Coat v Aves (Pseudonyms) - [2023] NSWDC 560

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Coat v Aves (Pseudonyms) [2023] NSWDC 560
Hearing dates: 18, 19, 20, 21, 22, 26, 27, 28 September, 11 October, 14 & 27 November 2023
Date of orders: 14 December 2023
Decision date: 14 December 2023
Jurisdiction: Civil
Before: Acting Judge Levy SC
Decision:
1. Verdict and judgment for the defendant;
2. The plaintiff is to pay the defendant’s costs on the ordinary basis unless a party can show an entitlement to some other costs order;
3. The exhibits may be returned;
4. The non-publication order made on 18 September 2023 is to remain in place until the further order of the Court;
5. Liberty to apply for further or other orders if required.

Catchwords:
TORTS – intentional torts – claim by plaintiff of historical child sexual assault by defendant stepfather – denial by defendant – consideration of conflicting evidence – verdict and judgment for the defendant

Legislation Cited:
Crimes Act 1900 (NSW), s 61M(2)
Defamation Act 2005 (NSW), s 12A
Evidence Act 1995 (NSW), s 55, s 56, s 60, s 64, s 66A, s 108(3)(b), s 128, s 140
Family Law Act 1975 (Cwth), s 121
UCPR r 31.27(1)(c); Sch 7, cl 5(c)

Cases Cited:
Angel v Hawkesbury Council [2008] NSWCA 130
Blacktown City Council v Hocking [2008] NSWCA 144
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) CLR 512; [2001] HCA 29
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Dare v Pulham (1982) 1948 CLR 658; [1982] HCA 70
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
Goode v Angland [2017] NSWCA 311
Hasler v Singtel Optus Pty Ltd & Ors [2014] NSWCA 266
Helton v Allen (1940) 63 CLR 691; [1940] HCA 20;
HG v The Queen (1999) 197 CLR 414; [1999] HCA 2
Larson v Commissioner of Police [2004] NSWCA 126
Longman v R (1989) 168 CLR 79; [1989] HCA 60
M v M (1988) 166 CLR 69; [1988] HCA 68
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Mason v Demasi [2009] NSWCA 227
Naxakis v Western General Hospital (1999) 197 CLR 269; [1999] HCA 22
Paric v John Holland Constructions Pty Ltd [1985] HCA 58
Pell v The Queen [2020] HCA 12
R v XY (2010) 79 NSWLR 629; [2010] NSWCA 181
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) & Ors [1999] HCA 3
Strinic v Singh [2009] NSWCA 15
The Queen v Bauer (a pseudonym) [2018] HCA 40
Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326
Warren v Gittoes [2009] NSWCA 24
Watson v Foxman [1995] 49 NSWLR 315
Yarrabee Coal Company Pty Ltd & Anor v Lujans [2009] NSWCA 85

Texts Cited:
Random House Dictionary of Popular Proverbs and Sayings (1996)

Category: Principal judgment
Parties: Ms Coat (a pseudonym) (Plaintiff)
Mr Aves (a pseudonym) (Defendant)
Representation:
Counsel:

Ms C Akthar (Plaintiff)
Mr RJM Foord with Mr A Schonell (Defendant)

Solicitors:
Sommerville Laundry Lomax Solicitors (Plaintiff)
Alidenes & Co Pty Ltd (Defendant)

File Number(s): 2021/327337
Publication restriction: A non-publication order applies to the names of the parties and non-professional witnesses – see paragraphs [45] to [47] of these reasons for the terms of the order.

JUDGMENT

Table of Contents

PART A – INTRODUCTION AND OVERVIEW	[1] – [276]
Structure of these reasons	[2] – [3]
Overview	[4] – [36]
Summary of outcome	[37] – [40]
Complexity	[41] – [44]
Non-publication order	[45] – [47]
Relationships	[48] – [54]
Anonymisation of dramatis personae	[55] – [57]
Claim and Defence	[58] – [64]
Historical time frames	[65] – [83]
Central issues	[84] – [90]
Overview of evidence array	[91] – [97]
Overview of oral evidence	[98] – [101]
Admissibility of hearsay content of disclosures	[102] – [109]
Plaintiff’s health, educational, work and related history	[110] – [187]
Plaintiff’s health history	[111] – [157]
Plaintiff’s educational and work history	[158] – [172]
Plaintiff’s history of other activities	[173] – [178]
Plaintiff’s earning capacity as an actor	[179] – [183]
Plaintiff’s travel history	[184] – [187]
Evident family stresses and tensions	[188] – [192]
Plaintiff’s successive verbal disclosures of alleged abuse	[193] – [242]
Plaintiff’s description of alleged abuse in oral evidence	[194] – [197]
Disclosure to plaintiff’s then boyfriend – mid 2019	[198] – [199]
Disclosure to her treating psychologist – 1 November 2019	[200] – [208]
Disclosure to sister – February 2020	[209] – [210]
Disclosure to godmother – 17 February 2020	[211] – [213]
Disclosure to mother – 23 July 2020	[214] – [221]
Significance of delayed timing of disclosures	[222] – [242]
Mother’s disclosure to treating general practitioner	[243] – [256]
Unexplained evidentiary gaps	[257] – [265]
Post-disclosure reactions of plaintiff’s mother	[266] – [276]
PART B – RELEVANT COMMUNICATIONS	[277] – [380]
Mischaracterisation of circumstances by mother	[279] – [285]
Email to defendant on 1 July 2020	[286] – [290]
Series of emails between 22 July and 7 August 2020	[291] – [301]
Sentinel email exchanges on 10 August 2020	[302] – [325]
Email from plaintiff’s mother on 11 August 2020	[326]
Email from plaintiff’s mother on 14 August 2020	[327] – [332]
Email from plaintiff’s mother on 23 August 2020	[333] – [339]
Third party attempts to contact the defendant	[340] – [346]
Plaintiff’s filing of SARO Report	[347] – [348]
Plaintiff’s email to defendant dated 30 August 2020	[349] – [353]
Further third party attempts to contact defendant	[354] – [380]
PART C – FAMILY LAW AND PRESENT PROCEEDINGS	[381] – [393]
PART D – MEDICAL / ALLIED EVIDENCE REVIEW	[394] – [437]
PART E – ORAL EVIDENCE REVIEW	[438] – [545]
Evidence of the plaintiff	[440] – [483]
Evidence of the plaintiff’s former boyfriend	[484] – [488]
Evidence of the plaintiff’s sister	[489] – [497]
Evidence of the plaintiff’s godmother	[498] – [502]
Evidence of the plaintiff’s mother	[503] – [517]
Evidence of the defendant	[518] – [529]
Evidence of the defendant’s supporting witnesses	[530] – [545]
Witness A	[531] – [532]
Witness B	[533] – [534]
Witness C	[535] – [536]
Witness D	[537] – [542]
Witness E	[543] – [545]
PART F – EXPERT EVIDENCE REVIEW	[546] – [672]
Treating general practitioner’s materials	[547] – [550]
Clinical psychologist’s correspondence	[551] – [576]
Medico-legal reports and evidence of Dr Brown	[577] – [622]
Determination of admissibility of Dr Brown’s evidence	[578] – [592]
Dr Brown’s concessions in oral evidence	[593] – [622]
Overview of Dr Brown’s reports	[623] – [637]
Material for Dr Brown’s first report	[624] – [626]
Material for Dr Brown’s second report	[627] – [637]
Review of Dr Brown’s first report – 16 August 2022	[638] – [661]
Review of Dr Brown’s second report – 19 July 2023	[662] – [672]
PART G – RELIABILITY FINDINGS – MEDICAL & ALLIED EVIDENCE	[673] – [861]
Assessment of reliability of psychologist’s evidence	[676] – [706]
Assessment of reliability of Dr Brown’s evidence	[707] – [861]
Non-corresponding elements of history and evidence	[760] – [858]
Conclusion concerning reliability of Dr Brown’s evidence	[859] – [861]
PART H – CREDIT FINDINGS	[862] – [975]
Assessment principles	[863] – [864]
The force of the respective cases	[865] – [867]
Assessments	[868] – [975]
Credibility and reliability of first category witnesses	[871] – [882]
- Plaintiff’s sister	[872] – [877]
- Plaintiff’s godmother	[878] – [881]
- Witnesses A, B, C, D and E	[882]
Credibility and reliability of testimony of the principal actors	[883] – [975]
- Plaintiff’s former boyfriend	[884] – [898]
- Plaintiff	[899] – [936]
- Plaintiff’s mother	[937] – [966]
- Defendant	[967] – [975]
PART I – FINDINGS ON DISPUTED MATTERS OF FACT	[976] – [1113]
Construction of s 66A of the Evidence Act 1995 (NSW)	[983] – [985]
Complaint evidence	[986] – [994]
Inconsistencies in the complaint or disclosure evidence	[995] – [1001]
SARO report by plaintiff	[1002]
Correspondence from the treating psychologist	[1003] – [1004]
Evidence of the plaintiff’s mother	[1005] – [1020]
Varied evidence concerning plaintiff’s entry into the bedroom	[1021] – [1035]
Inherent improbability of abuse at around age 8 years	[1036] – [1050]
Apparent unlikelihood that sexual abuse occurred	[1051] – [1058]
Why would the plaintiff have given evidence that was untrue?	[1059] – [1072]
False belief of sexual abuse	[1073] – [1089]
Does the plaintiff have PTSD?	[1090] – [1112]
Conclusion	[1113]
PART J – DAMAGES ASSESSMENT	[1114] – [1116]
PART K – DISPOSITION, COSTS, ORDERS	[1117]

Judgment

PART A – INTRODUCTION AND OVERVIEW

The plaintiff claims substantial common law damages, including aggravated and exemplary damages, for psychological injury due to an alleged historical childhood sexual assault by her stepfather. The claim is contested by the defendant. The claim requires the consideration of much detail.

Structure of these reasons

These reasons are structured as follows:

Part A -

INTRODUCTION AND OVERVIEW

(See paragraphs [4] to [276] above).

Part B -

RELEVANT COMMUNICATIONS

(See paragraphs [277] to [380] below).

Part C -

FAMILY LAW AND PRESENT PROCEEDINGS

(See paragraphs [381] to [393] below).

Part D -

MEDICAL / ALLIED EVIDENCE REVIEW

(See paragraphs [394] to [437] below).

Part E -

ORAL EVIDENCE REVIEW

(See paragraphs [438] to [545] below).

Part F -

EXPERT EVIDENCE REVIEW

(See paragraphs [546] to [672] below).

Part G -

RELIABILITY FINDINGS – MEDICAL / ALLIED EVIDENCE

(See paragraphs [673] to [861] below).

Part H -

CREDIT FINDINGS

(See paragraphs [862] to [975] below).

Part I -

FACT FINDINGS

(See paragraphs [976] to [1113] below).

Part J -

DAMAGES

(See paragraphs [1114] to [1116] below).

Part K -

DISPOSITION, COSTS, ORDERS

(See paragraph [1117] below).

Following my review of the detail of the factual and expert evidence, for the benefit of the time poor reader, my findings concerning my assessment of the reliability of the expert testimony appear in PART G commencing at paragraph [673] below. My findings on credit and the reliability of the factual testimony appear in PART H commencing at paragraph [862] below, and my factual findings on the central issues calling for decision appear in PART I , commencing at paragraph [976] below. For the reasons that follow, the result of that consideration is that I have found the plaintiff has not succeeded in establishing her claim against the defendant.

Overview

This factually complicated case emerges from the detritus of the 13-year former de facto relationship between the plaintiff’s mother and the defendant. That relationship failed in the stressful time of COVID.
The fall-out from that failed relationship has raised a serious but vehemently contested single allegation of historical sexual abuse of the plaintiff when she was a minor. The alleged circumstances warrant a close consideration of the details disclosed in the evidence. I will return to the theme of complexity at the conclusion of these overview remarks.
Having reviewed the evidence as a whole one cannot but empathise with the differing subjective perspectives held by all persons impacted by this case, whether they be principal actors, or the witnesses who have been drawn into involvement in the events which have led to these proceedings.
The plaintiff is now aged 25 years. She has brought this civil action claiming damages for what has been variously described as assault and battery involving alleged historical sexual abuse consisting of a single incident of alleged inappropriate touching.
On 4 May 2022, the plaintiff supplied particulars of the timing of the alleged sexual abuse. It was claimed to have occurred some time after 2009 and before May 2011: Exhibit “47”, p 1, paragraph 1. That relatively vague wide range was narrowed at the hearing.
Ultimately, the plaintiff alleged that, in early 2011, when aged 12 years and almost 13 years, in contravention of s 61M(2) of the Crimes Act 1900 (NSW), she was subjected to sexual abuse comprising an aggravated incident involving unlawful sexual touching by the defendant, her stepfather, who was then aged 59 years, and is now aged 71 years. An offence against s 61M(2) of that Act is a matter of considerable gravity which carries a maximum term of imprisonment of 10 years.
In essence, the plaintiff asserts that the alleged sexual abuse occurred at night, after she had entered the bedroom which the defendant shared with her mother. She said she went to their bedroom to seek comfort from her mother. At different times the plaintiff has given various reasons for doing so on that claimed occasion.
One explanation given by the plaintiff was that she was feeling sick or nauseated. Another explanation was she had a “tummy ache” or stomach pain. Another explanation was that she sought comfort after she had woken from a nightmare. Those differing explanations will be examined in more detail at a later point in these reasons. The plaintiff asserted that when she approached the bed the defendant beckoned her to his side with the admonishment that she should not wake her mother, a light sleeper, who was asleep in the bed next to him.
The plaintiff asserted that in those events, she entered the defendant’s side of the bed, and after a short time, he began touching her breasts aggressively under her T-shirt (apparently whilst she was either supine or on her side). She asserts that sequentially, he then touched her on her stomach, and then between her legs, before flipping her over onto her stomach. She asserted that he somehow then moved her up onto her knees, placed a knee between her legs from behind, and then, by his ensuing movements, he simulated sexual penetration from behind, at which time she felt his penis and pelvis in contact with her body.
The plaintiff asserted that before she was flipped onto her stomach, she was feeling scared, alarmed, and confused, and was hoping that if she stayed very still and quiet, the defendant might stop that activity. She said she was also worried about waking her mother, but eventually, she did so by crying out, whereupon the defendant allegedly stopped the described activity.
The plaintiff asserted that those described events took place over the course of some 15 to 20 minutes, whilst her mother, a known light sleeper, was asleep, close by, in the same bed, apparently undisturbed by any commotion that the described events may have caused, that is, until she cried out to wake her mother, as she claimed.
The plaintiff claimed those events have changed her life in relation to how she relates to people, how she functions, and how she sees the world. She claims those events have affected her ability to concentrate and study, and she feels that as a result, her life has been destroyed.
Those claims stand to be reviewed against the compendious objective documentary evidence comprising the plaintiff’s medical history, her school records, and the content of a series of relevant communications, all of which require close consideration. Those claims must also be read in conjunction with the oral evidence of a forensic psychiatrist who stated that the plaintiff had not been highly traumatised: T215.49.
The plaintiff claimed a direct causal link between her described experiences of anxiety, panic attacks, difficulty sleeping, depression, suicidality, and triggering symptoms, including post-traumatic stress disorder (PTSD). She attributed those problems to the alleged sexual abuse which she claims. The expert evidence from a forensic psychiatrist whom the plaintiff relies upon to support her claim requires close examination because a considerable bulk of the factual evidence tendered at the trial had not been considered beforehand by that expert.
The defendant has denied that the alleged sexual abuse had ever occurred. He argued that the plaintiff’s allegations are false, improbable, and are irreconcilable with objective facts. The defendant points to inconsistencies in the plaintiff’s case, and argues that these necessarily represent obstacles to the success of the case the plaintiff seeks to make against him.
The defendant also contested the plaintiff’s claims for damages, and raised questions of implausibility, exaggeration, and problems concerning causation of alleged harm. The defendant relies on some inconsistencies and oversimplistic factual assumptions inherent in the case the plaintiff seeks to make to argue that those matters necessarily cast significant doubt upon the veracity of the plaintiff’s claims.
At this point it is relevant to bear in mind the remarks of the High Court regarding the need for the exercise of caution before accepting claims alleging sexual abuse, where such claims are “often easy to make, but difficult to refute”: M v M (1988) 166 CLR 69, at pp 76-77; [1988] HCA 68.
Similar remarks appear in the subsequent decision of Longman v R (1989) 168 CLR 79, at p 92; [1989] HCA 60, where the observation was made that human experience shows complainants in sexual assault cases sometimes tell an entirely false story which is very easy to fabricate but extremely difficult to refute, where such stories may be fabricated for all sorts of reasons, and in some cases, for no reason at all.
In Longman v R (ibid), at pp 107-108, attention was drawn to the fallibility of human memory, as follows:

“The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to "remember" is well documented. The longer the period between an "event" and its recall, the greater the margin for error. Interference with a person's ability to "remember" may also arise from talking or reading about or experiencing other events of a similar nature or from the person's own thinking or recalling. Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine: Hunter, Memory, rev.ed.(1964), at pp 269-270.”

Accordingly, in an evaluation of the evidence to assess the veracity of the factual basis for this claim due recognition must be given to the ordinary human experience that memory can be fallible, and may degrade or change over the passage of time, whereby “the processes of memory are overlaid, often subconsciously, by perceptions … or self-interest”, resulting in plausible subconscious construction: Watson v Foxman [1995] 49 NSWLR 315, at 319, citing Helton v Allen (1940) 63 CLR 691; [1940] HCA 20.
In support of his resistance of the plaintiff’s claim, the defendant draws upon the undisputed content of an extensive series of written communications sent to him in the context of the breakdown in his 13-year de facto relationship with the plaintiff’s mother to show a different perspective for viewing the plaintiff’s claim.
The defendant relies upon that material to argue that the plaintiff’s claim represents the end point of an unsuccessful dishonest attempt to blackmail him into transacting private monetary settlements in favour of both the plaintiff’s mother and the plaintiff, to avoid triggering a police investigation, and to avoid the threat of adverse media publicity that might appear on the front page of a newspaper of nationwide circulation. This raises the spectre of a possible motive of secondary gain which was discounted by the plaintiff’s forensic psychiatrist following her examination of the plaintiff.

To state the obvious, when a court exercising civil jurisdiction is called upon to make positive findings on serious matters of contested fact such as those alleged by the plaintiff in this case, as always, a dispassionate consideration of the evidence is required.
Before a court can proceed to make adverse findings on matters of gravity of the kind raised in this case, it must be persuaded of the truth of the facts alleged according to a state of reasonable satisfaction on the balance of probabilities, to the effect that it is more likely than not the events alleged actually occurred: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, pp 358-363; s 140 of the Evidence Act 1995 (NSW).
In applying the principle in Briginshaw (ibid), actual persuasion as to the existence of a fact in issue in contested litigation cannot be found as a result of a mere mechanical comparison of probabilities independent of the existence of a belief in the reality of a particular disputed occurrence: Helton v Allen [1940] HCA 20; (1940) 63 CLR 691, at p 712. Engagement with the detail is necessarily required.
Accordingly, in this case, to reach reasoned conclusions on the balance of probabilities to the requisite standard to determine which account of the disputed events is more likely than not to be true, the fundamentally conflicting factual perspectives revealed in the detail of the evidence in this case must be resolved by necessarily robust credit findings concerning the key aspects of the evidence of the plaintiff, her mother, and the defendant.
The defendant’s final submissions argued that the plaintiff has not established her claim against him to the required level of the civil standard of proof that applies to serious allegations of criminality amounting to child molestation, as is alleged in this case.
In making that submission, the defendant cites as apt, the dissenting remarks by Weinberg JA, in Pell v The Queen [2019] VSCA 186, whose decision formed the cornerstone of a successful appeal to the High Court: Pell v The Queen [2020] HCA 12. In his dissenting decision, at [1101], Weinberg JA stated:

“In the present case, as with so many others involving historical sexual offending, the devil is in the detail.”

The foregoing axiomatic expression suggests that on a superficial analysis, matters which may appear to be simple, on a more thorough analysis, may be seen to be more complex and problematic than was first thought: Random House Dictionary of Popular Proverbs and Sayings (1996).
The aptness of the defendant’s submission as to the importance of examining the detail of the evidence arises because much detail has been brought to the fore to be considered in this case.
That detail must be worked through and rationalised before making findings on matters of credit and when making findings on key matters of disputed fact concerning first, the context in which the allegations of sexual abuse emerged, and secondly, whether the plaintiff has PTSD, and if so, can the cause of that condition be confidently identified on the evidence, and finally, did the alleged sexual abuse in fact occur.
The length of these reasons is commensurate with the breadth of that detail and the gravity of the allegations made by the plaintiff.
Having regard to the fundamental conflicting disparity of disputed fact and detail in this case, it is inevitable that the nature of the credit and factual findings that are necessarily required will, in various ways, have the potential to cut across the sensitivities and sensibilities of the parties and some of their witnesses.

Summary of outcome

Following my review of the extensive detail within the evidence and the related review of the submissions of the parties I am not persuaded that the plaintiff has succeeded in discharging the onus of proving that the alleged sexual abuse occurred.
In essence, the plaintiff’s first disclosure of the alleged abuse to a health care professional included a fundamental inconsistent element of inherent improbability as to her age, at around 8 years, when the alleged abuse was said to have occurred. Consequently, inherent improbability arises as the plaintiff’s mother and the defendant were not in a relationship at that time. Their domestic relationship commenced when the plaintiff was aged 9 years. That fact alone necessarily precludes the finding that the plaintiff seeks.
When that issue was raised in the evidence, the clarification attributed to the plaintiff, and the inferences the plaintiff sought from that evidence, resulted in a more broadly imprecise range of alternative ages of between 8 and 12, or 13 years being suggested as to when the alleged abuse occurred. That revised range of ages still incorporates a contaminating element of inherent improbability.
Overarching those considerations, I have also found the circumstances described in the plaintiff’s factual account of the way the alleged abuse occurred to be improbable for additional reasons that will be identified. In those circumstances, the plaintiff’s claim has not succeeded. My detailed reasons for those conclusions now follow.

Complexity

The plaintiff’s mother has described the plaintiff as a complex person: T270.18 – T270.29. The plaintiff’s treating tertiary medical specialist responsible for overseeing the management of the of one of her several congenital health problems, has stated that it is hard to overstate the seriousness and the complexity of the plaintiff’s medical condition and her ongoing medical needs: Exhibit “42”, p 28. Her condition makes her vulnerable to various types of serious life-threatening illnesses, including severe septic and respiratory illnesses: Exhibit “1”, Vol 1, pp 66 – 131. The plaintiff’s treating general practitioner has described her health as fragile: Exhibit 1, Vol 1, p 83.
The plaintiff holds the belief that she suffers from sexual abuse-related PTSD: T40.7 – T40.36; T41.15. None of her treating health care practitioners whose materials are in evidence have made a diagnosis of PTSD. Her treating psychologist has noted that the plaintiff’s presenting clinical problems (in the context of unrelated grief over the death of her father), included nightmares, feelings of guilt, difficulty sleeping, nightmares, ruminating, and being paranoid: Exhibit “B”.
The plaintiff’s PTSD diagnosis was made by a medico-legal expert forensic psychiatrist who appears not to have had a copy of Exhibit “B” which operates as something of a baseline for assessing the plaintiff’s psychological status. In oral evidence, that expert acknowledged causation of PTSD was complex: T266.44. When that expert’s opinions were tested against a number of factual matters of history that were raised in the evidence, she indicated that she would have liked to have discussed with the plaintiff a number of those matters, of which she was previously unaware. This raised questions on the aptness and the reliability of her opinions.
A consideration of the detail of the case and the issues calling for decision now follows.

Non-publication order

The litigation pseudonyms Coat v Aves have been assigned to these proceedings consequent upon a non-publication order made at the commencement of the hearing on 18 September 2023. That order was made to avoid breaches of s 121 of the Family Law Act 1975 (Cwth).
Except as appears in these reasons, that non-publication order prohibits the publication of the names of the parties, their witnesses, or any other information that may tend to identify them.
In view of the array of interpersonal connections identified in the evidence, which, if identifiably referenced in these reasons, could lead to inadvertent identification of affected persons, the above non-publication order extends to the identification of specific locations and professions, with the exception of an expert witness, whose identity would not tend to identify the parties.

Relationships

The plaintiff is the former de facto stepdaughter of the defendant. The plaintiff’s mother and the defendant were in a domestic de facto relationship between 2007 and 2020.
On 10 August 2020, that relationship ultimately foundered, and ended in acrimony. This resulted in family law proceedings concerning the division of property. The evidence reveals that the relationship had been heading that way for some time beforehand: T281.9 – T281.21.
That conclusion arises because, some time earlier, the plaintiff’s mother had formed an attitude of ambivalence towards the defendant, meaning that the relationship had cooled. Three weeks before the plaintiff’s mother finally decided to end her relationship with the defendant, on 1 July 2020, she left the family home for a period of about 10 days to gain some “space”. In that time, the defendant also travelled to a rural location to give her some “space” whilst he attended to some mutual obligations regarding the preparation of a series of their tax returns.
In that time, the ultimate stumbling block upon which the relationship finally foundered was the plaintiff’s disclosure to her mother, on or about 23 July 2020, that the defendant had allegedly sexually molested her.
Following some ensuing written demands addressed to the defendant by the plaintiff’s mother regarding property and money issues after the termination of their relationship, the defendant felt compelled to pre-emptively commence property proceedings in the Family Court of Australia. Those written demands included a request that the plaintiff be compensated in respect of the alleged sexual abuse.
Two weeks after the finalisation of the property proceedings between the defendant and the plaintiff’s mother in the Family Court, which did not provide for any compensation to be paid to the plaintiff, the plaintiff commenced the present proceedings claiming damages framed in tort against the defendant in respect of the claimed sexual abuse she has alleged.
In these reasons, to establish the appropriate context for the consideration required in this case, it is necessary to refer to some de-identified details concerning those Family Court proceedings. This has been enabled by a facilitative order made by the Family Court on 16 March 2023, at the application of the defendant.

Anonymisation of dramatis personae

In conformity with the non-publication order referred to in paragraphs [45] and [47] in these reasons, the plaintiff, the plaintiff’s mother, her sister, her former boyfriend, her godmother, her maternal uncle, her treating psychologist, her treating general practitioner, her treating specialists, and the defendant, will be referred to by those de-identified terms.
Non-party non-professional and other persons named in the evidence will be identified by an assigned letter of the alphabet in the series Witness A to Witness E in the case of witnesses who gave oral evidence. The term “de-identified colleague” will be used to describe a professional colleague of the plaintiff’s mother and the defendant who is referred to in the evidence concerning relevant communications, but who was not called to give oral evidence.
In these reasons, to maintain the required degree of anonymity, it is not necessary to identify with particularity, the professions of the respective parties, their colleagues, and their non-professional witnesses, other than to say they are all intelligent, perceptive, articulate, and accomplished people, who are adept at choosing their words carefully.

Claim and Defence

The plaintiff claims compensatory, aggravated and exemplary damages in respect of her claim of alleged historical sexual assault. There are some date and year ambiguities in the various descriptions when the alleged assault occurred. Ultimately, the plaintiff’s case was based upon the assumption that the alleged abuse occurred in early 2011, when she was aged 12 years (and almost 13 years), whereas beforehand, significantly, she had indicated the alleged events occurred when she was aged around 8 years.
The plaintiff claims that in aggravated circumstances, the defendant unlawfully sexually touched her in the sense of a battery within the meaning of s 61M(2) of the Crimes Act 1900 (NSW), as described in paragraphs [10] to [14] above.
When the plaintiff was aged 21 years, she made a sequence of 5 disclosures concerning that allegation. Those disclosures were spaced over the course of some months, after a lapse of a little over 8 years following the alleged sexual abuse. The plaintiff relies on those disclosures as evidence of consistency of complaint.
The plaintiff first made a verbal disclosure of the alleged event to her then boyfriend. With his encouragement, she then made a series of further verbal disclosures to her treating psychologist, then to her sister, then to her godmother, and then to her mother. The plaintiff’s mother then took some time over the course of some 17 ensuing days to take advice and to strategize as to what steps she would take as a result of that disclosure. In that time she maintained, to use her word, a “pretence” to the defendant, that all was well between them.
There is a dispute as to how the mother’s ultimate process of strategizing should be characterised. The plaintiff claims that she and her mother sought to deal with the matter alleged against the defendant privately, to try and obtain a factual acknowledgment from the defendant, and to reach some financial settlements with both the plaintiff’s mother and the plaintiff, rather than involve a police investigation and what might then follow.
The defendant maintains that the plaintiff has made a false claim of sexual abuse against him, and that she has been aided by her mother in doing so. He denies the entirety of the claimed occurrence.
The defendant characterises the plaintiff’s claim, and the manner in which it emerged, as being a wrongful attempt to blackmail him in circumstances which, using the language of conspiracy adopted by counsel, amounted to a joint criminal enterprise, formerly known as unlawful actions taken in concert according to a common purpose: T151.20 – T151.35; T602.40 – T603.4.

Historical time frames

As already observed, there were varying accounts given as to the timing of alleged sexual assault. The plaintiff conceded that she did not have a clear recollection of the date on which the alleged incident occurred: T182.26. The first documentary record of the plaintiff’s allegations referred to the alleged abuse as having occurred when she was aged around 8 years, which raised a question of inherent improbability.
At the commencement of the hearing, in the opening address on behalf of the plaintiff, consistent with the particulars of claim, the time frame for the occurrence of the alleged sexual touching was identified in very wide parameters, namely between 2009 and early 2011, at a time when the plaintiff would have been aged between 11 and 12 years: T3.3. Ultimately, the alleged abuse was claimed to have occurred in early 2011, when the plaintiff was aged 12 years. This was a few months before her thirteenth birthday.
The plaintiff’s first verbal disclosure of the alleged sexual touching was made to her then boyfriend, in mid-2019, when she was aged 21 years. The medical evidence shows that at around that time she was having some significant health issues, including respiratory and gynaecological problems.
He encouraged her to see a clinical psychologist, and to also make a disclosure to her mother. In light of his prior overseas legal education in a common law country, he also suggested that she escalate the matter, and report it in order to take action, either of a criminal or a civil nature: T165.34.
The objective evidence shows that the plaintiff’s second verbal disclosure of the alleged sexual touching was on 1 November 2019. This took place during her fourth clinical consultation with the psychologist to whom she had been referred for treatment of the significant psychological problems she was experiencing at that time. The psychologist wrote some brief clinical notes as an aide memoire to record her impressions of that consultation: Exhibit “B”, p 1.
At that time the referral of the plaintiff to the psychologist was to address some specifically documented psychological problems which her referring general practitioner understood to have been due to compelling factors that did not involve alleged sexual abuse. He identified those other factors as comprising, panic attacks, daytime stress, crying, fighting with her mother and her sister, often waking sad, and thinking about her late father who had died nearly 3 years beforehand.
That referral made no mention of alleged unlawful sexual touching or of a need for the plaintiff to have treatment for psychological problems linked to the alleged sexual touching. At the time of that referral the general practitioner was completely unaware of that allegation. In evidence, the plaintiff said her purpose in seeing the psychologist was to discuss the alleged sexual abuse.
The unchallenged objective record comprising the psychologist’s report of that disclosure at the fourth consultation, suggests that the plaintiff said the alleged event occurred when she was aged around 8 years, which would necessarily have pre-dated the commencement of the relationship between the plaintiff’s mother and the defendant. That recorded account suggests an element of inherent implausibility in the plaintiff’s first recorded version, and this must be considered and taken into account when assessing the veracity of her claim.
The incongruity of the plaintiff’s discrepant accounts as to the timing of the alleged abuse, namely, at around 8 years, then 8 to 12 or 13 years, requires a reasoned attempt at factual reconciliation despite the absence of any contemporaneous evidence.
The alleged offending was never brought to the attention of police for investigation: Exhibit “1”, Vol 2, pp 457 – 461. That is so despite the plaintiff having been advised to do so, where it must have been clearly understood by all persons in the plaintiff’s camp, that what was being alleged by the plaintiff amounted to a serious allegation concerning an indictable crime.
The defendant was first made aware of the allegation of the alleged sexual abuse in an email that was sent to him by the plaintiff’s mother on 10 August 2020, whilst they were separated. That allegation emerged some 17 days after the plaintiff made her disclosure of the alleged abuse to her mother.
That disclosure occurred during the breakdown of the relationship between the plaintiff’s mother and defendant, albeit that the defendant was not aware of the impending termination of his relationship with the plaintiff’s mother in the lead-up to that email.
The timing of the termination of the relationship was decided by the plaintiff’s mother. It occurred in the course of a series of email exchanges and text messages which will be examined in a detailed chronological review of the documentary evidence comprising the communications involving the respective actors in this case in PART B of these reasons.
From the outset, when the defendant was made aware of the allegation that he had sexually touched the plaintiff, he has consistently denied that claim. He adamantly maintains that the events claimed by the plaintiff and her mother never occurred.
In these proceedings, the defendant has questioned the motive behind the plaintiff’s allegation against him. He suggested the nature and the content of relevant contemporaneous emails and messages that were sent to him from the plaintiff’s side indicated a sophisticated and concerted attempt to try to blackmail him into private monetary settlements with the plaintiff’s mother and the plaintiff.
The apparent inducement for that course was the suggested avoidance of police involvement and the avoidance of adverse media publicity in circumstances where the plaintiff’s mother, if not others acting on her behalf, appear to have had sufficient access to media connections to seek media publicity, which if it occurred, was likely to cause considerable reputational harm to the defendant.

The suggested motive for blackmail was the mother’s straightened financial circumstances and her need to obtain funds towards meeting the significant ongoing medical treatment costs associated with managing the chronic health issues affecting the plaintiff. The evidence reveals that the plaintiff’s mother was in somewhat parlous financial circumstances.
In considering the defendant’s submission of attempted blackmail it is noteworthy that in the email the plaintiff’s mother sent to the defendant on 23 August 2020 (Exhibit “34”), she demanded that he transfer his interest in the properties they held both in Sydney and overseas, to her, in addition she made a demand for the plaintiff to be given financial compensation in respect of the alleged sexual abuse.
The issues thrown up by those dynamics will be the subject of a more detailed consideration at later points in these reasons in relation to the required credit and factual findings in PART H and PART I.

Central Issues

A central issue in this case is whether the sexual touching alleged by the plaintiff had actually occurred, or whether the plaintiff has, for whatever reason, either deliberately made a false claim, or alternatively, whether she has falsely convinced herself that the alleged event occurred, when in reality, it had not.
The determination of that issue is dependent upon an assessment of the credibility and the reliability of the testimony of the respective parties and the witnesses who gave oral evidence.
Another central issue in this case involves assessing the reliability of the reasons that underpin the causation opinions expressed by the forensic psychiatrist who gave evidence in support of the plaintiff’s case concerning her claim of having PTSD due to the defendant’s alleged conduct: UCPR r 31.27(1)(c); Sch 7, cl 5(c); Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21.
The contextual significance of that issue is that none of the plaintiff’s treating health care practitioners had beforehand identified or made that diagnosis.
In undertaking those determinations, for context, it is necessary to set out the detail of the series of the plaintiff’s sequential verbal disclosures of the alleged sexual assault.
In approaching that task it is also necessary to set out an overview of the array of evidence that was adduced in the course of a lengthy hearing followed by written submissions and supplementary written submissions.
At this point I take the opportunity to record that counsel and their instructing solicitors on both side sides of the record are to be commended for their efficient approach to dealing with the evidence and the difficult issues raised in these proceedings.

Overview of evidence array

Both the plaintiff and the defendant gave oral evidence in the proceedings.
In the plaintiff’s case, in sequence, oral evidence was also given by the plaintiff’s former boyfriend (via AVL from overseas), her younger sister, her godmother, a forensic psychiatrist, Dr Karen Brown (via an AVL connection from Brisbane), and the plaintiff’s mother.
In the defendant’s case, in sequence, oral evidence was given by the defendant, and a series of other witnesses who are here de-identified as Witnesses A, B, C, D and E.
Numerous historical documents were marked for identification: MFI “1” to “85”. Some of those documents were ultimately tendered in evidence.
The plaintiff produced a court book: Exhibit “A”, pp 1 – 127. The plaintiff also tendered additional documentary exhibits: Exhibits “B” to “F”.
The defendant tendered a two volume court book: Exhibit “1”, pp 1 – 469. The defendant also tendered an extensive series of additional documentary exhibits, including audio visual and photographic materials: Exhibits “2” to “147”.
Reference will be made to aspects of the detail some of those exhibits where it becomes relevant to do so.

Overview of oral evidence

The oral evidence on key factual matters in dispute was from the plaintiff as to the claimed occurrence and the detail of the alleged abuse, and from her mother as to her mother’s claim of a partial recollection of aspects of the circumstances in which the events were alleged to have occurred.
Subject to a proposed ruling on objections, the content of the oral evidence of the plaintiff’s former boyfriend, her sister, her godmother, and aspects of the mother’s evidence was called to corroborate the factual details of the plaintiff’s disclosures.
The defendant disputed the veracity of that entire array of evidence insofar as it suggested the plaintiff’s allegations were true.
No challenges were made to the evidence of Witnesses A, B, C, D, and E who were called by the defendant as to the context and content of relevant post-disclosure events.

Admissibility of hearsay content of disclosures

The defendant objected to the admissibility of aspects of the confirmatory evidence called in the case for the plaintiff as to the timing and the content of her successive disclosures of the alleged sexual abuse.
At the time, the evidence in contention was admitted conditionally subject to those objections. This was on the understanding that a ruling on the admissibility of that evidence would be incorporated into these reasons.
Although the defendant’s objection related to the hearsay content of those verbal disclosures, it must be recognised that the application of the hearsay rule has been disapplied by legislation in respect of cases of this kind where reliance is placed on certain contemporaneous statements: s 66A of the Evidence Act 1995 (NSW). Section 66A, provides as follows:

“66A Exception: contemporaneous statements about a person’s health etc
The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind.”

In the context of this case, contemporaneity must be construed by reference to the period of almost 9 years that passed from the time of the alleged abuse in early 2011 and the timing of the disclosures that took place first in mid-2019, then on 1 November 2019, then in February 2020, and then on 23 July 2020.
The defendant’s objection related to the hearsay content of the verbal disclosures made by the plaintiff to her boyfriend, her psychologist, her sister, her godmother, her mother and her health care practitioners.
The common law basis for those objections was that whilst the evidence was admissible to prove the fact that disclosures were made on the respective dates, evidence of the content of those disclosures could not be used as proof of the facts disclosed on those occasions.
On this point, the plaintiff submits, correctly, that evidence of the content of the disclosures made by the plaintiff are not rendered inadmissible on account of the operation of the hearsay rule as the evidence is admissible because it relates to a fact in issue in the proceedings in the sense of tending to show a consistency in the plaintiff’s complaints which may be used to prove that there may be some truth in those complaints: s 60, s 64, s 108(3)(b) of the Evidence Act 1995 (NSW).
Accordingly, the evidence of the content of the plaintiff’s disclosures which would otherwise have been excluded as to hearsay, is admitted for all purposes subject to the usual caveat or proviso that such evidence must still be evaluated for its persuasive weight. The plaintiff accepted the applicability of that proviso: T578.9.

Plaintiff’s health, educational, work, and related history

For context, it becomes necessary to identify some undisputed aspects of the plaintiff’s health and other history relating to her education, her work, and other pursuits. That need for context arises in view of the plaintiff’s claim that her life has been destroyed by the alleged abuse: T17.29; T40.14.

Plaintiff’s health history

The plaintiff has had a significant adverse health history, from birth, due to congenital factors. In view of the opinion from a forensic psychiatrist that the plaintiff has a diagnosis of PTSD, it is necessary to consider and summarise that health history, and to critically compare it with the history and assumptions considered by the forensic psychiatrist. A summary of those matters now follows.
Copies of the plaintiff’s extensive historical medical records kept by her treating general practitioner, her treating psychologist and a series of 12 medical specialists, including some hospital records, radiological imaging reports, and a series of requests for GP Mental Health Care Plan assessments, were produced on subpoena and tendered by the defendant: Exhibit “1”, Vol 1, pp 1 – 285.
The plaintiff’s health history is complex. Her general practitioner has described her health as fragile: Exhibit “1”, Vol 1, p 83.
The defendant tendered subpoenaed copies of the compendious print-out of the electronic records of the general medical practice the plaintiff has attended since 20 June 2002, when she was aged 4 years: Exhibit “1”, Vol 1, pp 1 – 155. In parts of those records, there were references to the existence of a separate card system of records, for example, Exhibit “1”, Vol 1, pages 7, 9, and 16. Those card records were not produced. The copied records, which include numerous copies of correspondence to and from many medical specialists, revealed the complexity of the plaintiff’s health history, and her vulnerability to various types of illnesses: Exhibit “1”, Vol 1, pp 66 – 131.
In summary, the plaintiff was born with a congenital heart malformation, dextrocardia, meaning that she has a single functioning ventricle. This required a series of neonatal and paediatric surgeries. She has had a Fontan procedure for total cavopulmonary connection surgery. She has had a Blalock shunt to prevent her from developing cyanotic heart failure, and she continues to require long term specialist cardiac and respiratory monitoring, review, and medication.
The plaintiff has a centrally located liver which has been shown on imaging to be mildly congested, requiring monitoring every few years: Exhibit “1’, Vol 1, p 187. She has asplenia from birth. The absence of a spleen makes her susceptible to infective illnesses, including sepsis. She has a history of unequal leg lengths which required orthopaedic review and advice: Exhibit “1”, Vol 1, pages 94, 250 – 253. As an adult, she has a significantly limited exercise tolerance because of shortness of breath on exertion: Exhibit “1”, Vol 1, pages 80, 133.
At the age of 20 years, the plaintiff was ultimately diagnosed with Primary Ciliary Dyskinesia (PCD), a respiratory abnormality which puts her at a significantly higher risk of serious illnesses from infections, including from COVID-19: Exhibit “1”, Vol 1, p 134. One of the plaintiff’s respiratory physicians who had coincidentally treated her as a baby for neonatal respiratory distress syndrome, made an apparent connection to those events with the benefit of changed diagnostic criteria: Exhibit “1”, Vol 1, p 232. In 2018, the plaintiff has found the experience of obtaining hospital treatment for her respiratory problems difficult and she was “somewhat overwhelmed by the clinical chaos” involved: Exhibit “1”, Vol 1, p 233. Her hospital treatment was described as being traumatic: Exhibit “1”, Vol 1, p 121.
Over the years the plaintiff has required various medical certificates identifying the fact that her chronic disabilities, including PCD and bronchiectasis make her more susceptible to respiratory infections, including COVID-19 infection, and she therefore sought to be excused from compliance with the Centrelink requirement of providing proof of having sought work from four potential employers per week because to do so would expose her to heightened risk of infection: Exhibit “1”, Vol 2, p 465; Exhibit “1”, Vol 1, pp 129 – 134.
In the context of the plaintiff’s asplenia, her pathology test results included a notation to the effect that patients with hyposplenic changes (the consequence of not having a spleen) were at risk of developing severe sepsis: Exhibit “1”, Vol 1, p 59.
In 2010, when the plaintiff was aged 11 years, she was found to have mild postural hypotension but her treating cardiologist was unable to attribute this to her cardiac condition: Exhibit “1”, Vol 1, p 200.
In August 2011, when the plaintiff was aged 12 years, her treating cardiologist noted she was experiencing rapid heartbeats at rest, without apparent cause. He could not identify a cause for her respiratory symptoms at that time: Exhibit “1”, Vol 1, p 203. However, those problems had resolved by May 2013 after a change in medication: Exhibit “1”, Vol 1, p 204.
In September 2011, the plaintiff needed an orthopaedic assessment of her unequal leg length: Exhibit “1”, Vol 1, p 251. Those problems were followed up in the next year: Exhibit “1”, Vol 1, pp 252 – 253.
Also in September 2011, the plaintiff needed to see an endocrine surgeon about management of parotid cysts: Exhibit “1”, Vol 1, p 75.
In the plaintiff’s high school years, she experienced significant limits on her exercise tolerance, and in that context, it was recorded that as a precaution, she might need unimpeded access to prompt medical attention which required her treating general practitioner to write numerous medical certificates of support, including in relation to travel restrictions: Exhibit “1”, Vol 1, p 73. Representations were also required on her behalf to educational authorities and to the defendant’s employer for special arrangements to be put in place for parking and emergency access to transport should a foreseeable need arise for this: Exhibit “1”, Vol 1, pages 80, 82, 108.
The plaintiff has experienced shortness of breath and recurrent respiratory problems from an early age: Exhibit “1”, Vol 1, p 22. At age 16 years, it was recorded that she had a chronic cough since the age of 6 years: Exhibit “1”, Vol 1, p 37. Ultimately, on 2 June 2018, at age 20 years, she was diagnosed with PCD: Exhibit “1”, Vol 1, p 133. The plaintiff’s younger sister has since also been diagnosed with a more severe form of that condition.
From the age of 6 years, the plaintiff suffered from debilitating migraine headaches which were accompanied by the onset of visual auras, which, in her early years, followed no predictable pattern, but in later years, seemed to have recurred on average at the rate of twice per month, lasting up to 4 hours: Exhibit “1”, Vol 1, pages 10, 31, 34, 39, 41, 42, 43, and 44. It was noted these migraines could be triggered by stress and by altered pressure from neck movements, and they were associated with unsteadiness, and slight nausea: Exhibit “1”, Vol 1, pages 31, 92. In February 2017, her treating cardiologist noted that the plaintiff’s migraines were “quite debilitating” for her: Exhibit “1”, Vol 1, p 208.
In the plaintiff’s high school years, her treating general practitioner issued many certificates to enable her to seek special examination consideration on account of her migraines. Examples of that correspondence appear in Exhibit “1”, Vol 1, at pages 96 – 99, and 103 – 104.
The plaintiff has had a long history of an impairment in her ability to concentrate and to study at school. In that context, she experienced light sensitivity, and had issues with comfort at school: Exhibit “1”, Vol 1, pages 103, 105.
The plaintiff has been referred to a series of respiratory specialists for management of sinus problems, mucopurulent congestion, asthma, and PCD: Exhibit “1”, Vol 1, pages 110, 114, 116, 119, 121. She has had multiple traumatic admissions to public hospitals for treatment for pneumonia: Exhibit “1”, Vol 1, p 121.
In the plaintiff’s high school years, she needed medical certificates to enable her to travel overseas on billeted excursions with her school: Exhibit “1”, Vol 1, p 32.
At the age of 16 years, on 11 August 2014, she sustained a head injury that produced symptoms of nausea, headache, blurring of vision, flashing light sensations, and a sore neck. This was noted as having been accompanied by post-injury violent back and forth head movements and head banging activity. She was thought to have sustained a small brain bleed or a possible vertebral artery injury. At hospital an MR angiogram was arranged: Exhibit “1”, Vol 1, p 36.
On that date, an MRI of the plaintiff’s cervical spine was reported as showing minor posterior disc bulges at the levels C3/4, C4/5, C5/6 and C6/7. On the same date the report of her MRI brain scan was reported as showing an ill-defined hyperintensity in the subcortical white matter in the right superior frontal gyrus 1.5mm from the midline. Another such finding was seen in the periventricular white matter of the parietal lobe. The conclusion to that imaging report stated that there was no evidence of a recent infarct. That comment did not seem to rule out a previous infarct. At that time, an MR angiogram was yet to be arranged: Exhibit “1”, Vol 1, pp 283 – 284. The evidence does not contain an MR angiogram report. The evidence was silent on the possible cognitive effects, if any, of those findings.
In August 2015, the plaintiff suffered “a mini stroke” or thrombo-embolic event which required shunt occlusion surgery: Exhibit “1”, Vol 1, p 102. She was referred to multiple specialists to seek management of her complicated history of migraines, and this included hormone therapy: Exhibit “1”, Vol 1, p 108, pp 267 – 268.
On 13 January 2016, the plaintiff’s father died after an extended neurodegenerative illness. The plaintiff suffered grief over this, before and after his death.
In 2016, the plaintiff’s general practitioner wrote successive letters certifying that her history of chronic health issues had impacted on her capacity to study and to perform to an optimum level in Years 11 and 12 of high school: Exhibit “1”, Vol 1, pp 104 – 105. In October 2016, in the context of HSC examinations, the plaintiff’s medical records noted that she had migraines, she did not sleep well, and she experienced light sensitivity: Exhibit “1”, Vol 1, pp 42 – 43.
There is a gap in the continuity of her general practitioner medical records in 2017 and 2018. This may be explained by her absence overseas, where she has travelled extensively.
In May 2018, in Sydney, the plaintiff was admitted to hospital under the care of a respiratory physician for treatment of an episode of haemoptysis associated with infection: Exhibit “1”, Volume 1, p 213. Since June 2018, she has been undertaking a prophylactic regime of daily sputum clearance hygiene and respiratory physiotherapy, and nebulisation for management of her respiratory issues: Exhibit “1”, Vol 1, pages 216, 224.
On 17 or 18 October 2018, the plaintiff’s treating cardiologist noted that on her recent return from Paris, she came into hospital to report an apparent neurological episode comprising a “funny turn”, associated with a feeling of a “sinking” sensation and a feeling of fulness in the head, a headache and slow tongue movements in her mouth. In light of her experience of transient ischaemic attacks in 2015, this was neurologically investigated, and the conclusion was that this was “not particularly suspicious of a TIA”. However, as a precaution, an MRI brain scan was arranged: Exhibit “1”, Vol 1, p 180. The plaintiff had a similar episode three years earlier. This was ascribed to hypoxia: Exhibit “1”, Vol 1, p 271.
On 23 October 2018, the plaintiff’s treating cardiologist noted that an arranged MRI brain scan did not show any abnormalities suggestive of cardio-embolic or other types of infarct, although “some other abnormalities which seemed very benign” led to the suggestion that the plaintiff’s symptoms be reviewed by a neurologist, at the discretion of the treating general practitioner: Exhibit “1”, Vol 1, p 181. There is no evidence that a neurological follow-up of symptoms along those suggested lines had ever occurred.

The radiological MRI report of 23 October 2018 has not been fully copied in the defendant’s evidence bundle. Only page 1 of 2 pages was copied: Exhibit “1”, Vol 1, p 188. The apparently partial report stated:

“Impression:
No acute infarct or space-occupying mass or lesion is demonstrated on this study.
Multiple foci of susceptibility in the supratentorial and infratentorial brain parenchyma suggestive of prior haemorrhage for example cavernous malformations.
Focus of FLAIR hyperintensity in the deep white matter of the right frontal lobe is nonspecific in nature. There is also a subtle right periventricular tiny T2 hyperintensity. No definite abnormal signal in the corpus callosum or infratentorial brain parenchyma to suggest demyelination, however, clinical correlation is recommended and progress imaging is recommended to ensure stability.
Page 1 of 2”
[Exhibit “1”, Vol 1, p 188]

The description of no “acute” infarct appears ambiguous as it suggests there might have been signs of non-acute infarct. There is no evidence as to whether the clinical correlation which was recommended by that report was ever arranged or carried out.
On 25 October 2018, the plaintiff underwent sinus surgery at Macquarie Hospital which then required her to be admitted to Royal Prince Alfred Hospital for management of post-operative complications: T74.19 – T74.39; T76.23.
On 22 March 2019, several months before the plaintiff made her disclosure of alleged sexual abuse to her boyfriend, she was being treated at Sydney Hospital Sexual Health Clinic for pelvic inflammatory disease against a six-month background history (dating back to approximately September 2018) of dyspareunia-related pain, and supra-pubic pain which was radiating down into her lower back and bilaterally, and these problems were unresponsive to antibiotics: Exhibit “1”, Vol 1, p 49. It appears that some of those problems had continued because, in the following year, as was noted on 9 December 2020, she was undergoing screening tests including for chlamydia, syphilis, gonorrhoea, hepatitis, and HIV at that clinic due to left upper quadrant tenderness, abdominal pain, and F/I, which in the context, I interpret as being fever due to infection, which called for a STI (sexually transmitted infection) Screen: Exhibit “1”, Vol 1, p 52.
The plaintiff’s treating general practitioners have had occasion to prepare three separate GP mental health plans for her to obtain psychological treatment. The first was in Sydney, on 30 August 2019: Exhibit “1”, Vol 1, pages 125 – 128; 139 –140. The second was also in Sydney, on 20 July 2020: Exhibit “1”, Vol 1, p 143. There was a third mental health plan referral from a general practitioner in Melbourne, on 11 November 2022: Exhibit “A”, p 33.
The content of the first of those mental health plans, on 30 August 2019, stated that the plaintiff’s underlying psychological problems were:

“PANIC ATTACKS at night mostly, stressed in daytime, crying, sometimes fights with mum and sister, now living with boyfriend. gets (sic) sad often on waking. thinks about her latr (sic) father.”
[Exhibit “1”, Vol 1, p 50]

The historical context for that mental health referral was that in August 2019, the plaintiff’s father had died three and-a-half years earlier, in January 2016, after a long degenerative neurological illness. The plaintiff had reported to her treating psychologist that in the lead-up to her father’s death there was chronic stress, and a fear of him choking due to his illness: Exhibit “A”, p 28.
The content of the second of those mental health plans referred to the plaintiff’s need for psychological counselling to resolve symptoms comprising anxiety, panic attacks, periods of sadness, her reaction to grief, and her general health: Exhibit “1”, Vol 1, pp 142 – 144.
The content of the third mental health plan was the referral of the plaintiff to a psychologist was for treatment of her anxiety and depression: Exhibit “1”, Vol 1, p 50.
In this case, contentiously, the plaintiff sought to attribute the need for those mental health plans, her history of anxiety, depression, PTSD, and her history of an undocumented claim of “extreme” suicidal ideation, to the alleged but disputed sexual abuse by the defendant: T40.7 – T40.36. Those matters will be reviewed and considered when identifying the required findings of fact which are the subject of PART I of these reasons.
On 23 March 2020, the plaintiff’s general practitioner had occasion to write the following certifying comment about to the plaintiff’s health “To whom it may concern”:

“Miss [Plaintiff’s name] has been a patient of mine for nearly 8 years and I have known her to be a very emotionally placid and intelligent child who when small, bore previous medical events with an equanimity beyond her years. she is not prone to tearfulness and I have never witnessed any extreme emotional behaviour.”
[Exhibit “1”, Vol 1, p 79]

Paradoxically, on 15 September 2011, which was some months after the alleged sexual assault, the plaintiff’s treating general practitioner also found it necessary to draw to the attention of one of the plaintiff’s treating specialists who was investigating her parotid cysts, the following capitalised admonition: “[Name of plaintiff redacted] IS VERY SENSITIVE TO ADVERSE FINDINGS DUE TO HER PAST H/O ONGOING MEDICAL PROBLEMS”: Exhibit “1”, Vol 1, p 77.
Considering the foregoing history of the plaintiff’s ongoing medical problems, questions arise as to the reliability of the causation opinions expressed by the forensic psychiatrist retained on behalf of the plaintiff in these proceedings, where much of the detail outlined in the above summary was not available to that expert for her consideration and analysis at the time she provided her cumulative medico-legal reports.
On 2 October 2020, some 6 weeks after the plaintiff’s mother had ended her relationship with the defendant, the plaintiff’s treating cardiac specialist wrote a report about the plaintiff’s longstanding state of poor health and her related health needs in the following terms:

“It is hard to overstate the seriousness and the complexity of [the plaintiff’s] medical condition and thus her ongoing medical needs. These will be expensive, time consuming and very demanding on her mother [name] in [mother’s name] role as [the plaintiff’s] primary carer.”
[Exhibit “42”, page 28]

That specialist’s report was addressed “To whom it may concern”. The report was used by the plaintiff’s mother, apparently for quantification purposes, in seeking a resolution of the issues concerning the division of property in the Family Court proceedings between herself and the defendant.
I infer from the circumstances, that report was obtained as part of the mother’s financial strategy for dealing with the Family Court proceedings initiated by the defendant following his separation from the plaintiff’s mother. The basis for that inference is that the specialist’s file copy of that report, which was produced on subpoena, bore the handwritten notation that the report had been requested by the plaintiff’s mother: Exhibit “1”, Vol 1, p 178.
The plaintiff also had some significant baseline psychological issues which pre-dated the alleged sexual abuse. She disclosed that she was an “anxious kid” who did not deal well with stress: Exhibit “A”, p 28. She had a history of intrusive thoughts and compulsive behaviours from around the ages of 9 to 10 years: Exhibit “A”, p 28. She also had vivid dreams and nightmares. The psychologist’s note concerning the plaintiff’s paranoia remained unexplained: Exhibit “B”.
It is plain that the plaintiff has had many traumatic experiences resulting in the need for complex medical treatment, and she will continue to have significant lifetime health burdens and challenges which require that she receive ongoing medical monitoring and treatment.

Plaintiff’s educational and work history

The plaintiff is a highly intelligent and articulate person. Her mother described her as a complex person: T270.18 – T270.29. That description was also in keeping with the complexity of her medical history.
The plaintiff gained admission to opportunity class for the final two years of her primary schooling. She attended a selective high school. During her high school years, she undertook several overseas trips with her school. At high school she took an interest in drama. She has achieved significant academic success in her secondary schooling, achieving a high ATAR score.
At the age of 15 years, at a time when the plaintiff was looking for part-time work, her CV projected the impression that she had a positive outlook on life. Her CV included the following narrative:

“I am a confident, outgoing person able to engage and communicate easily with others. I have a wide range of interests and skills, such as cooking, reading, talking and music. I’m eager to learn, quick with mental arithmetic and hardly ever drop plates! I am very responsible, quick to follow directions and able to work independently and within a team. I am enthusiastic, outgoing, interesting, accomplished, modest… .”
[Exhibit “37”]

The plaintiff’s positive self-portrayal in her CV must be read in the wider context of her contrasting oral evidence in which she made the undocumented claim that she had extreme suicidal ideation between the ages of 11 and 15 years: T40.43. The positive image projected by her CV was contemporaneous to and in contrast with that evidence. There is no objective contemporaneous record made by a health care practitioner or anyone else that is reflective of her claim of suicidal ideation.
The plaintiff achieved an ATAR score of 97.8 in her HSC examinations: Exhibit “1”, Vol 2, p 394. This reflected her stellar progress through her high school years as a high achiever.
In 2011, the plaintiff’s Year 7 first semester school report referred to the fine start she had made in the commencement of her high school life, noting that she enjoyed challenges and was always willing to embrace them. It was noted that she became involved in co-curricular activities, which included drama. It was also noted that she had become involved in many aspects of school life: Exhibit “1”, Vol 2, p 306. In the second semester report it was noted that she had become involved in Junior Drama. The Year Advisor commented that she was an enthusiastic student with first class results in some areas, which demonstrated her intelligence and perception. It was noted that she continued her involvement in the intellectual and cultural life of the school: Exhibit “1”, Vol 2, p 312.
In 2012, the plaintiff’s Year 8 first semester school report referred to the plaintiff’s involvement in theatre and sports. The Year Advisor’s comment was that the plaintiff had achieved an excellent report, and that she was an intellectually curious student with a strong desire for knowledge, her enthusiasm and class participation were noted as was her keen participation in co-curricular activities. Exhibit “1”, Vol 2, p 318. In the second semester report her involvement in theatre and debating was noted. The Year Advisor commented that her enthusiasm and willingness to learn were matched by her excellent academic achievements. Her insightful thinking and her sophisticated touch to her work were noted, as was her well rounded focus: Exhibit “1”, Vol 2, p 324.
In 2013, the plaintiff’s Year 9 first semester school report referred to her ongoing co-curricular activities of theatre and debating. Her Year Advisor commented that this was another excellent report, and that the plaintiff was an engaged student with an insightful mind with a love of learning. Her high academic standards were noted, as were her enthusiasms, which were stated as moving beyond the classroom: Exhibit “1”, Vol 2, p 330. In the second semester report, her involvement in theatre, debating, high resolves and tournament of the mind were noted. Her Year Advisor, who was congratulatory in his remarks, described her as an excellent student who had an insightful ability to think with logic, depth, and clarity, in a wide range of areas: Exhibit “1”, Vol 2, p 335.
In 2014, the plaintiff’s Year 10 first semester school report referred to her co-curricular activities including tournament of minds, senior production, and peer support program. Her Year Advisor commented on some outstanding results, which demonstrated depth and insight in several areas. Her willingness to accept intellectual challenges and her continued engagement as a thoughtful student were noted, as was her positive preparation for senior high school: Exhibit “1”, Vol 2, p 341. In the second semester report her Year Advisor commented that she had demonstrated many strengths in her junior years, with a love of ideas and learning. It was also noted that she was a perceptive and sophisticated thinker with a positive attitude: Exhibit “1”, Vol 2, p 346.
In 2015, the plaintiff’s Year 11 first semester school report, her co-curricular activities were noted to be a poetry club and involvement in a Shakespeare festival. The Year Advisor was congratulatory and commented that she had demonstrated a willingness to accept academic challenge and had moved into senior school with confidence and purpose. He also noted the plaintiff had insight and sophistication in a wide range of areas of her work: Exhibit “1”, Vol 2, p 351. Her second semester report referred to her ongoing involvement in the co-curricular activities of a poetry club and a Shakespeare festival. Her Year Advisor commented on her report as being another excellent report. He commented on her ability to think, analyse, and create, at the highest level, and that her work showed depth and sophistication. He expressed the opinion that she was ready to tackle the rigours of the HSC: Exhibit “1”, Vol 2, p 356.
In 2016, the plaintiff’s Year 12 first semester school report noted that the plaintiff had been appointed as a Prefect. Her Year Advisor noted she continued to be an important part of the school community and that her work as a Prefect had been outstanding, and that her academic work in some areas had been strong. He expressed the opinion that the plaintiff was a thoughtful and intelligent student who was quite capable of dealing with and developing her weaker areas: Exhibit “1”, Vol 2, p 364. Her second semester report noted her ongoing role as Prefect. Her Year Advisor commented that the plaintiff had a curiosity and a natural excitement at learning, was engaged with all her subjects, and was always striving to expand her thinking. He observed that she had provided valuable leadership in her role as Prefect and had represented the school with distinction: Exhibit “1”, Vol 2, p 371.
Each of the plaintiff’s high school reports identified the total numbers of explained and unexplained absences, and explained and unexplained partial absences. As the school reports do not explain those absences, nothing seems to turn on them. It seems possible that they related to the plaintiff’s regularly recurring migraine headaches.
The plaintiff’s high school years have been summed up in a letter dated 12 May 2022, from her high school Principal, addressed to whom it may concern, in the following terms:

“To whom it may concern
RE: [The plaintiff]
Please find enclosed academic school reports for [the plaintiff] and other documents held in her school files relating to the time of her enrolment at [Redacted] High School 2011-2016, Year 7 - Year 12.
[The plaintiff] was an academically gifted student who was impressive In her achievements and love of learning. The Year Adviser comments on the front page of her academic reports give a very accurate picture of the kind of student she was. Her involvement in school life was wide ranging, Including academic challenges, social justice programs, drama productions of many kinds, Including the musical co-production with [Redacted] High, Shakespeare Festival and Theatresports (sic). [The plaintiff] was elected as a Prefect in her final year, a significant achievement at [Redacted] High, endorsed by teaching staff, her peers, and junior students through election.
In my role as Principal of the school, I also came to know [the plaintiff]'s parents quite well ([the plaintiff’s mother], mother) and ([the defendant], stepfather), from the time she was considering options for high school in Year 6 when her parents came to see me in August 2010, until her graduation in Year 12. Given her congenital heart disease there were many times when either [the plaintiff’s mother] or [the defendant] came to the school to drive her or pick her up if she was unwell during the day. From the school's standpoint, [the plaintiff] was exceptionally well supported and cared for by both parents. The school had no contact with [the plaintiff]'s biological father, Mr [Redacted], who sadly passed away after illness In her senior year, to the best of my recollection.
In summary, [the plaintiff]'s time at [Redacted] High was very positive and she made a lasting Impression as a highly engaged, sociable, outward looking and thoughtful young person. …”
[Exhibit “1”, Volume 2, p 393]

After finishing high school, consistent with her high ATAR score, the plaintiff was offered a tertiary enrolment in legal studies. She deferred that enrolment in favour of overseas travel. Whilst overseas, in France, she worked in the hospitality sector, as a waitress, a nanny, and as a music teacher. Whilst in France she formed a romantic relationship. On her return to Australia that relationship continued for a time until her former boyfriend’s visa expired. Her former boyfriend from that relationship gave evidence in these proceedings from overseas via an AVL connection.
Since returning to Australia in 2019, the plaintiff has embarked upon a range of tertiary studies, including taking formal acting classes. Contrary to her evidence (at T21.50), where she said she did not take up her deferred offer to study Law at UTS, it appears that she had in fact commenced studying Law at UTS in early 2021: Exhibit “1”, Vol 1, p 184. On the evidence it is not clear as to whether or not she has continued with that course. At present, her tertiary education towards a science degree at university remains incomplete. She is presently undertaking an undergraduate degree in Communications.

Plaintiff’s history of other activities

In view of the plaintiff’s claim that the alleged sexual abuse has destroyed her life it is relevant to review some of her activities and achievements.
As is evident from her evidence and her school reports, the plaintiff has had an interest in drama since her school years: T48.15 – T48.25. This is reflected in her high school reports.
After returning to Australia from Europe, the plaintiff took her interest in drama to another level by enrolling in acting classes at the National Institute for Dramatic Art (NIDA). She has managed to derive some income from acting in the filming of television commercials.
The curriculum of the plaintiff’s enrolment in the NIDA classes which was produced on subpoena (Exhibit “1”, Vol 2, pp 411 – 423), suggests that her participation in those classes included acting elements such as spontaneity; development of vocal and physical presence, including to inform character objectives; acting techniques; rehearsal; voice pitch and tone; techniques for understanding a character; employing a variety of techniques to develop a truthful and engaging performance; connectivity with an audience; exploring characterisations and emotional psychological shifts in characters in comedy and drama; rehearsal coaching; exploration of acting processes including embodying technique in solo performance work; skills for prepared scenes; working on scenes for truthful reactions without words; and simulated screen tests which involved feedback.
As the plaintiff was not cross-examined on those course curriculum elements, in fairness, they cannot be given any weight in assessing the credibility question of the truthfulness of her evidence on the issue of the defendant’s alleged sexual abuse of her, or on the issue of whether she has falsely convinced herself that the alleged abuse had actually occurred.

The notion of the existence of a resentment factor also gains some support from the "resentment" note made by the plaintiff’s treating psychologist: Exhibit "B". In that regard, the defendant said, in retrospect, looking back on "a multitude of texts" that had passed between them, the circumstances as revealed, led him to the view the plaintiff's affectionate behaviour towards him as "fake": T490.4. His view in that regard was open on the content of those messages.
A different interpretation is also open on the evidence, namely, that the plaintiff’s affectionate messages were genuine up until the time of her disclosure of alleged sexual abuse, and fake thereafter.
As to the factor of the plaintiff potentially deriving secondary gain from the litigation, whilst Dr Brown initially concluded (at T209.50 – T210.2), that although she had considered it, she could find no evidence that the plaintiff was actuated by considerations of secondary gain, it appears that she ultimately considered that a conclusion of potential secondary gain was open to material revision because at the time she had formed the view that secondary gain was not a relevant consideration, she was unaware that there were financial stresses in the family: T210.30.
Another potential factor to be considered is that the plaintiff has been influenced by her mother to pursue this litigation. The plaintiff’s mother felt animosity towards the defendant. She sought compensation from him as is evidenced by her email to the defendant dated 23 August 2020 which is replicated at paragraph [333] above. She has been invested in the proceedings from the outset, as is evident from her illegitimate action in providing the plaintiff's solicitor with confidential material obtained in the Family Court proceedings, and her related advocacy on the plaintiff's behalf in this case. That advocacy extended to her attempt in these proceedings to gratuitously diminish the defendant's standing in his profession: T249.46 – T250.3.
The defendant also pointed to the blackmailing effect of the emails sent by the plaintiff's mother and the plaintiff, and the attempts to involve third parties in pressuring the defendant to engage in financial discussions to avoid potential police involvement and potential adverse press coverage that would obviously have an adverse effect on his reputation.
Against that background, the defendant submitted that the plaintiff's claim against him is actuated by either furtive dishonesty on her part, in conspiracy with her mother, or alternatively, as a consequence of a false memory of alleged events which in fact did not actually occur.
On the evidence adduced in this case it is difficult to confidently conclude that the plaintiff has deliberately lied. In my assessment, the evidence must be seen to fall short of being comfortably persuasive of such a serious finding of dishonesty: Briginshaw v Briginshaw (ibid).
In arriving at that conclusion I have not overlooked the attempts by the plaintiff’s mother to involve third parties in placing pressure on the defendant to engage in financial discussions with her and her family. In my view, whilst indicating a measure of desperation on the part of the plaintiff’s mother, those matters are not necessarily indicative of a level of mendacity or conspiratorial criminality that amounts to blackmail.

False belief of sexual abuse

Instead, I consider there is a compelling case for the alternative conclusion that the plaintiff gave untrue evidence in the false belief that what she was saying was true.
In my view that conclusion arises because the plaintiff had become convinced of the truth of her "pieced together" account of the alleged events. Dr Brown has persuasively described the process whereby, through repeated recall and repeated recounting, false detail can become imperfectly placed into memory even though it has not come from an actual event: T215.35.
The proposition of the plaintiff having a false memory gained some general support from within the evidence of Dr Brown. Whilst Dr Brown expressed the initial but qualified view (at T215.50 – T216.2), that there was no major evidence of the plaintiff having a false memory of the alleged events, she said that in such cases this is always a matter to be considered: T215.26 – T215.46. That evidence implies that in her view there was some evidence to support a false evidence theory.
This is the very point made in M v M (ibid) and Longman v R (ibid) cited at paragraphs [20] and [22] above, where it was stated that such claims, which can be erroneously influenced by imagination, emotion and prejudice, are easy to make, but difficult to refute.
The evidence in this case certainly establishes a threshold basis for considering the proposition that that the plaintiff has developed and has continued to harbour a false memory as the basis for her claim, despite her denial of that proposition: T180.35.
In my assessment, Dr Brown's evidence in which she said she found no major evidence of false memory, was significantly qualified in an adjectival sense by the juxtaposition of her choice of the word "major", which implies there was some evidence supportive of the notion that the plaintiff might have a false memory, which may have caused her, over time, to become falsely convinced of the truth of the account she has conveyed by reason of the process of repetition, rumination, reinforcement, construction, and whatever other imponderable factors were driving her thought processes.
As explained at paragraph [720] above, Dr Brown acknowledged in multiple instances, when materials she had not previously considered were brought to her attention, that she would have liked the opportunity to discuss the detail of such newly emergent material with the plaintiff. To my mind this suggests that the initial views she has expressed must now be seen to be tentative and inconclusive in many important respects, as has been identified in detail elsewhere in these reasons.
In my view, those instances when Dr Brown indicated that she would have liked to have discussed the newly emergent materials with the plaintiff, necessarily leads to the conclusion that her views, particularly as to the absence of major evidence of false memory, remain incomplete and therefore represent an unreliable guide to determining that issue.
Notwithstanding that I consider Dr Brown's reports and opinions must be seen to be tentative in light of the new material, I am nevertheless persuaded of the aptness to this case of her general commentary concerning the fallible processes by which the detail of memory may evolve and change over time and can result in a false memory, consistent with the explanation noted at paragraph [23] above: Watson v Foxman (ibid); Helton v Allen (ibid); Longman v R (ibid).
In this case, it is not possible, or indeed necessary, to seek a pin-point precise explanation to base a finding that the plaintiff’s claim is founded upon a false memory. The process by which a false memory may arise is complex, and the reasons are largely imponderably intrinsic to the individual and their particular background of trauma.
In this case, the plaintiff has been aptly described as being a complex person with complex medical needs. She has also had a significant range of traumas in her life, both in her childhood and as an adult, as has been summarised at earlier places in these reasons. A significant number of the traumas and factors which have been identified in these reasons were not fully exposed to Dr Brown for her consideration when she made her assessments.
Aspects of those traumas could in all likelihood have played a determinative part in the formation of the plaintiff's beliefs.
In this case, one of those factors is the phenomenon of the plaintiff's vivid dreams, which I take to include nightmares, which have a real impact on her: T180.31. Another factor is the unexplored subject of her juxtaposed use, as an adult, of a variety of illicit mind-altering substances, which she candidly disclosed to Dr Brown: Exhibit "A", p 3. Those items of detail taken from the evidence are not intended to be an exhaustive exposition.
Having considered the evidence as a whole, for the above reasons, whilst I remain unpersuaded of the truth of the plaintiff's account in which she asserts she was allegedly abused by the defendant, I am persuaded that her belief that such an abusive event occurred is based on a false memory which she holds and has perpetuated, perhaps fuelled by the encouragement of her mother, and perhaps subconsciously influenced by the possibility of obtaining a secondary monetary gain from these proceedings.
A basis for the view that secondary gain could have operated as a factor in this case is the plaintiff's recurringly expressed hyperbole by which she asserts that her life has been destroyed as a result of the claimed sexual abuse. In my view, her evidence in that regard should be seen to involve considerable overstatement.
The plaintiff’s self-view that her life has been destroyed seems extreme and exaggerated in view of the glimpses of her life that have emerged in the evidence.
These include the observations of her former boyfriend, where he agreed that she had an outgoing and effervescent personality, and the more recent developments, which reveal that she is currently availing herself of the opportunity to further her acting career by accepting an engagement to appear in a significant role in a forthcoming feature film that is at present in the making.

Does the plaintiff have PTSD?

The question of whether the plaintiff has PTSD, and if so, the question of what might have caused that condition, remains to be addressed.
The plaintiff was in no doubt that she has PTSD and she has no doubt as to the cause. She unhesitatingly attributed the cause to the defendant's alleged offending conduct: T40.7 – T40.36; T41.15. That view was necessarily based on her false belief that such conduct in fact occurred.
Whilst I have concluded that Dr Brown's opinions do not represent a reliable guide to the causation question because of the limited material she had for her consideration, her clinical acumen and diagnostic abilities nevertheless remain undoubted.
Clearly, as was open to Dr Brown, absent any affirmative evidence of malingering on the plaintiff's part, she formed the clinical impression, based on the plaintiff's multiple presentations in consultations, that the plaintiff had PTSD. She then proceeded to make that formal diagnosis according to the applicable DSM criteria for the purpose of these proceedings.
Accordingly, on the evidence, Dr Brown's diagnosis that the plaintiff has PTSD is not open to doubt. However, in my view, the acceptance of that diagnosis by Dr Brown does not extend to an acceptance of Dr Brown’s view as to the underlying cause of that PTSD being the alleged sexual abuse.
As identified at paragraphs [111] to [157], [188] to [191], and [849] above, to date, the plaintiff has had many traumatic experiences and stresses in her complex life, some of which may also have had the real potential to cause her to suffer PTSD. That said, a Court is constrained from making positive diagnostic conclusions on those matters in the absence of explanatory expert medical evidence: Strinic v Singh [2009] NSWCA 15, at [58].
However, that limitation does not preclude a Court identifying a range of other potential traumatic causes. In that regard, when Dr Brown formed her opinions in this case she did not have available for her consideration a significant array of other traumatic and potentially traumatic events in the plaintiff’s life. That array is not put forward as diagnosed causes for the plaintiff’s PTSD, but rather, as factual scenarios that appear to merit expert consideration in the process of seeking to ascribe a cause for the plaintiff’s PTSD diagnosis.
One such factor involved a consideration of the detail of the plaintiff's intimate life which was not put before Dr Brown for her consideration. This involved the plaintiff having a history of a prolonged period of gynaecological and related difficulties that she was coincidingly experiencing as an adult, and which were contemporaneous with the period in which she made her disclosures of alleged sexual abuse by the defendant.
The plaintiff's mid-2019 disclosure to her boyfriend of the defendant's alleged offending conduct culminated in the disclosure the plaintiff made to her mother on or about 23 July 2020. Those disclosures took place over the course of an overall period of about 12 months.
As identified at paragraphs [403] to [404] above, preceding the commencement of that time frame by about 9 months, that is, from about September 2018, the objective clinical records show that the plaintiff was having dyspareunic and supra-pubic pain, and related problems. Those gynaecological problems were unresponsive to antibiotic treatment. These problems seemed to have continued, and spanned a long period, until 9 December 2020. Consequently the plaintiff was being tested and screened for sexually transmitted infections, including chlamydia, syphilis, gonorrhoea, and HIV, at the Sydney Hospital Sexual Health Clinic: Exhibit "1", Vol 1, p 49 and p 52.
In distilling that time frame, it is apparent that the plaintiff was experiencing those problems over the course of some 27 months. It would have been unusual for this not to have been something of a traumatic time for her even taking into account the childhood equanimity ascribed to her by her treating general practitioner as cited at paragraph [150] above, where the contrasting factor was her sensitivity to adverse findings of a medical nature, as cited at paragraph [151] above.
Given the plaintiff's complaint to Dr Brown (at Exhibit "A', p 6), of experiencing periodic difficulties with personal intimacy, for example, where if her hair is touched by her boyfriend, this caused triggering, it would seem that the plaintiff's sexual health issues identified in the preceding paragraphs would have been a relevant matter for a forensic psychiatrist to explore when considering the likely causes of the plaintiff's PTSD diagnosis.
It is not clear as to whether pages 49 and 52 of Exhibit "1", which identify the plaintiff’s history of sexual health issues, were provided to Dr Brown for the purpose of her evaluation of the plaintiff's history. It seems unlikely that Dr Brown would have overlooked such matters of significance if they had been provided to her. Undoubtedly, this topic raises a relevant matter that Dr Brown would most probably have wanted to explore with the plaintiff if she had the opportunity to have done so.
Furthermore, there is a confluence of other relevant factors of apparent inconsistency which have emerged in the evidence which raise questionable gaps in the claimed causal chain. In my view, individually and in combination, those circumstances preclude the findings the plaintiff seeks in this case.
The defendant raised a series of inconsistencies in the plaintiff's history which suggest the plaintiff does not have PTSD resulting from any conduct or misconduct on his part. Ultimately, two of those matters appear to be of relevance to evaluating the plaintiff's thesis of sexual abuse related PTSD.
The first such inconsistency of significance was that on 25 April 2016, when the plaintiff was aged almost 18 years, uneventfully, she undertook a four-hour car journey with the defendant to an interstate location to attend and celebrate the 18th birthday of the defendant’s son from a previous relationship. On that occasion she stayed overnight with the defendant in a twin bed caravan park cabin. Dr Brown said there was an issue concerning that event in terms of her understanding of the way PTSD becomes manifest: T204.50. Dr Brown agreed, variously, that those circumstances were not entirely consistent with, or were relatively inconsistent with, someone who was developing a PTSD, and had an awareness of this: T204.26 – T204.35. Dr Brown was obviously referring to the potential for triggering to occur in such circumstances.
The second such inconsistency of significance concerned the events of 17 May 2017, when the plaintiff and her family attended a court hearing for the sentencing hearing of someone convicted of sexually abusing a minor, where the victim's impact statement was read whilst the plaintiff and her family sat in the public gallery. The victim was known to the plaintiff's mother who was there to support the victim. Dr Brown's attention was drawn to the factual circumstances where the plaintiff had on that occasion, without apparent signs of triggering, not only sent the defendant a text message to tell him to hurry into the courtroom after parking the car, but she sat next to him whilst the victim impact statement was presented to the Court, following which and submissions were made to the sentencing Judge. Dr Brown agreed that she would have expected the plaintiff to have triggering of symptoms in those circumstances, and it was somewhat unexpected that such a response was absent. The effect of Dr Brown’s evidence on this point is that it was unlikely that triggering had not occurred in such a setting, in the presence of potential triggering stimuli: T205.36 - T206.50; T208.19. My interpretation of that cited evidence is that the non-triggering of the plaintiff in the described circumstances was inconsistent with a diagnosis of sexual abuse-related PTSD.
Although Dr Brown properly qualified her answers regarding those matters with the caveat that she did not have an opportunity to discuss those matters with the plaintiff (T206.38), in my assessment, the concessions Dr Brown acknowledged within those answers, necessarily undermine and remove a significant sub-stratum of supportive expert opinion the plaintiff was relying upon to prove the causation case she was seeking to make, namely that her PTSD was caused by the alleged sexual abuse of her by the defendant.
In coming to the those conclusions I have not overlooked the suggestions raised in the evidence that the plaintiff's lack of triggering or reactive behaviour, and the evidence of her many affectionate communications she had sent to the defendant over the course of time, which in themselves raised inconsistencies, could have been influenced by the defendant's overshadowing parental presence in her life, and possible reticence on the plaintiff’s part not to cause disruption to the family dynamic so as to cause financial stress for her mother, suggesting a possible process of appeasement of the defendant in those circumstances.
In my view, those possible explanations involve unwarranted speculation. There is no reliable evidence to support such conclusions. Those propositions are dependent upon an acceptance of the veracity and the reliability if the testimony of the plaintiff. Given my adverse assessment of the credit of the plaintiff as a witness, I am not prepared to give determinative weight to those considerations in the absence of reliable supporting evidence. Consequently, I am not persuaded by the plaintiff's evidence that such factors could have applied at those times: Briginshaw v Briginshaw (ibid).
Having carefully considered Dr Brown's opinion evidence in light of the objective factual material which emerged in evidence in this case, the bulk of which she did not have the opportunity of considering in the course of her clinical discussions with the plaintiff, I am not persuaded that the plaintiff's PTSD was caused by the alleged sexual abuse which she claims.
The plaintiff bears the onus of proof of the proposition that her PTSD was either caused by, or was materially contributed to, by the sexual abuse she has alleged. In view of my finding that the alleged abuse did not occur, and considering the evidence of so many emergent factors which Dr Brown would have liked to have taken up with the plaintiff but did not have the opportunity of doing so, in my view it would be unsafe to rely upon Dr Brown's analysis. It has been shown to be tentative. I do not accept that evidence as proof of the cause for her PTSD.

I remain unpersuaded that the claimed sexual abuse occurred, especially given the confounding factors which have been identified in these reasons but not fully considered by Dr Brown. The plaintiff has not discharged the onus of proof she carried on that matter of contention: Larson v Commissioner of Police [2004] NSWCA 126, at [48]. Dr Brown's conclusions to the contrary are not based on evidence sufficiently like, or similar to, or which corresponds to, the evidence adduced in evidence in the case: Paric v John Holland Constructions Pty Ltd (ibid), at [9].

Conclusion

I accept the defendant's evidence and find that the alleged sexual assault claimed by the plaintiff never happened. The plaintiff’s claim to the contrary is based on a false memory. The plaintiff's claim against the defendant has therefore failed to achieve success, both on the issue of primary liability, and on the issue of causation of damage.

PART J – CONTINGENT DAMAGES ASSESSMENT

The plaintiff presented a damages schedule in the amount of $762,810: MFI “5”.
Ordinarily, in unsuccessful claims for damages for personal injury, the convention is that there be an assessment of damages to allow for the counter-factual possibility that the primary findings which determine the claim might be set aside on appeal.
However, in this case, in view of the nature of my credit findings which have led to the plaintiff’s case being unsuccessful, it would be invidious to proceed to assess damages on a counterfactual basis. I therefore decline to assess damages on that basis.

PART K – DISPOSITION, COSTS, ORDERS

The plaintiff has failed to prove the case she has sought to make against the defendant. Consequentially, I find that she is liable for the costs the defendant has incurred in defending the proceedings. I therefore make the following orders:

Verdict and judgment for the defendant;

The plaintiff is to pay the defendant’s costs on the ordinary basis unless a party can show an entitlement to some other costs order;

The exhibits may be returned;

The non-publication order made on 18 September 2023 is to remain in place until the further order of the Court;

Liberty to apply for further or other orders if required.

**********

Amendments

16 February 2024 - Paragraphs:

[3] - insert "and" after "factual"; delete "below" after PART I;

[16] - last "be" is replaced with "been";

[143] - insert "quadrant" before "tenderness";

[636] - insert "to" before "which";

[655] - delete "gloss involving" and replace with "glossed";

[665] - "letter" is replaced with "letters";

[913] - "wee" is replaced with "were";

[931] - "obfuscator" is replaced with "obfuscatory";

[938] - "s 66(2)" is replaced with "s 66A";

[940] - delete "alleged" and add "allegation" after "abuse";

[1045](3) - "confessed" is replaced with "confirmed".

Decision last updated: 16 February 2024

Medium Neutral Citation:	Coat v Aves (Pseudonyms) [2023] NSWDC 560
Hearing dates:	18, 19, 20, 21, 22, 26, 27, 28 September, 11 October, 14 & 27 November 2023
Date of orders:	14 December 2023
Decision date:	14 December 2023
Jurisdiction:	Civil
Before:	Acting Judge Levy SC
Decision:	1. Verdict and judgment for the defendant; 2. The plaintiff is to pay the defendant’s costs on the ordinary basis unless a party can show an entitlement to some other costs order; 3. The exhibits may be returned; 4. The non-publication order made on 18 September 2023 is to remain in place until the further order of the Court; 5. Liberty to apply for further or other orders if required.
Catchwords:	TORTS – intentional torts – claim by plaintiff of historical child sexual assault by defendant stepfather – denial by defendant – consideration of conflicting evidence – verdict and judgment for the defendant
Legislation Cited:	Crimes Act 1900 (NSW), s 61M(2) Defamation Act 2005 (NSW), s 12A Evidence Act 1995 (NSW), s 55, s 56, s 60, s 64, s 66A, s 108(3)(b), s 128, s 140 Family Law Act 1975 (Cwth), s 121 UCPR r 31.27(1)(c); Sch 7, cl 5(c)
Cases Cited:	Angel v Hawkesbury Council [2008] NSWCA 130 Blacktown City Council v Hocking [2008] NSWCA 144 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) CLR 512; [2001] HCA 29 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Dare v Pulham (1982) 1948 CLR 658; [1982] HCA 70 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 Goode v Angland [2017] NSWCA 311 Hasler v Singtel Optus Pty Ltd & Ors [2014] NSWCA 266 Helton v Allen (1940) 63 CLR 691; [1940] HCA 20; HG v The Queen (1999) 197 CLR 414; [1999] HCA 2 Larson v Commissioner of Police [2004] NSWCA 126 Longman v R (1989) 168 CLR 79; [1989] HCA 60 M v M (1988) 166 CLR 69; [1988] HCA 68 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Mason v Demasi [2009] NSWCA 227 Naxakis v Western General Hospital (1999) 197 CLR 269; [1999] HCA 22 Paric v John Holland Constructions Pty Ltd [1985] HCA 58 Pell v The Queen [2020] HCA 12 R v XY (2010) 79 NSWLR 629; [2010] NSWCA 181 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) & Ors [1999] HCA 3 Strinic v Singh [2009] NSWCA 15 The Queen v Bauer (a pseudonym) [2018] HCA 40 Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326 Warren v Gittoes [2009] NSWCA 24 Watson v Foxman [1995] 49 NSWLR 315 Yarrabee Coal Company Pty Ltd & Anor v Lujans [2009] NSWCA 85
Texts Cited:	Random House Dictionary of Popular Proverbs and Sayings (1996)
Category:	Principal judgment
Parties:	Ms Coat (a pseudonym) (Plaintiff) Mr Aves (a pseudonym) (Defendant)
Representation:	Counsel: Ms C Akthar (Plaintiff) Mr RJM Foord with Mr A Schonell (Defendant) Solicitors: Sommerville Laundry Lomax Solicitors (Plaintiff) Alidenes & Co Pty Ltd (Defendant)
File Number(s):	2021/327337
Publication restriction:	A non-publication order applies to the names of the parties and non-professional witnesses – see paragraphs [45] to [47] of these reasons for the terms of the order.

Part A -	INTRODUCTION AND OVERVIEW (See paragraphs [4] to [276] above).
Part B -	RELEVANT COMMUNICATIONS (See paragraphs [277] to [380] below).
Part C -	FAMILY LAW AND PRESENT PROCEEDINGS (See paragraphs [381] to [393] below).
Part D -	MEDICAL / ALLIED EVIDENCE REVIEW (See paragraphs [394] to [437] below).
Part E -	ORAL EVIDENCE REVIEW (See paragraphs [438] to [545] below).
Part F -	EXPERT EVIDENCE REVIEW (See paragraphs [546] to [672] below).
Part G -	RELIABILITY FINDINGS – MEDICAL / ALLIED EVIDENCE (See paragraphs [673] to [861] below).
Part H -	CREDIT FINDINGS (See paragraphs [862] to [975] below).
Part I -	FACT FINDINGS (See paragraphs [976] to [1113] below).
Part J -	DAMAGES (See paragraphs [1114] to [1116] below).
Part K -	DISPOSITION, COSTS, ORDERS (See paragraph [1117] below).