Director of Child Protection Litigation v M & S

[2017] QChCM 1

CHILDRENS COURT OF QUEENSLAND

CITATION:

Director of Child Protection Litigation v M & S [2017] QChCM 1

PARTIES:

DIRECTOR OF CHILD PROTECTION LITIGATION

v

NM (First Respondent)

and

MS (Second Respondent)

and

Lyrene WIID (Child’s Separate Representative)

FILE NO/S:

CCM 00003734/17/(0)

DIVISION:

CHILD PROTECTION

PROCEEDING:

Application for Child Protection Order

ORIGINATING COURT:

Toowoomba

DELIVERED ON:

14 November 2017

DELIVERED AT:

Toowoomba

HEARING DATE:

13 & 14 November 2017

MAGISTRATE:

Kay Ryan

ORDER:

Application to dismiss application granted

CATCHWORDS:

CHILD PROTECTION – Application for one year supervision order – no contact with respondent father - whether child a child in need of protection – allegation of sexual abuse – no criminal charges – onus of proof

INTERGENERATIONAL ABUSE – where recognised entity support dismissal of application – mother with history of childhood abuse – whether projected onto child

Child Protection Act 1999

Briginshaw v Briginshaw (1938) 60 CLR 336, at 362

Donaghey & Donaghey [2001] FamCA 13

M v M (1988) 166 CLR 69

MDS v Director of Child Protection Litigation & Ors [2017] QChC 6

N & S (1996) FLC 92-655

Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd. (1992) 67 ALJR 170

Palmer v Dolman [2005] NSWCA 361

Qantas Airways Ltd v Gama (2008) 167 FCR 537

Refjek v McElroy (1965) 112 CLR 517

Victoria v Turner (2009) 23 VR 110

COUNSEL:

Mr K Ashen for the DCPL

Ms C Dart for the First and Second Respondents

Mr S Kissick for the Separate Representative

SOLICITORS:

Ms C Johnston for the DCPL

Ms Armstrong, Best Wilson Family Law for the First and Second Respondents

Ms L Wiid, Lyrene Wiid, Separate Representative

Ms Johnston, Goolburri Recognised Entity

1. This is an application made by the Director of Child Protection Litigation for a child protection order requiring the Chief Executive to supervise W S’s protection for a period of one year and that during that period, an order be made that MS not have contact, direct or indirect with W other than when an authorised officer, or a person approved in writing by the Chief Executive is present.

1. The applicant alleges that W has suffered significant harm and is at an unacceptable risk of suffering significant harm caused by sexual abuse, physical abuse, psychological abuse and emotional abuse and/or neglect on the basis of allegations that W’s father, MS unlawfully and indecently dealt with W.[1]

   [1] Amended Application filed 10 May 2017.

1. Further, although the applicant contends that there is evidence before the court that W has been exposed to domestic violence which has caused her to suffer significant harm, the applicant does not contend that that exposure continues to pose an acceptable risk of significant harm.

1. With regard to the sexual abuse allegations, the applicant relies on a sworn statement of NM (W’s mother) to police on 24 July 2016[2] and a section 93A statement made by W on the same date.[3]  The result of the Queensland Police Service investigation in July 2016 was that ‘investigations indicate highly doubtful the offence occurred’.  This decision was the subject of an audit in February 2017 which stated ‘notwithstanding the fact that it cannot be proven to a standard where any person can be charged, the occurrence has been erroneously unfounded on the basis of ‘conflicting versions’ and the offence should remain unsolved’.[4]

   [2] Exhibit H to the Affidavit of Chelsea Daynes affirmed 10 May 2017.

   [3] Exhibit 1.

   [4] Exhibit G to the Affidavit of Chelsea Daynes affirmed 10 May 2017.

1. Following the report of the alleged abuse to police in July 2016, the Department of Child Safety intervened with the family and made application to the court for a Temporary Custody Order, which was subsequently dismissed by the court.  The application before the court today was filed following the decision by the Queensland Police Service in February 2017 that ‘the offence should remain unsolved’.  There is no evidence before the court as to the basis for that decision and there is no further evidence other than what was before the police in July 2016.

1. The court may make a child protection order only if it is satisfied that the child is a child in need of protection and the order is appropriate and desirable for the child’s protection.[5]  A child in need of protection is a child who has suffered significant harm, is suffering significant harm, or is at unacceptable risk of suffering significant harm and does not have apparent able and willing to protect the child from harm.[6]

   [5] Section 59 Child Protection Act 1999

   [6] Section 10 Child Protection Act 1999

1. There has been a raft of affidavit material filed and read by the Applicant, which relies heavily on this evidence as the basis for the application.

1. Following some preliminary arguments with regard to the amending of the Amended Application, the hearing commenced with the playing of W’s Section 93A interview with police.  Following the playing of the interview, an application has been made by Ms Dart on behalf of the respondent parents that the application for a protection order should be dismissed.  This application is supported by counsel appearing for the Separate Representative for W. It is opposed by the DCPL who argue that the court should have the benefit of hearing all evidence, including the cross examination of the parents and the social assessment writer in the hearing.  The applicant further argues that this Court has no discretion to dismiss the application before hearing that further evidence.

1. Ms Dart argues that the content of the Section 93A interview reflects the Applicant’s case at its highest and stressed a number of inconsistencies in W’s interview.  It must be remembered that W was born on 28 January 2012, making her 4 years and 6 months at the time of interview and 5 years and 10 months at the date of this hearing.

1. In criminal proceedings, an interview such as this would not be admitted, nor could it be relied on.  However, the position is somewhat different in family law matters. Mr Kissick (for the separate representative) points out that the interview was conducted in a way which is not acceptable, in that there were a number of leading questions asked and the interviewer ignored W’s increasing requests to see her mother and finish the interview.  I note that the interview commenced at 7.00 pm and concluded (with a 20 minute break) at 8.36 pm and that W appeared tired and uninterested for most of the time.  This is not surprising as her usual bedtime, I’m told, is 7.00 pm.

1. As W is of aboriginal descent, I have heard from Ms Johnston from Goolburri Recognised Entity as required by Section 6 (4) of the Child Protection Act 1999.  Significantly, Ms Johnston points out that the Section 93A interview with W was carried out in the absence of any cultural advice from the appropriate recognised entity and there was no indigenous support.

1. I have watched the Section 93A interview with W and agree with Ms Dart’s submissions that there is no context given by the interviewing police officer when talking about a ‘snake’ in W mouth.  At one point W tells her interviewer in response to a question as to who was in bed with her at the time the alleged abuse occurred, that her mother was there.  She also talks about being locked out of the house at one stage and crying to get back in.  She appeared to be surprised at the questioning with regard to how the ‘snake’ could get into her ‘care care’ when she had knickers and track suit pants on.

1. Of course, the disclosures by W that her father had put his ‘snake’ in her ‘care care’ are worrying and one has to question how things had got to this point.  Her mother NM did make a sworn statement to police on 24 July 2016, about 3 weeks after she said she found her husband in bed with W “spooning’ her, W’s pants ‘were slightly down at the back’ and she could ‘see the top of her bottom’.  She said that she had heard W call out and this had caused her to go to her bedroom.  W was half asleep and said that ‘daddy had hurt’ her, but she didn’t know where.

1. At the time, NM did not think anything further of it, as it was normal for MS to go to W at night when she was disturbed by dreams.

1. Both NM and MS have filed sworn affidavits in this hearing.  NM recants from her sworn statement which she had given to police.  Unfortunately, NM had herself been sexually abused as a child by older cousins, but had not reported this until she told her mother when she was 16 years old.  She received no treatment or counselling and as a result states that she is very vigilant in protecting W against similar abuse.

1. At the time of the alleged abuse of W, NM had recently suffered a miscarriage and was taking anti-depressants.  As a result she was drinking alcohol, smoking marijuana and fighting regularly with NS.  Reportedly, she was yelling some quite explicit abuse such as ‘go fuck your daughter’ and other sexually explicit words in the hearing of W.

1. At the same time NM had commenced attending a new church and befriended a two persons who had either been abused themselves as children or had children who had been abused.  She told Mr Shepherd, the social assessment report writer, that she was in ‘a really bad place’ at the time and ‘probably manifested these things in my head and blew them out to grand scales’.  She expressed ‘a lot of shame’ with regard to how she treated MS and the things she said in front of W, saying ‘I guess I did scare my daughter sometimes.  I just couldn’t stop myself at that time’.[7]

   [7] Exhibit 1 to the Affidavit of Gary Shepherd affirmed on 19 September 2017.

1. Following the day of the alleged abuse, NM told police that W appeared to have a sore bottom and had trouble going to the toilet.  The day following this she said that Whad a red mouth, swollen lips and a sore throat.[8]  She started questioning W asking her things such as Did Dad hurt you?;  How did he hurt you?; Did he put his fingers in your care care?;  Was it sharp?;  Did he put his snake in your care car?;  Did he touch your bottom with his snake?;  Did he put his snake in your mouth?;  and other questions of a like nature.[9] 

   [8] Statement of NM to police dated 24 July 2017.

   [9] Affidavit of NM affirmed 6 November 2017.

1. NM disclosed some of her concerns to the ‘friends’ she had made at church who she now says pressured her heavily to take W to the hospital and to make a complaint to police. 

1. Tellingly, when W was examined by Dr Da Silva on 24 July 2016 at the Toowoomba Base Hospital, he found no conclusive evidence of trauma to the hymen and no conclusive evidence of forceful vaginal penetration.  W was co-operative and seemed happy and content during the examination.[10]

   [10] Exhibit I to the Affidavit of Chelsea Daynes affirmed 10 May 2017.

1. I note that NM did express to Dr Da Silva and the police at the time that she feared she may be projecting her own fears onto W given her own history of childhood abuse.  She repeated these doubts at a later date to the Department of Child Safety, the author of the Sexual Risk Assessment Report and Mr Shepherd, the social assessment report writer.

1. It is unusual for an application to dismiss to be made in a child protection hearing at such an early juncture.  Because of this, the court must proceed cautiously in considering the evidence before it.  Ms Dart submits that all the applicant’s evidence is before the court (in affidavit form) and even without cross examination, the applicant would fail to prove that W is a child in need of protection.

1. Ms Johnston on behalf of the recognised entity, has addressed the court with regard to the effect of intergenerational trauma and how this may have affected NM’s actions.  Intergenerational trauma is generally understood to be a person’s response to a major catastrophic event that is so overwhelming it leaves that person unable to come to terms with it.  In some cases, trauma is passed down from the first generation of survivors who directly experienced or witnessed traumatic events to future generations.  This is referred to as intergenerational trauma, and can be passed on through parenting practices, behavioural problems, violence, harmful substance use and mental health issues.

1. Ms Dart, with whom Mr Kissick agrees, argues that the application to dismiss can and should be made at this early stage, as on its highest case, the applicant cannot prove that W has suffered significant harm and that a finding on this basic point would save the court time and expense of proceeding with what is likely to be a hearing which would run for some days.  It would also, Mr Kissick argues, avoid prolonging the period of separation of W from her father, MS, who I understand has only had limited contact over the last 3 months.  Any order along the lines sought would also foster ongoing departmental intervention in the family where this was not necessary.

1. Mr Ashen (for the DCPL) in his oral and written submissions provided yesterday, argues strongly that the information obtained from W during the Section 93A statement was corroborated by NM’s sworn statement to police on the same day.  I note that there was a 20 minute break in the s93A interview when W sat with her mother and had some chocolate.  Interestingly, almost the first thing said by W following the break in answer to a question by the interviewer as to what they had been discussing before the break, was that they had been talking about her father’s snake and ‘private parts’.  This is the first mention of those words by any person in the interview, and the court can only draw an inference that W had been influenced by something said to her during the break – possibly from her mother.

1. I have been referred to the conclusion contained in the SCAN meeting minutes as being in support of the applicant’s case.  However, this conclusion is based on the complete acceptance by the team that the sexual abuse had occurred as described at its highest.  Mr Ashen has also intimated that, in washing W’s sheets and hanging them out before 6.30 am in the morning on a winter’s day, MS was acting in a suspicious way, trying to cover up what had occurred.  A printout of the times of sunrise on 29 June and 6 July 2016 have been tendered to prove that it would have been dark when he did this.  I find that washing a child’s sheets after bedwetting is usual.  For a parent to do so immediately and before heading off to work is entirely normal and not indicative of an ulterior motive.

1. Mr Ashen has argued the opinion of the police in deciding initially that it was highly likely the offence did not occur was only an opinion formed by police.  However, it would appear that the applicant’s material filed in the court is also based on opinion formed by officers of the department.

1. He also argues that the onus of proof is much higher for criminal matters and that I only need to be satisfied that W has suffered significant harm on the balance of probabilities in accordance with Section 105 of the Child Protection Act 1999.  He also argues that if I were to find that the alleged abuse did not occur, I should also turn my mind to whether W was an unacceptable risk of suffering significant harm.  In this regard he has referred me to a paper entitled The Approach of the Family Law Courts to the Investigation of Allegations of Child Abuse:  The Unacceptable Risk Test,  presented by the late Federal Magistrate Slack to the Queensland Family Law Residential in 2010 in which he outlines the law with regard to the investigation of child abuse and the test to be applied when determining the element of unacceptable risk.[11]

   [11] Outline of Argument on behalf of the applicant, p. 6.

1. I have been referred to the case of MDS v Director of Child Protection Litigation & Ors [2017] QChC 6 by Ms Dart (supported by Mr Kissick) in which His Honour Judge Morzone QC considered the Briginshaw principles.  In Briginshaw v Briginshaw[12] Dixon J said:

‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved…’

[12] (1938) 60 CLR 336, at 362.

1. Referring to ‘the requirement that the court need only be satisfied on the balance of probabilities[13] and the decisions in Qantas Airways Ltd v Gama[14], Palmer v Dolman[15] and Victoria v Turner[16], His Honour found that the Briginshaw principle ‘permits the court to require a higher degree of satisfaction to discharge that standard where the seriousness of the allegations and consequences of sustaining them warrant that approach’[17].  This was also affirmed by the High Court in Refjek v McElroy[18] and Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd.[19]

   [13] Section 105(2) Child Protection Act 1999.

   [14] (2008) 167 FCR 537 at [110] per French and Jacobson JJ.

   [15] [2005] NSWCA 361.

   [16] (2009) 23 VR 110 at [112] – [118] per Kyrou J.

   [17]MDS v Director of Child Protection Litigation & Ors [2017] QChC 6 at paragraph [32]

   [18] (1965) 112 CLR 517.

   [19] (1992) 67 ALJR 170.

1. Given the serious allegations made that W suffered sexual abuse in the form of vaginal rape, oral rape, sodomy and indecent treatment at the hands of her father, I am satisfied that, reflecting Morzone QC DCJ’s conclusions in MDS, the seriousness of the allegations in this case, and the gravity of their consequences, warrant a higher degree of certainty to be satisfied on the balance of probabilities.

1. In this case, what is before the court is W’s Section 93A interview[20], NM’s sworn statement to police dated 24 July 2016[21], her affidavit affirmed 6 November 2017, MS’s statement to police[22] and his affidavit affirmed 6 November 2017, the Social Assessment Report from Mr Gary Shepherd[23], the Sexual Offending Risk Assessment[24], Toowoomba Base Hospital notes and report from Dr Da Silva[25], along with transcripts of interviews with the parents by the Department and reports from W’s day care (which reveal no unusual behaviour by W)[26] along with other supporting affidavits attested by departmental officers.  These latter documents are mostly attested on the basis of hearsay which is not unusual in such cases.

   [20] Exhibit 1.

   [21] Exhibit H to the Affidavit of Chelsea Daynes affirmed 10 May 2017.

   [22] Exhibit F to the Affidavit of Chelsea Daynes affirmed 10 May 2017.

   [23] Exhibit 1 to the Affidavit of Gary Shepherd affirmed 19 September 2017.

   [24] Exhibit A to the Affidavit of Robert Sciasci affirmed 17 October 2017.

   [25] Exhibit I to the Affidavit of Chelsea Daynes affirmed 10 May 2017.

   [26] Exhibit 25 to the Affidavit of Chloe Barralet sworn 8 March 2017.

1. It must not be forgotten or overlooked that the main principle for administering the Child Protection Act is ‘that the safety, wellbeing and best interests of a child are paramount’.[27]  Here there have been serious allegations of sexual abuse raised by the applicant.  I have found that given the serious nature of these allegations, I must be satisfied to ‘a higher degree of certainty’ that the abuse has occurred.

   [27] Section 5A Child Protection Act 1999.

1. This is a case where there is no history of either parent with the Department,

either as children or parents, no recorded history of domestic violence between the parents and no criminal history for either of the parents.  There is however a history of the mother, NM, suffering child abuse for which she has not sought out or received counselling until recently. MS, the father, has been assessed as ‘low risk’ for sexual offending as found by Ms Johnstone the psychologist who provided the Sexual Offending Risk Assessment to the Department.   Having heard from Ms Johnston for Goolburri, the recognised entity, I am satisfied on the balance of probabilities that this is a case of intergenerational trauma, where NMl, as a result of her historic childhood abuse combined with the miscarriage of a much wanted child, has projected her fears onto her daughter W which has led to the application before the court.

1. Having considered the content of the Section 93A interview, the mother’s statement to police and her sworn affidavit in these proceedings, the conclusions reached by Mr Shepherd together with my finding that this is a case of intergenerational trauma, I am not satisfied that the abuse as alleged by the applicant occurred at all and therefore W is not a child who suffered significant harm.

1. In light of that finding, I will then turn to a consideration as to whether W is at unacceptable risk of suffering significant harm and does not have a parent able and willing to protect the child from harm.[28] 

   [28] Section 10 Child Protection Act 1999.

1. The unacceptable risk test has been the subject of judicial discussion and findings.  In N & S[29], Justice Fogarty posed a number of questions which a court would be required to ask.  These include such questions as the nature of the events, who made the allegation, to whom they were made, period of time, any effects exhibited by the child, whether the allegations are reasonably based, whether there is any expert evidence, or satisfactory explanations of the allegations.  (this is an inexhaustive list)  In Donaghey & Donaghey[30], Justice Murphy stated –

‘Risk involves two components:  the degree of ‘likelihood’ of the happening of an event, and the possible consequences (good or bad) if it does.’[31]

[29] (1996) FLC 92-655.

[30] [2001] FamCA 13.

[31] Ibid. at paragraph 30.

1. Then at paragraph 32, His Honour refers to the High Court’s finding in M v M[32] that the unacceptable risk test was ‘subservient and ancillary’ to the determination of what is in the best interest of the child. The overriding consideration of the welfare of the child in all custody and access decisions is, in my view, analogous to the paramount principle set out in Section 5A of the Child Protection Act that the safety, wellbeing and best interest of a child are paramount.

   [32] (1988) 166 CLR 69

1. Given my findings that the sexual abuse did not occur, the fact that MS has been assessed as a ‘low risk’ of sexual offending (made on the basis that the abuse had actually occurred) and NM is now receiving the counselling and support she requires, and balancing these factors with W’s wellbeing and best interests, I find that W is not at an unacceptable risk of suffering significant harm.  I further find that she does have parents able and willing to protect her from harm.

1. Ms Dart’s application to dismiss the DCPL Amended Application for a protection order is granted and the Amended Application will be dismissed.