Department of Health and Human Services v County Court of Victoria
[2018] VSC 322
•15 June 2018 (revised)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
| AT MELBOURNE COMMON LAW DIVISION | |
| JUDICIAL REVIEW AND APPEALS LIST |
S CI 2017 05295
| SECRETARY, DEPARTMENT OF HEALTH AND HUMAN SERVICES | Plaintiff |
| v | |
| COUNTY COURT OF VICTORIA | First Defendant |
| AB (a pseudonym) | Second Defendant |
| CD (a pseudonym) | Third Defendant |
| EF (a pseudonym) | Fourth Defendant |
| GH (a pseudonym) | Fifth Defendant |
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S CI 2017 05295
JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9, 10 April 2018 |
DATE OF JUDGMENT: | 15 June 2018 (revised) |
CASE MAY BE CITED AS: | Department of Health and Human Services v County Court |
MEDIUM NEUTRAL CITATION: | [2018] VSC 322 |
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JUDICIAL REVIEW — Orders of County Court on appeal from Children’s Court — Family Preservation Orders — Application based on allegations of sexual abuse by father — Meaning of sexual abuse — Evidentiary findings of Court — Risk of harm to children — Whether reasons of Court adequate — Whether jurisdictional error or error of law on the face of the record — Children, Youth and Families Act 2005 ss 1, 10, 162, 184, 274, 275.
PRACTICE AND PROCEDURE — Litigation guardian orders — Judicial review of County Court orders — Appeal from Children’s Court protection orders to County Court — Children directly represented in Children’s Court and County Court — Dispensing with requirement of litigation guardian in Supreme Court judicial review proceedings — Exercise of discretion — Relevant considerations — Children, Youth and Families Act 2005 s 525; Supreme Court (General Civil Procedure) Rules 2015 rr 2.04, 15.02.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms L De Ferrari SC and Ms S Clancy | Department of Health and Human Services |
| For the Second Defendant | Ms J Benson | Gorman & Hannan |
| For the Third Defendant | Mr J McLoughlin and Mr M Strong | Victoria Legal Aid |
| For the Fourth Defendant | Ms A Griffiths | Dowling McGregor Pty Ltd |
| For the Fifth Defendant | Ms M Brenton | Howard G Draper |
HIS HONOUR:
The plaintiff, the Secretary of the Department of Health and Human Services (‘Secretary’) seeks judicial review of two Family Preservation Orders made by the County Court on 22 December 2017. One order was made in respect of the fourth defendant (‘EF’),[1] and the other in respect of the fifth defendant (‘GH’). They are sisters aged 14 and 13. The second and third defendants are their father and mother.
[1]Because of the provisions of s 534 of the Children, Youth and Families Act 2005, pseudonyms have been used for the names of parties and the identity of witnesses have not been disclosed. These pseudonyms differ from those used in the County Court.
There are five defendants, the first being the County Court which of course did not take part in this proceeding. For ease of reference, however, when I refer to the defendants who did take part in this proceeding, who were the second, third, fourth and fifth defendants, I will refer to them as the ‘defendants’. I do not refer to the County Court when I use the term ‘defendants’.
The County Court conducted a rehearing of the family preservation orders made by the Children’s Court. At the commencement of the County Court hearing, counsel for the Secretary told the Judge that:
The order that the Department seeks is a 12 month family preservation order. The order would be that the children are in the care of the mother, with the condition that the father is not to reside in the home, and for him to continue to have supervised contact with both of the girls.
The defendants sought a family preservation order with the father remaining in the home as the Children’s Court had ordered. They conceded that the orders were required because the children were likely to suffer significant harm as a result of physical injury and were likely to suffer emotional or psychological harm if the protection orders were not made. These are two of the three grounds on which protection orders can be made under s 162(1) of the Children, Youth and Families Act 2005 (‘the CYF Act’). The Judge made a family preservation order on those grounds. The other ground on which the Secretary sought a protection order was that the children had suffered or were likely to suffer, significant harm as a result of their father’s sexual abuse. The Judge dismissed the application in so far as it was based on that ground and the Secretary says that she erred in doing so.
The issues of fact for the County Court Judge to decide included:
(a) had the father sexually abused the children or either of them;
(b) was he likely to do so in the future?
The main sexual abuse allegations were that the father had rubbed EF’s bottom over and under her clothing on many occasions over many years. These allegations were contained in EF’s Video and Recorded Evidence (‘VARE’) of 29 July 2016.
The Secretary contended that the Judge made a jurisdictional error and an error of law on the face of the record in finding that the conduct of the second defendant, the father, was not ‘sexual abuse’ within the meaning of s 162(1)(d) and in dismissing the protection applications based on that ground. The Secretary also alleges that the Judge erred in her construction and application of the ‘best interests principles’ contained in s 10 of the CYF Act.
The Secretary seeks the following orders:
1.An order in the nature of certiorari, quashing the Family Preservation Order made by the first defendant on 22 December 2017 in respect of the fourth defendant.
2.An order in the nature of certiorari, quashing the Family Preservation Order made by the first defendant on 22 December 2017 in respect of the fifth defendant.
3.An order remitting to the first defendant, for determination according to law, the plaintiff’s protection application made pursuant to s 162 of the Children, Youth and Families Act 2005 (the ‘CYF Act’) in relation to EF, and dated 8 February 2017.
4. An order remitting to the first defendant, for determination according to law, the plaintiff’s protection application made pursuant to s 162 of the CYF Act in relation to GH, and dated 7 September 2016.
Background
These proceedings arise from allegations that AB, the father of EF and GH, had physically, sexually and psychologically abused them. The Secretary sought to intervene after EF ran away from the family home on 22 July 2016 to stay with her older half-sister interstate. While there, she spoke with the police and gave her VARE.
In her VARE, EF detailed a disturbing family environment in which the parents, particularly the father, physically chastised EF and GH by striking them with a belt or a bamboo walking stick. EF also alleged that her father would regularly touch and rub her bottom for an extended period, force her to sleep in the same bed as him without wearing underwear under her pyjamas, and watch her while she got changed and while she showered.
Prompted by EF’s VARE, the Secretary made a protection application in respect of GH in September 2016, when EF was still interstate. Upon her return to Victoria, a similar protection application was made in respect of EF in February 2017. These protection applications were made under ss 240 and 243 of the CYF Act, and sought to establish that both EF and GH were ‘in need of protection’ within the meaning of section 162(1)(c), (d) and (e) of the CYF Act. These provisions respectively relate to significant harm as a result of physical injury, significant harm as a result of sexual abuse, and emotional and psychological harm. On occasions I will refer to them by their paragraph identifier. The application in respect of EF was based on the grounds that she had suffered harm and that she was likely to suffer harm and the application in respect of GH was based on her being likely to suffer harm. The applications were made to the Children’s Court of Victoria.[2]
[2]The term ‘Court’ in the CYF Act is defined in s 3 to mean the Children’s Court of Victoria.
Statutory Scheme
The relevant provisions of the CYF Act are as follows:
10 Best interests principles
(1)For the purposes of this Act the best interests of the child must always be paramount.
(2)When determining whether a decision or action is in the best interests of the child, the need to protect the child from harm, to protect his or her rights and to promote his or her development (taking into account his or her age and stage of development) must always be considered.
(3) In addition to subsections (1) and (2), in determining what decision to make or action to take in the best interests of the child, consideration must be given to the following, where they are relevant to the decision or action—
(a)the need to give the widest possible protection and assistance to the parent and child as the fundamental group unit of society and to ensure that intervention into that relationship is limited to that necessary to secure the safety and wellbeing of the child;
(b)the need to strengthen, preserve and promote positive relationships between the child and the child's parent, family members and persons significant to the child;
(c)the need, in relation to an Aboriginal child, to protect and promote his or her Aboriginal cultural and spiritual identity and development by, wherever possible, maintaining and building their connections to their Aboriginal family and community;
(d)the child's views and wishes, if they can be reasonably ascertained, and they should be given such weight as is appropriate in the circumstances;
(e)the effects of cumulative patterns of harm on a child's safety and development;
(f) the desirability of continuity and permanency in the child's care;
(fa)the desirability of making decisions as expeditiously as possible and the possible harmful effect of delay in making a decision or taking an action;
(g)that a child is only to be removed from the care of his or her parent if there is an unacceptable risk of harm to the child;
(h)if the child is to be removed from the care of his or her parent, that consideration is to be given first to the child being placed with an appropriate family member or other appropriate person significant to the child, before any other placement option is considered;
(i)the desirability, when a child is removed from the care of his or her parent, to plan the reunification of the child with his or her parent;
(j)the capacity of each parent or other adult relative or potential care giver to provide for the child's needs and any action taken by the parent to give effect to the goals set out in the case plan relating to the child;
(k) contact arrangements between the child and the child's parents, siblings, family members and other persons significant to the child;
(l)the child's social, individual and cultural identity and religious faith (if any) and the child's age, maturity, sex and sexual identity;
(m) where a child with a particular cultural identity is placed in out of home care with a care giver who is not a member of that cultural community, the desirability of the child retaining a connection with their culture;
(n) the desirability of the child being supported to gain access to appropriate educational services, health services and accommodation and to participate in appropriate social opportunities;
(o) the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance;
(q) the desirability of siblings being placed together when they are placed in out of home care;
(r) any other relevant consideration.
162 When is a child in need of protection?
(1) For the purposes of this Act a child is in need of protection if any of the following grounds exist—
…
(c) the child has suffered, or is likely to suffer, significant harm as a result of physical injury and the child's parents have not protected, or are unlikely to protect, the child from harm of that type;
(d) the child has suffered, or is likely to suffer, significant harm as a result of sexual abuse and the child's parents have not protected, or are unlikely to protect, the child from harm of that type;
(e)the child has suffered, or is likely to suffer, emotional or psychological harm of such a kind that the child's emotional or intellectual development is, or is likely to be, significantly damaged and the child's parents have not protected, or are unlikely to protect, the child from harm of that type;
…
(2)For the purposes of subsections (1)(c) to (1)(f), the harm may be constituted by a single act, omission or circumstance or accumulate through a series of acts, omissions or circumstances.
(3)For the purposes of subsection (1)(c), (d), (e) and (f)—
(a)the Court may find that a future state of affairs is likely even if the Court is not satisfied that the future state of affairs is more likely than not to happen;
(b)the Court may find that a future state of affairs is unlikely even if the Court is not satisfied that the future state of affairs is more unlikely than not to happen.
215BManagement of child protection proceedings
(1)Without limiting part 1.2 or section 215(1), in any proceeding before the Family Division under this Act, the Court may –
(a) consider the need of the child and the impact that the proceeding may have on the child;
…
240 Action by protective intervener
(1)If a protective intervener is satisfied on reasonable grounds that a child is in need of protection, he or she may—
(a) serve a notice under section 243 stating that a protection application in respect of the child will be made to the Court; or
(b)with or without a warrant, under section 241, place the child in emergency care or cause another protective intervener to place the child in emergency care pending the hearing of a protection application.
(3)If the procedure set out in subsection (1)(a) or (1)(b) has been taken in respect of a child, a protective intervener must as soon as possible make a protection application to the Court and give a copy of the application to—
(a)the child’s parents, unless they cannot be found after reasonable inquiries; and
(b)the child, if he or she is of or above the age of 12 years.
243Making a protection application without placing child in emergency care
(1)If a protective intervener is satisfied on reasonable grounds that a child is in need of protection, he or she may serve a notice stating that a protection application in respect of the child will be made to the Court on a day and at a time specified in the notice.
(2)A notice under subsection (1) must—
(a)be issued out of the Court by the appropriate registrar; and
(b)set out the grounds on which a protective intervener intends to make a protection application; and
(c)be served on the child's parent and, if the child is of or above the age of 12 years, the child, in accordance with section 594.
(3)If the Court orders that the child appear before the Court for the hearing of the protection application and the child does not appear, the Court may, if satisfied that the order has come to the attention of the child's parent or, if the child is of or above the age of 12 years, the child and, if practicable, the child's parent, issue a search warrant for the purpose of having the child placed in emergency care.
(4)Sections 241 and 242 apply to the issue and execution of a warrant under subsection (3) as if it were a warrant issued under section 241(1).
522Procedural guidelines to be followed by Court
(1)As far as practicable the Court must in any proceeding –
…
(d) consider any wishes expressed by the child; and
…
(f)minimise the stigma to the child and his or her family.
…
Procedural History
On 8 September 2016 and 24 February 2017, the Children’s Court made interim accommodation orders in relation to GH and EF. Both orders required that their father not reside with either child until the resolution of the protection applications.
On 7 July 2017, the Children’s Court made two family preservation orders with respect to EF and GH. The Magistrate found that both children were in need of protection due to harm identified in s 162(1)(c) and (e); EF for actual and likely harm and GH for likely harm. The Magistrate did not find any actual or likely harm as a result of sexual abuse under s 162(1)(d). The preservation orders permitted the father to return to live with EF and GH, subject to various conditions.
The Secretary immediately appealed to the County Court pursuant to s 328 of the CYF Act. On the same day, 7 July 2017, a Judge of the County Court issued interim accommodation orders requiring that the father not reside with EF and GH. However, on 12 July 2017, another Judge of the County Court, being the Judge who made the orders now under judicial review, made different interim accommodation orders, allowing the father to reside with the rest of the family. However, conditions of the order required that the family had to reside at a family friend’s house, and that the father was not permitted to be alone with, or sleep in the same bed as EF or GH.
The Secretary’s protection application was then reheard in the County Court de novo[3] over many days. The Judge ultimately reached similar findings as the Children’s Court; namely that while the protection grounds in s 162(1)(c) and (e) were established, the ground of ‘sexual abuse’ under (d) had not been established. The Judge delivered some short oral reasons for her ruling on 22 December 2017 and provided comprehensive and careful written reasons to the parties on 1 February 2018. While the Judge accepted that the father had touched EF’s bottom, she considered that the circumstances surrounding the conduct, including whether it was done with sexual intent, were uncertain and therefore the Secretary had not established ground (d) being significant harm from sexual abuse. The Judge said that she could not speculate about the father’s motivation and instead noted that the evidence suggested that the conduct may have been a reflection of a desire to exercise power and control over the family, although she did not make that finding. She found that the conduct could not be considered ‘sexual abuse’.
[3]See CYF Act ss 326(6)(b), 426(a).
The Judge’s key findings on the evidence were as follows. She acknowledged that the family members recognised a familial history of domestic violence and physical chastisement of the children.[4] She could not form the view that EF’s trip interstate, presentation to police and traumatised state was only a result of sexual abuse, but considered that it was rather the result of a ‘far more complex’ situation.[5]
[4]Judge’s Reasons [16].
[5][35], [50].
The Judge rejected the contention that the allegations in EF’s VARE were a fabrication brought about by the influence of her half-sister. This question arose as EF delivered a form of retractions of the allegations contained in her VARE in a letter addressed to her father in January 2017 and in a letter addressed to the Magistrate hearing the protection applications in July 2017. The January letter apologised for what she had done, although it did not specifically state that any of her allegations were false. The July retraction included a request to withdraw her statements about her father’s conduct, claiming that her older half-sister ‘made her say the things’ she did. The Judge accepted the thrust of EF’s VARE as a retelling of her life as she saw it, which was a very distressing life. But, she said that no person could pinpoint the exact truths in it from any embellishments or exaggerations that may have occurred. Therefore, she did not accept that everything said by EF in the VARE was literally true.[6]
[6][60].
The Judge also found that the family had positively engaged with support services upon referral by the Department and had thereby derived ‘enormous benefit’.[7]
[7][106].
The Judge rejected the father’s evidence that he had not touched EF’s bottom since she was very young and only to apply medicinal cream[8] and she found that he had minimised his behaviour in the evidence. She accepted that the touching of EF’s bottom by her father had occurred, and that it was unwarranted at least by the time that she left the family home in July 2016, if not before. Whilst she was satisfied the touching occurred as referred to in her VARE (her father had touched her on the bottom and had done so since she was young, it is now unwanted), it was much more difficult to determine with any certainty its exact context. She considered that in accordance with the evidence of a doctor that she should consider the nub or kernel of EF’s evidence.
[8][171].
The Judge considered the evidence on whether the father’s touching of EF’s bottom constituted sexual abuse, and observed that the appropriate evidentiary standard for a finding of ‘sexual abuse’ within s 162(1)(d) was on the balance of probabilities, including due consideration of the Briginshaw principle.[9] She also found that as there was uncertainty as to the context of the touching, and she had to assess the motivation of the father in order to decide whether to find that his conduct was sexual abuse.[10] Having done so, she found that the context of the touching was not sexual, and that there was no grooming or escalation of the conduct.[11] She did not accept that she should find that the father’s intent in touching EF’s bottom must have been sexual in the absence of evidence and could not speculate to fill that gap in evidence.[12] She stated that she was not satisfied that the touching of EF’s bottom by the father was sexual abuse ‘given difficulties in assessing the exact circumstances as to [the father’s] intention’.[13]
[9]Briginshaw v Briginshaw (1938) 60 CLR 336; See Evidence Act 2008 s 140.
[10][202].
[11][203]-[206].
[12][206].
[13][210].
The Judge was instead of the view that, on the evidence available, the touching of the bottom was more likely a reflection of the father’s desire to exercise power and control, and a failure on his part to recognise that EF was uncomfortable with his conduct.[14] In respect of GH, the Judge was not satisfied that the father had touched her bottom or posed a risk of doing so.[15]
[14][209].
[15][211].
The Judge decided that the father should not be banned from the family home and that the risks to the children would be ameliorated by the stringent conditions attached to the preservation orders. She took into account that there were no ‘allegations of domestic violence, physical chastisement or inappropriate touching’ made since EF fled interstate in July 2016.[16] Secondly, she noted that the father had continued positive engagement with various support services and that there was a consequential positive change in his behaviour.[17] Thirdly, she said that removing the father from the household, after he had lived there for months, would distress the children, and expert evidence established that permitting him to remain in the household would be the ‘least worst’ option.[18]
[16][219].
[17][220]-[223].
[18][226]-[228].
The Family Preservation orders contained conditions and restrictions, including a requirement that the father and mother accept departmental support services, a prohibition on any further physical or verbal violence, and a prohibition on the father sleeping with either child, or entering their bedrooms or the bathroom while they were present. The father was to engage in therapeutic counselling in relation to the issues of inappropriate touching of EF and its impact on EF and other family members, as well as any other familial issues including family violence. The mother was required to engage in therapeutic counselling in respect of issues that included inappropriate touching.
In her oral summary of her judgment given on 22 December 2017[19], the Judge stated:
In terms of the findings, I do accept that the account that was given by [EF] in her VARE and I reject the father’s evidence, but in so saying, I am not satisfied that the unwanted touching or inappropriate touching that [EF] describes occurring can be categorised as sexual abuse. She should be left under no illusion that I accept what she says and I accept that that is what occurred. I just simply am not satisfied for reasons that I will hand down at a later stage that it constitutes sexual abuse.
Accordingly, in relation to the application under s 162 (1)(d), that is struck out. I do find the protection application proven in relation to [EF] in relation to s 162 (c) and (e) in relation to actual harm, and in relation to [GH], I also find the protection application proven in relation to (c) and (e) on the basis of likelihood.
[19]The written reasons were to be typed and were provided in February 2018.
The Judge also stated:
I mean as I’ve said during the conduct of this hearing, I accept that this is a family with a lengthy history of family violence between the parents. I accept that there is a lengthy history of physical chastisement which goes back to children before [EF] and [GH]. I accept that there’s a long history of alcohol abuse.
I certainly accept that when [EF] chose to leave Victoria… it was because she did not feel safe in the home. I accept that her concerns for her safety related to each of her parents in that she found that her mother was unprotective or didn’t offer her any respite or safe haven.
I formed the view that the family dynamic is extremely complex and that the trauma that [EF] identified was based in multiple sources of trauma, not just the inappropriate touching although that factors in.
I would like to think that this whole process for the parents has given them an opportunity to identify that things need to change. I do give each of them credit for the change that has commenced but I see that as very short-lived at this point in time and the duration of the order that I have made is to reflect my view that there needs to be ongoing supervision but also appropriate interventions and I would expect that the parents would embrace those enthusiastically. I do accept that their desire for change, whilst it might have been prompted by these proceedings, I do accept their desire for change is genuine.
I consider that the written judgment and oral judgment or remarks made on 22 December 2017 and documents on which the Judge placed particular reliance in her judgment, including the VAREs formed part of the record.[20]
[20]Administrative Law Act 1978 s 10; Wilson v County Court of Victoria (2006) 14 VR 461, 473 [49]-[50], [54]; O’Connor v County Court of Victoria (2014) 67 MVR 66.
Grounds of judicial review application
The grounds of the Secretary’s judicial review application are:
1.The First Defendant erred in failing to find that the conduct of the Father against EF was sexual abuse for the purposes of s 162(1)(d) of the CYF Act.
1A.The First Defendant erred in construing s 162(1)(d) of the CYF Act as:
a.requiring proof of an intention or motivation, on the part of the abuser, that is sexual in nature; and/or
b.not applying where the abuse occurred (or also occurred) as a way of exercising power or control.
1B. The First Defendant:
a.erred in finding that EF had given an account to [a doctor] that the touching on her bottom by the Father had occurred, but it had a medical aspect, when [the doctor’s] evidence was that EF had been very clear that there was no medical reason (such as applying medicinal cream to treat a skin condition) behind the Father’s conduct;
b.erred in failing to consider the disclosure by EF to [the] Police of the Father’s threats to her to stop telling people what he did to her, or he was going to kill her;
c.erred in failing to consider that the Father’s evidence (which the First Defendant rejected) excluded the possibility of an innocent explanation for his conduct;
d.erred in requiring evidence of ‘grooming’, or of ‘escalation in the allegations’, before being able to be satisfied that the conduct of the Father was sexual abuse;
e.in circumstances where:
(i)there was no finding that penetration of EF by the Father did not occur (or could not have occurred);
(ii)the Father had given evidence inconsistent with the possibility of an innocent explanation for any occasion in which he would have had his hands down the pants of EF.
erred in failing to consider the relevance of the disclosure by EF to [a doctor] of potential penetration of her by the Father, to the risk that EF and GH would be exposed;
and these errors infected the First Defendant’s conclusion that the grounds of the Plaintiff’s protection application with respect to s 162(1)(d) of the CYF Act were not proven.
1C.The First Defendant erred in making the Interim Accommodation Order of 12 July 2017, which resulted in the Father living in the same home as EF and GH, and that interlocutory decision affected the final orders (the Family Preservation Orders).
2.The First Defendant erred in dismissing the ground of the Plaintiff’s protection application:
a.with respect to s 162(1)(d) of the CYF Act;
b.for the child EF;
c.on the basis that the Plaintiff had failed to prove that EF had ‘suffered’ or in the alternative was ‘likely to suffer’ significant harm as a result of sexual abuse;
d.in circumstances where:
i.the conduct of the Father against EF was as particularised above;
ii.the grounds of the Plaintiff’s application under s 162(1)(c) and (1)(e) of the CYF Act were upheld, on ‘suffered’ for EF;
iii.the grounds of the Plaintiff’s application under s 162(1)(c) and (1)(e) of the CYF Act were upheld, on ‘likely to suffer’ for GH;
e.in the further circumstance that, on ‘likely to suffer’, the First Defendant was required to have regard to s 162(3)(a) of the CYF Act.
2A.The First Defendant made an error of law and/or constructively failed to exercise its jurisdiction by failing to give adequate reasons for dismissing the ground of the Plaintiff’s protection application:
a.with respect to s 162(1)(d) of the CYF Act;
b.for the child GH.
3.Additionally and/or alternatively to 2A, the First Defendant erred in dismissing the ground of the Plaintiff’s protection application:
a.with respect to s 162(1)(d) of the CYF Act;
b.for the child GH;
c.on ‘likely to suffer’;
d.in circumstances where:
i.the conduct of the Father against EF was as particularised above;
ii.EF is a 13 year old girl, and GH is a 12 year old girl;
iii.the grounds of the Plaintiff’s application under s 162(1)(c) and (1)(e) of the CYF Act were upheld, on ‘suffered’ for EF;
iv.the grounds of the Plaintiff’s application under s 162(1)(c) and (1)(e) of the CYF Act were upheld, on ‘likely to suffer’ for GH;
e.in the further circumstances that, on ‘likely to suffer’, the First Defendant was required to have regard to s 162(3)(a) of the CYF Act.
4.The First Defendant erred in construing and/or applying s 10(1) of the CYF Act.
4A.The First Defendant’s conclusion that the risk of harm to EF and the risk of harm to GH (accepted to exist) were acceptable was not legally reasonable.
5.By reason of the First Defendant’s failure to find that the conduct of the Father constituted sexual abuse, the First Defendant’s mandatory consideration under s 10(2) of the CYF Act miscarried, with respect to each of EF and GH.
6.The errors identified in the above grounds infected the Family Preservation orders made by the First Defendant.
Parties’ submissions
For ease of reference I will repeat s 162(1)(d):
(1)For the purposes of this Act a child is in need of protection if any of the following grounds exist—
…
(d)the child has suffered, or is likely to suffer, significant harm as a result of sexual abuse and the child's parents have not protected, or are unlikely to protect, the child from harm of that type.
The Secretary’s submissions
The Secretary contended that the Judge was required to, but had failed to, interpret and then apply the words ‘sexual abuse’ in s 162(1)(d). That term is not defined in the CYF Act. To determine the Secretary’s protection application based on ground (d), the Judge was required to consider two issues. The first was to consider whether the children were in need of protection on the ground contained in s 162(1)(d). Having made a finding that the children were in need of protection,[21] the second was to determine what order should be made taking into account the best interests principle.[22]
[21]CYF Act s 274(a).
[22]Ibid s 10.
The Secretary referred to the Judge’s statements that, in order to make a finding that EF had suffered significant harm as a result of sexual abuse by the father, proof that his intention or motivation was sexual in nature was required. The Secretary referred to the Judge’s statement that:
Where there is some uncertainty as to the context of the touching, I am of the view that some assessment of the motivation of the father would also need to form part of such a positive finding.
The Secretary submitted that this was an incorrect interpretation of s 162(1)(d), as the term ‘sexual abuse’ does not require a sexual intention when the conduct was an unwanted touching of a part of the body, which the criminal law considers to be sexual. Because of this incorrect interpretation of ‘sexual abuse’, the Judge erroneously failed to find that the facts that she found proved amounted to sexual abuse of EF by the father. The Judge should have given weight to the evidence of the Court-appointed expert doctor that EF had suffered significant harm as a result of sexual abuse and that EF’s allegations amounted to sexual abuse. As a result, the Judge did not correctly apply the words ‘likely to suffer sexual abuse’ to the facts she found proved.
The Secretary submitted that the approach of the criminal law to sexual offences against children assisted in the interpretation of the term ‘sexual abuse’ in s 162(1)(d). Something less than conduct that was a criminal offence might be ‘sexual abuse’ of a child under the CYF Act, but all conduct that was a sexual offence against a child would be ‘sexual abuse’.
Similarly, the mandatory reporting obligations imposed by the CYF Act also assist in the interpretation of the term ‘sexual abuse’. The conduct that is ‘sexual abuse’ in s 162(1)(d) is the same or includes conduct which must be mandatorily reported because of the obligations imposed by s 184(1) of the CYF Act.
The defendants’ submissions
The defendants’ submissions overlapped in significant areas, although they differed in emphasis of particular points.
The defendants had conceded that a protection order was required on the grounds contained in (c) and (e). This concession meant that they accepted, at least for the purposes of the litigation, that the children were likely to suffer significant harm as a result of physical injury and were likely to suffer emotional or psychological harm as a result of their parents’ conduct if the protection orders were not made.
Because of these concessions, the defendants contended that the only remaining issue was whether EF had suffered, and the children were likely to suffer, significant harm as a result of sexual abuse by the father and, if so, whether their best interests required his exclusion from the family home. This remaining issue raises for determination whether the Secretary proved that the father had sexually abused EF or was likely to sexually abuse her and thereby established the s 162(1)(d) ground.
The second defendant submitted that the Judge was entitled to find that the father’s conduct fell short of the generally accepted definition of ‘sexual abuse’ and that the conditions of the family preservation orders addressed the protection of the children. did not have to adopt a definition of ‘sexual abuse’, but was entitled to consider the father’s motivation in touching his daughters. The Judge was permitted to consider the best interests principles contained in s 10 and the devastating consequences for the children if their father was removed from the family home.
The third defendant submitted that resort to the criminal law and to the definition of sexual offences was unhelpful in defining sexual abuse given that police had decided not to charge the father with any offence. The Judge had to consider the best protection measures for the children and the appropriate conditions of the protection order. The Judge was justified in taking into account the uncertain context of the father’s actions and the impact on the family’s future if she expressly found that he had sexually abused the children as such a finding would probably result in the father having to leave the family home. A black letter law application of the term ’sexual abuse’ as advocated by the Secretary would obscure the true issue to be determined of the best interests of the children. Recognizing this, the Judge was conscious of not undermining or harming EF by expressly stating that she did not accept her evidence and that concern was appropriate in a protective jurisdiction for children. With a similar objective, the expert doctor had not used the term ‘sexual abuse’ because of its likely effect upon the family’s continued unity. In any event, any error made by the Judge was not material as it was clear that she would have made the same protection order even if she had found that the father’s conduct was ‘sexual abuse’.
The fourth defendant submitted that no jurisdictional errors had been established and that the Judge’s order could only be quashed if it could be shown to be unreasonable. She relied on the Judge’s finding that ‘whilst risk still presents with [the father] being part of the family unit, that those risks are acceptable with appropriate interventions’. The Judge’s conclusion that the father’s touching of EF was not proved to be sexually motivated made it less likely that EF would suffer significant harm in the future. In forming the opinion that GH was not likely to suffer significant harm on the ground contained in paragraph (d), the Judge had clearly applied the conclusions and reasoning process that she had followed with EF.
The Judge did not find that the father’s touching of EF ‘had a medical aspect’. At most the relevant statement was a minor error in the recitation of the evidence as she had referred on other occasions to the evidence that the father had touched EF’s bottom.
The fifth defendant made submissions similar to the other defendants and emphasised GH’s desire that her father be permitted to live in the family home and that weight should be given to the experience of the Children’s Court Magistrate and of the Judge in connection with child protection applications.
Consideration of submissions
Ground 1
Ground 1 is that the Judge erred in failing to find that the father’s conduct against the children was sexual abuse and that they were at risk of significant harm as a result of sexual abuse. The particulars to this ground are the facts which the Secretary says should have led the Judge to that conclusion and are follows. From the age of four or five until just before EF ran away in July 2016 aged 12, her father put his hands down her pants and placed his hands on and rubbed her bottom. She was uncomfortable but was scared to tell him in case he hurt her. If she moved away from her father when this conduct was occurring, he would tell her to come back. He forced her to sleep in bed with him and she was uncomfortable doing so. He would not allow her to wear underpants and he would put his hands under her clothes to see if she was. He would sometimes watch her getting changed. The Judge accepted the accuracy of EF’s VARE. The Court appointed expert doctor, described the father’s conduct as sexual abuse and a form of sexual predation and considered that EF and GH were at risk of sexual abuse.
Ground 1 challenges the conclusions that the Judge drew from facts that she found or should have found from the evidence. But an error of fact, or a decision not to draw a conclusion or an inference from facts usually does not amount to an error of law unless there is no evidence for the finding of fact or the decision based on the facts found is unreasonable or irrational or is an error of a jurisdictional fact.[23] Fact finding and the weight given to the facts or inferences drawn from facts are for the Judge’s determination after considering all the evidence. Judicial review proceedings are not an appeal against findings of fact. In Craig v South Australia[24], the High Court stated:
In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.
[23]Hoser v Department of Sustainability and Environment [2014] VSCA 206, [29]; Maund v Racing Victoria Ltd [2016] VSCA 132, [67]-[69]; He v Aloe & Co Pty Ltd (No 3) [2010] VSCA 158, [25].
[24](1995) 184 CLR 163 at 179-80; cf Kirk v Industrial Court (NSW) (2009) 239 CLR 531.
The Judge had to determine whether the facts alleged in the particulars taken together with all the evidence led over many days established the ground (d) allegations of sexual abuse by the father. The Judge assessed the evidence and made relevant findings. I do not consider that ground 1 by itself establishes any relevant error or establishes a basis for granting judicial review orders.
Ground 1A
Ground 1A alleges that the Judge erred in interpreting the term ‘sexual abuse’ in s 162(1)(d) of the CYF Act as requiring proof that the father’s conduct was motivated by a sexual intention and as not applying where the abuse was a way of exercising power or control.
The Judge did not define the term ‘sexual abuse’, but considered that the father’s motivation needed to be considered as well as the context of the touching. For instance, the Judge said that uncertainty as to the context of the touching required assessment of the father’s motivation before a positive finding of sexual abuse could be made. She found no proof of a sexual context of the father’s conduct other than the location of the touching which she accepted was an intimate area. The Judge noted the expert doctor’s evidence that in a situation where there is an unwanted touching of a private body part, ‘it is understood amongst professionals who work in her field, to be the definition of ‘sexual abuse’, but she also stated that:
[The doctor] said it was not about the intent of the person doing the touching but that the touching is in fact unwanted by the person in receipt of the touching. I accept that definition in the context of assessment and treatment, not as a means for definition for the purposes of Section [162(1)(d)] of the Act.
The Judge said of the touching allegations:
In terms of that touching, I am dealing with:
a. the account in [EF’s] VARE;
b. the ‘retractions’; and
c. the account which is most recent in time and given to [the doctor] that:
‘“it used to happen but it’d stopped now”, the touching. I asked when it stopped, she said in about Grade 6. She then remarked that she could put the creams on her own bottom now and she said, “Dad used to put his hands” in her pants; hasn’t happened since she got back from [interstate]. It happens when they’re sitting in the lounge room, never in bed. That he puts his hand on top of her undies and inside her undies. She talked about being allowed to wear undies but best – allowed to wear undies but best not to if she’s wearing pyjamas or a onesie. So she talks about the recommendation from her mum that she shouldn’t be wearing underwear. And then she said she got more – it got more uncomfortable the older I got. So, um, if you ask me whether I clarified when she said he was putting his hand in her pants underneath her underwear, whether I clarified was he touching her at the rear of her body or the front of her body in her underwear; I did not clarify that.’
The Judge noted that the expert doctor confirmed that she did not have enough information to reach conclusions as to the father’s motivation for touching EF. She accepted that it was plausible that such touching reflected a significant lack of sound judgment. She referred to the doctor’s evidence that EF no longer wished to acquiesce in her father’s conduct. But, she was not satisfied that the father’s touching of EF’s bottom was sexual abuse given the difficulties in assessing the exact circumstances and the father’s intention.
The Judge stated that no person could pinpoint the exact truths from any embellishments or exaggerations that may have occurred. As there was some uncertainty as to the context of the touching, she considered that some assessment of the father’s motivation would also need to form part of such a positive finding.
I consider that it is important to note that there was no evidence that the father’s touching of EF was accidental and he did not explain his actions, but denied that he had touched EF’s bottom in the manner she alleged.
Ground 1A turns on the proper interpretation of the CYF Act and the term ‘sexual abuse’. That task begins with a consideration of the text of s 162(1)(d) itself and the meaning of that text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it seeks to remedy.[25]
[25]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 at 46-7, [47] (Hayne, Heydon, Crennan and Kiefel JJ).
An important purpose of the CYF Act is to provide for the protection of children: s 1(b) and s 10 – the best interests principle. Protection applications have been described as:
[s]tatutory proceedings in the Children’s Court are statutory proceedings for the best interests of the child, akin to that of the traditional parens patriae jurisdiction and not for the resolution of the private legal rights of those involved. Such proceedings are neither inter partes nor adversarial in the ordinary sense that judicial proceedings usually are.[26]
[26]Secretary to the Department of Human Services v Sanding (2011) 36 VR 221 at 261, [185].
The identification of the ambit of s 162(1)(d) is important, not least because the CYF Act requires mandatory reporting of conduct that would support a protection application, including an application based on the risk of significant harm from sexual abuse. By s 184 a mandatory reporter who forms the belief on reasonable grounds that a child is in need of protection on a ground referred to in s 162(1)(c) or (d) must report that belief and the reasonable grounds for it as soon as practicable after forming the belief and after each occasion on which he becomes aware of any further reasonable grounds for the belief.
The term sexual abuse is used in different contexts. Victorian criminal law prohibits sexual activity with a child under the age of 16. All of that activity could also be described as sexual abuse. It is therefore of assistance in considering the term ‘sexual abuse’ in s 162(1)(d) to consider specific sexual criminal offences because they penalise in particular circumstances conduct, such as the touching of private parts of a person’s body, which would also be regarded as sexual abuse. The relevant statutory provisions are as follows.
Section 35C of the Crimes Act 1958 provides that a person takes part in a sexual act if he sexually touches another person. Touching is designated as sexual by s 35B(2) which states:
35B Touching
...
(2) Touching may be sexual due to –
(a)the area of the body that is touched or used in the touching, including (but not limited to) the genital or anal region, the buttocks or, in the case of a female or a person who identifies as a female, the breast; or
(b)the fact that the person doing the touching seeks to gets sexual arousal or sexual gratification from the touching; or
(c)any other aspect of the touching, including the circumstances in which it is done.
Section 35D provides that an activity may be sexual due to the area of the body that is involved in the activity. Section 49D outlines what constitutes sexual assault of a child under the age of 16:
49D Sexual assault of a child under the age of 16
(1) A person (A) commits an offence if –
(a) A intentionally –
(i) touches another person (B)
…
…and:
(b)B is a child under the age of 16 years; and
(c)the touching is –
(i) sexual; and
(ii)contrary to community standards of acceptable conduct.
(2) A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).
(2A)The standard sentence for an offence against subsection (1) is 4 years.
(3) Whether or not touching is contrary to community standards of acceptable conduct depends on the circumstances.
(4)For the purposes of subsection (3) –
(a)the circumstances include –
(i) the purpose of touching; and
(ii)whether A seeks or gets sexual arousal or sexual gratification from the touching.
(b) the circumstances do not include –
(i) whether B consents to the touching; or
(ii) whether A believes that B consents to the touching.
Sections 37A and 37B provide that:
37A Objectives of Subdivisions 8A to 8G
The objectives of Subdivisions (8A) to (8G) are –
(a)to uphold the fundamental right of every person to make decisions about his or her sexual behaviour and to choose not to engage in sexual activity;
(b)to protect children and persons with a cognitive impairment or mental illness from sexual exploitation.
37B Guiding Principles
It is the intention of Parliament that in interpreting and applying subdivisions (8A) to (8G), courts are to have regard to the fact that –
(a) there is a high incidence of sexual violence within society; and
(b) sexual offences are significantly under-reported; and
(c) a significant number of sexual offences are committed against women, children and other vulnerable persons including persons with a cognitive impairment or mental illness; and
(d) sexual offenders are commonly known to their victims; and
(e) sexual offences often occur in circumstances where there is unlikely to be any physical signs of an offence having occurred.
In 1984, the Victorian Law Reform Commission published a report which examined ‘the criminal law relating to sexual abuse of children’.[27] The report stated:
This report examines ‘sexual offences against children’. This phrase refers to common law and statutory crimes involving prohibited sexual activity with or against children. The term ‘sexual abuse’ is used to describe the behaviour which is, or should be, prohibited by the offence.[28]
[27]Victorian Law Reform Commission, Report No 18 – Sexual Offences Against Children, Victoria (1988).
[28]Ibid p 15 – this was quoted in the Secretary’s written reply submissions.
The Commonwealth Royal Commission into Institutional Child Sexual Abuse also gave a wide definition to the term ‘child sex abuse’.[29]
[29]Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (2017), vol 2, p 9 – this was quoted in the Secretary’s written outline of submissions.
The Macquarie Dictionary definitions of the word’ abuse’ include
3. to inflict a sexual act on (a person) especially one whose relationship or proximity makes them vulnerable.
10. sexual violation, as rape or sexual assault, especially of a child.[30]
[30]Susan Butler (ed), Macquarie Dictionary, (7th ed 2017), p7.
I was referred to family law child custody and access cases, which concerned allegations of sexual abuse. The High Court in M v M[31], which was a custody and access case stated that sexual abuse is an allegation which is often easy to make, but difficult to refute.[32] It said that in all but the most extraordinary cases, a finding of sexual abuse will have a decisive impact on the order to be made regarding custody and access.[33] The High Court also stated:
And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.[34]
…
To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.[35]
[31](1988) 166 CLR 69.
[32]Ibid 77.
[33]Ibid 77.
[34]Ibid 77.
[35]Ibid 78.
The Judge stated that the High Court decision in M v M confirmed ‘that in many cases, the Court cannot confidently make a finding that sexual abuse has taken place’.
However, the custody and access cases did not concern the initial statutory task of determining whether sexual abuse has occurred or is likely to occur and therefore are not directly applicable to provisions such as s 162(1)(d), which require that task to be undertaken. In performing that task the court must first identify the meaning of the statutory term ‘sexual abuse’ and then determine whether the facts proved come within it. Of course, if the court is satisfied that the grounds for a protection application are established then, in deciding the terms of any protection order, the court has a wide discretion and can take into account the importance of the maintenance of the parents’ care of the child unless there is an unacceptable risk of harm to her: s 10(3)(g).
I do not consider that in determining whether conduct is sexual abuse for the purposes of s 162(1)(d), that the court can take into account whether the best interests of the child principle contained in s 10 would support one answer or another. I do not consider that ss 8 and 10 require that the term sexual abuse in s162(1)(d) is to be interpreted by any means other than the usual principles of statutory interpretation. That is because the determination of whether conduct is sexual abuse involves the application of those words in the statute to the facts found. However, if the court decides that any of the grounds in s 162(1) is established, its jurisdiction to make protective orders is enlivened and in deciding the terms of any such orders, then it must apply the best interests principles contained in s 10.
It is inappropriate to attempt a complete definition of the term ‘sexual abuse’, but only to interpret it for the purposes of its application to the facts that the Judge found. That is because other circumstances may arise that require an addition to, qualification or modification of a definition previously adopted.
In my opinion, for the purposes of consideration of the facts that the Judge found, the term ‘sexual abuse’ in s 162(1)(d) means conduct engaged in towards another person of a sexual nature without their consent, including touching a private part of their body, when the touching is not accidental and has no legitimate purpose such as a medical purpose.
The Judge did have to be satisfied on the balance of probabilities, taking into account the gravity of the allegation[36], that EF had suffered or that both children were likely to suffer significant harm as a result of sexual abuse. If the evidence had raised a possible innocent explanation for the touching, the context and any evidence of the purpose of the touching would have been relevant, for instance to exclude accidental conduct or touching for some legitimate purpose. But that was not this case on the facts that the Judge found. Therefore, I do not consider that the father’s motivation had to be identified, as there was no evidence suggesting he had touched the child accidentally or for a legitimate purpose.
[36]Evidence Act 2008 s 140.
In my respectful opinion, the Judge by stating that the intention and motivation of the father’s touching were relevant adopted an incorrect interpretation of the term ‘sexual abuse’ in s 162(1)(d). There was no requirement that the evidence established that the father had a motivation or intention to sexually abuse. Moreover, the father’s conduct did not fall outside the term ‘sexual abuse’ because his touching of EF was more likely to reflect his desire to exercise power and control, and a failure on his part to recognise that EF was uncomfortable with the conduct. A desire to exercise power and control can be part of sexual abuse.
The Judge accepted EF’s account of her father’s conduct and did not accept his denials. The father did not suggest any innocent explanation for touching EF’s bottom. There was no need for the Judge to require evidence of the father’s motivation.
I am satisfied that ground 1A is established. On the facts found by the Judge, the father’s intention and motivation did not have to be proved to establish the sexual abuse ground in s 162(1)(d). Rather, the issue was whether the father’s repeated touching of his daughter’s bottom in the manner found proved was sexual abuse within the meaning of s 162(1)(d).
Ground 1B
In Ground 1B the Secretary alleges that the Judge made incorrect findings of fact or failed to find facts which affected her decision to dismiss the sexual abuse ground of the protection application.
The fact findings attacked include that EF had told the expert doctor that the inappropriate touching had occurred but had a medical aspect of applying eczema cream, when the doctor did not say that.
Secondly, that the Judge had erred in not considering EF’s statement to police that her father had threatened to kill her, which it was argued was a mandatory consideration in deciding the protection application, as recognized by ss 8(1) and 10 (1) and (2) of the CYF Act.
Thirdly, the Judge erred in not taking into account that because the father denied that he had touched EF’s bottom, no evidence existed of an innocent explanation for his conduct. He had been granted a s 128 certificate, which gave him protection against the use of his evidence against him. Therefore, the Judge’s hypothesis that the father may not have a sexual intent when touching EF’s bottom was not open and no evidence supported that hypothesis.
Fourthly, that the Judge erred by stating that the absence of evidence that the father’s conduct involved ‘grooming’ or revealed an ‘escalation in the allegations’, meant that she was unable to be satisfied that he has sexually abused EF.
Fifthly, the Judge erred in failing to consider EF’s disclosure to another doctor of an incident which may have involved her father penetrating her. That evidence disclosed the risk to EF and GH from the father’s presence in the home. The Judge erred in finding that penetration of EF by the father did not occur or could not have occurred, when the father did not give evidence consistent with the possibility of an innocent explanation of this incident.
In my opinion, none of these alleged errors was an error of law or a jurisdictional error. The Judge considered the extensive evidence presented at the hearing. No error of law is shown by her conclusions or any failure to refer to particular evidence.
The first of the five matters on which the Secretary relied was the Judge’s apparent error in suggesting that the expert doctor’s evidence provided a medical reason for the father touching EF’s bottom. Erroneous findings of fact do not establish a jurisdictional error or error of law unless there was no possible basis for the judge’s findings. An error of fact would have to be so significant as to undermine the Judge’s ultimate conclusion for it to have that consequence. That was not the case here.
So far as the second matter is concerned, this was at most an error of fact. In any event there was no direct evidence that EF told police of this threat. The police to whom the statement was made were not called to give evidence and EF did not give evidence.
The third alleged error was that the Judge failed to consider that the father’s evidence, which she had not accepted, excluded the possibility of an innocent explanation for his conduct. This was not a jurisdictional error or an error of law, but rather the result of the Judge’s approach to the assessment of the evidence. No jurisdictional error or error of law occurs because a Judge does not draw a conclusion that a party considers should have been drawn.
The fourth alleged error lay in the Judge requiring evidence of ‘grooming’ or of ‘escalation in the allegations’ before being able to be satisfied that the father’s conduct was sexual abuse. These comments were not a jurisdictional error or an error of law, but were observations by the Judge about the effect of the evidence. The Judge did not find that ‘grooming’ or ‘escalation’ were essential requirements for a finding of sexual abuse.
The fifth alleged error was the Judge’s consideration of EF’s disclosure to a doctor of potential penetration of her by her father and its relevance to the risks of sexual abuse that EF and GH would be exposed. The Judge considered this evidence in the following passage:
In addition, [the doctor] specifically reports the following:
‘When I asked [EF] for medical reasons about whether she had ever noticed any blood on her undies after things happened with her dad, she told me that once it had that and that it hurt at the time. I did ask her specifically whether he used his hands or other parts of his body at the time and she tells me it was his hands.’
DHHS submit that this evidence allows for a finding that [the father] sexually penetrated his daughter. There is no direct evidence from [EF] or any other source of any sexual penetration of her by her father. [EF] did not submit to genital examination during her consultation with [the doctor].
Naturally that paragraph in [the doctor’s] report was the subject of much interest in cross examination. This questioning revealed a range of possible explanations and that [EF] was not more specific than what was referred to in the report of [the doctor]. There were no details of when she made such an observation or when in relation to any touching by her father.
It became apparent that her belief, that [EF] had been digitally penetrated, came from information that she received from [a counsellor] that the abuse included ‘grooming, physical violence and touching on the vagina’. The basis from which [the counsellor] had such an understanding is not known.
I am not satisfied that the conversation between [EF] and [the doctor] constitutes a disclosure by [EF] of any form of penetration upon her by [the father]. I note that [EF] makes no such allegation in her VARE, indeed refers to being touched on the bottom and to being afraid that he (her father) might go further and touch somewhere else. She specifically denies, when asked, that her father had done so.[37]
[37][53]−[58].
No jurisdictional error or error of law appears in this passage and it was for the Judge to determine what weight she gave to the evidence. A significant difference exists between failing to have regard to mandatory relevant considerations and applying evidence, or drawing inferences from that evidence, which may be relevant to those considerations. In most instances, factual errors or issues of the weight to be given to particular will not often be a jurisdictional error or an error of law.
Ground 1B has not been established.
Ground 1C
Ground 1C concerns the interim accommodation order made by the Judge on 12 July 2017 which permitted the father to reside with the daughters. This proceeding does not challenge that interim order and it was overtaken by the final order of 22 December 2017, which is challenged. Nevertheless, the Secretary was concerned that the interim order had changed the status quo and might weaken the strength of his case but no grounds have been established to invalidate that order. Ground 1C is not established.
Ground 2
Ground 2 challenges the Judge’s dismissal of the sexual abuse ground of the protection application concerning EF. This challenge is based on the father’s conduct as described in other grounds and the fact that the other two protection grounds, ground (c) and ground (e) in s 162(1) had been established. Ground 2 also relies on the effect of s 162(3)(a), which provides that:
(3) For the purposes of subsections (1)(c),(d), (e) and (f) –
(a)The Court may find that a future state of affairs is likely even if the Court is not satisfied that the future state of affairs is more likely than not to happen.
My conclusion in respect of ground 1A that the Judge incorrectly interpreted the term ‘sexual abuse’ means that the protection ground relying on ground (d) was not considered according to law. Ground 2 is therefore established.
Ground 2A
I do not consider that Ground 2A is established. It alleges that the Judge gave no adequate reasons for dismissing the sexual abuse ground in respect of GH, including no reasons in respect of the likelihood of her suffering significant sexual abuse.[38] It is clear enough that the dismissal of the sexual abuse allegation in respect of GH followed on from the dismissal of the protection application in respect of EF. In her VARE, EF said that she had seen her father rub GH’s bottom on one occasion, but when interviewed GH denied that allegation. Little attention appears to have been given during the County Court hearing to the father’s conduct towards GH. Faced with GH’s denial of the allegation about her father’s conduct and not having heard oral testimony from either EF and GH, the Judge was entitled to simply state that the ground had not been established. The Judge stated that she was not satisfied to the requisite standard that the father touched GH’s bottom or posed a risk of doing so. Her path of reasoning is clear even if not expressly stated.
[38]The Secretary relied on Ta v Thompson (2013) 46 VR 10.
Ground 3
Ground 3 applies to GH, but is otherwise the same as ground 2. The ground contends that the Judge erred in dismissing the protection application in respect of GH on the ground of ‘likely to suffer’ significant harm as a result of sexual abuse. This ground depends in part on the Judge’s definition of ‘sexual abuse’. As I have found that the Judge adopted an incorrect interpretation of ‘sexual abuse’, her consideration of the sexual abuse ground in respect of GH has not been considered in accordance with law. Had the Judge applied the definition of sexual abuse that I have proposed, it is possible that her conclusion about the likelihood of harm to EF may have differed. Ground 3 is therefore established.
Ground 4
Ground 4 is that the Judge erred in construing and/or applying s 10(1) of the CYF Act. I do not consider that it has been established. The Judge referred to s 10 and the best interests of the children in significant parts of her judgment – especially in paragraphs [214] and following.
Ground 4A
Ground 4A is a Wednesbury[39] unreasonableness ground which contends that the Judge’s conclusion that the risks of harm to EF and GH (accepted to exist) were acceptable was not legally reasonable. I consider that ground 4A should be considered on its own terms independently of the question of whether the sexual abuse interpretation ground has been established. The Judge carefully considered the risk involved in allowing the father to stay in the family house subject to the conditions contained in the family preservation order. She concluded that the risk was acceptable ‘with appropriate interventions’ and that conclusion was not unreasonable in the Wednesbury sense and I do not consider that ground 4A has been established.
[39]Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
Ground 5
Ground 5 alleges that by reason of the Judge’s failure to find that the father’s conduct towards EF was sexual abuse, she had failed properly to consider the matters contained in s 10(2) of the CYF Act with respect to EF and GH. In my opinion, because the Judge did misinterpret the term ‘sexual abuse’, this ground is established. I do not consider that applying the correct meaning of sexual abuse that it necessarily follows that the Judge, after considering the matters contained in s 10(2), would have made a family preservation order in the same terms as she did on 22 December 2017. A number of the medical witnesses considered that the likelihood of significant harm as a result of sexual abuse to EF and GH would increase if the father’s earlier conduct of touching EF’s bottom was found to be sexual abuse. Accordingly, ground 5 is established.
Ground 6
Ground 6 is more a conclusion than a ground of judicial review. It alleges that the errors identified in other grounds infected the Family Preservation Orders made by the Judge. I have dealt with that submission in dealing with the other grounds of review and I do not consider that ground 6 raises any separate ground. It is not appropriate to uphold it as a separate ground.
Litigation Guardian
I decided not to appoint a litigation guardian for the fourth and fifth defendants EF and GH. I considered that I had power under r 2.04 of the Supreme Court (General Civil Procedure) Rules 2015 to dispense with the requirements in r 15.02(1) that would otherwise have required the appointment of a litigation guardian.[40]
[40]Cf Slaveski v Victoria (2009) 25 VR 160.
I considered that there was no person appropriate to be their litigation guardians. That conclusion is not intended to reflect on the persons who were proposed. I did not consider that it was appropriate at this stage of this litigation to appoint as litigation guardians persons not known by the children.
I took into account that the CYF Act intends that children aged ten or more in the Children’s Court must be legally represented.[41] There appears to be no reference in that legislation to litigation guardians. Whilst the legislation does not refer to judicial review proceedings, in my opinion, it is consistent with the objectives of the CYF Act in the special circumstances of this case that the children be entitled to be represented directly, without a litigation guardian.
[41]CYF Act s 525 (1).
I also took into account that the children continue to be represented by legal practitioners who are officers of this Court and owe duties both to their clients and to the court.
This ruling should not set a precedent as litigation guardians are usually appointed for children. My decision is influenced by the facts and circumstances of this case.
Appropriate orders
I have found grounds 1A, 2, 3 and 5 of the Secretary’s Amended Origination Motion established – they all follow from my conclusion that the Judge applied an incorrect interpretation of the term ‘sexual abuse’ in s 162(1)(d).
For ease of reference, I will repeat the meaning that I have given to the term ‘sexual abuse’ in s 162(1)(d) on the facts found proved in these proceedings. In my opinion, for the purposes of consideration of the facts that the Judge found, the term ‘sexual abuse’ in s 162(1)(d) means conduct engaged in towards another person of a sexual nature without their consent, including touching a private part of their body, when the touching is not accidental and has no legitimate purpose such as a medical purpose.
In those circumstances, the appropriate course appears to be to quash the Family Preservation Orders and refer the appeals back to the Judge to be reconsidered in accordance with law and these reasons. The parties accepted that the Judge was not prevented from performing that task. The Judge can rely on the existing evidence and any other evidence she considers relevant to her task.
While I appreciate that my orders will prolong proceedings involving and affecting the welfare of children, it is important that the protection applications are determined by the application of the correct interpretation of the term ‘sexual abuse’. If the Judge upon remittal considers that the protection ground based on s162(1)(d) has been established, it will be a matter for her, as to the terms of any Family Preservation Orders that she then makes.
I will hear the parties about the form of orders that should be made.
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