Re Benji and Perry

[2018] NSWSC 1750

Supreme Court

New South Wales

Medium Neutral Citation:	Re Benji and Perry [2018] NSWSC 1750
Hearing dates:	18 October 2018
Date of orders:	18 October 2018
Decision date:	14 November 2018
Jurisdiction:	Equity
Before:	McDougall J
Decision:	Summons dismissed. No order as to costs.
Catchwords:	CHILDREN – parens patriae jurisdiction – application in effect to prevent implementation of orders made by the Children’s Court – where Children’s Court ordered that children the subject of the application be returned to their carers – where Department contends that this would pose an unacceptable risk of harm – whether there is an unacceptable risk of harm – necessary to balance possibility of harm if children are returned with probability of harm if they are not – application dismissed.
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 (NSW) Evidence Act 1995 (NSW) Family Law Act 1975 (Cth) Supreme Court Act 1970 (NSW)
Cases Cited:	Briginshaw v Briginshaw (1938) 60 CLR 336 Coulton v Holcombe (1986) 162 CLR 1 Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 Johnson v Page [2007] FamCA 1235 M v M (1988) 166 CLR 69 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Re Benji and Perry [2018] NSWSC 1594 Re Frances and Benny [2005] NSWSC 1207 Re Liam (2005) 33 Fam LR 86 Re M (No 4) [2013] NSWCA 97 Re Tanya [2016] NSWSC 794 Rolleston v Insurance Australia [2017] NSWCA 168 Wesiak v D&R Constructions (Aust) Pty Ltd [2016] NSWCA 353
Category:	Principal judgment
Parties:	Secretary of the NSW Department of Family and Community Services (Plaintiff) The Children’s Court of New South Wales (First Defendant) Mr and Mrs Thompson (Second Defendants)
Representation:	Counsel: M Anderson (Plaintiff)   Solicitors: NSW Crown Solicitors (Plaintiff) J David (Second Defendants) A Mowbray (Mother) B Smith (Direct Legal Representative for Perry) S Luke (Independent Legal Representative for Benji)
File Number(s):	2018/316182

Judgment

1. HIS HONOUR:   The plaintiff (the Secretary) sought orders from this Court in respect of two children who will be known by the pseudonyms Benji and Perry. The practical effect of the orders sought would have been be to prevent the implementation of orders made on 16 October 2018 by the Children’s Court of New South Wales. The Secretary invoked this Court’s inherent jurisdiction commonly referred to as the parens patriae jurisdiction.

2. The effect of the orders made by the Children’s Court was that Perry’s adoptive parents, the second defendants (who will be known by the pseudonym Mr and Mrs Thompson), would have parental responsibility for and the care of Perry, and the care of Benji. The Secretary said that those orders ought not be implemented, because the implementation would expose those children to an unacceptable risk of sexual abuse.

3. The matter first came before me in the Duty List on 16 October 2018. On that day, I ordered that parental responsibility for Benji and Perry remain with the Minister until 18 October 2018, when the Secretary’s application could be heard on its merits. The Secretary was represented, as were all other interested parties (whose legal representatives participated by telephone). When I dealt with the application on 18 October, I formed the clear view that the Secretary’s application ought be dismissed. Because of the obvious urgency, I made an order accordingly, giving only brief reasons[1] . I said that I would give more detailed reasons when time permitted. What follows are those detailed reasons.

   1. Re Benji and Perry [2018] NSWSC 1594.

Background

4. Perry is aged 13. When he was 7 months old, the Children’s Court made orders allocating parental responsibility for Perry to the Minister of the Department now known as Family and Community Services (the Department) until Perry attained the age of 18.

5. Shortly before Perry’s second birthday, he was placed into the care of Mr and Mrs Thompson. On 16 February 2015, this Court made orders for Mr and Mrs Thompson to adopt Perry. Perry has lived with them from the placement up until very recently. He regards them as his parents.

6. Benji is aged 10. He is the biological child of a mother who will be known by the pseudonym Ms Lane. When Benji was 5 months old, the Children’s Court made orders allocating parental responsibility for him to the Minister until Benji attained the age of 18.

7. Until very recently, Benji has been in the care of Mr and Mrs Thompson. That commenced in December 2008: that is to say, when he was about six months old. Benji and Perry regard each other as brothers.

8. There is a third child involved, although the orders of the Children’s Court did not affect her. She will be known by the pseudonym Alexa. She is 8 years old. On 31 May 2015, the Children’s Court made orders allocating parental responsibility for Alexa to the Minister until she attained the age of 18.

9. Alexa has been in care almost all her life. She had experienced several placements before she was two years old. She was then put into the care of Mr and Mrs Thompson.

10. Alexa is the biological daughter of Ms Lane. She and Benji are full siblings. It is clear that they so regard each other.

11. The evidence before the Children’s Court suggests that Alexa has been a very difficult child. Mr and Mrs Thompson could not cope with some of her behaviours. Accordingly, in July 2016, she left their care for short-term respite care. When in respite care, Alexa said that she had been sexually abused by Mr and Mrs Thompson.

12. There was evidence before the Children’s Court that Alexa suffers from a condition known as Reactive Attachment Disorder (RAD). I set out a description of that disorder as it appears from a report of a psychologist that was in evidence before the Children’s Court:

It may be useful to have a description of Reactive attachment disorder (RAD) as a way of possibly understanding some of [Alexa’s] longstanding behaviours. RAD is a condition that is usually experienced by adopted or foster children when they fail to attach to a primary caregiver. Children with RAD are known by medical clinicians and psychologists to profoundly challenge their adoptive or foster parents and school personnel.

Children with RAD demonstrate significant and often dangerous behaviours that might present challenges and concerns for carer’s and their families. Reactive attachment disorder is defied [sic] in the diagnostic and statistical manual of mental disorders (DSM-V; American Psychiatric Association) as a disorder related to a child’s failure to attach to his or her primary care giver. It is grounded in John Bowlby’s attachment theory which is typically applicable to the explanation of parent-child behaviour (Bath, Crea, John, Thoburn, and Quinton, 2005). Children form attachments with a carer giver and learn about themselves through interactions with the mother as the child’s most important attachment is usually with the mother. This attachment is crucial in early development of a child because the quality of the attachment determines how well the individual child functions in later life. Children who have been abused or neglected might be more at risk for developing reactive attachment disorders. Many RAD children experience multiple home placements with foster carer’s.

Kain (2006) found that children with RAD defy traditional treatment and behaviour management strategies and demand more than the usual treatment approaches and interventions. A report prepared for the American Professional Society on the abuse of children (APSAC) found that some RAD children exhibit extreme behavioural and emotional disturbances. The report confirmed that the needs of the children and their families are real. They found that inappropriate and unpredictable behaviours were fairly commonly exhibited by children with RAD and included: severe and intense physical aggression, proactive planning of inappropriate behaviours to maximise response, and seemingly bizarre behaviours such as children hiding bodily waste in different areas of the house, urinating in other members of the family’s personal clothing or personal space, stealing, lying and making false allegations of abuse against adults.

13. In summary, the view of the psychologist was that, on balance, the behaviour of Alexa, including the complaints of sexual abuse that she made when she was placed into respite care, were attributable to her RAD.

The complaints

14. As I have noted already, when Alexa was placed into respite care, she made complaints of sexual abuse. Those complaints related in particular to Mr and Mrs Thompson. There was however some suggestion that, one way or another, Benji and Perry had been involved.

15. The complaints were referred to the Department. The Department investigated, and found that the complaints were “substantiated”. The learned Children’s Magistrate, his Honour Magistrate Williams, described, in a way that does not appear to be controversial, what was meant by saying that the complaints were “substantiated”:

At this point it is appropriate that I make some comment on the notion that the abuse allegations have been “substantiated”. At its highest, “substantiation” is an indication that some person, upon reviewing all the unavailable evidence, has reached a determination that the allegations were true. I have not been told whether any particular process, expertise, or standard of proof was employed in that process. It must certainly have been the case that the person who substantiated the allegations did so without having been informed of [the psychologist’s] competing hypothesis. Substantiation is nothing more than a value judgment made by another person who, in this case, did not have all of the evidence that the Court has heard. It is not something which renders an allegation into fact or binds any subsequent fact-finder.

16. Accordingly, the Department took steps to remove Benji and Perry from the care of Mr and Mrs Thompson. I do not know whether Alexa remained with the respite carers or whether she was placed with someone else, but that is not of any present relevance.

17. That led to the applications that were dealt with by the Children’s Court on 16 October 2018 (after a hearing that occupied some 8 days scattered over several months). Mr and Mrs Thompson made an application in respect of Benji and Alexa. They asked that the orders allocating parental responsibility for those children to the Minister be discharged, and that instead parental responsibility be allocated to them. The application in respect of Alexa was not pressed at the hearing.

18. The Secretary made an application for orders, both interim and final, allocating parental responsibility for Perry to the Minister until Perry attained the age of 18.

19. The Secretary opposed the application brought by Mr and Mrs Thompson. However, their application was supported by the direct legal representative of Perry, the independent legal representative of Benji and by Ms Lane. All those people opposed the Secretary’s application.

Decision of the Children’s Court

20. The Magistrate delivered detailed and thoughtful reasons. He concluded that Mr and Mrs Thompson’s application in respect of Benji and Perry should succeed. Since their application in respect of Alexa was not pressed, he dismissed it. He concluded that the Secretary’s application should fail.

21. The Magistrate’s reasons identified the issues as follows:

The sexual abuse allegations made by [Alexa] form the basis of the Department’s position, which is, in its most basic form, that no child should live with Mr and Mrs [Thompson] because of the risk that they will be sexually abused. Mr and Mrs [Thompson] deny the sexual abuse allegations, and say that it is in the best interests of both [Benji] and [Perry] that they should live with them.

Perhaps unusually in a case involving allegations of child sexual assault, each of the Independent Legal Representative for [Benji], [Perry] through his Direct Legal Representative, and [Benji’s] biological mother, support Mr and Mrs [Thompson] rather than the department. I hasten to add that although such a position might appear unusual, it is in no way an unprincipled position. It comes about because of the highly unusual, perhaps unique expert evidence that has been presented in this case.

22. His Honour then referred in summary form to the evidence of the psychologist, including what she said as to what had been said to her in her interviews with Benji, Perry and Alexa. Then, after considering the way in which the parties had approached the dispute and the requirement of s 93(1) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care Act), the Magistrate reminded himself of the overriding principle, expressed in s 9(1) of the Care Act, that “in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount”.

23. The Magistrate then considered at length such evidence as there was of physical and sexual abuse. That evidence came from the psychologist (who I note was an independent and, in effect at least, a single expert), from case workers and casework managers employed by the Department, and from the Department’s records.

24. The Magistrate said, of the evidence from the case workers and casework managers, that they “have at times exhibited an entrenchment of thought and position that has not always been of benefit to [the] children”. He observed, in substance, that the officials involved in the case had closed their minds to the possibility that the views of the psychologist might be correct.

25. Thus, the Magistrate said, “the department has not taken on board the full scope of the reasoning process by which [the psychologist] reached her conclusions”, but instead had “not genuinely contemplated the merits of [the psychologist’s] hypothesis”. In the result, his Honour said, the Department’s “position of opposition lacks the rigour it might otherwise have”.

26. In those circumstances, the Magistrate found that the views of the case workers and casework managers, to the extent that they purported to be expert opinion, carried little weight. That was so, he said, because “they have truculently refused to even engage with the fundamental ideas behind [the psychologist’s] recommendation”.

27. The Magistrate then considered at length both the evidence given by the psychologist and the criticisms made of it. It is plain that he found the psychologist’s evidence persuasive, notwithstanding the attacks made upon it both in cross-examination and in submissions.

28. The conclusions that the Magistrate drew from the evidence overall, based on his acceptance of the psychologist as a credible witness, were as follows:

1.   I accept [the psychologist’s] conclusion that, on the balance of probabilities, Mr and Mrs [Thompson] did not sexually abuse [Alexa]. That, of course, does not mean that it is certain they did not do so. Given the lack of precision available to me in the context of the evidence that has been presented in this case, the most that this Court can do is to make a probabilistic assessment. The assessment I make is that the probability Mr and Mrs [Thompson] sexually abused [Alexa] is greater than zero but less than 50%.

2.   Given [Perry’s] repeated and truculent denials, I similarly conclude, on the balance of probabilities, that Mr and Mrs [Thompson] did not sexually abuse [Perry]. In light of his own evidence, the probability that they did so, whilst still non-zero, is less than the probability they sexually abused [Alexa].

3.   It follows that on the balance of probabilities I find that [Perry] did not witness Mr and Mrs [Thompson] sexually abusing [Alexa].

4.   There is no evidence that Mr and Mrs [Thompson] sexually abused [Benji]. On the balance of probabilities, I find that [Benji] did not witness the sexual abuse of [Alexa] or [Perry].

29. Having so concluded, the Magistrate proceeded, appropriately, “to consider the legal issues generated by [Perry’s] and [Benji’s] cases separately”.

30. In the result, the Magistrate concluded that, on the balance of probabilities but “in the Briginshaw sense”[2] , it had not been shown that Perry had been sexually abused or was likely to be sexually abused. It was not necessary for his Honour to consider the possibility of physical abuse, because, as to Perry, the Department had eschewed that as a basis for making the order.

    2. Briginshaw v Briginshaw (1938) 60 CLR 336: compare Evidence Act 1995 (NSW), s 140.

31. Having reached that conclusion, the Magistrate said that he had no power to make the care orders sought, because such orders could not be made unless Perry were in need of care. He referred to s 72 of the Care Act.

32. The Magistrate noted that Benji’s case was different. The application was one for variation or rescission of a final care order that had been made earlier. That called up s 90 of the Care Act, and in particular the requirement that it be “appropriate” to make the orders sought, taking into account the paramount concern identified in s 9(1) of the Care Act and all other relevant matters including, specifically, those set out in s 90(6).

33. The Magistrate reasoned that there were two conflicting factors. One was the possibility that, despite his Honour’s earlier findings, Benji had been the victim of, or otherwise involved in, sexual abuse. The other was the clear evidence of the psychologist, which his Honour accepted, “that keeping [Benji] separated from his psychological brother, [Perry], and his psychological parents, [Mr and Mrs Thompson], is in fact causing harm”. Thus, his Honour said, the “risk analysis involved balancing a known risk with a potential risk”.

34. The Magistrate took the view that the evidence of the psychologist was the determining factor for this analysis. It followed from that evidence, he said, that the risk of harm from sexual abuse “must be low indeed”. That low risk was to be “balanced against the known and continuing risk of harm that arises from” any separation of Benji from Perry and Mr and Mrs Thompson.

35. If I may say so, the Magistrate’s reasons are logical. They engage with the facts and the guiding principles. They appear to deal rationally with conflicting evidence and the conflicting submissions. At least on their face, it is difficult to see what reason there could be for this Court to intervene, given the limited bases on which it should do so: a matter to which I now turn.

The role of the Supreme Court

36. I considered the bases upon which this Court might intervene in decisions of the Children Court in my judgment in Re Liam [3] . I started by setting out at [15] to [24] the relevant provisions of the Care Act (which in that judgment I referred to simply as “the Act”). There may have been some changes to those provisions in the 13 years since I decided Re Liam, but no one suggested that any such changes would have any substantive impact on my reasoning.

    3. (2005) 33 Fam LR 86.

37. At [25] and following, I identified the sources of this Court’s power as flowing from:

1. its common law supervisory jurisdiction to grant orders in the nature of certiorari or prohibition; see now Supreme Court Act1970 (NSW), s 69; and

2. its inherent jurisdiction, derived ultimately from the Court of Chancery and through it from the powers of the Chancellor in the place of the monarch, known as the parens patriae jurisdiction.

38. For convenience, I take the course of simply setting out what I said in re Liam at [25] to [30]:

It is apparent from the Act that the legislature intended that the Children’s Court should be the primary court for the hearing and determination of applications under the Act, and, more generally, for applications relating to the safety, welfare and well-being of children or young persons (insofar as the Act makes provision for such applications). It is equally clear that the legislature intended that the District Court should be the primary court of review of decisions made by the Children’s Court under the Act.

Nonetheless, as s 247 of the Act makes clear, this Court retains all its powers. On what basis should those powers be exercised?

In Re Anna, Bruno, Courtney and Deepak [2001] NSWSC 79, Hodgson CJ in Eq dealt with that question at paras [20] to [22]. His Honour concluded that, although the traditional limitations and interference with discretionary decisions might not be strictly applied, nonetheless some justification must be demonstrated for this Court to interfere. His Honour said:

“20   In this matter, the Court is being asked to make an order that displaces a considered order made within jurisdiction by another judicial officer. The usual principle that applies when the Court is asked to do this is that the Court will not interfere with such an order, particularly an order made in exercise of a discretion, as this is, unless the Court is satisfied that the decision is plainly wrong, or unless some error appears in the process leading to that decision, such as failure to give a proper hearing, error of law, or failure to give reasons.

21   No one has referred me to any authority in which that approach has been strictly applied to cases of this kind. Indeed, it was submitted by Mr Singleton that, because of the nature of the Court’s traditional jurisdiction, which is expressly preserved by s.247 of the 1998 Act, and because of the paramountcy of the interests of the children, this Court would not regard itself as strictly limited by that approach.

22   I think that submission is correct. However, I think the principles I have mentioned are still relevant, and that this Court would approach the matter on the basis that justification has to be shown for overriding the decision of another judicial officer.”

It is apparent that the parens patriae power to intervene is wider than the power of the Court under the common law remedy of certiorari. The scope of, and limitations upon, that remedy were stated by the High Court of Australia in Craig v South Australia (1995) 184 CLR 163 at 163-176. Their Honours noted the limited basis on which certiorari was available. They said that it was not an appellate procedure or some general means of administrative review, but that it would be available on distinct grounds including jurisdictional error, failure to convey the appropriate measure of procedural fairness, fraud, or error of law on the face of the record. They said:

Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing (55) of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly jurisdictional error (56), failure to observe some applicable requirement of procedural fairness (57), fraud (58) and “error of law on the face of the record” (59). Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it (60). In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the “record” of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record.

In my judgment, it follows that if sufficient justification to intervene were established according to the Re Anna test, then the relief available would include that otherwise available by way of certiorari. That would be so even if, having regard to the restrictions on the availability of certiorari established by the High Court in Craig, that remedy itself were not in terms available. That is because the parens patriae jurisdiction is part of the inherent equitable jurisdiction of this Court. The grant of relief in the exercise of that jurisdiction is, like all equitable relief, to be moulded according to the circumstances of the particular case. If, in the particular case, the proper exercise of the parens patriae jurisdiction requires orders in the nature of certiorari, then in my judgment those orders might be made notwithstanding at common law they could not be.

In Re Victoria [2002] NSWSC 647, Palmer J emphasised at para [36] the statutory scheme establishing a specialist court, and providing an appeal process with particular mechanisms and powers. His Honour stated at paras [37] to [39] that although this Court's jurisdiction remained untrammelled by the scheme established by the Act, parties should be discouraged from bypassing the statutory appeal mechanism and, in effect, exploiting this Court's parens patriae jurisdiction as an alternative kind of appeal.

39. Mr Anderson of Counsel, who appeared for the Secretary, relied on the judgment of Young CJ in Eq in Re Frances and Benny [4] . His Honour said at [17], [18] of that decision:

17    The parens patriae jurisdiction derives from the royal prerogative and although its origins probably go back to the time of Edward III, in more recent centuries the Chancery Division in England and the Equity Court in New South Wales have been responsible for exercising the Queen’s power to do good to all her subjects, particularly to those who are children or otherwise incapable of looking after themselves. In exercising that jurisdiction the court’s concern is predominantly for the welfare of the person involved. It is not a jurisdiction that is bogged down at all with any technicalities. It is a quite separate jurisdiction to the supervisory jurisdiction that is committed to this court by way of prerogative orders under which this court supervises inferior courts and tribunals to make sure that they do justice and right to all people before them.

18    I agree with respect to what was said by Palmer J in Re Victoria[2002] NSWSC 647; (2002) 29 Fam LR 157 that the parens patriae jurisdiction is only to be exercised in exceptional cases. However, one of those exceptional cases is where it is urgently required that some protective order be made and the court can see that other curial processes may not be able to provide instant relief.

4. [2005] NSWSC 1207.

40. Mr Anderson placed particular emphasis on what Young CJ in Eq said at [20]. Although I think the submission was misdirected (and I deal with this at [83] and following below), it is convenient to set out that paragraph at this point:

20    It is very galling for a judicial officer to see a case before him or her in which it appears that a particular order should be made, but there is not the evidence that one would hope should be presented so that the order can be made. However, it is wrong as a matter of law to dismiss a case just because the judicial officer comes to that viewpoint. There is a rule which applies to all courts that if a judge, particularly a judge dealing with a matter involving children, comes to the view that he or she does not have sufficient material, it is the court’s duty not to dismiss the case but to adjourn it, making very clear what the court’s concerns are: see Re Morgan (1982) FLC 91-225; Australasian Performing Rights Association v Edmonds (Young J, 16 June 1987, unreported); Attorney-General (NSW) v Wentworth (1991) 24 NSWLR 347 at 350 and Re Evelyn (1998) 23 Fam LR 53 at 65. That is what should have happened in this case if the learned magistrate thought that the material placed before him was insufficient.

41. In Re M (No 4) [5] , Ward JA considered a number of decisions in this Court. Her Honour said at [22] that it followed from those decisions, which included mine in Re Liam, that when the Court exercises its parens patriae jurisdiction “exceptional circumstances are required… to interfere with orders that have been made by judicial officers exercises specialist jurisdiction such as those in the Children’s Court”.

    5. [2013] NSWCA 97.

42. Her Honour then stated, at [23]:

As I indicated during my oral reasons I would do, I note the above cases as making clear that the Court will not interfere with a considered order made within a specialist jurisdiction by another judicial officer unless the Court is satisfied that the decision is plainly wrong, or unless some error appears in the process leading to that decision such as failure to give a proper hearing, error of law or failure to give reasons. In Re Victoria, Palmer J noted the statutory scheme establishing a specialist court in relation to Children's Court matters and that parties should be discouraged from bypassing the statutory appeal mechanism and exploiting the Court parens patriae jurisdiction. See also what was said in Director General of the Department ofCommunity Services v Priestley [2004] NSWSC 639 by Young CJ in Eq as his Honour then was, that it is inappropriate in almost all cases for the Supreme Court to be asked to deal with a matter in the parens patriae jurisdiction when the only errors alleged against a specialist Magistrate in a specialised jurisdiction were that he, or she, in the exercise of discretion failed to give due weight to a number of factual circumstances, or disproportionate weight to others, or where there is an error of fact that did not go to the fundamentals of the case.

43. In the present case, the submissions for the Secretary invoked the Court’s the parens patriae power. They did not invoke s 69 of the Supreme Court Act. In those circumstances, there is no need to bring to mind the caution that a court exercising prerogative power, or its equivalent under s 69 of the Supreme Court Act, must observe so as not to stray into the field of merits review of the impugned decision.

An interim order?

44. In the ordinary way, when considering the exercise of the parens patriae power, the Court must pay attention to the statutory scheme. It follows that the Court should proceed on the basis that the legislature has seen fit to set up a regime providing for a specialist court, the Children’s Court, to be the primary decision-maker, and for merit appeals to be brought to the District Court. That is a factor of significance in Perry’s case. However, the Secretary contends, it is not significant (or so significant) in Benji’s case, because the order that was made was an interim order. That submission was based on s 91(1) of the Care Act, which provides as follows:

A party to proceedings who is dissatisfied with an order (other than an interim order) of the Children's Court may, in accordance with the rules of the District Court, appeal to the District Court against the order.

45. The order in respect of Perry was expressed to be a final order. I think that it is properly to be so classified, even though it was said to operate only in respect of the Secretary’s application pursuant to s 69 of the Care Act (which deals with interim care orders). I say that because the application in fact sought both interim and final orders allocating parental responsibility for Perry to the Minister. The order of dismissal related to the entirety of the application. Thus, as I have said, there is a right of appeal.

46. Mr and Mrs Thompson’s application in respect of Benji was one for final relief. They sought to discharge the earlier orders of the Children’s Court (allocating parental responsibility for Benji to the Minister), and, to have parental responsibility for Benji allocated to them. However, the only relevant order that was made was an interim care order pursuant to s 69 of the Care Act. It was common ground, and the orders made recognised, that no final order could be made because there was no care plan, nor any permanency plan, in place for Benji (see ss 78, 78A of the Care Act).

47. Thus, as Mr Anderson contended, the relevant order in respect of Benji was an interim order and there is no right of appeal.

Principles to be applied in care proceedings

48. The parties were in agreement on this point. As I have said already, the paramount concern is the safety, welfare and well-being of the child or young person. It has been said, in many cases, that the test to be applied is that of “unacceptable risk of harm to the child [or young person]”. That test is derived from the decision of the High Court in M v M [6] at 78. That case related to the Family Law Act 1975 (Cth). However, the statement of paramount concern in that Act differs in wording only, and not in substance, from what is found in s 9(1) of the Care Act.

    6. (1988) 166 CLR 69.

49. The “test” in M v M has been applied on numerous occasions in this Court. It is necessary to refer only to the judgment of Rein J in Re Tanya,[7] where his Honour extracted, with approval, the following principles from the underlying judgment of the Children’s Court:

[22]    It is now well settled law that in all decisions under the Care Act 1998 involving the paramount concern for the safety, welfare and well-being of a child, including issues of removal, restoration, contact, custody and placement, the proper test to be applied is that of "unacceptable risk of harm to the child": M v M [1988] HCA 68 at [25]. Whether there is an unacceptable risk of harm to the child is to be assessed from the accumulation of factors proved according to the relevant civil standard: see Lukeson v Page [2007] Fam CA 1235.

[23]    The High Court has held that in applying the unacceptable risk of harm test it is necessary to determine firstly whether a risk of harm exists and, secondly, the magnitude of that risk, as it may be determinative of the issues involved in the particular proceedings.

7. [2016] NSWSC 794.

50. In M v M at 78, the High Court made it clear that in seeking to promote the paramount interests of the child, it was necessary to balance the risk of detriment from (in that case, as in this, sexual abuse) on the one hand and the benefit of remaining in or returning to a stable family relationship where the child has bonded with parents and siblings. I should make it clear that I am paraphrasing and extending, but not I think in an unacceptable way, what their Honours actually said.

51. The other point to bear in mind is that the assessment of unacceptable risk of harm does not require a finding, on the balance of probabilities, of facts from which an inference of unacceptable risk may be drawn. It may be that there are several possible sources of risk, none of which can be said to have been proved on the balance of probabilities, but, nonetheless, the accumulation of those possible risks could justify an overall finding of unacceptable risk. That follows, I think, from the decision of the Full Court of the Family Court of Australia in Johnson v Page [8] at [68] – [71]. The last of those paragraphs is significant for purposes that will become clear, and I set it out:

71.    We generally agree with Mr. Fogarty’s seven point summary (see paragraph 68). We assume point seven of that summary is directed to the requisite standard of proof. We think a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof (but see Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638).

8. [2007] FamCA 1235.

52. Nonetheless, although the courts may reach a finding of unacceptable risk if none of the risk factors are proved on the balance of probabilities, they should be cautious in doing so.

Unacceptable risk of harm?

53. Mr Anderson suggested that the Magistrate had erred in the way he applied the test of unacceptable risk of harm to the facts that were proved. He submitted, in particular, that the Magistrate had deferred his decision-making responsibility to the psychologist, because he accepted her evidence on the bases that she was credible, that her evidence “comes as a package”, and that he was therefore bound to accept her conclusions because there was no principled reason not to do so. The Magistrate said that he was in no position to assess the merits of her arguments. Mr Anderson submitted that, having so concluded, the Magistrate should have taken the course indicated by Young CJ in Eq in Re Frances and Benny at [20].

54. Alternatively, Mr Anderson submitted, if the Magistrate were in no position to assess the merits of the psychologist’s conclusions, it followed necessarily that he was in no position to make an accurate assessment of “unacceptable risk of harm”. Thus, Mr Anderson submitted, the Magistrate should have taken the course of keeping Benji apart from the source of the possible risk.

55. The other interested parties – Mr and Mrs Thompson, Ms Lane, Benji and Perry – were represented at the hearing and put submissions. It is not necessary to outline those submissions.

Consideration

56. The only evidence of sexual abuse came, although indirectly, from Alexa. As I have noted, she made complaints of sexual abuse after she had been removed from the care of Mr and Mrs Thompson and placed in respite care. Her complaints were reported to the authorities and investigated.

57. The Magistrate did not disregard that evidence. On the contrary, he was deeply troubled by it. He said:

[Alexa’s] allegations against Mr and Mrs [Thompson], and, indeed, against [the maternal grandfather] are well documented. I agree with the department that the allegations are detailed, explicit, and on their face deeply disturbing. I agree that they do not admit of confusion or ambiguity, and that they involve discussion of language, sexual activities and anatomical issues with which a young child should not ordinarily be familiar. I agree that the allegations demonstrate a high degree of learning – that [Alexa] must have learned of the things of which she speaks somewhere, that is, through some experience she has had. That is not to say that I am in a position to find that such experiences were direct, in the sense that they happened to her. Other alternatives have been postulated, including that she learned some or all of it from the internet. Whilst it is my natural reaction, and that of the department, to view that as unlikely the evidence is not such as to allow me to make a positive finding. As I will discuss elsewhere, neither natural reactions nor common sense, even informed commonsense [sic], are a reliable guide in making findings of fact in this matter.

[Alexa’s] allegations do not relate only to her. She clearly indicates that [Perry] was present and made to participate in a number of the episodes of sexual abuse. Again, those episodes do not admit of any ambiguity or confusion.

With perhaps one exception, though, [Alexa] does not appear to allege that [Benji] has been witness to or involved in any sexual abuse. The possible exception can be found in Ex 3 at page 64 in a statement of [Ms X], where she records that [Alexa] “spoke about [Benji] having a shower with Daddy”. This incident is not further described, however, and does not necessarily imply an allegation of sexual impropriety. It is, at its highest, intractably equivocal.

58. The Magistrate noted that Benji had repeatedly denied that he had been the subject of any sexual abuse, and indeed that he had “any knowledge of sexual abuse taking place”. There was a “potential exception” to the second proposition. The Magistrate dealt with that. His reasoning is impeccable. Mr Anderson did not submit that it displays any error.

59. The Magistrate also noted Perry’s consistent denials of being the victim of sexual abuse, or having witnessed it or participated in it. Those denials had “force, hostility and anger that he is not being believed”. These matters were seen as indications that the denials were truthful.

58. The Magistrate did not overlook that Alexa’s complaints were said to have been “substantiated”. I have set out earlier in these reasons the way that the Magistrate dealt with the proposition of substantiation. It cannot be said that he erred in that approach; nor did Mr Anderson submit otherwise.

59. The Magistrate did not say that the expert opinion of officers of the Department (and other members of the “task force”) could not be relevant. His point was that without knowing how or on what material the conclusion of substantiation had been reached, it could have no probative value. In addition, and as the Magistrate rightly pointed out, whoever formed the view that the complaint had been substantiated had not been informed of, let alone considered, the contrary view of the psychologist.

60. The Magistrate then turned to the evidence of the psychologist. He noted that her opinion was that, on balance, Mr and Mrs Thompson did not sexually abuse Alexa, and that the complaints made by Alexa were better explained by her RAD. The Magistrate noted that the Secretary’s evidence did not take issue with the psychologist’s reasoning [9] , notwithstanding that the opinion was “the crux” of the psychologist’s opinion.

    9. That is not meant to be a criticism; the psychologist was appointed as a single expert, and the case proceeded on the basis that the parties were free to test her evidence in such manner as they wished.

61. Ironically in view of the complaints now made, the Magistrate said, in a paragraph of his reasons which Mr Anderson did not criticise:

The department has been at pains to submit that the Court should not attempt either to arbitrate between conflicting expertise or to become an expert itself. Those submissions were made both in closing address and in the objection taken to the tender of research articles about RAD… .

The department says that the Court should not drill down into the scientific validity of [the psychologist’s] RAD hypothesis, essentially because the Court lacks the expertise.

64. Accepting, as I do and must, that the safety, welfare and well-being of Benji is paramount, I cannot refrain from pointing out that it is somewhat inconsistent for the Secretary to take one position before the Magistrate and then complain in this Court that the Magistrate had acted accordingly. Section 9(1), and the imperative that this Court as well as the Children’s Court must consider whether there is an unacceptable harm of risk to Benji, make it inapplicable to apply what was said in Coulton v Holcombe [10] . Nonetheless, it is puzzling that what was apparently an appropriate course to take in the Children’s Court is now said to be inappropriate.

    10. (1986) 162 CLR 1.

65. The Magistrate considered the advantages that the psychologist had had. She had interviewed personally each of the children, and Mr and Mrs Thompson. She had “40 plus years of training and experience in child development psychology” and in “dealing one-on-one with child sex offenders, and with victims of child sexual assault”. She had “significant knowledge and understanding regarding [RAD]”.

66. It followed, the Magistrate said, that if he found her evidence overall to be credible, then he should accept it.

67. In the course of submissions, Mr Anderson referred to the well-known observations of Heydon JA in Makita (Australia) Pty Ltd v Sprowles [11] at, in particular, [59]. His Honour there quoted with apparent approval the judgment of Lord President Cooper in Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh[12] at 39-40. The Lord President said, among other things, that the bare ipse dixit of an expert, however eminent, “will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised”; that it was the duty of the court to decide the matter; and that the parties should not be left to “an oracular pronouncement by an expert”.

    11. (2001) 52 NSWLR 705.

    12. (1953) SC 34.

68. In my view, Mr Anderson’s reliance on this passage was misplaced.

69. The psychologist’s report was lengthy and detailed. It was tested at great length (and in a way that was frequently both repetitive and confusing) in cross-examination. I accept, as Mr Anderson submitted, that the report itself did not demonstrate the whole of the reasoning that underlay the psychologist’s conclusion that Alexa’s complaints were more likely the product of her RAD than based on actual experience. The psychologist acknowledged this, and that her report had been imperfect in this and other respects. However, in cross-examination, the process of reasoning was laid bare. It is clear from the Magistrate’s reasons that his Honour took account not merely of the report and the conclusions stated in it but also of the whole of her evidence, including what she said in cross-examination.

70. I add that as I understand the reasons of the Lord President (and this I think is confirmed by what Heydon JA said in later paragraphs in Makita), the reference to independent appraisal really goes to:

1. the ability of other experts to appraise, and express a view as to the validity of, the conclusions of the first expert; and

2. the assistance thereby given to the court in performing the task of evaluating and reaching a conclusion on the whole of the expert evidence.

71. There are of course occasions when there is but one expert. In such cases, if that expert’s report does not demonstrate the reasoning process employed, there is a simple solution. The court may, and usually on objection should, reject the report. See Rolleston v Insurance Australia [13] . In this case, any deficit in the reasoning exhibited by the psychologist’s report was more than made good in her cross-examination.

    13. [2017] NSWCA 168.

72. It is frequently the case that expert evidence is so arcane, and so specialised, that the court hearing it cannot itself appraise, in the sense of testing and retracing, the reasoning of the expert. It is self-evident in such cases that the very reason for calling the expert is that the court lacks the technical expertise to consider and form conclusions about technical issues that are in contest.

73. In those circumstances, the task of the court is to consider the whole of the evidence of the expert and other relevant evidence; to consider any criticisms made of it (including by other experts); to form a view as to whether it is based on proved facts; to understand whether the conclusions expressed appear to follow logically from the application of the relevant expertise to those proved facts; and to consider whether there are other proved facts that could bear upon the reasoning process or the conclusions. That may be, and all too often is, an extremely difficult intellectual process. But it does not require the court to become an expert, and substitute its own expertise. It requires, rather, that the court assess the expert evidence by reference to the factors that I have elaborated.

74. I add that one does not need to have been a test cricketer in order to form the view, correctly, that a batsman has played a false shot, or that a bowler has delivered a rank half-tracker.

75. The short and perhaps more neutral way of summarising what I have just said is that where the expert’s reasoning process is demonstrated and can be seen to be logical, and where it appears to deal rationally and comprehensively with the facts that have been proved, the court is in no real position to come to a different view. Of course, the court is not bound to accept even uncontroverted expert evidence. It is not bound to defer – indeed, it must not defer – its independent responsibility to find the facts to the opinion of the expert. But in general, where expert evidence is uncontroverted and appears to be rational and comprehensive, it is appropriate for the court to accept such guidance as that evidence gives.

76. Of course, where there is a controversy between experts, the court is required to make some assessment of the controversy and to seek to reach a conclusion as between the conflicting views. That process does not involve the court acting in some quasi-expert capacity. Rather, it involves the court in considering the views of each (or all) experts, in the way that I have outlined above, and seeking to come to a rational conclusion as to what it draws from the totality of that evidence.

77. Before the Magistrate, the Secretary advanced three principal criticisms of the psychologist’s evidence. The first related to what the Magistrate called her methodology. The second related to an allegation of bias. The Magistrate dealt with both those complaints. He disagreed with them. Mr Anderson did not criticize the reasoning leading the Magistrate to the conclusion that those complaints should not be accepted. Regardless of Mr Anderson’s position, it seems to me, reading the Magistrate’s reasons, that he dealt with them thoroughly and rationally in coming to the conclusion that he did.

78. The third principal criticism of the psychologist’s evidence that the Secretary advanced before the Magistrate was that it was “inherently implausible”. The Magistrate dealt with that. After referring to the matters which were said to demonstrate inherent implausibility, he said that those matters:

… certainly do appear, in a lay sense, to carry some logical force. They appear to accord with informed common sense. However, the Court simply has no evidence as to how they sit with the RAD hypothesis. The department’s submission that those matters are not explained by [the psychologist’s] RAD hypothesis lacks any evidentiary basis. It might be correct, but to conclude that it is so would simply be guessing. [The psychologist] has considered all of the material available to the Court and more. She says, and I accept, that she has taken all matters into account. The matters [upon which the Secretary relied] would have been as clear to her as they are to the department, and to the Court. In the absence of some expert evidence to the contrary, it seems to me that I will be wrong to assume that [the psychologist’s] hypothesis does not account for those matters. (Emphasis in original.)

79. I do not think that the Magistrate erred in that passage of his reasoning. There are, no doubt, occasions when informed common sense may suggest that a court should be careful of accepting even uncontroverted expert evidence. But where the area of expertise is arcane, the expert is particularly well qualified, and the court has no reason to believe that the expert has overlooked any relevant matter, non-expert common sense will generally be no more than a very fallible criterion of acceptability.

80. There were other more detailed criticisms made of the psychologist’s evidence: for example, her failure to use psychometric testing. The Magistrate rejected that, making the valid point that “there is no evidence that there is any relevant psychometric testing that would have had any utility at all in these proceedings”.

81. It was by following the process that I have summarised that the Magistrate decided that he should accept the evidence, in particular the conclusions, of the psychologist. He said that her evidence “comes as a package”. As I understand it, he meant by this that the criticisms made were of her evidence overall, so that if he regarded those criticisms as ill-founded and accepted the credibility of her evidence, he could rely on her conclusions.

82. The Magistrate said also that as he was in no position to make his own principled assessment of her evidence, he ought accept it. By this, I think, he meant that he ought not set himself up as an independent expert, and use that supposed expertise to test the validity of the psychologist’s conclusions. He was correct so to direct himself. It is the duty of a court to reach a conclusion on the whole of the evidence put before it. If a court relies on material not adduced by or notified to (so that they may comment on it) the parties, it risks denying those parties natural justice. Subsections 93(2), (3) [14] of the Care Act do not suggest otherwise.

    14. Which between them mandate as little formality as possible, and dispense with the rules of evidence unless the Children’s Court orders otherwise.

83. I return to Mr Anderson’s submission summarised at [40] and [53] above. That submission seems to me to misapply what it was that Young CJ in Eq said in Re Frances and Benny at [20]. The Magistrate did not say that he was left in a state of indecision. He said that he was persuaded, on balance, that the Secretary had not proved that Alexa had been sexually abused, and thus had not proved that there was a risk that Benji and Perry might be sexually abused if they were returned to the care of Mr and Mrs Thompson. He acknowledged that the conclusion might be wrong, and that the possibility of sexual abuse could not be discounted. But that is a long way from saying that the evidence left him in no position to make up his mind either way.

84. It is important to note that although the psychologist expressed an opinion that, on balance, Alexa had not the been the victim of sexual abuse (and nor had Benji or Perry), she was unable to say definitively that this had not occurred. Nor did the Magistrate say this. On the contrary, as I have just stated, he recognised that the facts proved before him left open, as a remaining possibility, that sexual abuse had occurred. In other words, the Magistrate reasoned that although, on the balance of probabilities, he was not satisfied that sexual abuse of the kind alleged had occurred, he was nonetheless cognisant of the possibility that he might be wrong.

85. The Magistrate was thus left with a situation where there were two risks of harm, each of which in effect could only operate in the absence of the other. Everyone, including the psychologist, accepted that if it were probable that Mr and Mrs Thompson had committed the acts of sexual abuse of which Alexa complained, then it would be inappropriate to return the boys to their care, presumably because of the risk of sexual harm to them. However, it was common ground that there was the probability – not merely possibility – that if the boys were kept apart from each other and apart from Mr and Mrs Thompson, they would suffer psychological harm. The Magistrate referred to those two possible sources of harm. He concluded, weighing them, in effect that the risk of harm posed by the possibility of sexual abuse did not justify inflicting the probability of harm that would follow from separation.

Decision

86. The Magistrate was faced with a very difficult task. There was no direct evidence of abuse. There was evidence of complaint. The proposition that the complaint had been “substantiated” was bereft of probative weight (turning Mr Anderson’s ipse dixit argument against him, the Magistrate could only have given probative weight to the assertion of substantiation if he concluded, without the ability to perform any analysis of the asserted fact, that he should accept it). There was an alternative explanation for the complaint, which the Magistrate, based on his acceptance of the psychologist’s evidence, found was the probable source of the complaint. There were vehement and, in the psychologist’s view, strong and credible, denials from Perry. Benji too denied that he had been the victim of or otherwise involved in sexual abuse. There was the probability of harm if the boys were to be kept apart from each other and apart from Mr and Mrs Thompson.

87. Weighing all those matters, including the primary facts said to give rise to the inferences of possibility and probability of harm[15] , was an evaluative task. The Magistrate heard the whole of the evidence. He had had the benefit of submissions on that evidence. This Court is in no position to express a view different to that expressed by the Magistrate.

    15. As to the distinction between primary facts and ultimate facts see, by way of example, my judgment (with which Beazley P and Simpson JA agreed) in Wesiak v D&R Constructions (Aust) Pty Ltd [2016] NSWCA 353 at [57] and following.

88. Nonetheless, the power invoked is the Court’s parens patriae jurisdiction, not the power given by s 69 of the Supreme Court Act. I accept that it may be the case that no error justifying certiorari can be found, but yet the parens patriae jurisdiction ought be exercised. That is the approach urged by Mr Anderson’s submissions in this case. Thus, in principle, the Court could conclude that there was an unacceptable risk of harm even if it found no error amenable to certiorari in the reasons of the Magistrate.

89. I do not think that this is such a case. I am far from persuaded that the evidence demonstrates that the risk of harm flowing from the impugned orders is, on the assessment of all the facts (to the extent that they have been brought out in the hearing before me), unacceptable.

90. I accept the Magistrate’s finding that there remained the possibility of sexual abuse. It is concerning, as Mr Anderson submitted and the Magistrate clearly understood, that the detailed and graphic nature of Alexa’s complaints were hard to reconcile with fabrication in one so young (although in the course of her cross-examination, the psychologist did offer a possible explanation based on the material garnered during her interviews). I accept also the Magistrate’s finding, which before me was the common position of the parties, that there was the probability of harm if the boys were kept apart from each other and from Mr and Mrs Thompson.

91. I am conscious that I must be guided by s 9(1) of the Care Act. Thus, I cannot dismiss the possibility of harm simply because it is no more than a possibility. But that is not the sole question. The question is whether, in all the circumstances, returning the boys to Mr and Mrs Thompson poses an unacceptable risk of harm. The submissions for the Secretary in this Court focus on one aspect of the evidence – the risk of harm – and ignore the other.

92. All the evidence must be considered in deciding whether there is an unacceptable risk of harm. That is what I have sought to do. On the material that has been put before me and analysed in submissions, I cannot come to the conclusion that there is such a risk.

Conclusion

93. Those are the detailed reasons that led me to dismiss the application when it was heard on 18 October 2018.

**********

Endnotes

Decision last updated: 14 November 2018