasons in relation to the various grounds of appeal.
[4] Reasons for decision [31].
CD and EF were not legally represented at the hearing before the Children's Court, but they fully participated in the hearing. They gave evidence, called witnesses, tendered exhibits, and cross-examined other witnesses. In the latter respect, and even allowing for the fact that they were not legally represented, it is apparent from the transcript of the trial that CD and EF thoroughly explored with the witnesses the case they sought to advance, and challenged the witnesses called by the Department in relation to the parts of their evidence which were contested. In addition, I note that DD and JD were represented by an independent children's lawyer who cross-examined witnesses and made submissions.

The application for leave to appeal

The application for leave to appeal was ordered to be heard at the same time as the appeal itself. Once again CD and EF were not legally represented. Although this Court had ordered that DD be joined as the Second Respondent to the appeal, the Court was informed that legal aid had been denied for an independent children's lawyer to represent DD's interests, and there was no appearance on DD's behalf at the hearing of the appeal. That was somewhat regrettable, given the principle of child participation in s 10 of the CCS Act. However, as DD was only 4 years of age at the date of the hearing of the appeal, and as her ability to express her wishes and views, and to have those conveyed by a counsel on her behalf, would necessarily be limited, and as the Court had before it, as part of the transcript of the trial in the Children's Court, a record of the submissions made by the independent children's lawyer who appeared on behalf of JD and DD at the trial, I formed the view that it was appropriate to hear the appeal notwithstanding that DD was not separately represented.
The submission made by counsel for DD at the trial was that either a supervision order, or a time limited protection order for 2 years, should be made in relation to DD. He submitted that the supervision order should be conditional on CD, but not necessarily EF, continuing to attend counselling for a specified time. He further submitted that EF was a significant protective influence, irrespective of whether further counselling was required. Finally, he submitted that the Court should not be satisfied on the evidence that it was appropriate that long‑term arrangements be made for either JD or DD.[5]
[5] Trial ts 21, 22, 23, 27 (18 March 2015).
In their Notice of Appeal, CD and EF set out 4 grounds of appeal (together with two further 'grounds' which were not grounds of appeal at all, but were instead references to relevant provisions of the CCS Act and to some authorities on which they sought to rely). Annexed to the Notice of Appeal, CD and EF also set out a number of submissions relating to their grounds of appeal.
At the hearing, CD and EF relied, instead, on a document setting out revised, and far more detailed, grounds of appeal (the Revised Grounds of Appeal).[6] In the course of the hearing of the appeal, I sought to clarify with CD and EF the arguments they sought to convey by the Revised Grounds of Appeal. I have set out the Revised Grounds of Appeal, and where relevant, have discussed the clarification of those grounds, below.
[6] ts 21.
Written submissions were filed on behalf of the Chief Executive Officer of the Department (CEO). CD and EF filed written submissions in reply to those filed on behalf of the CEO.

The statutory basis for a protection order

An order ‑ known as a protection order (until 18) ‑ is an order which gives the CEO parental responsibility for a child until the child reaches 18 years of age.[7] The effect of a protection order (until 18) is that the CEO has parental responsibility for the child to the exclusion of any other person.[8] An order of that kind remains in force until the child reaches the age of 18 years unless it is revoked in accordance with the CCS Act.[9]
[7] Children and Community Services Act 2004 (WA) s 57(1).
[8] Children and Community Services Act 2004 (WA) s 57(2).
[9] Children and Community Services Act 2004 (WA) s 59.
As I have already mentioned, initially the Department sought an order known as a protection order (time limited), which is an order giving the CEO parental responsibility for a child for the period specified in the order. However, the Application was amended prior to the trial and a protection order (until 18) was sought. In any event, when the Children's Court is dealing with an application for a protection order, if it finds that the child is in need of protection, the Court may make the order sought or make another protection order in respect of the child.[10]
[10] Children and Community Services Act 2004 (WA) s 45.
The Court's power to make a protection order is enlivened if, on an application for a protection order, the Court finds that the child 'is in need of protection'.[11] DD's child will be 'in need of protection' in a variety of circumstances, including where:
[11] Children and Community Services Act 2004 (WA) s 45.
the child has suffered, or is likely to suffer, harm as a result of any one or more of the following ‑
(i)Physical abuse;
(ii)Sexual abuse;
(iii)Emotional abuse;
(iv)Psychological abuse;
(v)Neglect,
and the child's parents have not protected, or are unlikely or unable to protect, the child from harm, or further harm, of that kind.
The term 'harm' includes 'harm to the child's physical, emotional or psychological development'.[12]
[12] Children and Community Services Act 2004 (WA) s 3.
However, even if the power to make a protection order is enlivened, it need not be exercised. The Court clearly has a discretion whether to exercise the power to make a protection order. And even if the power is enlivened, the Court must not make a protection order in respect of a child 'unless the Court is satisfied that making the order would be better for the child than making no order at all'.[13]
[13] Children and Community Services Act 2004 (WA) s 46.
Furthermore, in the exercise of the discretion to make a protection order, the Court will act in accordance with the objects and principles espoused in the CCS Act.[14]
[14] PVS v Chief Executive Officer, Department for Child Protection [No 2] [2011] WASC 318 [45] (Murray J); Farnell v Chanbua [2016] FCWA 17 [652] (Thackray CJ).
The objects of the CCS Act include to promote the wellbeing of children, to acknowledge the primary role of parents, families and communities in safeguarding and promoting the wellbeing of children, and to provide for the protection and care of children in circumstances where their parents have not given, or are unlikely or unable to give, that protection and care.[15] In considering whether to make a protection order the Court must apply a number of principles concerned with the best interests of the child. The paramount consideration in the exercise of any power or the performance of any function under the CCS Act is the best interests of the child.[16] In determining what is in a child's best interests in the context of an application for a protection order, the Court must take into account various matters set out in s 8(1) of the CCS Act. (These are not exclusive of the matters that may be taken into account in determining what is in the best interests of the child.[17]) The matters which must be taken into account include the need to protect the child from harm; the capacity of the child's parents to protect the child from harm; the nature of the child's relationship with the child's parents, siblings and other relatives and significant persons in the child's life; the attitude to the child, and to parental responsibility, demonstrated by the child's parents; the importance of continuity and stability in the child's living arrangements and the likely effect on the child of the disruption of those living arrangements, including separation from the child's parents, siblings, and other significant persons in the child's life; the need for the child to maintain contact with the child's parents, siblings, relatives, and other significant persons in the child's life; and the likely effect on the child of any change in the child's circumstances.
[15] Children and Community Services Act 2004 (WA) s 6.
[16] Children and Community Services Act 2004 (WA) s 7.
[17] Children and Community Services Act 2004 (WA) s 8(2).
In addition, in the context of an application for a protection order (until 18) there is an additional matter which the Court must take into account, namely that the Court must not make such an order unless it is satisfied that long‑term arrangements should be made for the wellbeing of the child.[18]
[18] Children and Community Services Act 2004 (WA) s 58.
For completeness, I note that the CCS Act provides that in the administration of the CCS Act, various additional principles must be observed.[19] There are differences of view as to whether that obligation applies to judicial proceedings.[20] For present purposes, it is not necessary to decide that question. The principles there set out overlap with the objects of the Act and the other principles which are relevant to this case, and to which I have already referred.
[19] Children and Community Services Act 2004 (WA) s 9.
[20] See, for example, the discussion in Farnell v Chanbua [2016] FCWA 17 [649] (Thackray CJ) and the cases cited therein.
The CCS Act provides that protection proceedings are to be conducted with as little formality and legal technicality as the circumstances of the case permit.[21] The Court is not bound by the rules of evidence and is entitled to inform itself on any matter in any manner it considers appropriate.[22] It is entitled to admit evidence of express or implied representations notwithstanding the hearsay rule, and to give evidence of that kind such weight as it thinks fit.[23]
[21] Children and Community Services Act 2004 (WA) s 145(1).
[22] Children and Community Services Act 2004 (WA) s146(2).
[23] Children and Community Services Act 2004 (WA) s 146(3), (4).

An overview of the Reasons

The learned Magistrate's characterisation of sexual abuse

In so far as it concerned DD, the Application was that DD was at risk of being groomed for sexual abuse, or sexually abused, by CD at some stage in the future. The learned Magistrate observed that the question was not whether any of the sexual activity allegedly engaged in by CD constituted an offence, but whether it amounted to 'sexual abuse'.[24] His Honour considered what constituted 'sexual abuse'. (I note that that term is not defined in the CCS Act.) His Honour concluded that sexual abuse was characterised by 'bad or improper treatment, or maltreatment, of a sexual character'.[25] His Honour's findings - to the extent that they included findings that CD had engaged in sexual abuse of any of the complainants, or that he had a propensity to engage in sexual abuse of young females ‑ must be read and understood with that meaning in mind.

Findings in relation to allegations by AD

[24] Reasons for decision [42].

[25] Reasons for decision [40].

[Suppressed]
[Suppressed]
[Suppressed]
[Suppressed]
[Suppressed]
[Suppressed]
[Suppressed]

Findings in relation to allegations by MB

[Suppressed]
[Suppressed]
[Suppressed]
[Suppressed]

Findings in relation to the allegations made by M

[Suppressed]
[Suppressed]
[Suppressed]
[Suppressed]
[Suppressed]
[Suppressed]
[Suppressed]
[Suppressed]

Findings in relation to the allegations made by SR

[Suppressed]
[Suppressed]
[Suppressed]

Findings in relation to the allegations made by KD

[Suppressed]
[Suppressed]
[Suppressed]
[Suppressed]
[Suppressed]
[Suppressed]

Expert evidence in relation to CD's propensity to engage in sexual conduct in relation to pubescent women

The Department relied on evidence from two clinical psychologists who examined CD for the purpose of making an assessment of the risk of harm which CD posed to children. Ms Mary Ann Martin conducted a psychological assessment of CD in 2013. That assessment was based only on the conduct which CD admitted [Suppressed]. As the learned Magistrate also noted, he had found the true position to involve far more extensive sexual abuse, involving five complainants, four of whom were very young at the time.[26] Consequently, while the learned Magistrate accepted Ms Martin's opinions, and concluded that they were soundly based on the information given to her, he noted that 'the level and seriousness of [CD's] conduct as I have now found it to be was more than that known to Ms Martin'.[27]
[26] Reasons for decision [179].
[27] Reasons for decision [184].
In her report, Ms Martin's opinion as to the risk CD posed was expressed as follows:[28]
It is unlikely that he presents a risk to his two youngest children currently, however this may change as [DD] reaches puberty. It is difficult to predict as that is some time in the future.
[28] Exhibit E [39].
However, in her evidence at the trial, Ms Martin said that there was 'possibly some risk [to DD], but not at the present time'.[29]
[29] Reasons for decision [182].
In addition, the Department relied on the evidence of Mr Bill Christman, who was an expert witness appointed by the Court to report on CD's and EF's psychological profile. Mr Christman provided a written report,[30] and gave evidence at the trial. The learned Magistrate accepted Mr Christman's evidence.
[30] Exhibit CR3.
In his written report, Mr Christman expressed the following opinion:[31]
Presently, I believe that [CD] poses a minimal risk to [DD] and that he has the knowledge to avoid placing himself in risky situations. However, I share the concern voiced by Ms Martin that the main risk would develop as [DD] approaches puberty. Therefore the risk that she could be sexually abused by her father would escalate as she gets older.

The learned Magistrate's findings in relation to propensity

[31] Exhibit CR3 [87].

The learned Magistrate concluded that in relation to AD, KD, and M, there was a common set of circumstances in relation to CD's conduct, namely that the complainant in each case was female, young (at the time), the conduct of CD was of a sexual nature, the complainant was in a [Suppressed], and CD was in a position of power, because [Suppressed].[32]
[32] Reasons for decision [91], [132], [174].
The learned Magistrate also found that a similar set of circumstances were involved in CD's conduct towards MB, namely that she was female, was young, CD's conduct was of a sexual character, and that CD was in a position of power over her, because [Suppressed].[33]
[33] Reasons for decision [107].
The learned Magistrate found that CD's conduct towards SR also involved a similar set of circumstances, namely that SR was female, was young (at the time of the offences), the conduct was of a sexual character, [Suppressed], and that CD was in a position of power, even though he was a little younger than her, because he was a [Suppressed].[34]
[34] Reasons for decision [150].
The learned Magistrate relied on the evidence of sexual abuse by CD in relation to each of the complainants as propensity evidence which formed the basis for the conclusion that it was likely that CD would sexually abuse DD, or groom her for sexual abuse, in the future.[35]
[35] Reasons for decision [35] - [36].
Having regard to the evidence ‑ which included the complainants' evidence, the evidence of CD himself, and the evidence given by Ms Martin and Mr Christman ‑ the learned Magistrate found that CD 'has a propensity to sexually abuse pubescent females'.[36]
[36] Reasons for decision [188].
The learned Magistrate then went on to consider the risk that CD would act on that propensity in the future. As the learned Magistrate observed, 'whether it is likely that he will do so in the future depends upon balancing that propensity with any factors which will inhibit him from acting on the propensity'.[37]
[37] Reasons for decision [188].
The learned Magistrate identified three protective factors which would operate so as to lessen the likelihood that CD would act on his propensity to sexually abuse pubescent females: the benefit of counselling which CD had been undergoing, the influence of EF, and the outside constraint of [Suppressed].

Findings as to the extent to which counselling mitigated the risk of CD acting on his propensity to sexually abuse pubescent females

CD and EF called evidence from Ms Alison Wolf, a clinical social worker, whom CD and EF had seen for counselling. Ms Wolf provided a written report which was tendered in evidence,[38] and she gave evidence at the trial. In her written report, Ms Wolf expressed the following view about the risk of CD sexually abusing girls in the future:[39]
[CD] has worked hard to understand and address his sexual attraction towards sexually active adolescent females … and has likewise worked hard to become a more nurturing, caring and appropriate better parent through therapy … . As such, I can say with well-placed knowledge and evidence that he will be a much better parent now than he has been in the past. As far as it is known, [CD] never exposed [Suppressed] to sexual activity, and exposed only [Suppressed] to inappropriate sexual material when they had begun to explore their sexual identity in not always age‑appropriate ways, and when he then began to fantasize them as being old and mature enough to be interested in him as a pseudo‑teenage sexual interest. Due to the hard work that [CD] has engaged in through his therapy the risk of him exposing his daughter [DD] to sexual material, let alone sexual activity when she begins to develop her own sexual explorations with age-appropriate peers in adolescence has been greatly reduced. When aligning the measurement of future risk to [DD] to past risk [Suppressed] I am unable to predict if he might have ended up finally engaging in 'hands-on' sexual abuse [Suppressed], although the level of his delusional self-talk and internal inhabitations … tend to counter-indicate this.
[38] Exhibit RF 12.
[39] Exhibit RF 12 [6].
The learned Magistrate accepted that Ms Wolf was highly experienced, including in working with perpetrators and victims of sexual abuse.[40] However, the learned Magistrate did not accept that Ms Wolf's evidence should be accepted as that of an expert witness, because he found that she was obviously biased in favour of CD and EF, and lacked objectivity.[41]
[40] Reasons for decision [190].
[41] Reasons for decision [190].
The learned Magistrate also rejected Ms Wolf's opinions because they were based on CD's 'admission of the level of his sexual abuse',[42] whereas the learned Magistrate found that the sexual abuse in which CD had engaged in the past was considerably more extensive and serious in nature than he had admitted. In addition, the learned Magistrate rejected the premise of the opinions expressed by Ms Wolf, which she expressed in cross-examination, which, in summary, was that 'sometimes it is damaging to a child to be sexually abused, but it is always damaging to be removed from parents'.[43]
[42] Reasons for decision [193].
[43] Reasons for decision [190].
Accordingly, the learned Magistrate did not accept that CD's risk to DD had been reduced by virtue of Ms Wolf's counselling.

Findings as to the effect of [Suppressed] on his risk of acting on his propensity to sexually abuse pubescent females

The learned Magistrate noted that CD [Suppressed], which would act as a disincentive to commit sexual abuse.[44]
[44] [Suppressed]
However, the learned Magistrate found that he was:[45]
not satisfied that [Suppressed] amounts to [a] sufficient disincentive for him to act on his propensity. [CD's] motivations are powerful. [Suppressed]

Findings as to the effect of EF's influence on the risk of CD acting on his propensity to engage in sexual abuse of pubescent females

[45] Reasons for decision [195].

As the learned Magistrate noted, EF poses no risk to her children at all, and if she were not in the relationship with CD, no protection order would have been sought in respect of the children.[46] The learned Magistrate accepted that EF's ability to act protectively towards the children was the most obvious check on CD acting on his propensity to engage in sexual abuse. Her ability to do so was assessed by Dr Watts, a clinical psychologist, in November 2012. His report was tendered in evidence,[47] and he gave evidence at the trial also.
[46] Reasons for decision [196].
[47] Exhibit AA(2).
Dr Watts' opinion was that EF:[48]
does not accept that [CD] has been abusive or inappropriate and takes on board [CD's] version of events. In doing so she has no real concept of power dynamics, duty of care, or sex offender dynamic. Basically her view is that she trusts [CD] therefore he is not a risk.
[48] Reasons for decision [198].
DD's somewhat similar view was expressed by Mr Christman, who also assessed EF and set out his views in his report, which was in evidence.[49] Mr Christman expressed the view that EF's focus 'was actually more on the dangers from external sources. She does not truly believe that [CD] has sexually abused [Suppressed]'.[50] In addition, he said that 'given her attitude, which is one of collaborative denial, it seems reasonable to doubt that she would remain vigilant over the longer term if the children were placed in her care'.[51]
[49] Exhibit CR3.
[50] Exhibit CR 3 [86].
[51] Exhibit CR 3 [77].
The learned Magistrate accepted evidence given by Ms Christabel Chamarette, a social worker, who was called by CD and EF. Ms Chamarette had seen EF for counselling. Ms Chamarette assessed EF as showing a 'high sense of responsibility towards the children' and that she was 'remarkably mature for her age'.[52] Dr Watts also expressed the view that EF would take action if she thought that CD was abusing DD.[53]
[52] Reasons for decision [201].
[53] Reasons for decision [199].
Mr Christman had also expressed hope that CD would be able to manage risk situations 'more appropriately' as a result of his counselling with Ms Wolf. However, the learned Magistrate rejected Mr Christman's reliance on Ms Wolf's view that progress had been made as a result of CD's counselling with Ms Wolf, given her lack of objectivity in dealing with CD and EF.
Having regard to all of the evidence, the learned Magistrate was not satisfied that EF was sufficiently able to act protectively in respect of DD.[54]

The learned Magistrate's finding as to whether the risk that CD would act on his propensity to sexually abuse pubescent females was outweighed by protective factors

[54] Reasons for decision [206].

The learned Magistrate concluded that CD's propensity to sexually abuse pubescent females was not likely to be outweighed by the protective factors identified on the evidence, with the result that the risk existed, and would remain, that CD would sexually abuse DD.[55]

The learned Magistrate's conclusion as to whether a protection order should be made with respect to each of the children

[55] Reasons for decision [207].

The learned Magistrate considered the question whether a protection order should be made in respect of each of the children. The learned Magistrate took into account that if a protection order were made for both children, the Department would look to place the children together in a long‑term placement.[56] So, too, if a protection order was not made in relation to either child, they would remain together, with their parents.[57] It is apparent that the learned Magistrate considered that it was preferable for the children to remain together, if possible.
[56] Reasons for decision [209].
[57] Reasons for decision [210].

However, the learned Magistrate concluded that because JD was male, he was not at risk of sexual abuse by CD. And if a protection order were made in respect of DD and not in respect of JD, then the ground on which the Department relied in the Application in so far as it concerned JD would no longer exist. That is, JD would no longer be at risk of being exposed to his sister being groomed for sexual abuse, or being sexually abused, by CD.[58] The learned Magistrate therefore concluded that the requirements of the CCS Act for the making of a protection order had not been met in relation to JD.
[58] Reasons for decision [210].
That being so, the learned Magistrate turned to the position in relation to DD. The learned Magistrate concluded:[59]
[DD] must be protected from harm. In this case, that is the paramount consideration. Whether the harm is likely to occur in the near future, or some years away when [DD] reaches puberty, is irrelevant. She will still be a child when she is in puberty. Whilst they remain a couple, neither parent has the capacity to protect [DD]. The likelihood is that [CD] will sexually abuse her, and [EF] will not be able to prevent that from occurring. …
CD's past history demonstrates a flawed attitude to parental responsibility. I do not accept the evidence of Ms Wolf in that regard. [EF] however does have a proper attitude to parental responsibility. However, so long as she remains in a relationship with [CD] her attitude cannot override the need to protect [DD] from harm.
[59] Reasons for decision [219] - [220].
The learned magistrate therefore found that DD was a child in need of protection because she was likely to suffer harm by being exposed to grooming behaviour for sexual abuse, or sexual abuse, from CD.[60]
[60] Reasons for decision [222].
The learned Magistrate then considered whether a protection order was necessary. He was clearly of the view that such an order was necessary. The learned Magistrate noted that EF had previously indicated that if a protection order (until 18) were made, she would leave CD. The learned Magistrate was critical of EF's reliance on that conditional position.[61] The learned Magistrate was of the view that even if EF left CD, that would not avoid the need for a protection order. That was because it could not be assumed that the children would live with EF rather than CD in the absence of a protection order, given that Family Court proceedings had not been pursued, and CD may not agree to such an arrangement in any event.[62] He noted that if EF had separated from CD and had had a Family Court Parenting Order made in her favour, he would not have made a protection order.[63]
[61] Reasons for decision [213].
[62] Reasons for decision [213].
[63] Reasons for decision [224].
The learned Magistrate then considered the duration of the protection order which should be imposed ‑ that is, whether to impose a protection order (until 18), as opposed to a time limited protection order for only 2 years. The learned Magistrate noted that the children had had three changes of placement since they were taken into care, but that that 'unsatisfactory position would not continue if orders to 18 were made'.[64] He concluded that 'continuity and stability can be achieved through the long-term placement planned for [DD]'.[65] He concluded that:[66]
long term arrangements should be made for [DD's] wellbeing. No lesser order should be made. The facts will not change, in the sense that [CD's] propensity will not change. [EF] by her action in forming and staying in the relationship with [CD] has not demonstrated any likelihood of change.
[64] Reasons for decision [209].
[65] Reasons for decision [221].
[66] Reasons for decision [223].
Accordingly, the learned Magistrate found that a protection order, until DD reached 18 years of age, should be made.[67]
[67] Reasons for decision [225].

The grounds of appeal, and the requirement for leave to appeal

There are numerous grounds of appeal in the Revised Grounds of Appeal, and there is considerable overlap between them. In essence, the Revised Grounds of Appeal contend that the learned Magistrate erred in three areas:
(a)In relation to his conclusion that DD was likely to suffer harm by being exposed to grooming behaviour for sexual abuse, or sexual abuse, by CD;
(b)In relation to his conclusion that EF was not likely to be able to prevent that harm from occurring, by ameliorating the risk that DD would be exposed to grooming behaviour for sexual abuse, or sexual abuse, by CD;
(c)In relation to his conclusion that a protection order (until 18) should be made in the circumstances.
It is convenient to deal with the various grounds of appeal under those three broad headings. I have renumbered them below (but have noted the original number of each ground within the Revised Grounds of Appeal).
The Revised Grounds of Appeal concerning the learned Magistrate's conclusion that DD was likely to suffer harm by being exposed to grooming behaviour for sexual abuse, or sexual abuse, by CD were as follows:
1.The presiding Magistrate made a weighting error of the facts in reaching his conclusion. Specifically, he gave no weight to the factual evidence of several experts that determined that [CD] posed no current (or immediate future) risk to his young daughter (ground 1.1);
2.Both [CD] and [EF] have made a great deal of progress in therapy over the last two years which has very significantly reduced risk and improved protective capacity (of both parents) (ground 1.3);
3.[CD] was accepted as an automatic unacceptable current risk to his very young daughter, presumably based on the facts of his having previously sexually abused [Suppressed] - although this assumed connection has never been clearly stated in any evidence presented by the Department (ground 1.5);
4.He gave excessive weight to the uncorroborated views of the Department, which were not backed up by their own or any specific expert knowledge or expertise in sexual offenders … [to conclude that] [CD] would engage in grooming behaviours towards [DD] ‑ apparently from a young age although not so stated anywhere but cited in the first point of the Department's position (point 5) in the Magistrates decision (ground 1.6);
5.The presiding Magistrate made a decision which could only have been made if a particular matter was established, but no evidence or other material was presented from which the Magistrate or President could reasonably be satisfied that the matter was established. Although it has been established, and not denied by [CD], that over nine years ago he was sexually inappropriate towards [Suppressed], no evidence was presented that demonstrated that [CD], due to his past actions towards [Suppressed], automatically posed a current risk to his initially one year old, and now three year old daughter [DD] (ground 2.2);
6.The presiding Magistrate made a decision which takes into account irrelevant considerations. There was no evidence presented to the Court that demonstrated a clear and inevitable connection between [CD's] historic sexual abuse towards [Suppressed] and the likelihood of him perpetrating sexual abuse towards his very young daughter ‑ this is an irrelevant consideration (ground 3.1);
7.The presiding Magistrate made a decision based on unreliable evidence (as quantified above), resulting in a determination which was not based on the child's best interests (ground 4.1);
8.The magistrate stated (pg 46:222) that 'I find as a matter of fact that [DD] is a child in need of protection because she is likely to suffer harm by being exposed to grooming behaviour for sexual abuse or sexual abuse from [CD]' (ground 4.1).
The Revised Grounds of Appeal concerning the learned Magistrate's conclusion that EF was not likely to be able to prevent that harm from occurring, by ameliorating the risk that DD would be exposed to grooming behaviour for sexual abuse, or sexual abuse, by CD, were as follows:
9.The presiding Magistrate made a weighting error of the facts in reaching his conclusion. Specifically, he gave no weight to the factual evidence of several experts that determined that [EF] has shown herself to be a protective mother; and someone who would always take whatever steps were required should her children ever be exposed to harm through the actions of [CD] (ground 1.2);
10.The presiding Magistrate made a weighting error of the facts in reaching his conclusion. Specifically, he gave no weight to the factual evidence of several experts that determined both [CD] and [EF] have made a great deal of progress in therapy over the last two years which has very significantly reduced risk and improved protective capacity (of both parents) (ground 1.3);
11.He gave excessive weight to the uncorroborated views of the Department, which were not backed up by their own or any specific expert knowledge or expertise [to conclude that] [EF] could not be relied upon to effectively manage the risk that [CD] allegedly posed to their one year old, now three year old daughter - which meant placement on an order till 18 years of age was the only option to keep [DD] safe (ground 1.7);
12.The magistrate concluded in the reasons for his decision (pg 46:219) that 'while they remain a couple, neither parent has the capacity to protect [DD]'. The father's protective capacity was never, in fact, raised, queried or addressed by the Department, whereas the mother's inability to act protectively has never been established (ground 2.5);
13.The presiding Magistrate made a decision which takes into account irrelevant considerations. There was no evidence presented to the Court which demonstrated a clear understanding that [EF] ‑ through choosing to 'side' with [CD] would therefore be unwilling and/or unable to protect her children should any risk be presented to them at some date in the future. This is an irrelevant consideration (ground 3.2);
14.The issues on which [EF] was determined by the Department and by Mr Watts to be unprotective towards her own children referred to allegations of sexual behaviour by [CD] (some proven, most not proven) before she lived with him or had children by him; and they related to children who were not her own, and who she did not know in the main, and for whom she had no responsibility. This is an irrelevant consideration (ground 3.3);
15.There was no convincing evidence offered, in fact there was no evidence offered at all in any report or in any informed evidence presented in Court that [EF] was incapable of being a loving, caring and protective mother to her two young children (ground 4).
The Revised Grounds of Appeal concerning the learned Magistrate's conclusion that a protection order (until 18) should be made in the circumstances, were as follows:
16.The presiding Magistrate made a weighting error of the facts in reaching his conclusion. Specifically, he gave no weight to the factual evidence of several experts that determined that … in order to prevent potential harm in 10 years' time the best interests of the daughter meant that she needed to be placed in care until the age of 18 years; with all the attendant trauma and psychological risk of permanent removal at such a young age, was not given due consideration (ground 1.4);
17.He gave excessive weight to the uncorroborated views of the Department, which were not backed up by their own or any specific expert knowledge or expertise in sexual offenders or psychological harm to children through removal and multiple placement[s] (ground 1);
18.The presiding Magistrate made a decision which could only have been made if a particular matter was established, but no evidence or other material was presented from which the Magistrate or President could reasonably be satisfied that the matter was established. The matter of [CD] being likely to pose a current risk to his daughter (being likely to sexually abuse her) sufficient to require her removal from him until the age of 18 years has not been established (ground 2.1);
19.And that this supposed likely current risk could only be averted by removing her from her home and both parents and placing her into care until she was 18 years of age (ground 2.3);
20.Evidence was offered by two experts on sexual offending (Ms Martin and Ms Wolf) that no risk towards very young children had been established, and that prior offending patterns were the best predictors of future offending patterns - i.e. that likely risk was many years in the future (ground 2.4);
21.The magistrate made further mention (at pg 47:224) 'If [EF] had separated from [CD] and if she had a Family Court Planning Order in her favour, I would not make a protection order'. He has ignored the fact that [EF] did indeed separate from [CD] and only returned to him after her children were formally removed from her care; with insufficient time to have any potential application heard by the Family Court (ground 2);
22.There was no convincing evidence offered, in fact there was no evidence offered at all in any report or in any informed evidence presented in Court that [CD] posed a level of current risk sufficient to require removal of his daughter until the age of 18 years in order to ensure her safety (ground 4).

The requirement for leave to appeal

Where the Children's Court makes a decision on the hearing of an application under pt 4 or pt 5 of the CCS Act (which includes a decision to impose a protection order under s 57) that decision may be the subject of an appeal made in accordance with pt 2 of the Criminal Appeals Act 2004 (WA) (the CA Act).[68]
[68] Children's Court of Western Australia Act 1988 (WA) s 42(1).
Under the CA Act, a person aggrieved by a decision of a court of summary jurisdiction may appeal to this Court against the decision.[69] The grounds of appeal on which appeals may be brought include that the court of summary jurisdiction made an error of law or fact or both, acted without or in excess of jurisdiction, or that there has been a miscarriage of justice.[70] The leave of this Court is required for each ground of appeal,[71] and the Court must not give leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding.[72] That means that the ground is required to have a rational and logical prospect of succeeding, in that it would not be irrational, fanciful or absurd to envisage it succeeding, or in effect that it has a real prospect of success.[73] On appeal, the Court has the power to make a variety of orders, including to dismiss or allow the appeal, and to set aside or vary the decision of the court below.[74]
[69] Criminal Appeals Act 2004 (WA) s 7(1).
[70] Criminal Appeals Act 2004 (WA) s 8(1).
[71] Criminal Appeals Act 2004 (WA) s 9(1); YPW v CEO, Department for Child Protection and Family Support [No 2] [2015] WASC 294 [39] (Mitchell J).
[72] Criminal Appeals Act 2004 (WA) s 9(2).
[73] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[74] Criminal Appeals Act 2004 (WA) s 14(1).

Why CD and EF should not be permitted to rely on the new evidence

As I have already mentioned, CD and EF sought to rely on the new evidence, which comprised six articles written by academics. They did not file an affidavit explaining the reasons why the articles had not been relied upon at trial, nor deposing to the provenance of the material. However, the explanation which was given by CD in his oral submissions, was that it was only in light of the fact that the Children's Court made the Order that CD and EF started to research the issues the subject of the new evidence. CD said he had not realised that the information should have been before the Court.[75] He agreed that it was only after he and EF got an adverse result at the trial that they went looking for the evidence.[76] He submitted that the purpose of tendering the new evidence was 'to show the long-term effects of children that are in care … the outcomes are generally not positive'.[77]
[75] ts 49.
[76] ts 51.
[77] ts 49.
Under the CA Act, an appeal court must decide an appeal on the evidence and material that were before the lower court.[78] However, that requirement does not affect the power of the appeal court to admit additional evidence.[79] Under the CA Act, the Court has a discretion to permit evidence, other than that which was adduced at the trial, to be relied upon.[80]
[78] Criminal Appeals Act 2004 (WA) s 39(1).
[79] Criminal Appeals Act 2004 (WA) s 39(3).
[80] Criminal Appeals Act 2004 (WA) s 40(1)(e).
In Cramphorn v Bailey, Mazza JA observed that:[81]
The discretion ... is wide and is designed to serve the demands of justice. It is confined only by the subject matter of the legislation and by the requirement that it must be exercised judicially. However, because Parliament conferred an appellate jurisdiction on this court, it is highly unlikely that it intended to abolish the distinction between original and appellate jurisdictions.
[81] Cramphorn v Bailey [2014] WASCA 60 [60] (Mazza JA), citing De La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 [150].
The exercise of the statutory discretion to admit new evidence will be informed (although not necessarily determined) by the principles concerning new and fresh evidence.[82] In the context of a criminal trial, where an appellant seeks to rely on new evidence ‑ that is, evidence which was available at the time of the trial, or could, with reasonable diligence, have been discovered ‑ no miscarriage of justice will arise simply because the new evidence was not adduced. Rather, new evidence will only give rise to a miscarriage of justice if the appellate court is either satisfied that the accused is innocent or concludes that the accused should not have been convicted, and it is not sufficient that the new evidence reveals only a likelihood that the court below would have returned a verdict of not guilty.[83] An appellant thus faces a high hurdle in overturning a finding of guilt based on new evidence.[84]
[82] Cramphorn v Bailey [2014] WASCA 60 [61] (Mazza JA), citing Rinaldi v The State of Western Australia [2007] WASCA 53 [84].
[83] See Cramphorn v Bailey [2014] WASCA 60 [56] (Mazza JA), and the cases cited therein.
[84] Cramphorn v Bailey [2014] WASCA 60 [58] (Mazza JA).
Although this is not a criminal appeal, the same considerations which inform the approach of appellate courts to the admission of new evidence (such as the finality of litigation and the responsibility of an appellate court to identify and correct miscarriages of justice, rather than to assume the role of another first instance court) are equally applicable. I accept the submission of counsel for the Department[85] that in a case of the present kind, new evidence should not be admitted unless it gives rise to a significant possibility that the outcome of the proceedings below would have been different.
[85] Department's Submissions [29].
In my view, the new evidence should not be admitted, for the following reasons. First, it was in existence as at the date of the trial, and there is no adequate explanation for why the articles were not produced and used (for example, in cross-examination) at the trial.
Secondly, issues related to the matters the subject of the articles were the subject of evidence at the trial. To the extent that the issues discussed in the articles were of any relevance to the Application (such as in relation to the expert witnesses' assessment of the risk of harm which CD posed to DD, and to the question whether a protection order (until 18) should be made) those issues should properly have been raised with the expert witnesses at the trial so that they could comment or respond. It is too late for that to now occur.

Thirdly, it is not proposed that the authors of each article will be called to give opinion evidence. Furthermore, the matters discussed in the articles are general in nature. Even assuming them to be relevant, it is far from clear what use could properly be made of the new evidence now.
Fourthly, contrary to some of the submissions made on the appeal, it is not the case that there was no evidence at the trial in relation to the question of the harm likely to be suffered by children who are separated from their parents. As I discuss below, there was some evidence in relation to that issue, although it was relatively limited. The purpose of adducing the new evidence appears to be a late stage attempt to change the balance of the evidence at the trial on the question whether making the protection order in this case would be better for DD than making no order at all.[86]
[86] Children and Community Services Act 2004 (WA) s 46.
Finally, in all of the circumstances, I am not persuaded that a miscarriage of justice would arise if leave to adduce the new evidence is refused.

Why leave to appeal should be refused in respect of all of the grounds of appeal.

(a) Why leave should be refused in respect of the Revised Grounds of Appeal concerning the learned Magistrate's conclusion that DD was likely to suffer harm by being exposed to grooming behaviour for sexual abuse, or sexual abuse, by CD

As there is a considerable overlap between the grounds in relation to this issue, it is convenient to deal with them collectively, by reference to the broad themes which they raise.

Grounds 1, 2 and 4 of the Revised Grounds of Review

Grounds 1, 2 and 4 effectively allege that the learned Magistrate erred in the weight he gave to parts of the evidence. In short, CD and EF contend that the learned Magistrate gave too much weight to the evidence of Mr Christman and too little weight to the evidence of Ms Martin, Ms Wolf and Ms Chamarette.[87] CD submitted that the learned Magistrate chose to prefer the evidence of Mr Christman, but that he was 'not a recognised expert in the field of therapy with perpetrators of child sexual abuse, unlike Ms Martin'[88] and that the learned Magistrate 'gave no weight at all to the actual two experts that are qualified in that field', namely Ms Martin and Ms Wolf.[89] By way of example, he submitted that the learned Magistrate had not considered the evidence of Ms Martin at par 42 of her report.[90]
[87] ts 23 - 24.
[88] ts 24.
[89] ts 24.
[90] ts 32.
These grounds of appeal do not have a reasonable prospect of success and leave to appeal on these grounds should be refused, for the following reasons.
First, the principles in relation to appellate review need to be borne in mind. It is well established that an appellate court will only be justified in intervening where it is demonstrated that the exercise of discretion by the court below miscarried.[91] Such an error may be shown, for example, if the court below has failed to take into account a relevant consideration or if the court below reaches a decision which is manifestly unreasonable. An outcome of that kind may be found to occur as a result of the weight (or lack thereof) given to a particular consideration.[92] However, it is not sufficient merely that the appellate court would have given some aspect of the evidence more or less weight in the overall exercise of discretion.[93] Consequently, an appellate court will be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.[94] Grounds 1, 2 and 4 are appeal grounds of this kind.
[91] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505 (Dixon, Evatt & McTiernan JJ).
[92] Cf Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 622 (Mason J), 634 (Wilson J) and 649 ‑ 650 (Dawson J).
[93] Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 614 - 615 (Gibbs CJ).
[94] Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513, 519-520 (Stephen J), cited with approval in Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 622 (Mason J); see also Leeder v The State of Western Australia [2008] WASCA 192 [84] (Newnes AJA, Buss JA & Miller JA agreeing); MJL v Chief Executive Officer of the Department for Child Protection [2010] WASCA 69 [30] (Murphy J, Newnes JA agreeing); MJW v Chief Executive Officer of the Department for Child Protection [2012] WASC 66 [160] (Mazza J).
Secondly, this is not a case where the learned Magistrate failed to give any weight to the evidence of a witness, namely Ms Martin. It is apparent from his Honour's reasons that he carefully took Ms Martin's opinions into account. Ms Martin had expressed the view that CD did not currently present a risk to DD, but that 'this may change as [DD] reaches puberty. It is difficult to predict as that is sometime in the future.'[95] As I have noted above at [77], the learned Magistrate indicated that he accepted Ms Martin's opinions, and that they were soundly based.
[95] Exhibit E1 [39].
However, the learned Magistrate also noted (see [77] above) that the conduct in which CD had engaged was more serious than Ms Martin was aware. The fact that that was so appears to have contributed to the learned Magistrate's view that the likelihood that CD would pose a risk to DD in the future was stronger than Ms Martin had been willing to predict, and sufficiently strong to support the conclusion that there was a risk that, in the future, CD may expose DD to grooming for sexual abuse, or to sexual abuse. (I note that Ms Martin characterised the nature of CD's conduct towards AD and KD as 'better viewed as grooming behaviour'[96] and she noted that 'grooming behaviour is often engaged in for a long time before any offending occurs'.[97])
[96] Exhibit E1 [30].
[97] Exhibit E1 [46].
Thirdly, the learned Magistrate's rejection of Ms Wolf's evidence was not, in my view, tainted by error. The learned Magistrate carefully considered the evidence of Ms Wolf in relation to the level of the risk of harm that CD posed to DD. In so far as the learned Magistrate concluded that Ms Wolf was obviously biased in favour of CD and EF, and did not have the objectivity which was to be expected of an expert witness, that conclusion was entirely open on the evidence. In cross‑examination, Ms Wolf acknowledged that at times she would become very empathetic with those she worked with, and would grow to like them,[98] and that she had grown to like CD and EF, and that she had a lot of respect for them.[99] In the course of giving evidence in this case, she became emotional at times.[100] It was put to Ms Wolf in cross-examination that she had become an advocate for CD and EF. She denied that that was so, and her evidence was that she did not want to be an advocate, but she admitted that she wanted to be a 'mediator'.[101]
[98] Trial ts 47 (13 March 2015).
[99] Trial ts 48 (13 March 2015).
[100] Trial ts 48 ‑ 49 (13 March 2015).
[101] Trial ts 49 - 50 (13 March 2015).
Ms Wolf was asked about some conversations she had had with Ms Sarah Swan, a clinical psychologist with the Department. It appears that Ms Wolf initiated contact with Ms Swan to discuss this case. Ms Wolf's evidence was:[102]
My work with [CD] and [EF] was getting a bit … hijacked by … what they were noting about [DD] and [JD] and their concern about how they were feeling … . And so I thought … I don't want to be an advocate but I do want to be able to work with [CD] and [EF] so my hope was, if I could actually talk with … a clinical psych at the department … and find out if she … was working with the children, then actually I could be able to go back to [CD] and [EF] and say … their emotional needs are to some degree being attended to by the clinical psych … .
[102] Trial ts 51 (13 March 2015).
However, Ms Wolf also accepted that she was frustrated that although she was in an informed position to provide advice to the Department, as a result of working with CD, the Department had not sought her advice.[103]
[103] Trial ts 51 (13 March 2015).
Ms Swan, a clinical psychologist, who was called by CD, also gave evidence about her conversations with Ms Wolf in relation to this case. Her evidence was:[104]
Ms Wolf was very concerned and emotional about a case which she had been involved in therapeutically. She believed that the department had been very hard and unfair on these parents and that she had felt that she had some ‑ very different experience and opinion of the couple, given her therapeutic involvement and was hoping that someone would hear those concerns and follow up on those concerns.
[104] Trial ts 12 (10 March 2015).
Ms Swan told the learned Magistrate that the impression she gained of Ms Wolf's objectivity, as a result of her conversations with her, was that:[105]
Ms Wolf seemed to have very much taken the perspective for [CD]. She was very much in an advocacy role for [CD] at that point and … completely rejected the Department's concerns.
[105] Trial ts 13 (10 March 2015).
Fourthly, while the learned Magistrate relied on the evidence of Mr Christman, there is nothing to suggest that his determination of the weight to give Mr Christman's evidence was infected by error. In so far as CD and EF contend that Mr Christman did not have expertise to give the opinions he did, this ground is without merit.
Fifthly, the contention that the learned Magistrate failed to give any weight to the opinion expressed by Ms Martin that CD did not currently pose a risk to either JD or DD, is without merit. The learned Magistrate specifically referred to both the opinion expressed by Ms Martin, and to the similar opinion expressed by Mr Christman, to that effect.[106] The point, however, is that the learned Magistrate was not solely concerned with the risk of harm to DD as at the date of the trial. The Department's Application was premised on the existence of a risk of harm in the future.
[106] Reasons for decision [182], [187].
The definition of 'harm' in the CCS Act is not confined to harm at the time of the assessment. It is clear that a protection order may be made to prevent harm to a child even before any such harm is suffered by the child. That was acknowledged by Murray J in PVS v Chief Executive Officer, Department for Child Protection [No 2][107] where his Honour discussed the exercise in which a Court must engage to determine whether to make a protection order. His Honour observed:
[T]he magistrate had to find that it was more probable than not ‑
(1)that the children had suffered or were likely to suffer harm … . It should be noted that the concept is a broad one (I would think deliberately so) and harm need not in fact have been suffered if, at the time when the judgment was to be made, it was likely that such harm might be suffered. In other words, the Act is written in terms which enable intervention before harm actually occurs;
(2)that the harm suffered, or likely to be suffered was, or would be a result of abuse of any or all of the types specified, and/or neglect; and
(3)that the responsible parent … may or may not have caused the harm or likelihood of harm to arise, but had not protected or was unlikely to protect, or was unable to protect the child from harm as at the date when the judgment was to be made, or from further harm in the future.'
[107] PVS v Chief Executive Officer, Department for Child Protection [No 2] [2011] WASC 318 [142] (Murray J); see also Farnell v Chanbua [2016] FCWA 17 [661] (Thackray CJ).
The learned Magistrate thus did not fall into error by focusing on whether there was a risk that harm to DD would occur in the future.

Grounds 3, 5, 6, 7 and 8

The contentions at the heart of these grounds appear to be that the learned Magistrate erred in relying on evidence from the complainants to support his conclusion that CD had engaged in sexual abuse of pubescent girls in the past, that evidence of past sexual abuse of other persons could not support the conclusion that there was a risk that CD would groom DD for sexual abuse, or would sexually abuse her, in the future (grounds 3, 5 and 6), and that that evidence was not sufficiently reliable as to 'establish' that that sexual abuse had occurred (ground 7). (I note that in so far as the Revised Grounds of Appeal referred to particular considerations as being 'irrelevant', CD clarified that what he really meant was that the learned Magistrate preferred one expert opinion over evidence to the contrary.[108])
[108] ts 45.
In so far as grounds 3, 5 and 6 are directed to the contention that evidence of past sexual abuse of the complainants could not be relied upon as the basis for a finding of the likelihood of future risk, those grounds do not have reasonable prospects of success, for the following reasons.
First, in so far as a protection order is sought on the basis of a risk of future harm to a child, the exercise in which the Court must engage to determine whether the order should be made is predictive in nature. That predictive exercise must necessarily look to history to predict the future, and that history will include, where relevant, past conduct of the child's parent. In my view, there was no error by the learned Magistrate in considering evidence of alleged past sexual abuse by CD of the complainants as the basis for assessing his risk of sexually abusing DD in the future, particularly given that that conduct primarily involved young girls [Suppressed].
Secondly, in so far as CD and EF contend that the learned Magistrate erroneously considered whether the risk of harm to DD in the future was 'likely', that contention is without merit. CD and EF submitted that 'several things were wrong' with the learned Magistrate's finding that DD was 'likely' to suffer by being exposed to grooming behaviour for sexual abuse or sexual abuse from CD, including that '"likely" does not imply the level of standard of proof necessary to make such a momentous decision. "Likely" falls below "convincing" and "a firm degree of satisfaction"'.[109]
[109] Revised Grounds of Appeal, ground 4.
That submission cannot be accepted. Consideration of the question whether a child is 'likely' to suffer harm as a result of abuse is required by the definition of whether a child is 'in need of protection' under the CCS Act (see [40] above). The meaning of the word 'likely' in this context is 'in the sense of a "real possibility" ‑ a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case'.[110] In Farnell, the child in question was held to be in need of protection because the child was 'likely' to suffer harm as a result of sexual abuse in the future. Although the evidence suggested that it was probable that the child would come to no harm if she remained with the Farnells, Thackray CJ concluded that the possibility that she might come to harm if she remained with them could not be sensibly ignored, given that Mr Farnell was a convicted sex offender. His Honour reached that conclusion having regard to the evidence in that case, and to the likely devastating impact on the child if she were to be abused.[111]
[110] Farnell v Chanbua [2016] FCWA 17 [706] (Thackray CJ).
[111] Farnell v Chanbua [2016] FCWA 17 [726] (Thackray CJ). For completeness, however, I note that his Honour concluded that in the particular circumstances of that case, a protection order should not be made.
Thirdly, CD and EF appeared to be of the view that the learned Magistrate erred in finding that CD had sexually abused the complainants, and that stronger evidence was required than that which was adduced here. CD and EF submitted that:[112]
although the standard of proof to be applied is proof on the balance of probabilities, because of the seriousness of the court's powers upon a finding that a child is in need of protection the evidence to be relied upon should be of a relatively high degree of cogency and persuasive power.
CD submitted that 'there was no evidence presented to the court that demonstrated the clear and inevitable connection between myself and historical abuse towards adolescent girls'.[113] He also submitted that there was 'no ... concrete evidence put across to saying that I have ever abused any child at all ... there has never been any convictions of any sort or anything to state that I have ever offended in that way at all'.[114]
[112] Revised Grounds of Appeal, ground 4, citing PVS v Chief Executive Officer, Department of Child Protection [No 2] [2011] WASC 318; In the Matter of J (DD's Child) v Paskos (1992) 8 WAR 561, 566.
[113] ts 39.
[114] ts 39.
CD and EF also submitted that:[115]
the seriousness of the allegations and the profound consequences likely to follow an order require that a finding should not be made unless the evidence is convincing and leads to a firm degree of satisfaction of the need to make it.
[115] ts 39.
Those submissions reflect the orthodox approach to the proof of serious allegations which are made in the context of a civil trial. That orthodox approach was the approach adopted by the learned Magistrate.
The standard of proof in protection proceedings is proof on the balance of probabilities.[116] The learned Magistrate took the view[117] that given the seriousness of the factual allegations made in this case, the application of that standard of proof required evidence of a relatively high persuasive force, so that he could be satisfied to a relatively high degree of the facts upon which a protection order should be made.[118]
[116] Children and Community Services Act 2004 (WA) s 151.
[117] Reasons for decision [27].
[118] Reasons for decision [27].
His Honour also took the view that he should not make a protection order unless he had a 'firm degree of satisfaction' of the need to do so.[119]
[119] Reasons for decision [27], citing KLR v Director General for Community Services [1992] ACL Rep 205 WA 5.
There has been some discussion in the authorities of the application of the civil standard of proof in the context of applications for protection orders. In the passage cited above, the learned magistrate applied what was said by Murray J in Paskos.[120] In PVS, Murray J expressed the view that because of the seriousness of the Court's powers following a finding that a child was in need of protection, evidence of a relatively high degree of cogency and persuasive power was required.[121]
[120] In the Matter of J (DD's Child) v Paskos (1992) 8 WAR 561, 566.
[121] PVS v Chief Executive Officer, Department of Child Protection [No 2] [2011] WASC 318 [55] (Murray J).
More recently, in Farnell, Thackray CJ expressed reservations about such an approach. His Honour said:[122]
While the words of Dixon J in Briginshaw have been repeatedly cited, they must now be understood in light of what was said in the High Court in Neat Holdings Pty Ltd v Karajan Holdings … :
The strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. … Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved … .
In my respectful view, the same should be said of generalisations about taking into account the gravity of the consequences that flow from a finding, especially given that the probability of an event having occurred cannot logically be affected by the gravity of the consequences of a finding that it did occur.
Furthermore, if the gravity of the consequences of the court's finding were to be considered relevant in arriving at the ultimate decision, the question would arise, which consequences? Are they, for example, the consequences associated with a child being removed from her carers and placed in the care of the State? Or are they the consequences for the child of being left with carers who it is alleged have abused her or are likely to abuse her in the future? Either way, the consequences are grave.
There is another reason why, in my view, the court should not consider the gravity of the consequences when making, or refusing to make, a finding that a child is in need of protection. That is because there is not a pre‑determined set of consequences that flow from the finding. DD's finding that a child is in need of protection is the gateway to a range of potential consequences … .
[122] Farnell v Chanbua [2016] FCWA 17 [684] - [687] (Thackray CJ), citations omitted.

Accordingly, Thackray CJ proceeded on the basis that he would only make findings of fact, and a finding that the child was in need of protection, if those were made out to his 'reasonable satisfaction, recognising that the ultimate finding involves prediction of future events'.[123]
[123] Farnell v Chanbua [2016] FCWA 17 [689] (Thackray CJ).
There is, with respect, much force in the observations made by Thackray CJ on the question whether cogent evidence should be required to prove facts supporting a finding that a child is in need of protection, simply on the basis that the consequences of such a finding may be very serious. However, it is not necessary for present purposes to form a concluded view on the issue, because either approach was satisfied here. The allegations made against CD were very serious, and the making of a protection order (until 18) would have very serious, lifelong consequences. But there was ample, cogent evidence to support the findings made by the learned Magistrate. It is apparent from the learned Magistrate's careful examination of the evidence (discussed above at [49] ‑ [100]) that he was satisfied that the findings he made should be, and were, based on cogent evidence.
Turning to ground 7 of the Revised Grounds of Appeal, CD and EF submitted that the evidence of past sexual abuse which the learned Magistrate accepted was unreliable. For example, EF submitted that AD and KD, and MB, all contradicted themselves in their evidence, yet the learned Magistrate accepted their evidence as honest and reliable.[124] CD submitted that almost all of the complainants gave evidence that there were errors in the affidavit evidence which was tendered in court, yet each of them had signed their affidavit. CD appeared to be of the view that this meant that the Department had fabricated the evidence[125] and that it was unreliable. His submission, ultimately, was that the learned Magistrate 'didn't have enough concrete evidence in front of him'[126] to be satisfied that CD posed a risk of future harm to DD.
[124] ts 55.
[125] ts 30.
[126] ts 31.
There is no merit in this ground. The learned Magistrate made a careful assessment of the evidence of each of the complainants. He found each of them to be honest and accurate in their recollections, and he accepted their evidence. In this respect, it must be remembered that the appeal is an appeal by way of a rehearing solely on the evidence which was before the Children's Court.[127] The court in such a case is obliged to give the judgment which in its opinion ought to have been given in the first instance,[128] but it must necessarily observe the 'natural limitations'[129] that exist where the appellate court proceeds on the record of the hearing below. In Fox v Percy, Gleeson CJ, Gummow and Kirby JJ observed that such 'natural limitations' included:[130]
the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share … .
[127] PVS v Chief Executive Officer, Department for Child Protection [No 2] [2011] WASC 318 [146] (Murray J).
[128] Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549, 561 (Isaacs J).
[129] Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549, 561 (Isaacs J); Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 125 ‑ 126 [23].
[130] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 125 ‑ 126 [23].
However, their Honours went on to confirm that 'if, making proper allowance for the advantages of the trial judge' an appellate court concludes that an error has been shown, it is obliged to discharge its appellate duty.[131]
[131] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 125 ‑ 126 [23].
The primary example of error to which CD referred was that the learned Magistrate found that AD's evidence was honest and accurate. CD submitted that other witnesses gave evidence which showed that AD's version of events could not be right. His Honour did not accept that that was correct, and accepted AD's evidence.[132]
[132] ts 43.
I am not persuaded that there was any error in the learned Magistrate's approach to, or analysis of, the evidence. He saw the complainants and CD give evidence, and had the opportunity to consider their demeanour. As I have noted above, he carefully assessed the inconsistencies in their evidence, and between their evidence and the evidence of the other witnesses. CD has not identified any error in that process.
[Suppressed]
[Suppressed]
[Suppressed]
[Suppressed]
Leave to appeal on grounds 1 to 8 should be refused.

(b) Why leave should be refused in relation to grounds 9 to 16 of the Revised Grounds of Appeal ‑ which concern the learned Magistrate's conclusion that EF was not likely to be able to prevent harm to DD from occurring, by ameliorating the risk that DD would be exposed to grooming behaviour for sexual abuse, or sexual abuse, by CD

At the heart of grounds 9 to 16 is the contention that there was no evidence to support the conclusion that EF was unwilling or incapable of protecting DD from harm by ameliorating any risk that DD would be exposed to grooming for sexual abuse, or sexual abuse, by CD at some stage in the future,[133] and that the learned Magistrate gave insufficient weight to the evidence of Dr Watts (who recognised that EF was a protective mother),[134] Ms Wolf and Ms Chamarette.[135] EF also submitted that the learned Magistrate failed to take into consideration Dr Watts' opinion that she was a 'dedicated young mother who should be regarded as having the capacity to protect her children'.[136] EF submitted that she would not have the slightest hesitation in leaving CD if he had the slightest thought of doing anything to DD.[137]
[133] ts 43.
[134] ts 23.
[135] ts 23.
[136] ts 55.
[137] ts 55.
As the learned Magistrate observed (see [95] above) there was no suggestion that EF herself posed any risk to DD. EF's likely future conduct arose for consideration only because it was necessary to consider whether EF would be able to protect DD from the risk that CD may sexually abuse her, or engage in grooming her for sexual abuse. If EF was likely to be able to protect DD from that risk, then that would be a significant factor relevant to the question whether DD was actually likely to suffer that harm, and thus whether DD was 'in need of protection' under the CCS Act. However, whether EF would be able to protect DD from a risk of sexual abuse by CD depended upon whether she was likely to identify signs of that risk coming to fruition, and whether she would be willing to act in those circumstances.
Grounds 9 to 16 of the Revised Grounds of Appeal do not have reasonable prospects of success, for the reasons set out below.
First, it is apparent that the learned Magistrate carefully assessed and relied upon the evidence given by the expert witnesses, other than Ms Wolf, in relation to whether EF was capable of protecting DD from the risk of sexual abuse by CD. That evidence was given by Dr Watts,[138] Mr Christman,[139] and Ms Chamarette. In so far as grounds 9 to 15 contend that the learned Magistrate erred in the weight that he gave to particular evidence, these grounds also require the application of the principles applicable to alleged errors in the weight given to particular evidence (see [129] above).
[138] Exhibits AA1, AA2.
[139] Exhibit CR3.
The learned Magistrate expressly accepted Dr Watts' opinion.[140] The basis for that opinion was explained in some detail in Dr Watts' reports. He noted that EF was:[141]
quite aligned with [CD's] views. She shares his version of the events and [is] dismissive of any sort of risk. … [S]he holds the assumption that she is capable of assessing risk, and because she does not consider that [CD] presents like he is a risk, she believes her children are not at risk ‑ 'I don't see any risk, if I thought [there was] any risk I wouldn't have been with him'.
[140] Reasons for decision [200].
[141] Exhibit AA1 [36].
Dr Watts noted EF had no action plan as to what she would do if she saw any signs of that risk emerging,[142] and that although EF was confident that she would take 'positive action if things do occur … she would want the proof that they have occurred'.[143] Although EF told Dr Watts that 'if it came down to a choice between having the care of the children or staying in the relationship she said that … she would choose to stay with the children. While I have no doubt she is genuine, it is very hard to do this in reality'.[144] Dr Watts also considered whether EF's ability to protect DD may change over time, and his view was that 'unless [EF] accepts that there is a risk then her protectiveness is unlikely to change over time, however she did identify that puberty and above would be the most obvious risk age'.[145]
[142] Exhibit AA1 [40].
[143] Exhibit AA1 [42].
[144] Exhibit AA1 [41].
[145] Exhibit AA1 [46].
As the learned Magistrate noted, Dr Watts recommended that before any long-term decisions were made, EF should undergo some counselling with Ms Chamarette. Ms Chamarette gave oral evidence at the trial. The learned Magistrate expressly accepted Ms Chamarette's evidence in relation to EF.[146] Ms Chamarette's evidence was that she saw EF on eight occasions in a therapeutic context. Her brief was to provide support and assistance to EF. In the course of their sessions she formed the opinion that EF 'had a very high sense of responsibility for the children'[147] and EF told Ms Chamarette that if she had to choose between CD and the children, she would chose the children.[148]
[146] Reasons for decision [202].
[147] Trial ts 262 (11 March 2015).
[148] Trial ts 263 (11 March 2015).
However, Ms Chamarette explained that 'the major thing [was] that [EF] didn't believe what [the Department] believed'.[149] She said, 'We didn't really go into me trying to persuade her something had happened ... it wasn't my role to do that.'[150]
[149] Trial ts 270 (11 March 2015).
[150] Trial ts 280 (11 March 2015).
Ms Chamarette also told the learned Magistrate that she:[151]
didn't believe [EF] was gullible or deceived. I did think that her level of maturity, which was remarkable for her age, may not have been sufficient in terms of her life experience to work out whether there was a concern or not . … [I]t's a very difficult position for a partner … where there are two accounts of what's occurred.
[151] Trial ts 293 (11 March 2015).
The learned Magistrate expressly accepted Ms Chamarette's evidence in relation to EF's ability to protect DD from harm by virtue of sexual assault by CD at some future stage. However, in her evidence, Ms Chamarette acknowledged that EF may not have been in a position to identify signs of that risk manifesting in the future, and in the context that EF did not believe most of the allegations made against CD by the complainants.
From that perspective there is considerable consistency between the opinion expressed by Ms Chamarette, and that expressed by Mr Christman.
The learned Magistrate also accepted the opinion given by Mr Christman of EF's ability to protect DD.[152] Mr Christman expressed the view that EF 'did not truly believe that [CD] has sexually abused [Suppressed]'[153] and for that reason he doubted that she would remain vigilant over the longer term.[154] The basis for those views was set out in detail in Mr Christman's report. Mr Christman noted that 'there was a significant power differential' between CD and EF and 'this made her vulnerable to accepting [CD's] views in an uncritical manner'.[155] He noted that EF's focus in the discussion about being vigilant for the risk of sexual abuse 'was actually more on the dangers from external sources. She does not truly believe that [Suppressed] ‑ "if I found out that those things were true, I would not be in a relationship with him"'.[156]
[152] Reasons for decision [203] - [204].
[153] Exhibit CR3 [86].
[154] Exhibit CR3 [77].
[155] Exhibit CR3 [79].
[156] Exhibit CR3 [86].
Mr Christman's view was that EF had no insight into CD's alleged sexual abuse of [Suppressed]. His view was that '[EF] shares [CD's] views on the alleged offending'.[157]
[157] Exhibit CR3 [93].
Mr Christman noted that EF had attended counselling with Ms Chamarette, but concluded that because:[158]
[EF] seems to believe that [CD] does not pose a tangible risk … it follows that her motive in attending therapy is not primarily to manage risk. Despite this, she has developed a general knowledge of sexual offending … Given her attitude, which is one of collaborative denial, it seems reasonable to doubt that she would remain vigilant over the longer term if the children were placed in her care.
[158] Exhibit CR3 [77].
For completeness, I note that there was one aspect of Mr Christman's evidence that the learned Magistrate did not accept, namely his reliance on Ms Wolf's view that progress had been made as a result of the counselling sessions CD and EF had had with her.[159] (Because the learned Magistrate did not consider Ms Wolf to be an objective expert witness, he did not accept Mr Christman's reliance on Ms Wolf's opinion.) However, that part of Mr Christman's evidence pertained solely to CD and not to EF at all.[160] In any event, for the reasons already outlined, I am not persuaded that the learned Magistrate's rejection of Ms Wolf's evidence was infected by error, and for that reason, I see no error in his Honour's rejection of that part of Mr Christman's evidence, where he relied on Ms Wolf's opinion.
[159] Reasons for decision [205].
[160] Exhibit CR3 [74].
Secondly, although Ms Wolf expressed the opinion that the counselling sessions with EF would 'be of great assistance in helping [EF] notice and challenge any [abusive] behaviours were [CD] to engage in them at a future date, should he ever become motivated to be sexual with [DD] when she is older',[161] for the reasons set out above at [132], I am not persuaded that the learned Magistrate erred in his conclusion that no weight should be given to Ms Wolf's evidence.
[161] Exhibit RF12, 8.
Thirdly, in so far as grounds 9 to 15 contend that there was no evidence that EF was unable to protect DD from the risk of sexual abuse by CD, the evidence I have set out above, and on which the learned Magistrate relied, very clearly supported the conclusion he reached, namely that he was not satisfied that EF was sufficiently able to act protectively in respect of DD.
Fourthly, both CD and EF sought to undermine the expert witnesses' evidence by submitting that their views were affected by EF's stance that she would not comment on matters she did not know about, and 'could only go on what she'd been through'.[162] Those submissions cannot be accepted. EF's stance appears to be an explanation for why she does not accept most of the allegations made by the complainants, save those CD admits. But Dr Watts and Mr Christman, following a detailed assessment of EF, concluded that she did not believe the allegations because she believed CD. There is nothing to suggest that the learned Magistrate erred in relying on those opinions by Dr Watts and Mr Christman.

(c) Why leave should be refused in relation to grounds 16 to 22 of the Revised Grounds of Appeal - which concern the learned Magistrate's conclusion that a protection order (until 18) should be made in the circumstances

[162] ts 46, 54.

Having regard to the grounds and to the submissions made by CD and EF, there appear to be three primary contentions at the heart of grounds 16 to 22, namely that the learned Magistrate erred in making a protection order (until 18) when there was no evidence that CD posed any current risk of harm to DD; that the learned Magistrate gave insufficient weight to the expert evidence that DD would suffer harm as a result of the making of such an order; and that the learned Magistrate erred in making a protection order (until 18) in that he failed to consider whether a less intrusive option to ameliorate the risk of harm to DD could have been adopted.
For the reasons set out below, these grounds have no reasonable prospect of success and leave to appeal should be refused.

The contention that the learned Magistrate erred in making a protection order (until 18) because there was no evidence that CD posed any current risk of harm to DD

In so far as grounds 16 to 22 contend that the learned Magistrate erred in making a protection order (until 18) when there was no evidence that CD posed any current risk of harm to DD, the grounds have no reasonable prospect of success. Both CD and EF submitted that if there was only evidence of future risk to DD, then the learned Magistrate should have declined to make an order removing DD from the care of her parents with immediate effect.[163] For the reasons set out at [143] ‑ [145] above, the power to make a protection order does not depend upon the existence of a present risk of harm. DD's child may be in need of protection even if it is the case that the child is only likely to suffer harm in the future.

The contention that the learned Magistrate gave insufficient weight to the expert evidence that DD would suffer harm as a result of the making of a protection order (until 18)

[163] ts 48, 54.

Grounds 16 to 22 contend that the learned Magistrate gave insufficient weight to the expert evidence that DD would suffer harm as a result of the making of a protection order (until 18). There was some limited evidence at the trial as to the harm that may be caused by removing a child from his or her parents. Ms Wolf was very strongly of the view that children should not be removed from their parents unless it was absolutely necessary to do so. Her opinion was that:[164]
unless it's absolutely proven beyond any skerrick of doubt that it's far too dangerous for them, they need to be with their parents … because once you remove them … not only does that set off a whole chain of placements but actually you are taking away their fundamental core attachment, their sense of belonging, and it's a disaster. You know, even children who are placed with adoptive families … they experience difficulties. … So, you know, it has to be profoundly bad for … children to be removed.
[164] Trial ts 17 (13 March 2015).
However, as I have already noted, the learned Magistrate did not accept Ms Wolf's evidence, because he did not accept that she held objective views. One reason for that conclusion was the learned Magistrate did not agree with her view that:[165]
there seems to be an assumption that sexual abuse is the very, very, very, very worst thing that can happen to a child. Well, for some children it is utterly, utterly disastrous, but … for all children it is disastrous to be removed from their parents, even parents who I'm sure we would all agree are not good enough parents. … You know, many children decide to stay in families where they're being abused because they have worked out, 'this is better for me to be in my family and at least be with my mother who's not abusing me' … . I mean, that's a terrible decision that children have to make, but it says, 'I want to be in my family'.
[165] Trial ts 18 (13 March 2015).
As I have already explained, I am not persuaded that the learned Magistrate erred in rejecting Ms Wolf's evidence.
There was, however, some other, general, evidence that removing children from their parents may cause harm. Ms Sarah Swan, a clinical psychologist, was called by CD and EF.[166] She was asked about the consequences of removal on very young children with a secure attachment to their mother. Ms Swan's evidence was that the impact of removal would depend on the circumstances, and the placement, but acknowledged that 'for all children it's a difficult experience being removed from their primary caregiver'.[167] She was unable to comment on the impact on JD and DD of the provisional protection arrangements in place prior to the trial, as she had not assessed them, but she acknowledged that 'it would be very distressing for any child to be separated from their primary caregiver. They would experience grief and loss around that, [and] confusion of course about the absence of the caregiver.'[168]
[166] Trial ts 2 (10 March 2015).
[167] Trial ts 3 (10 March 2015).
[168] Trial ts 8 (10 March 2015).

While that evidence was before the Court, in my view, the fact that removing a child from his or her parents can itself have adverse (and sometimes very adverse) consequences for that child, at least in a general sense, requires no expert evidence. Recognition of that regrettable fact no doubt underpins, in part, the 'no order' principle in s 46 of the CCS Act.
The learned Magistrate did not expressly refer to Ms Swan's evidence in his reasons. In my view, that does not mean that he failed to take into account the fact that the making of a protection order, and the removal of a child from the care of his or her parents, can also have adverse effects on a child. It is notable that while the learned Magistrate did not agree with Ms Wolf's view that 'sometimes it is damaging to a child to be sexually abused' he did not express any disagreement with her view that 'it is always damaging [for a child] to be removed from parents'.
Furthermore, the learned Magistrate was clearly cognisant of the fact that the Court must not make a protection order unless the Court is satisfied that making the order would be better for the child than making no order at all. He specifically referred to that provision of the CCS Act. What is clear from the learned Magistrate's analysis, in my view, is that he considered, on the one hand, the harm which would be suffered by DD if CD were to sexually abuse her, or groom her for sexual abuse in the future, but he also clearly considered the consequences for DD of a protection order. The learned Magistrate carefully considered whether a protection order (until 18) - and the continuity and stability that could be achieved through a long term placement - would ameliorate some of the adverse consequences of a short term placement (or placements) that arise in the event of a protection order for a lesser period. I have addressed that issue further below.
Having regard to the principles discussed at [129] above in relation to the weight given to particular evidence, CD and EF have not demonstrated reasonable prospects of establishing an error by the learned Magistrate in the extent, or the manner, in which he took into account the possible adverse consequences of a protection order for DD.

The contention that the learned Magistrate erred in making a protection order (until 18) in that he failed to consider whether a less intrusive option to ameliorate the risk of harm to DD could have been adopted

In so far as grounds 16 to 22 contend that the learned Magistrate erred in making a protection order (until 18), in that he failed to consider whether a less intrusive option to ameliorate the risk of harm to DD could have been adopted, those grounds have no reasonable prospect of success, for the reasons set out below. For present purposes, I have assumed that before a Court makes a protection order (until 18), it must consider whether a lesser protection order (or supervision order) would be capable of protecting the child from harm.
First, having determined that it was likely that DD would suffer harm as a result of sexual abuse, or grooming for sexual abuse, by CD in the future, the learned Magistrate turned to consider what order should be made. He commenced that analysis by reminding himself of the 'no order principle' in s 46 of the CCS Act, of the requirement that the Court be satisfied that long-term arrangements should be made for the wellbeing of the child before making a protection order (until 18), and of the fact that a protection order of any kind could be made on the Application.[169] There is no reason to suppose that he immediately neglected to take those principles into account in the analysis which followed.
[169] Reasons for Decision [214] - [218].
Secondly, although CD submitted that the learned Magistrate did not take into account other alternatives to a protection order (until 18), including that CD would leave the home which he had told the Department he was willing to do,[170] it is apparent that the learned Magistrate did consider alternatives to a protection order (until 18). The learned Magistrate concluded that long‑term arrangements should be made for DD's wellbeing and that 'no lesser order should be made'.[171]
[170] ts 34, see also ts 30.
[171] Reasons for Decision [223].
The learned Magistrate expressly considered an option advanced by CD and EF, namely that if the Court were inclined to make a protection order (until 18) EF would leave CD and take the children with her.[172] However, the learned Magistrate noted that EF had claimed that she would do so since as far back as December 2012, but had not done so. The learned Magistrate noted that as EF had not done so, she also had not sought and obtained Family Court orders (to grant her the sole custody of the children).[173] For that reason, the learned Magistrate concluded that the possibility that EF might leave CD, and take the children with her, did not ameliorate the risk of harm to DD as a result of sexual abuse by CD. It appears that that underpinned the learned Magistrate's conclusion that it would be better to make a protection order than no order at all in this case.
[172] Reasons for Decision [212].
[173] Reasons for Decision [213].
Thirdly, although the learned Magistrate did not expressly refer to whether to make a protection order for a 2‑year period, instead of a protection order (until 18), it cannot be doubted that he was aware that such an order could be made and had been sought here. DD's time limited protection order had been initially sought in the Application, and was raised by CD and EF, and by the independent children's lawyer, as a possible alternative to a protection order (until 18), particularly to enable further counselling for CD to take place. CD also submitted that the learned Magistrate failed to take into account that Ms Martin had expressed the view that counselling and treatment for CD 'should help to manage' the risk he posed to DD.[174] However, the learned Magistrate had rejected Ms Wolf's evidence as to the progress which CD had made in his counselling sessions with her. It seems that that led to his conclusion that CD's propensity to sexually abuse pubescent girls would not change,[175] nor could it be adequately checked without a protection order.
[174] Exhibit E1 [48].
[175] Reasons for Decision [223].
Furthermore, in my view, it is implicit in the learned Magistrate's focus on the 'continuity and stability'[176] that could be achieved through a long term placement that he did not consider that a protection order for a limited duration was in the best interests of DD. The learned Magistrate's reference to 'continuity and stability' as a result of a long term placement must be understood in the context of the evidence at the trial concerning the fostering arrangements which could be made in the event of a protection order (until 18). Ms Swan was cross examined about the impact on children of multiple placements with foster carers. She acknowledged that the impact of removal on a child would be greater when the child in question had multiple placements.[177] She was asked about the likelihood that JD and DD would have one single placement for the rest of their lives, if a protection order (until 18) were made. Her evidence was that 'there is a good success rate of long-term placements being sought and attained'[178] but she pointed out that a long-term placement through a designated programme with that objective could only be sought once a protection order (until 18) was made.[179]
[176] Reasons for Decision [221].
[177] Trial ts 4 (10 March 2015).
[178] Trial ts 9 (10 March 2015).
[179] Trial ts 9 (10 March 2015).
It must be remembered that in determining whether a protection order (until 18) should be made, the learned Magistrate was dealing with a situation where a future risk of harm to DD had been predicted but without a precise prediction as to when that risk might manifest. The focus of the submissions of CD and EF was that the risk (if it existed) would arise only when DD reached puberty. But the learned Magistrate found that DD was at risk not only of sexual abuse by CD but that he would groom her for sexual abuse, which involved conduct over the longer term, and which could commence before DD reached puberty. Furthermore, this was a case in which the learned Magistrate had found that CD had sexually abused some of the complainants when they were young children, and well before they reached puberty. This was not, therefore, a case where it could be said that any risk of harm to DD would only arise many years after the trial.
Fourthly, in so far as CD submitted that none of the expert witnesses expressed the view that the removal of the children from the care of their parents was warranted,[180] nothing turns on the absence of such evidence. The question whether a protection order (and if so, of what kind) should be made was the ultimate issue for the Court to determine. While the expert evidence addressed the factors relevant to the determination of that question, it was for the Court, itself, to determine the answer to that question.
[180] ts 35.

Conclusion

As I am not persuaded that leave to appeal should be granted in respect of any of the grounds of appeal, the appeal will be taken to be dismissed.