The Secretary, Department of Communities and Justice v B

[2020] NSWDC 736

District Court

New South Wales

Medium Neutral Citation:

The Secretary, Department of Communities and Justice v B [2020] NSWDC 736

Hearing dates:

26, 28-30 October 2020; 9-10 November 2020; 11 November 2020 (written submissions); 12 November 2020 (oral submissions)

Date of orders:

25 November 2020

Decision date:

25 November 2020

Jurisdiction:

Civil

Before:

Dicker SC DCJ

Decision:

(1) The appeal is allowed.

(2) Orders made by the Children’s Court on 18 September 2020 are set aside.

(3) Pursuant to ss 71-72 of the Children and Young Persons (Care and Protection) Act 1998 (NSW), the Child A is a child in need of care and protection.

(4) Liberty to apply on three business days’ notice to the Associate to Dicker DCJ.

Catchwords:

CHILD WELFARE – care and protection of children – care and protection orders – appeal from Children’s Court to District Court by the plaintiff Secretary – whether the need for care and protection of the child has been established – general principles applicable - alleged sexual assault of other child – alleged perpetrator not clear – alleged drug and mental health issues – alleged lack of insight

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Evidence Act 1995 (NSW)

United Nations Convention on the Rights of the Child 1989 (CROC)

Cases Cited:

A v Secretary, Department of Communities and Justice (No 4) [2019] NSWSC 1872

Bell-Collins Children v Secretary, Department of Family and Community Services (No 2) [2016] NSWSC 853

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Department of Communities and Justice and the McAlister Children [2020] NSWChC 4

Re Henry [2015] NSWCA 89

M v M (1988) 166 CLR 69

NU v New South Wales Secretary of Family and Community Services [2017] NSWCA 221

Re H(Minors) (1996) AC 563; [1995] UKHL 16

Re Linda [2011] NSWSC 1596

Re Sophie [2008] NSWCA 250

Re Tanya [2016] NSWSC 794

V Vv District Court of New South Wales [2013] NSWCA 469

Category:

Principal judgment

Parties:

The Secretary, Department of Communities and Justice (Plaintiff)
B (Defendant)

Representation:

Counsel:
G Moore (Plaintiff)
T Seric (Defendant)
L Wells (Independent Legal Representative)

Solicitors:
Crown Solicitor (Plaintiff)
Robert Tricca & Associates Solicitors (Defendant)
Leanne Wells Solicitor (Independent Legal Representative)

File Number(s):

2020/00272003

Publication restriction:

Yes

 Decision under appeal 

Court or tribunal:

Children’s Court at Campbelltown

Date of Decision:

18 September 2020

Before:

Children’s Court Magistrate Maher

File Number(s):

2020/00020141

Judgment

1. This appeal relates to a child, A, who was born on 14 January 2020 and was thus less than 10 months old at the commencement of the appeal before the court. On 18 September 2020, the Children’s Court at Campbelltown dismissed an application by the plaintiff Secretary pursuant to s 72(2) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Act”) for a care order on the basis that the Child A was in need of care and protection. By a Summons filed on 18 September 2020, the plaintiff appellant, the Secretary of the Department of Communities and Justice (“the Secretary” or the plaintiff) appeals against the order of the Magistrate on the basis that the Secretary was a party to proceedings who was dissatisfied with the order of the Children’s Court. The right to appeal is granted under s 91 of the Act.

2. The evidence before the court on the appeal is extensive. It refers to a large number of different persons. Having regard to the nature of the proceedings, it is necessary to use pseudonyms for the names of those persons. I set out in the following table the persons who will be referred to in the course of these reasons and their pseudonyms, if applicable:

A	The Child the subject of the appeal
B	The mother of the Child who gave evidence in the Children’s Court and on appeal who is the defendant in the appeal
C	The mother’s first child (the elder sister of A). She suffered extensive injuries in 2013
D	The mother’s second child (an older sister of A but a younger sister of C)
E	The maternal grandmother
F	The sister of the mother
G	The maternal grandfather
V	The sister’s boyfriend in 2013
W	The father of C
X	The father of D
Y	The reported father of A
Z	A friend of the mother. There is an issue whether the mother was in a romantic or sexual relationship with Z at any time in 2020 and also whether Z lived with the mother B at any time in 2020.
Dr Belen	Dr Belen-Balitactac prepared a medical report in relation to the Child C. She examined C on 24 January 2013 from about 10pm.
Dr Ramoo	Dr Shamini Ramoo prepared two medical reports in relation to the Child C. She examined C on 25 January 2013 with Dr R Hurwitz from about 9:30 AM.
Dr Hurwitz	A doctor who assisted Dr Ramoo in the examination on 25 January 2013 at the Liverpool Hospital Sexual Assault Unit

3. The issue on the appeal is whether the court should make a care order under s 71 of the Act on the basis that under s 72 of the Act the Child A is in need of care and protection. This determination is commonly called “the establishment” phase in the Children’s Court.

Factual background

4. There are a number of factual matters in dispute between the parties. There are, however, many matters not in dispute. The disputed matters will in many cases need to be determined and are considered later in these reasons. The following matters represent what I consider to be largely uncontroversial matters. In order to avoid uncertainty, unless expressly stated, these constitute my factual findings in the matter.

5. The mother B was born in October 1991 which made her 29 years of age at the hearing of the appeal. She is not married.

6. In 2011, the mother formed a relationship with W. The relationship terminated due to alleged domestic violence in the relationship. In December 2011, the mother’s first child, C, was born. W is the father of this child. C will turn nine years of age in December 2020. Child C resides with, and is cared for by, the maternal grandmother, E.

7. On 24 January 2013, the mother B was living in a house with her daughter C who was then about 14 months old. Also residing in the house were the mother’s father, G, the mother’s sister, F, and a boyfriend of the mother’s sister, V. On 24 January 2013, the Child C suffered significant injuries to her genitals and anus. There is an issue whether this was as a result of a sexual assault or was an accident. The mother and the grandmother attended at the Liverpool Hospital after the Child C was conveyed there by ambulance. At some time, two police officers also attended.

8. At about 10pm on 24 January 2013, the Child C was examined by Dr Belen who in due course prepared a medical report. Dr Belen also gave oral evidence in the Children’s Court. Various possible causes of the injuries other than sexual assault have been raised, including by the mother. These are considered below.

9. It appears that either Dr Belen or another senior doctor in the Sexual Assault Unit at Liverpool Hospital, Dr Isaacs, recommended that the Child C be re-examined. On 25 January 2013 at about 9:30am, the Child C was re-examined by Dr K Ramoo and Dr R Hurwitz. Dr Ramoo found genital injuries on examination which were consistent with acute vaginal penetration, probably sustained within the last 48 hours, and a laceration consistent with acute injury to the anus. Dr Ramoo prepared a report which will be considered further below.

10. On 25 January 2013, the mother B was interviewed by Liverpool Joint Investigation Response Team caseworkers. On 31 January 2013, the Child C was assumed into care by the Secretary. On 18 March 2013, the mother filed an affidavit in Children’s Court proceedings. On 10 April 2013, the Children’s Court made a finding that the Child C was a child in need of care and protection. On 30 October 2013, the Children’s Court at Campbelltown made final orders in relation to the Child C allocating all aspects of parental responsibility for the child to the Minister for a period of 12 months and for parental responsibility to be allocated thereafter to her maternal grandmother E.

11. The mother B had a relationship in 2013 with X. The mother subsequently became pregnant. In March 2014, the mother gave birth to her second child, D. X is the father of the child D. Child D turned six years of age in March 2020. Child D resides with her maternal grandmother E and Child C. On 26 March 2014, D was assumed into care by the Secretary and on 26 June 2014 the Children’s Court made a finding that D was a child in need of care and protection. In November 2014, the Children’s Court made final orders allocating all aspects of parental responsibility for D to her grandmother E until D attained 18 years of age.

12. Because of various reports, the children C and D were removed from the care of their maternal grandmother E in late 2015. They were returned to the care of the maternal grandmother in late 2016.

13. In July 2017, the mother formed a new relationship and was the victim of domestic violence. This is the last occasion upon which the mother was the victim of domestic violence reported to be at the hands of a male partner.

14. In January 2019, the mother tried the drug ICE to allegedly assist her with managing pain. The mother claims this is the only occasion in recent times that she has ingested illegal drugs.

15. At various times in 2019, the mother was reported by police to have been in the presence of individuals who were known drug users. On one occasion, the police located drug paraphernalia. At all times, the mother has denied that she had drugs in her possession. No drugs were found in the possession of the mother and she was not charged with any drug offences.

16. At some time in 2019, the mother formed a relationship with Y, which some documents and evidence suggest is the father of the Child A. The mother B believes Y is the father of A. At some time in mid-2019, the mother B was assaulted by the alleged father Y’s then partner. An apprehended violence order for the protection of the mother was made by the Local Court against the partner in September 2019.

17. In 2019, the mother B fell pregnant. Officers of the Department of Communities and Justice (“the Department”) were concerned in relation to the unborn child. Concerns were held due to the alleged sexual assault of C, the mother’s first child, in January 2013. In late December 2019, a Safety Assessment was conducted by officers of the Department which involved interviews between the mother and Departmental officers. The assessment concluded that the unborn Child A, when born, would be “unsafe”.

18. On 14 January 2020, the Child A was born. Since leaving hospital, the Child A has resided with his paternal uncle and his partner. The alleged father of A, Y, was imprisoned at the time of the birth of A. He has been released but declined to be involved in the present proceedings in any way.

19. On 15 January 2020, the Secretary assessed that the Child A was in need of care and protection and Child A was assumed into care.

20. The mother B agreed to attend for urine analysis in 2020. The mother has attended for urine analysis on a number of occasions but also has failed to attend on numerous occasions. She has provided various explanations for her non-attendance.

21. On 20 January 2020, the Secretary filed an application in the Children’s Court initiating care proceedings. In relation to the Child A, an interim order allocating interim parental responsibility in relation to A to the Minister was sought. The ground of the application was that under s 71(1)(c) of the Act, “the child has been, or is likely to be, physically or sexually abused or ill-treated”. An interim order was made in the Children’s Court soon after allocating parental responsibility for the Child A to the Minister until further order.

22. On 12 March 2020, the Child A was examined by a paediatrician who reported that the child was growing well. Recommendations were made with respect to the child’s feeding.

23. The mother has had regular contact visits with the Child A. From about March 2020, contact visits in person ceased between the mother and A due to the risk presented by the COVID-19 pandemic. Some video contact between the mother and the Child A has occurred.

24. On 4 May 2020, the mother attended for urine analysis and the medical findings indicated a pattern consistent with the ingestion of methamphetamines. The mother denied taking illicit drugs and queried the validity of the test. She could not properly explain the positive drug test result.

25. In June and July 2020, there was a hearing in the Children’s Court. Dr Belen, Dr Ramoo and the mother (among others) gave oral evidence.

26. The mother has had a longstanding friendship with Z. Z has a lengthy criminal record. Z is the father of a child born in 2018 who presented to hospital in July 2020 with unexplained injuries. The documents in evidence suggest that Z was one of only two people with access to the child at the time he was injured.

27. In July 2020, Z was due to appear at Campbelltown Local Court in relation to a number of domestic violence charges. He failed to appear and warrants were issued for his arrest. In due course, Z was arrested. Later, he was granted bail on the condition that he resided at the home of the mother, B. The evidence establishes that police attended the home of the mother B for a welfare check and found that the mother B and Z were present at the mother’s property. Z has sworn a statement that he was in a relationship with the mother. The mother denies any romantic or sexual relationship with Z or that she has permitted him to reside at her property. There were various reports in evidence that the mother was pregnant to Z but the evidence before the court excludes this.

28. On 18 September 2020, the Children’s Court found that the Child A was not in need of care and protection and the Initiating Application was dismissed. On 18 September 2020, the Secretary filed a Summons commencing an appeal from the order of the Children’s Court made earlier that day. On 18 September 2020, her Honour Judge Norton SC allocated interim parental responsibility for the Child A to the Minister pending the determination of the appeal.

Further procedural matters

29. An Amended Summons was filed with leave by the Secretary in court on 30 October 2020. In the Amended Summons, the Secretary sought the following orders:

“1.  Appeal allowed.

2.  Orders of the Children’s Court of NSW at Campbelltown on 18 September 2020 be set aside.

3.  Pursuant to s71(1)(c), (d) and (e) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Act”), that the child [A] (“the child”), born 14 January 2020, is a child in need of care and protection.

4.  Pursuant to s71 of the Act, that the child is in need of care and protection if placed in the day to day care of his Mother as this would expose him to an unacceptable risk of sexual harm, physical harm or psychological harm due to;

a.  The child [C] was sexually assaulted and physically assaulted or there was a real possibility that [C] was the victim of such assaults that occurred whilst in the care of the Mother and the person or persons who perpetrated the assaults has not been identified;

b.  The Mother has a history of forming relationships with people who or are suspected of being violent, involved in criminal activities or involved in illicit drug use;

c.  The Mother’s illicit drug use;

d.  The Mother’s lack of insight as to the risk to the child from sexual abuse, physical abuse and exposure to domestic violence;

e.  The Mother’s mental health; and

f.  The Mother’s limited capacity to provide for the child’s physical and emotional needs.

3. Pursuant to that the child s79(1)(b) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Act”), sole parental responsibility for the child [A], born 14 January 2020, is allocated to the Minister, Department of Family and Community Services (“the Minister”) until the child attains the age of 18 years.

4. Pursuant to s82(1) of the Act the Secretary, Department of Family and Community Services must prepare and provide a report after 9 months and before 12 months from and including the date of these orders.

5.  Such further or other order as this Court deems fit.”

30. At the commencement of the hearing of the appeal, the court ordered that there be a closed court under s 104B of the Act.

31. At the commencement of the hearing, a four volume court book was provided to the court. It became Exhibit A in the proceedings. In due course, the Secretary, the mother and the Independent Legal Representative provided to the court detailed and helpful written submissions.

The legislative scheme

32. As indicated above, the appeal to this court was brought by the Secretary pursuant to s 91 of the Act. Section 91 provides as follows:

“91   Appeals

(1)  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.

(2)  An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the order was made, may be given on the appeal.

(3)  Without limiting subsection (2), the District Court may, instead of taking fresh evidence, decide to admit as evidence the transcript of proceedings before the Children’s Court and any exhibit tendered during those proceedings.

(4)  In addition to any functions and discretions that the District Court has apart from this section, the District Court has, for the purposes of hearing and disposing of an appeal, all the functions and discretions that the Children’s Court has under this Chapter or Chapter 6.

(5)  Without limiting the generality of subsection (4), the District Court may confirm, vary or set aside the decision of the Children’s Court.

(6)  The decision of the District Court in respect of an appeal is taken to be the decision of the Children’s Court and has effect accordingly.

(7)  Subject to any interlocutory order made by the District Court, an appeal does not affect the operation of the order appealed against or prevent the taking of action to implement that order.

(8)  The provisions of Chapter 6 apply to and in respect of the hearing of an appeal under this section in the same way as they apply to and in respect of the hearing of a care application under that Chapter.”

33. Section 8(a) of the Act provides as follows:

“8   What are the objects of this Act?

The objects of this Act are to provide—

(a)  that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them …”

34. Section 9 of the Act provides relevantly as follows:

“9   Principles for administration of Act

(1)  This Act is to be administered under the principle 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.

(2)  Subject to subsection (1), the other principles to be applied in the administration of this Act are as follows—

…

(c)  In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child’s or young person’s development.”

35. Section 60 of the Act provides as follows:

“60   Definitions

In this Act—

care application means an application for a care order.

care order means an order under this Chapter for or with respect to the care and protection of a child or young person, and includes a contact order under section 86 but does not include a parent capacity order.

care proceedings means proceedings under this Chapter.”

36. Under s 61 of the Act, a care order may be made only on the application of the Secretary except as indicated in the Act.

37. Under s 71 of the Act, the Children’s Court may make a care order in relation to a child if it is satisfied that a child “is in need of care and protection for any reason” including for any of the reasons specified in s 71(1)(a)-(h).

38. These reasons include, relevantly:

“71   Grounds for care orders

…

(c)  the child or young person has been, or is likely to be, physically or sexually abused or ill-treated,

(d)  subject to subsection (2), the child’s or young person’s basic physical, psychological or educational needs are not being met, or are likely not to be met, by his or her parents or primary care-givers,

(e)  the child or young person is suffering or is likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he or she is living,”

39. Section 72 of the Act provides as follows:

“72   Determination as to care and protection

(1)  A care order in relation to a child or young person may be made only if the Children’s Court is satisfied that the child or young person is in need of care and protection or that even though the child or young person is not then in need of care and protection—

(a)  the child or young person was in need of care and protection when the circumstances that gave rise to the care application occurred or existed, and

(b)  the child or young person would be in need of care and protection but for the existence of arrangements for the care and protection of the child or young person made under section 39A (Care responsibility on death of guardian or carer with full parental responsibility), section 49 (Care of child or young person pending care proceedings), section 69 (Interim care orders) or section 70 (Other interim orders).

(2)  If the Children’s Court is not so satisfied, it may make an order dismissing the application.”

40. Section 72 provides an alternative source of power for a care order to s 71: Re Linda [2011] NSWSC 1596 at [22].

41. Before the Children’s Court and in this court, the Secretary relied on s 106A of the Act having regard to the fact that the children C and D were previously removed from the mother by a court and the children have not been restored to the mother. The Independent Legal Representative also relied on s 106A. The mother said the presumption applicable was rebutted on the evidence.

42. Section 106A of the Act provides as follows:

“106A   Admissibility of certain other evidence

(1)  The Children’s Court must admit in proceedings before it any evidence adduced that a parent or primary care-giver of a child or young person the subject of a care application—

(a)  is a person—

(i)  from whose care and protection a child or young person was previously removed by a court under this Act or the Children (Care and Protection) Act 1987, or by a court of another jurisdiction under an Act of that jurisdiction, and

(ii)  to whose care and protection the child or young person has not been restored, or

(b)  is a person who has been named or otherwise identified by the coroner or a police officer (whether by use of the term “person of interest” or otherwise) as a person who may have been involved in causing a reviewable death of a child or young person.

(2)  Evidence adduced under subsection (1) is prima facie evidence that the child or young person the subject of the care application is in need of care and protection.

(3)  A parent or primary care-giver in respect of whom evidence referred to in subsection (1) has been adduced may rebut the prima facie evidence referred to in subsection (2) by satisfying the Children’s Court that, on the balance of probabilities—

(a)  the circumstances that gave rise to the previous removal of the child or young person concerned no longer exist, or

(b)  the parent or primary care-giver concerned was not involved in causing the relevant reviewable death of the child or young person,

as the case may require.

(4) This section has effect despite section 93 and despite anything to the contrary in the Evidence Act 1995.

(5)  In this section, reviewable death of a child or young person means a death of a child or young person that is reviewable by the Ombudsman under Part 6 of the Community Services (Complaints, Reviews and Monitoring) Act 1993.”

43. As indicated above, only the “establishment” phase of a care and protection order is currently before the court. That is, the only matter currently before the court is whether the Child A is a child in need of care and protection within ss 71-72 of the Act.

44. It is to be noted that the grounds for care orders in s 71 of the Act are inclusive. It is clear that the court may make a care order if it is satisfied that a child “is in need of care and protection for any reason” including for a reason not specified in s 71: NU v New South Wales Secretary of Family and Community Services [2017] NSWCA 221 at [13].

45. The word “likely” is used in s 71(1)(c)-(e) of the Act. In a child protection context, “likely” does not mean more probable than not: Re H (Minors) (1996) AC 563; [1995] UKHL 16. It seems that it means that the child is exposed to an unacceptable risk of harm in all the circumstances: see Re Tanya [2016] NSWSC 794 at [22]. I accept the submission of counsel for the Secretary on this point.

Legal principles relating to the making of care orders

46. The court retains a residual discretion whether to make a care order under s 72 of the Act, even after a s 71 ground is established: V V v District Court of New South Wales [2013] NSWCA 469; NU, above, at [19]. As a s 91 appeal is a new hearing, the Secretary has the onus of establishing a case for a care order. The standard of proof required is proof on the balance of probabilities having regard to the principle that the degree of proof required by the civil standard may vary with the gravity of the case to be proved: see ss 91 and 93 of the Act; Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; NU, above, at [52]–[54]; M v M (1988) 166 CLR 69 at 76-77; A v Secretary, Department of Communities and Justice (No 4) [2019] NSWSC 1872.

47. In paragraph 105 of A, above, Justice Lindsay stated as follows:

“105. T he paramountcy principle identified in section 9(1) of the Care Act has fundamental importance upon consideration of questions relating to the welfare of children. It serves as a reminder, for example, that the object of care proceedings is to ensure that children are afforded care and protection for their safety, welfare and well-being, not as a vehicle for punishment of family members who may be perceived as having fallen short in their provision of care and protection for a child: M v M (1988) 166 CLR 69 at 75-76.”

48. The proper test to be applied in care proceedings in respect of final orders is that of “unacceptable risk to the child” of harm: M v M, above, at [25]; NU, above, at [45]. In paragraph 25 of M v M, the High Court stated as follows:

“25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A v. A [1976] VicRp 24; (1976) VR 298, at p 300), “an element of risk” or “an appreciable risk” (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), “a real possibility” (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a “real risk” (Leveque v. Leveque (1983) 54 B CLR 164, at p 167), and an “unacceptable risk” (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. 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.”

49. Whether the court finds that there is an unacceptable risk of harm to a child may have to be assessed from an accumulation of factors proved according to the relevant civil standard of proof: Bell-Collins Children v Secretary, Department of Family and Community Services (No 2) [2016] NSWSC 853 at [26]; Re Tanya [2016] NSWSC 794 at [22].

50. In the present case, the injuries to the genitalia and anus of the Child C, and the placement of the Child C in care, were significant reasons for placing the Child A in care.

51. The courts have stated various principles in relation to the consideration of a finding of sexual or other abuse.

52. In A v The Secretary, above, Lindsay J stated as follows in paragraph 110:

“110.  What it does not, and cannot, do is to sidestep (as the plaintiffs seek to do) the question whether B did, in fact, sexually abuse C. In my assessment, this question can, and should, be confronted in these proceedings even though prudence may generally require a court to refrain from making a positive finding of sexual abuse in care proceedings (M v M (1988) 166 CLR 69 at 76); and a positive finding of sexual abuse is not, of itself, required in care proceedings where the focus for attention is on the ultimate question whether a child would be exposed to an unacceptable risk of harm if restored to the care of a parent (NU v NSW Secretary Family and Community Services [2017] NSWCA 221 at [46] and [55]).”

53. In NU, above, Beazley P (with whom McColl JA and Schmidt J agreed) stated as follows in paragraph 55:

“55.  However, as the High Court pointed out in M v M at [22], an inability of the court to make a positive finding of abuse does not conclude the question of the appropriate order to be made, in that case involving custody or access to a child, where the paramount consideration is the “best interests of the child”. The same position applies to the appropriate order to be made under the Care and Protection Act. Having regard to these principles, the primary judge was required to assess the evidence to determine whether K would be exposed to an unacceptable risk of sexual abuse if restored to the care of her parents including her father.”

54. In the present case, the court will have to determine whether on the balance of probabilities having regard to the seriousness of the finding, it should find that the Child C was sexually assaulted on or about 24 January 2013. However, as indicated in the above authorities, an inability of the court to make a positive finding of abuse does not conclude the question of the appropriate order to be made where the paramount consideration for the court is the “best interests of the child”.

55. On the present evidence before the court, which will be referred to further below, the court is of the view that it cannot determine who was responsible for the injuries to the Child C, whether or not they constituted a sexual assault. However, that does not determine the appeal. This matter was referred to by Justice Slattery in the Bell-Collins Children case, above, where his Honour stated in paragraph 32 as follows:

“32.  When injuries are occasioned to children in the care of their parents and the injuries are either unexplained or not satisfactorily explained, the assessment of the issue of unacceptable risk of harm to the child can be more complex than where the injuries are explained. Justice Hodgson examined this kind of situation in T v H & Ors [1985] NSWSC, Unreported 19 December 1985 at 18 (“T v H”), where he said:

“Accordingly, on the balance of probabilities, it seems to me that the Plaintiff would be in danger if he was at this time returned to the care of the Second Defendants. Had there been an explanation of his injuries, the result may have been different. If the cause of the injuries was known, and was acknowledged by the person responsible, one could assess the likelihood of that person acting again so as to cause the injuries. It would be possible to assess the risk involved to the Plaintiff, and to weigh that against the advantages of returning the Plaintiff to his parents. However, in the absence of any explanation, it is far more difficult to assess and weigh the relative advantages and disadvantages in this matter.””

56. It is to be noted that the Secretary will not fail to satisfy the burden of proof on the balance of probabilities because hypotheses cannot be excluded which, although consistent with innocence, are highly improbable: Re Sophie [2008] NSWCA 250 and [67]-[68]; Bell-Collins Children, above, at [36].

57. It should also be noted that a lack of insight into child protection concerns and a lack of preparedness to engage with responsible authorities can justify a finding that a child is in need of care and protection: A v Secretary, above, at [120].

58. In the present case, the question for determination is whether the restoration of the Child A to the mother B creates an unacceptable risk of harm to the Child A in all the circumstances, such that an order should be made under s 71 of the Act in relation to the Child A. It is clear that the court must look at the position at the time the court is considering the issue of a need for care and protection: Re Linda [2011] NSWSC 1596 at [22].

59. A number of other important general principles applicable to the appeal should be referred to:

1. The rules of evidence do not apply, the proceedings are non-adversarial and they are required to be conducted with as little formality and legal technicality and form as the circumstances permit;

2. Decisions in care proceedings are to be made consistently with the objects, provisions and principles provided for in the Act and, where appropriate, the United Nations Convention on the Rights of the Child 1989 (CROC);

3. The paramountcy principle in s 9(1) of the Act is the underpinning philosophy by which all relevant care decisions are to be made. Any decision concerning a child must be made having regard to the fact that the safety, welfare and well-being of the child are paramount;

4. The court must examine what the future might hold for the Child and if a risk exists, assess the seriousness of the risk;

5. The risk of detriment to a child must be balanced against the possibility of benefit to the child;

6. The removal of a child is an act of last resort;

7. The rationale for the requirement that protective proceedings be “established” has been described as a safeguard against arbitrary intervention by the State into the lives of children and their families.

60. See the comprehensive analysis by Johnson DCJ in Department of Communities and Justice and the McAlister Children [2020] NSWChC 4 especially at [62]-[63], [69]-[70], [76]-[77] and [92].

The evidence

61. Before the court was extensive documentation and affidavit evidence. This included voluminous documentation filed by the parties in the Children’s Court and extensive affidavit evidence filed in this court. In addition, before the court was the transcript of the proceedings in the Children’s Court, including the important oral evidence of Dr Belen, Dr Ramoo, Ms Lee (the relevant caseworker at the time) and the mother, B.

The Children’s Court documents

Initiating Application relating to A filed on 20 January 2020

62. Reference has already been made above to the Initiating Application filed in the Children’s Court relating to the Child A by the Secretary on 20 January 2020.

63. A report in support of the Initiating Application was annexed to the Initiating Application. This noted that on 1 October 2019, a risk of significant harm (“ROSH”) report was received in relation to A, who was then unborn. The report noted that the mother was pregnant and also that her daughters, C and D, had been removed from her care due to allegations of sexual assault of C. The report notes that a Safety Assessment was completed between 20 December and 24 December 2019 and the outcome of this Assessment was “unsafe”. The report indicates that when the mother was interviewed during the Safety Assessment process, she stated that no one had had an opportunity to injure C in January 2013 and the injuries may have been caused accidentally due to her having long fingernails. She also is recorded as saying the injuries may have been caused because C was constipated or may have been caused at the hospital during an initial examination.

64. It was stated in the report that the Department held significant concerns in relation to the mother’s understanding of the severity of the injuries to C and ongoing concerns in relation to her capacity to keep her newborn baby, A, safe. It was noted that s 106A of the Act applied to the application. The report set out the current care and protection concerns of the Department. It was noted that the mother had an apprehended violence order protecting her from the unborn baby’s father and his wife. During the relevant home visit, the mother is reported as continuing to express the belief that C had not been sexually assaulted and put forward other potential causes. The relevant caseworker from the Department is recorded as expressing concern that having read the medical reports of C’s injuries, the mother still doubted that C had been assaulted.

65. The Initiating Applications relating to the Children C and D were also before the court: Exhibits 3 and ILR 1.

Documents relevant to the Children’s Court proceedings

66. In evidence was a bundle of relevant documents held by the Department which were provided to the Children’s Court. These documents included:

1. A file note made by caseworker Ms Hedges of a telephone conversation with the mother where she admitted using the drug ICE in January 2019;

2. A file note prepared by Ms Hedges dated 15 January 2020 where the mother indicated that the Child C had not been left in the care of any other person than herself in the time leading up to C being injured and later the mother being told that this was not correct by her sister and that the sister and her then boyfriend V had minded C for a short period of time when the mother had gone to the doctor with the mother’s father;

3. Various Children’s Court orders relating to C and D.

Summary of Proposed Plan filed 11 February 2020

67. This document is a summary of the proposed care plan for the Child A. It is noted that the Department was presently of the view that restoration to the mother was a realistic possibility.

Affidavit of Ms Lee dated 7 May 2020

68. The evidence before the Children’s Court included a lengthy affidavit of Ms Rachel Lee dated 6 May 2020. Ms Lee was the caseworker for the Child A and had been in that position since 20 January 2020. Ms Hedges, referred to above, was the previous caseworker with carriage of the matter from October 2019. The affidavit of Ms Lee:

1. Refers in detail to the family composition of the mother’s direct and related families;

2. Refers to the fact that on 17 January 2020 the Child A was placed with his paternal aunt for care;

3. Provides a child protection history in relation to A, C and D;

4. Refers to the fact that in August 2011 there was a report of the mother breaking up with the father of C due to violence in the relationship;

5. Refers to the fact that when C was in hospital on 24 January 2013, the Child C was observed to have poor attachment with the mother and the mother would be on her telephone when the child would cry and she would not comfort her. In addition, there was a reference to the mother reporting that she had her acrylic nails put on, on 23 January 2013 and she stated that she may have accidentally hurt C with her nails;

6. Refers to the medical examination of C by Dr Belen and attaches the report. This will be considered further below;

1. Refers to the medical examination by Dr Ramoo on 25 January 2013 and annexes a copy of the report;

2. Refers to an interview with the mother by Liverpool Joint Investigation Response Team members on 25 January 2013 following Dr Ramoo’s report of the genital injuries. A detailed chronological account is set out of the mother’s recollections of what occurred with the Child C on 24 January 2013. It is noted that the maternal grandmother was the person who called the ambulance to take C to the hospital. The mother is recorded as indicating that she did not consider a sexual assault occurred. The notes and affidavit record that the mother did accept that C had been sexually assaulted and that she felt guilty that she did not protect her daughter. The mother in her oral evidence disputed the substance of some of the recorded notes;

3. The affidavit of Ms Lee refers to and annexes an affidavit of the mother dated 18 March 2013 which was filed in the Children’s Court. In that affidavit, the mother gives considerable detail in relation to what occurred on 24 and 25 January 2013. In paragraph 23 of the affidavit, the mother indicates that when she was told by Dr Ramoo about the laceration to C’s vagina, she asked whether it could have been made by her acrylic nails. In paragraph 31 of the affidavit, the mother states that she suffers from anxiety and depression. She asserts that following ceasing taking medication, the depression and sleeplessness “has slowly gone away on its own”;

4. Considerable detail is given by Ms Lee in relation to the orders made by the Children’s Court concerning C in 2013;

5. In paragraph 2, following paragraph 56 in Ms Lee’s affidavit, Ms Lee refers to the mother’s urine analysis appointments and her attendance at only four out of nine of these and the fact that on 4 May 2020 methamphetamines were detected in the mother.

69. As stated, annexed to Ms Lee’s affidavits were reports from Dr Belen and Dr Ramoo.

Report of Dr Belen signed 19 March 2013

70. The report of Dr Belen is signed by her and dated 19 March 2013. The report indicates that it was typed on 30 January 2013 and relates to the Child C. It was prepared at the Liverpool Sexual Assault Centre. Dr Belen was an experienced obstetrician specialising in obstetrics and gynaecology. She worked part-time at the Liverpool Sexual Assault Centre. The report indicates that C was referred to the Liverpool Sexual Assault Unit by Macquarie Fields police for medical assessment of possible sexual assault by unknown persons on 24 January 2013. C was brought to the hospital by ambulance and was examined by Dr Belen at approximately 10pm on 24 January 2013 in the presence of a sexual assault counsellor. Later evidence establishes that the mother and maternal grandmother were also present. The history provided related to blood in the baby’s nappy. Dr Belen reports that the mother thought she might have “nicked” C’s bottom while wiping her bottom because of a new set of acrylic nails placed on 23 January 2013. In paragraph 8 of the report, Dr Belen notes that C was moving a lot during the examination so that a good view of the anus and genitals was impossible. It was noted that C was wearing a “bloody nappy”. In paragraph 10, Dr Belen notes that she did not have a member of the hospital staff available to assist in holding the child and that the mother assisted but she was not trained in restraining a child for a medical examination and, accordingly, Dr Belen did the examination with “considerable difficulty”. One brown bruise on the left buttock was noted. In paragraph 12, which relates to the anogenital examination, Dr Belen stated that she had a restricted view.

71. In sub-paragraphs 1-4, paragraph 12, on page 3 of the report, Dr Belen states as follows:

“12.  Anogenital examination:

I had a restricted view. I noted:

1.  Noticed blood on the vulva and buttocks. The nappy was bloody.

2.  I was not able to visualise the hymen or introitus. No abnormal tear or abrasion noted. I did not note any bleeding from the vagina.

3.  Small laceration on the left side of the anus, bleeding/oozing blood. I did not note any bleeding from inside the anus.

4.  Redness of the perianal area. I noted redness of the fold posterior to the anus.

I used a colposcope for the examination, although this was difficult as the girl would not keep still. A DVD recording of the examination was made.”

72. In paragraph 15 of the report, which is a summary, Dr Belen states that the examination of C was difficult but she was not able to make a full examination of the genitalia or anus for all possible injuries or causes of the bleeding noted. Dr Belen states that she was able to note a bleeding injury near the anus, redness and bruising and to take specimens for DNA sampling. It is recorded that Dr Belen contacted the Medical Director for sexual assault, Dr Isaacs, to hand over care and recommended that the child be re-examined the following morning to further assess the bruising and injury and any source of bleeding. Dr Belen states that in her opinion a repeat examination the following morning would be necessary to form a detailed medical forensic opinion. She notes that this was carried out by Dr Ramoo and Dr Hurwitz.

Reports of Dr Ramoo

73. There were two reports of Dr Ramoo in evidence. Only one was attached to Ms Lee’s affidavit. This report was signed by Dr Ramoo and dated 15 March 2013 and is indicated as being typed on 6 March 2013. An earlier report was typed on 30 January 2013. The reports are very similar but not entirely the same.

74. In the later report, Dr Ramoo notes that she carried out a joint forensic medical examination of C with Dr Hurwitz, who was a paediatrician in the Unit, on 25 January 2013 at the request of Dr Isaacs, Medical Director of Sexual Assault. Dr Isaacs is recorded as informing Dr Ramoo that she discussed the case with Dr Belen and Dr Isaacs had determined that C needed a further and more thorough examination as C had been tired and uncooperative the previous night. C had been admitted to the paediatric ward at Liverpool Hospital overnight for further review the following day.

75. Dr Ramoo notes that the examination took place at 9:30am on 25 January 2013 and that the Child C was accompanied by her mother. Also present were Dr Hurwitz and a paediatric social worker. Photographs and a film were taken of the injuries. A history was provided with the mother being recorded as stating that C had not been left with anyone unattended. That appears to be inconsistent with other histories. The mother again asked if the injuries could have occurred from her scratching C with her sharp false nails. She also asked if the injuries could have been due to the swabs collected by Dr Belen the previous evening. It was noted that the Child C had fallen on a computer exercise mat (two days previously) but had been wearing a nappy at the time and did not seem upset by the fall.

76. In her clinical examination, Dr Ramoo noted a number of bruises to the left and right buttocks which were considerably more than the one bruise which had been noted by Dr Belen.

77. In paragraph 10 which relates to the anogenital examination which was recorded on DVD, Dr Ramoo notes that there was blood in C’s nappy when it was removed. The following injuries were noted:

“1)  There was a laceration of the hymen at the 6 o’clock position, with bruising and haematoma. There was mild active bleeding on examination. The hymen was examined using a cotton swab, which caused [C] pain, so this was ceased.

2)  There was an abrasion noted in the fossa navicularis.

3)  There was a 0.5cm laceration of the posterior fourchette.

4)  Anal laceration in the 12 o’clock position (when supine), going into the anal canal. This was tender.”

78. Dr Ramoo expressed the opinion that the finding of multiple bruises on the buttocks was not a normal finding on a 13 month old child and was not explained by the fall off a computer mat onto a carpeted surface, especially if the child was not distressed. The following was stated:

“The hymen is normally protected in a 13- month old child. The genital injuries found were diagnostic of an acute penetrative injury, and it is probable that it had occurred within the last 48 hours.

The anal laceration was tender, suggestive of acute injury, and it is probable that it had occurred within the last 48 hours

…

The genital injuries we found on examination are consistent with acute vaginal penetration, probably sustained within the last 48 hours. The anal laceration is also consistent with acute injury to the anus.”

79. The report records a follow-up review on 22 February 2013 where C was accompanied by her foster carer and it was noted that there were no further episodes of bleeding from the vagina or anus. Dr Ramoo on examination recorded that the child was happy, alert and interactive and that examination of her anus revealed no new lacerations or bruising whilst examination of the hymen revealed a deep cleft/notch at the 6 o’clock position where the laceration had been but there was no bruising or bleeding present.

80. Dr Ramoo was a less experienced doctor than Dr Belen but had been working with the Sexual Assault Service as a Registrar since 2012 with experience as a doctor going back to 2007.

81. A second report of Dr Ramoo was annexed to an affidavit of the mother sworn 16 March 2020. This was signed by Dr Ramoo on 4 February 2013 and indicated that it had been typed on 30 January 2013. In paragraph 12 of the earlier report, Dr Ramoo had included an additional sentence to the following effect:

“The injury to the hymen is diagnostic of penetration through the labia, past the introitus (opening to the vagina), and through the hymen.”

82. There were no questions asked of Dr Ramoo at first instance as to why this sentence was deleted in the later report.

Affidavit of the mother sworn 16 March 2020

83. The mother filed two affidavits in the Children’s Court proceedings. In her affidavit sworn on 16 March 2020, the mother:

1. Stated that she had not used any illicit drugs since January 2019 and that was the only time that she had ever used illicit drugs. She said she was not using drugs during her pregnancy with A;

2. Provided her comments in relation to the reports and examinations by Dr Belen and Dr Ramoo. The mother says that she did not state that C was not assaulted. She asserts that Dr Belen concluded that there was no sexual assault and her medical opinion resulted in the established crime scene at her house being “aborted”. She described the examination by Dr Ramoo on 25 January 2013 as “very invasive”. The mother stated in paragraph 8 of her affidavit that she could not understand the discrepancy between the two medical examinations. In paragraph 11, the mother states: “I am not saying that sexual abuse did not occur but I know what I saw and heard. There are too many discrepancies in the report to make it valid and that is what has caused the confusion in my mind”. In paragraph 32 the mother says it is not her fault that no one was identified as the person that caused C’s injuries and that she did everything possible to help the investigation;

3. Annexed to the affidavit was a certificate from Dr Leung dated 12 February 2013 certifying that he saw C on 23 January 2013 for “nappy rash”. No evidence was given by Dr Leung in the Children’s Court or in the appeal.

Affidavit of the mother sworn 2 June 2020

84. The mother swore an affidavit dated 2 June 2020 in the Children’s Court proceedings which responded to Ms Lee’s lengthy affidavit dated 7 May 2020. In relation to many paragraphs of Ms Lee’s affidavit, the mother contested the evidence set out. The mother referred to:

1. In paragraph 6, to there being domestic violence in 2011 in relation to the father of C but she said that she was the victim and left the violent situation;

2. In paragraph 7, she referred to her depression and anxiety which improved after she stopped taking medication;

3. In paragraph 8, she disputed the accuracy and detail of reports and notes relating to the injuries to the Child C on 24 January 2013. The mother refers to the fact that she had false nails at the time and confirmed that she asked if she could have “scratched” the child;

4. In paragraph 11, the mother refers to a conversation with Dr Belen and the police which resulted in the police leaving the hospital and no longer having the home as an alleged crime scene;

5. In paragraph 12, the mother considers Dr Ramoo’s report referring to evidence of penetrative vaginal injury yet states that there were no signs of this the night before;

6. In paragraph 13, the mother refers to a detailed history of 24 January 2013;

7. In paragraph 13(l), the mother refers to there being “obvious miscommunication or fabrication” with the departmental notes of the interview on 25 January 2013. The mother says she was crying and in shock at this time;

8. In paragraph 14, the mother challenges the assertion that she lacked insight in relation to the injuries to the Child C, claiming that her insight related to what she was told by Dr Belen and her telling the detectives “that there was no crime. It also came from what I saw and how the situation happened”. The mother does not expressly concede the Child C’s serious injuries;

9. In paragraph 16, the mother refers to the possibility that her mother holding C tight during the examination could have caused the bruising referred to by Dr Ramoo;

10. In paragraph 41, the mother refers to the assault by the partner of the reported father of the Child A, Y;

11. In paragraph 46, the mother disputes any allegations in relation to drug use or drug possession in 2019. She states that when someone she was in the possession of was found with drugs she did not know that the person was on drugs and she has never been reported for drug possession;

12. In paragraph 46(d), the mother states that she cannot be blamed for not knowing the “perpetrator” of the injuries sustained to the Child C. She claimed she does not have a lack of insight into child abuse but was still confused as to the truth of the matter;

13. In paragraph 48, she refers to the incident with the Child C as involving “abuse” and states that she does not know how it could have happened;

14. In paragraph 60 and following, the mother gives evidence about her attendance at urine analysis tests and confirms that she did not attend five tests, as two absences were due to illness. She also refers to the effect of the coronavirus pandemic. In relation to the 4 May 2020 test revealing methamphetamines, the mother rejected that she took drugs. In paragraph 93, the mother confirms that she did sleep in for one contact visit which she failed to attend.

85. The mother in her affidavit: annexes detailed responses to the engagement history file notes of the Department, refers to Dr Belen’s report and examination, refers to Dr Ramoo’s report and examination (where the mother disputes the presence of multiple bruises and claims Dr Ramoo was inexperienced), responds to the interview notes of the interview with Departmental officers on 25 January 2013 and responds to her own affidavit dated 5 February 2013 (where she claims there were a number of errors in the affidavit which she blames on her then solicitor. On the first page of this response, the mother states that she signed the affidavit “without even reading it” as her father was waiting in the car then). On the fourth page of this response the mother states that she does not recall specific details as her memory “is hazy as I think I blocked a lot out from the trauma”. On the penultimate page of the response, the mother accepts that her false nails could not have caused the injury suffered by the Child C. This concession appears to be well-founded.

The transcript of the Children’s Court hearing

86. There were three days of oral evidence before the Children’s Court in June and July 2020.

87. Oral evidence was given by Dr Belen and Dr Ramoo. The giving of evidence by professional witnesses such as doctors well over seven years after the incident raises questions in relation to their recollections and the reliability of them and in particular whether recollections have been reconstructed by the review of reports prepared at the time. In my view, greater weight should be placed on contemporaneous evidence such as the reports. Counsel for the mother did not appear to dispute this.

88. Significant matters in relation to the oral evidence of Dr Ramoo include:

1. At T2.25 Dr Ramoo rejected the proposition that she was so invasive in regard to implementing her particular assessment of the Child C that she could have caused the injuries sustained by the child;

2. At T3.19 Dr Ramoo stated that with no clear accidental cause, the injuries were highly suspicious of non-accidental penetrating genital trauma and said “yes, sexual abuse here is the cause of that”;

3. At T3.29 Dr Ramoo said it was not possible that C’s injuries could have been sustained by the mother having long fingernails;

4. At T4.2 Dr Ramoo stated in relation to the suggestion that the bruises were not there when the child was examined on 24 January 2013 that bruises can take time to come up;

5. At T4.22 Dr Ramoo states that the injuries suffered by the Child C were “highly suspicious” of sexual abuse;

6. At T6.1 Dr Ramoo stated that photographs taken of bruises were taken on the day of the examination;

7. At T6.9 Dr Ramoo stated that the bruises shown were not consistent with falling on a carpet and a Wii board;

8. At T6.46 Dr Ramoo confirmed that the examination was performed by Dr Hurwitz and herself and that Dr Hurwitz was an experienced community clinician and was conducting the labial separation and contraction on the child for the purposes of the examination;

9. At T7.24, Dr Ramoo confirmed that although the child was not co-operative, she still managed to get a good clear view of the vulva and the hymen of the child;

10. At T7.49 Dr Ramoo confirmed that she had not read Dr Belen’s report recently but believes she may have read it after she wrote her report although she was not sure;

11. At T8.50 Dr Belen confirmed that her first report was typed up on 30 January 2013 and was finalised on 4 February 2013. At T9.38 she confirmed that she typed all her reports herself;

12. At T10.32 Dr Ramoo stated that it was not possible to age bruises based on their colour. At T10.50 Dr Ramoo confirms that it was possible that the bruises found were there before 18 hours;

13. At T11.22 Dr Ramoo confirmed that hymenal injuries can be caused by accidental causes but they were very rare. She said they could be caused by straddle injuries (such as an injury on a bicycle) or compression injuries in a car accident. Neither of those possibilities existed in the present case;

14. At T12.13 Dr Ramoo stated that with a straddle, injury to the external genitalia usually occurred but no external bruising to the external genitalia was present in her examination of the Child C;

15. At T14.44 Dr Ramoo expresses the opinion that Dr Belen recommended the second examination because the first examination was insufficient because it was in a sub-optimal condition;

16. At T16.38 Dr Ramoo noted that the hymenal injury to the child was internal and could only have been noticed if labial traction and separation had been performed during the examination;

17. At T17.26, Dr Ramoo expressed the opinion that a hymenal laceration was highly concerning for non-accidental penetrative injury;

18. At T17.33, Dr Ramoo confirmed that a possible cause of the injury by the mother’s acrylic nails was highly unlikely.

89. In relation to the oral evidence of Dr Belen, the following matters were noted in the transcript:

1. At T18, Dr Belen confirmed that there was some difficulty trying to assess the Child C during her examination. At T18.33 she maintained her opinion formed at the particular time. At T18.43 she rejected the proposition that she would have caused any of the injuries later noted to the child. At T19.18 she confirmed that the examination was very difficult because the child was not in the best position;

1. At T21.8 Dr Belen confirmed that she typed her own report on 30 January 2013 and that at that time, she relied on her notes and the video that was taken. At T22 Dr Belen confirmed that for a short period of time she had a clear view of the anus and the vagina but only had a quick look at these orifices: see also T23.37. She confirmed in her quick look she did not note any tear or abrasion to the hymen. She accepted that she might have missed the various lacerations and tears noted by Dr Ramoo: T24.16 and T24.23. Dr Belen also confirmed that it was possible that the lacerations were not there when she examined the child: T24.38;

2. At T28.2 Dr Belen confirmed that the mother may have heard her conversation with the police officers. At T28.15 Dr Belen said that she believed she told the police that the findings were “inconclusive”;

3. At T31 Dr Belen confirmed that the bruises found by Dr Ramoo could have been caused by an attempt to keep the baby still during her examination and stated that she could not say the bruises were not because of sexual assault: T31.30;

4. At T34.40 Dr Belen confirmed that the anal laceration noted by Dr Ramoo was different to the laceration she saw outside the genital area on the child’s bottom. Dr Ramoo again confirmed that her examinations of the child’s genitalia were quick;

5. At T36.2-.21, Dr Belen confirmed that the internal lacerations to the child’s anus could have been missed by her or they possibly were not there during her examination;

6. At T37 in answer to questions from the Independent Legal Representative, Dr Belen again stated that her examination was “quick”. At T37.47 Dr Belen confirmed that she should have paid better attention during her examination and taken more time to examine the child. At T38.3 Dr Belen confirmed that in hindsight her examination was not very thorough and that was why she requested a review with the medical director. She also confirmed that she had a restricted view for most of the time of the child’s genitalia: T38.19. At T43.46 Dr Belen confirmed that if a child had internal genital injuries sometimes a doctor could not see them from the outside until the inside orifice was examined.

90. Oral evidence was given by Ms Lee and she was cross-examined on her lengthy affidavit that the removal of the Child A was based on the unexplained injuries to the Child C in 2013 and the perception and insight of the mother about the injuries: T49.43-.49. There was also cross-examination about other Departmental concerns including about the mother’s association with drugs and persons who use drugs.

91. Oral evidence was given by a Ms Stanford who was the Casework Manager with management of the matter relating to the Child A. She confirmed that having read various reports, she had serious concerns in regard to the Child C. At T13 Ms Stanford confirmed that it was not the only matter relied on by the Department that the mother was a person of interest in relation to the injuries to the Child C. At T14.26 Ms Stanford confirmed that there was not enough information to suggest that the mother caused the injuries and this was not relied on by the Department. At T16.24 on the second day, Ms Stanford confirmed that when the Child A was removed, the mother did not have a transient lifestyle. She also agreed that some of the issues that were relevant when C was removed were not relevant in relation to the child now: T18.12. The fact that the mother did not attend some of the urine testing was seen as a risk factor: T33.30.

92. Oral evidence was given by the mother before the Children’s Court. Significant aspects of the evidence of the mother include:

1. At T40 the mother confirmed that she had partially completed a course relating to do dealing with domestic violence issues;

2. At T42.13 the mother confirmed that with sexual abuse cases and physical abuse cases the police should be notified straightaway and she needed to place herself in safety;

3. At T43.32 the mother said that even after hearing the expert evidence of Dr Belen and Dr Ramoo, she was still confused and said that she did not think that she would ever really know what happened to the Child C and she regarded that as “the scary part”;

4. At T44.21 the mother stated that she had not been in touch with the alleged father of the Child A for two months and prior to that it was only by phone calls on an irregular basis;

5. At T45.16 the mother said she had not used any illicit drugs since January 2019;

6. At T47, the mother said that she did not recall Dr Ramoo being in the room at all for the second examination which raises real issues in relation to the extent of the mother’s recollection. At T47.24 the mother accepted that the blood may have indicated that something happened to the child;

7. At T49.22 the plaintiff claimed that she did not know how the urine analysis test in May 2020 “came back positive”;

8. At T53.28 the mother agreed that there were some issues with her attending urine analysis;

9. At T55.25 the mother confirmed that there was a risk of physical harm that someone might hurt her due to her involvement with domestic violence;

10. At T68 the mother confirmed that she was confused about the allegations of sexual assault to the Child C and said that “we’re never going to know what truly happened” but agreed that she was not saying that she did not accept the medical evidence. The mother said she was still confused and therefore could not comment: T68.29. The mother appeared to be suggesting that the injuries could have been caused, particularly the tear to the hymen, during the medical examination: T68.44; see also T69.23;

11. At T1.27 (third day), the mother said that she did not know the answer as to whether the Child C had been sexually assaulted and it was “all too confusing”. At T2.7 the mother said that she still believed her nails could have caused the laceration on the child’s bottom but not the genital injuries: T2.14. Again at T2.34, the mother said that she did not recall Dr Ramoo being in the room. At T3.22 the mother said that perhaps the doctors had traumatised the child by assessing her, as a possibility.

Exhibits in the Children’s Court

93. There were a number of exhibits in the Children’s Court. These included:

1. the DVD of the medical examinations by Dr Ramoo and Dr Belen;

2. the photographs of the bruises taken by Dr Ramoo;

3. the New South Wales Ambulance emergency calls relating to the Child C on 24 January 2013 (which were played to this court);

4. The Safety Assessment undertaken pre-birth by the Department, which found the position for the yet born child with the mother to be “unsafe”, and which was substantially based on the injuries to the Child C and the alleged claims of the mother that the daughter C had not been out of her line of sight for a sufficient amount of time for someone to have assaulted her;

5. letters relating to the mother, being letters confirming attendance at a domestic violence course;

6. the medical records relating to the admission of the Child C on 24 January 2013 with a diagram of the injuries. The handwritten summary of findings by Dr Belen is included. Although Dr Belen’s handwriting is difficult to read, she is recorded as saying that she could not say whether what she viewed was a sexual assault. She noted a “possibility” of an accidental scratch from the mother’s long nails as being “an option”.

Affidavits filed in the proceedings on appeal

Affidavits and documents relied on by the plaintiff/appellant

94. The Secretary relied on a number of affidavits of officers of the Department of Communities and Justice. The first affidavit relied on was an affidavit of Stuart Malcher, the Director of Community Services of the Department. This affidavit raises for the first time the alleged relationship between the mother B and Z. In paragraph 5 of the affidavit, Mr Malcher states that the mother’s “partner” is Z and also that the alleged father of the Child A did not participate in the Children’s Court proceedings.

95. In paragraph 8 of the affidavit, Mr Malcher raises a number of concerns in relation to the Child A including:

1. The mother remains a person of interest in relation to the alleged sexual assault causing injuries to C in January 2013;

2. The alleged father of the child has not played an active part in the proceedings but was incarcerated for various assault charges and has been released from custody with six of his children previously removed from his care and not restored;

3. The mother was known to police in relation to drug and property offences – later evidence showed that the mother had never been convicted of any drug offence and was only convicted of one property offence, which in my view is not relevant to her parental capacity; and

4. That a Departmental Safety Assessment in December 2019 concluded that the mother was “unsafe” due to the alleged sexual assault in January 2013 and the mother’s lack of understanding of the severity of the injuries to C and ongoing concerns in relation to her capacity to keep her newborn baby A safe.

96. Mr Malcher’s affidavit also attaches email communications with New South Wales police officers in regard to the mother’s alleged current partner Z who is said to reside with her. Z is indicated to be known to police and in evidence was his extensive criminal record as well as concerns in relation to the potential infliction of injuries by him on his three month old son. The emails refer to the fact that one of the conditions of Z’s initial bail was that he reside at the address of the mother. The court granting bail was allegedly informed that Z would live with her at her address. The police officer referred to Z’s lengthy criminal history involving multiple convictions for drug matters and domestic violence matters including imprisonment for violent offences.

97. The plaintiff also relied on two affidavits of Ms Jasmine-Jade Hill dated 21 September and 24 September 2020.

98. In her first affidavit, Ms Hill refers to the family composition of the Child A and the mother and concerns which the Department has in relation to the mother and Z. Z’s background and criminal history including the use of ICE is referred to. In paragraph 22, Ms Hill states that the Department received information that Z was the mother’s new partner having been confirmed by the mother. In her oral evidence Ms Hill could not provide the basis for that information. In the affidavit, Ms Hill raises a number of issues in relation to Z and any relationship with the mother and concerns of risks to the Child A arising from the alleged relationship.

99. Ms Hill also refers in detail to contact between the child and the mother and the history of the mother’s attendances for urine analysis testing including numerous occasions where the mother did not attend for the appointed testing.

100. In relation to the casework of the Department concerning the mother, paragraph 32 of Ms Hill’s first affidavit states that the Department currently holds concerns “that the mother is spending time with unsafe people” including people suspected by police to have been in the possession of illegal drugs. Reference is made to a telephone contact between a caseworker and the mother where the mother stated that she had been feeling “exhausted” and has “no energy all the time”. When asked of the mother whether there was any particular parenting skill or areas she wanted to learn about, the mother is reported as answering “I don’t know”.

101. In relation to her second affidavit dated 24 September 2020, Ms Hill, after again summarising the family composition, referred to the fact that the bail conditions of Z at that time reported Z as living with the mother. An email from a detective in the New South Wales Police confirmed this and that when police attended the mother’s address on 14 August 2020 for a welfare check in relation to any children living there, Z was present and he and the mother both stated that there “are no kids living there”. The email from the police officer confirms that the mother attended court when Z was granted bail and gave his solicitor permission to say he could live with her.

102. The email from Detective Sedgwick to Ms Fletcher of the Department dated 24 September 2020 is annexed to the affidavit as well as an earlier email dated 23 September 2020 confirming from Detective Kenny that a person may give an address for bail purposes without the resident at the address being aware of it.

103. Also annexed to Ms Hill’s second affidavit is a formal statement from Z dated 3 September 2020 which provided that: “I am currently in a relationship with [the mother] and we live together in [the mother’s address]. [The mother] and I don’t have any kids together”. This statement was signed by Z on 3 September 2020 and witnessed by a police officer. In later affidavits from the mother, which I will consider, she denied that she was in any relationship with Z or that he resided with her.

104. The Secretary relied on an affidavit of Nicole Valle dated 3 October 2020. Ms Valle referred to Z’s bail conditions requiring him to reside at the mother’s address between 14 August 2020 and 6 October 2020 when his bail address changed. A general update was given in relation to casework issues involving the mother. It is noted that a caseworker attempted to contact Z who did not reply to her. Paternity issues in relation to the Child A are also raised in the affidavit. Some documents are annexed to the affidavit suggesting that the plaintiff may be pregnant to Z; however, the plaintiff denies this, attaches medical evidence confirming her lack of pregnancy and Ms Hill in her oral evidence accepted that the plaintiff was not pregnant.

Police documents

105. The Secretary tendered as part of Exhibit A, a substantial number of police attendance event documents or “COPS” entries. These documents related to events where the police stopped cars in relation to suspected drug matters and searched the mother or other persons in the cars. Also included were police entries relating to various alleged domestic violence offences where the mother was the victim or an alleged person of interest in 2007, 2011, 2014, 2017 and 2019. On some of those occasions the reports suggest that the mother attempted to avoid the violent situation and control it, including reporting the matter to police. Other entries refer to acts of violence or threats by the mother which will be considered further below.

106. The documents also included an entry for 25 January 2013 relating to the alleged sexual assault of C. This included:

“Macquarie Fields detectives attended Liverpool Hospital and liaised with hospital staff as to how the injury to the VIC occurred. A procedure was performed on the VIC which established that she had a small laceration on the outer side of the anus. There was no internal or vaginal bleeding. Dr Belen who performed the procedure stated that there were no concerns in relation to how the injury occurred. Macquarie Fields detectives and officers at the crime scene spoke with all persons that were around the VIC throughout the day and ascertained that the matter was not suspicious. A possible explanation as to the cause of the injury was that upon the VIC’s mother changing the VIC’s diaper she has accidentally cut her with her fingernails.”

107. Also included in Exhibit A were documents relating to the criminal history of the mother confirming that she had no convictions for violence or drug offences. Documents relating to the criminal history of Z were in evidence which showed that he had a very extensive history of violence, stealing, assaults on police, but no sexual assault offences. The documents show the bail conditions as referring to the mother’s address in the period from 14 August 2020 to 6 October 2020. The address altered after this date.

Affidavit evidence of the mother

108. The mother relied on four affidavits dated 19 September, 27 September 2020 (two affidavits) and 19 October 2020.

First affidavit dated 19 September 2020

109. In the first affidavit dated 19 September 2020, the mother denies that her partner is Z as alleged and states that she is currently not in any domestic relationship and that her relationship status is single. In paragraph 9 of the affidavit, she states that she has never been known to police in relation to drug and property offences. In paragraph 17, the mother states that when she was informed that Z had used her address for bail conditions she was in shock as to it and did not give her permission for it. In paragraph 21, she again denies that she is in a sexual relationship with Z and says she is not pregnant. She then outlines her history with Z and states that she met him in high school and came in physical contact with him in 2020 when he was visiting the mother’s neighbour who is a friend of his. The mother confirmed that she had a Facebook friendship with Z prior to seeing him. In paragraph 25 of her affidavit, the mother confirms that Z turned up at her house at night time to visit the mother’s neighbour and to tell her that he was fine after his arrest and it was at that time that the police arrived to do a welfare check. The mother says the police did not mention anything to her about Z using her address for bail conditions. The mother states in paragraph 27 that she has never exposed her children to any risk as she lives alone, has no children at her house and would not have any visitors if her children were present. She said that Z’s presence was unannounced. In paragraphs 38 and following of the affidavit, the plaintiff states that she would cease her casual friendship with Z having regard to the risk to any child such as A and that she never signed any documentation allowing him to use her address and never spoke to any court officials regarding the use of the address.

Affidavit dated 27 September 2020

110. In her affidavit dated 27 September 2020, the mother provides a detailed response to the affidavits of Ms Hill. It is unnecessary for the purpose of these reasons to set out the evidence in detail. The mother again confirms that her current partner is not Z and that she is single (paragraph 8). She said that the criminal background of Z should not be used against her. In paragraph 13 she said that she did not sign any bail conditions for Z and did not report that she was his new partner. She attaches a negative pregnancy result to dispel the suggestion that she was pregnant. She confirmed that Z was not living at her house.

111. The mother in some detail explains her failure to attend at some contact visits with A due to difficulties with COVID-19 pandemic restrictions. She also gives evidence in relation to her non-attendances at urine analysis testing.

112. In paragraph 48, the mother states that she was “never known for drug offences and I do not have a criminal history based on the allegations. It was merely association with [Y] at the time”.

Affidavit dated 19 October 2020

113. In the affidavit dated 19 October 2020, the mother states in paragraph 13 that once she became aware that Z had used her address for bail she informed him to change it immediately and was advised that he did. She states that she never signed any document to grant permission and never spoke to his solicitor to verbally give permission as alleged. In paragraph 12 she states that Z “was only a friend”. In paragraphs 17 and 18, she raises issues about the paternity of A and that Y may not be the father. Annexed to the affidavit are various responsive documents including at Annexure B, a response to a chronology prepared by the Secretary. In it the plaintiff confirms that in January 2019 she tried the drug ICE “to assist with pain on that one occasion only and I informed the ambulance officer of this”. In relation to the positive urine analysis test on 4 May 2020, the mother states that she is unable to explain how the test was positive and asserts that she was not there until after the time the test was recorded.

3. The mother has demonstrated very little insight into the risk that her life and partner choices can have on her safety and that of any child in her care;

4. In relation to the mother’s credit, the court should be guarded about accepting the evidence or any plans of the mother in this matter. Many aspects of the mother’s evidence were concerning including her recollection that Dr Ramoo was not even present for the examination of C and her belief that Dr Belen prepared a false certificate.

190. Counsel for the mother submitted, in general summary, as follows:

1. In relation to s 106A of the Act, the circumstances giving rise to the removals of C and D from the mother no longer exist. The prima facie evidence that the Secretary relies on to contend that A, some six to seven years later, is in need of care and protection, has been rebutted. There is no evidence to support the fact that the mother caused or was involved in the injuries to C or has any actual knowledge of how the injuries to C occurred. The mother has never denied that C was or could have been sexually assaulted. This was conceded by the Secretary’s witness Ms Hill. The mother has confusion as to the cause of the injuries. This is understandable. The mother’s comments in relation to the injuries to C and the events of 24 January 2013 are littered and “recycled” through multiple documents and there is significant confusion about the mother’s position regarding C’s injuries and the risk she poses to A;

2. The mother continued to express doubt and confusion during the Safety Assessment with caseworkers in December 2019. The mother has expressed on multiple occasions that she still does not know and probably never will know what happened to C. In the current proceedings the mother conceded that it is likely that C was sexually assaulted and that she does not “disregard” other possibilities. The mother’s position is consistent with the evidence before the court. The mother’s confusion and doubts are not unreasonable and cannot amount to a finding that A was in need of care and protection and that A’s removal from the mother’s care was warranted on the basis that he was “likely” to be sexually abused. A similar position exists in relation to the children C and D;

3. The mother’s position has substantially changed since C and D were removed, particularly D. The mother currently has stable long-term housing in a two-bedroom home and lives alone and no longer has or is involved in abusive or potentially abusive relationships;

4. It is open to the court to find that the presumption in s 106A has been rebutted. Section 106A is an evidentiary tool. The Secretary still bears the onus of proving on the balance of probabilities that the Child A is in need of care and protection. The case has not been made out to the requisite standard.

5. Section 71 and 72 of the Act provide alternate bases for the making of a care order. In relation to s 72, circumstances did not exist for the removal of the Child A from the care of the mother in January 2020. The child protection concerns mentioned in the Initiating Application relating to A did not warrant removal of the child from the mother. This was established by the cross-examination of Ms Hill. The evidence before this court establishes that the plaintiff accepted that the most likely explanation for C’s injuries as observed by Dr Ramoo and Dr Hurwitz was that she was sexually assaulted;

6. The alleged lack of insight during the Safety Assessment dated 20 December 2019 is not established. The mother expressed doubt and confusion regarding C’s injuries not a denial of them. The mother has demonstrated significant preparations relating to A and was prepared to take steps to protect A from a risk of sexual harm. The mother’s comments about possible causes of some of C’s injuries including the medical examination, her fingernails and the fall on the Wii mat (as to bruising only), have to be seen in the context of the different reports of Dr Belen and Dr Ramoo and what the mother was told on 24 January 2013 and the response of the police;

7. On the whole of the evidence, the Secretary has not made out its case to the requisite standard that A was in need of care and protection at the time that he was removed. The Secretary’s own evidence does not support a finding that A was at risk of sexual abuse when he was removed on 15 January 2020;

8. In relation to the current position, the cumulative matters referred to by the Secretary do not establish a ground to the necessary standard;

9. There is no evidence that the mother is currently in a relationship. The evidence should be accepted that the mother was only in a friendship with Z and not a romantic or sexual relationship;

10. The mother was forthcoming in relation to her relationship history and domestic violence. When the mother B has been a victim of domestic violence she has acted protectively and appropriately by phoning the police, ceasing the relationship and taking steps to take out an apprehended violence order or a combination of these. The evidence relating to domestic violence does not rise to the standard required to support a finding that A would be in need of care and protection in the mother’s care such that it would warrant his removal from her care;

11. In relation to the mother’s illicit drug use it is true that the mother has not attended all of her urine analysis appointments but these were due to logistical difficulties with her contact arrangements and the mother not receiving some of the reminders. The evidence of the mother’s drug use does not rise higher than the mother’s admission that she tried ICE in January 2019 and the drug result test dated 4 May 2020;

12. In relation to the mother’s mental health, the mother admits that she has a history of anxiety and depression but she gave evidence that she manages her own mental health and knows when she is not feeling well. The mother should not be criticised for managing her own mental health. There is little to no evidence that supports a finding that the mother’s mental health currently presents a significant risk to A being in her care;

13. There is not sufficient evidence to establish a limited capacity in the mother to provide for the child’s physical and emotional needs. The evidence establishes that A has a very strong bond with the mother. The mother has completed parenting courses and has shown a loving and kindly disposition to A;

14. In relation to A’s stated father, Y, the mother has informed the Department that she held concerns that A could come into contact with Y. Ms Hill conceded that child protection concerns regarding Y were not well founded at present;

15. In the Amended Summons, the Secretary raises a number of additional grounds which it is argued support a finding that A is in need of care and protection. Examining the evidence carefully the Secretary has not satisfied the court on the balance of probabilities that A was and is in need of care and protection pursuant to the grounds pleaded nor that he is at unacceptable risk of harm in the mother’s care based on any one of the factors raised alone and/or cumulatively. While the court may have concerns as to the risk raised regarding the mother’s drug use, it does not rise to the requisite standard;

16. Based on the evidence it is open to the court to dismiss the application. The court can dismiss the application if it is satisfied that A was not in need of care and protection at the time that he was removed;

17. The court does not need to make a finding that C was sexually assaulted. Such a finding is not a critical issue for determination in the threshold proceeding. Such a finding is not opposed but is not sought as part of the mother’s case. If it is made it must be made on the balance of probabilities in the light of the seriousness of the finding. In the light of the unclear medical evidence, the lack of a conclusive investigation and the lack of a clear cause of C’s injuries, the court may not be satisfied that a sexual assault in fact occurred to the requisite standard. With or without a finding as to sexual assault, the mother’s case is that A is not at risk of sexual harm in her care;

18. If the court finds that unacceptable risk applies in the establishment hearing phase then the following submissions are made. It is conceded on behalf of the mother that there is a risk. However, on the evidence before the court it cannot be found to be unacceptable or at a magnitude that warrants intervention by the State into the life of this child and family. While many risks are raised they are not well founded in the evidence and cannot support a finding that A is at an unacceptable risk of harm. The court should be cautious in its findings and the “cumulative harm” case is without sufficient strength to support a finding at the establishment stage that warrants the very drastic step of removing a child from its mother’s care and not permitting a restoration of the child.

Consideration

The Sources of the Court’s Power

191. The court accepts that ss 71 and 72 provide alternative sources of power for a care order. This is established by a careful reading of the sections. See also Re Linda, above, at [22]. However, in assessing whether to make an order under s 71, the court must look at the current position and determine on the evidence whether the Child A is in need of care and protection as he would be exposed to an unacceptable risk of harm if he was restored to the mother: Re Linda at [43]; Re Tanya at [22]; M v M, above.

The alleged sexual assault in 2013

192. The Secretary asserts that the court should find on the balance of probabilities, taking into consideration the seriousness of the finding, that the Child C was sexually assaulted on or about 24 January 2013 whilst she was in the care of the mother, B. The Independent Legal Representative says such a finding is open. The mother states that such a finding is not sought but is not opposed.

193. The rules of evidence do not apply to these proceedings unless the court orders that they do apply to all or part of the proceedings: s 93(3) of the Act. No such order has been made. Therefore s 140 of the Evidence Act 1995 (NSW) is inapplicable. However, as set out above, the Secretary has the onus of establishing a case for a care order and the standard of proof required is proof on the balance of probabilities having regard to the principle that the degree of proof required by the civil standard may vary with the gravity of the case to be proved. As Lindsay J stated in A, above, a positive finding of sexual abuse is not, of itself, required in care proceedings.

194. There is a large body of evidence, largely emanating from the mother, as to what occurred on or about 24 and 25 January 2013 in relation to the Child C. I accept the mother’s evidence that on 23 January 2013, the mother had long acrylic nails placed on her fingers. I accept that these nails may have been pointed and sharp.

195. There are inconsistencies in the mother’s accounts given at various times in relation to whether the Child C was left alone with other persons and who supervised the child and the length of time that various events took to occur (including as to whether there were absences by the mother from the home on 24 January 2013). In her oral evidence, the mother stated that the child was not with her on two occasions on that day, being in the care of other family members residing in the house. In my view, having looked at the various accounts and considered the mother’s oral evidence, it is impossible for the court to untangle the complex various accounts and also the histories provided by the mother to Dr Belen and Dr Ramoo as recorded in their reports.

196. I accept, having taken into account all the evidence before the court, that the court is unable to find on the balance of probabilities having regard to the seriousness of the finding, how precisely the injuries to the Child C occurred and who or what was to blame. In particular, there is no satisfactory evidence to suggest that the injuries referred to in Dr Ramoo’s report were caused by the mother, whether intentionally or not. I find that the injuries referred to in Dr Ramoo’s report, if established, could not have been caused by the mother’s new acrylic nails, however clumsy she may have been in caring for the Child C, such as in changing the child’s nappies. The injuries are too extensive and varied to support that conclusion.

197. I have carefully reviewed the reports of Dr Belen and Dr Ramoo, have taken into account their oral evidence before the Children’s Court and have considered the evidence before me and the submissions of the parties as to the issues concerning the Child C. In the light of those matters, I make the following factual findings in relation to the injuries to Child C:

1. The Child C suffered injuries on 24 January 2013. The mother and the mother’s sister noted blood in the Child C’s nappy and on her leg. Spots of blood were noted by them on the floor of the house where they resided. As a result, the maternal grandmother was contacted and she called the ambulance and the child was taken to Liverpool Hospital for examination and treatment;

2. Certain injuries were noted by Dr Belen on 24 January 2013 and by Dr Ramoo on 25 January 2013. It is on one view possible that the injuries noted by Dr Ramoo on 25 January 2013 were either inadvertently missed by Dr Belen on 24 January 2013 or were caused by the examination of Dr Ramoo and Dr Hurwitz and were thus not present when Dr Belen undertook her examination. Dr Belen accepted this as a possibility when it was put to her;

3. However, I accept the expert evidence of Dr Belen and Dr Ramoo that it is highly unlikely that the injuries noted by Dr Ramoo were caused during the examinations of either Dr Belen or Dr Ramoo. There is no expert evidence to the contrary. I also note the plaintiff’s formal concessions as to this issue: see Exhibit 1;

4. Less weight should be placed on the oral evidence of Dr Belen and Dr Ramoo given in 2020 compared to their contemporary reports prepared in 2013, as the latter were prepared soon after the examinations and with the benefit of the video recordings and the still photographs in the case of Dr Ramoo. The oral evidence was given over seven years after the events. It is to be expected that the doctors had reviewed a large number of other patients in that period and their actual memories of the events of 24-25 January 2013 would be somewhat less reliable having regard to the passage of time;

5. In my view, it is likely that Dr Belen did sight the genitalia and anus of the Child C in her examination including the Child C’s vagina and very possibly her hymen. However, I accept the evidence of Dr Belen that at best she had only a “quick look” at each and, having regard to the difficulty of the examination, was not satisfied with the thoroughness of the investigation, and recommended to the Director of the Liverpool Hospital Sexual Assault Unit that there be a further examination the next morning. There is no evidence to support the mother’s oral claim that Dr Belen did not recommend a further examination the next day and signed a false certificate: T216.28. This was speculation only and should be clearly rejected;

6. I find that Dr Belen likely conveyed to police officers who attended, in the hearing of the mother, that the results were inconclusive and did not support a sexual assault finding;

7. I accept that Dr Belen’s findings were her professional opinion based at the time on her limited examination in difficult circumstances and with the “quick look” that she referred to many times in her oral evidence. However, her examination was not as thorough as that of Dr Ramoo the next day;

8. The examination by Dr Ramoo on 25 January 2013 was with the assistance of Dr Hurwitz, a paediatrician. Dr Ramoo worked in the Liverpool Hospital Sexual Assault Unit. Although less experienced than Dr Belen, she had worked there for some time. I accept the expert medical findings made by Dr Ramoo in her two reports and in particular that the genital injuries found were diagnostic of an acute penetrative injury probably occurring in the previous 48 hours and the anal laceration was also consistent with acute injury to the anus, probably occurring within the last 24 hours. I also accept the opinion by Dr Ramoo in the earlier report that the injury to the hymen was diagnostic of penetration through the labia, past the introitus being the opening to the vagina and through the hymen;

9. There is no satisfactory evidence to suggest or support the finding of any accident or event which would have caused these extensive injuries noted by Dr Ramoo. As I indicated, I do not accept that the injuries could have been caused by the mother’s new nails. Although Dr Belen said the laceration found by her could have been caused by the nails, that was a minor laceration on the cheek of the child’s bottom as seen by Dr Belen and not the far more extensive injuries which Dr Ramoo found. The mother accepted this;

10. In relation to the extensive bruising to the child found by Dr Ramoo, in the light of the oral evidence of Dr Ramoo and the mother, I am not willing to exclude the real possibility that this could have been caused during the holding of the child during the examination by Dr Belen, particularly in the light of the evidence of Dr Ramoo that it is difficult to age bruises;

11. The acute injuries and the medical diagnosis by Dr Ramoo of likely penetration are very serious medical findings. I accept these medical findings. In the light of the absence of any other reasonable explanation for the findings, in my view on the whole of the evidence it has been established on the balance of probabilities taking into account the seriousness of the finding that the Child C was sexually assaulted by an unknown perpetrator on or shortly before 24 January 2013. The oral evidence of the mother excluded the possibility of access to the child in the period leading up to the accident by anyone except herself and her sister and her then boyfriend when the child was left in their care for a limited period. The mother said she attended to changing nappies and the bathing of the child: T219.17-.24. I repeat that there is no evidence establishing that the mother caused the injuries found by Dr Ramoo or was involved in or complicit with the sexual assault which I have found;

12. Even if I am in error in this conclusion as to a sexual assault, the serious injuries to C raise unexplained concerning questions about how such serious injuries could have occurred whilst the Child C was in the mother B’s care and she was responsible for changing the child’s nappies and bathing her: T219. No satisfactory explanation is revealed on the evidence to these concerns.

The mother’s insight into the alleged sexual assault of C

198. Both the Departmental officers in December 2019-January 2020 and the Secretary and the Independent Legal Representative in the appeal, placed considerable weight on an alleged lack of insight by the mother into the sexual assault and the serious injuries to C.

199. I find that the mother, as established on the evidence, has exhibited a high degree of confusion and denial in relation to the sexual assault to C which I have found. This is partly attributable to the opinions of Dr Belen, the decision by the police not to proceed with the crime scene at the home following the conversation with Dr Belen which I think the mother likely heard, and the desire to try and put forward an explanation for C’s serious injuries which is consistent with a cause other than sexual assault such as through an accident with her nails or injuries as a result of the medical examinations themselves.

200. The mother has never rejected outright the possibility of a sexual assault to C causing the injuries noted in Dr Ramoo’s report. In various places in the written evidence, the mother accepts that a sexual assault may have occurred. In her oral evidence, the mother conceded in cross-examination that a sexual assault to the Child C in 2013 is the most likely explanation for her injuries: T222.29-.36. She later altered that evidence slightly to say that she did not know how her daughter C was injured: T294.9-.23. At one stage she suggested that Dr Hurwitz (or perhaps Dr Ramoo) caused the injury to the Child C’s hymen: T216.36; T289.43. The concern of the Department, as evinced in the Safety Assessment undertaken in December 2019, is that the mother lacks insight into the seriousness of the injuries. As stated above, a lack of insight into child protection concerns and a lack of preparedness to engage with responsible authorities can justify a finding that a child is in need of care and protection: A, above, at [120].

198. The Safety Assessment records the mother and the maternal grandmother describing the injuries to the Child C as being a “scratch” and the mother still wondering whether she accidentally injured the child when changing her nappy as she had long nails at the time. The relevant caseworker is recorded as holding significant concerns in relation to the mother’s understanding of the severity of the injuries to the Child C and concerns in relation to her capacity to keep her newborn baby safe. Similar matters were referred to in the Initiating Application filed 20 January 2020 in the Children’s Court: see paragraph 4(i).

199. I am comfortably satisfied on the balance of probabilities that there has been a lack of insight shown by the mother into the severity of the injuries which were caused to the Child C and in seeking to blame other possible causes which I find were very unlikely to have caused the injuries found by Dr Ramoo. She continued to focus on other possibilities for the injuries in her oral evidence including questioning whether Dr Belen had actually recommended a further review on 25 January 2013: T216.28. See also T294.9-.23. In my view, this lack of insight is a relevant matter to be taken into account in assessing whether the need for the orders sought has been established.

The factors against a need for a care and protection finding

203. I accept the submissions for the mother that there are present a number of factors against a need for a care and protection finding in the case of the Child A.

204. These factors include the following:

1. The caseworker notes of contact between the mother and the Child A strongly suggest a loving and kindly relationship between the mother and child, an ability to comfort and settle the child, a clear illustration of warmth and caring and suggested joy in the mother in seeing the child. Certain parenting skills were also shown. These matters were confirmed in oral evidence by Ms Hill;

2. The evidence establishes the mother has a secure and clean home environment for the baby if he was returned to her care with all appropriate equipment available for the care of the child. According to her, the mother lives alone;

3. The mother has no convictions which in my view are relevant to the need for a care and protection order and in particular no convictions for crimes of violence or drug offences;

4. The evidence establishes that the mother has been a victim of domestic violence herself on a number of occasions and in her childhood was allegedly a victim of sexual assault. Clearly, the fact that a person is a victim of domestic violence cannot be held against them. Some of the mother’s admitted acts of violence towards her mother occurred when she was a teenager and thus did not occur in recent years;

5. The mother’s appearance in these proceedings and the preparation of voluminous affidavit evidence shows a real determination to achieve the restoration of the Child A to her care as soon as possible. This was confirmed by her oral evidence;

6. Although police reports suggest that the mother has been seen on a number of occasions with persons known to police for drug matters, no drugs have ever been found in the mother’s possession including following searches. Police suggestions that the mother appeared to be affected by drugs were in my view general and not sufficient to support a finding that the mother was affected by drugs on the occasions in question;

7. As stated, there is no evidence to support that the mother was the perpetrator of the injuries suffered by the Child C on or about 24 January 2013;

8. The mother has attended many contact visits and urine analysis tests. A number of (but not all) failures to attend have been explained by the mother in her evidence including with medical certificates;

9. The mother’s oral evidence persuades me that she genuinely wishes to achieve the restoration of the Child A and believes she can care for him;

10. The mother’s affidavit evidence and her oral evidence negate in my view a present romantic or sexual relationship with Z. I accept her evidence on that issue. I reject the submissions of counsel for the Secretary and Independent Legal Representative to the contrary whilst noting the several factors pointing to the existence of a relationship previously.

The factors supporting a need for a care and protection finding

205. In my view, there are a number of factors present which support the need for a care and protection finding in relation to the Child A.

206. In referring to these matters and in making my final determination, I again refer to the paramountcy principle in s 9(1) of the Act, the need for the risk of detriment to a child to be balanced against the possibility of benefit to the child by restoration to the mother and the important principle that removal of a child from a parent is traumatic and must be seen as the last resort.

207. The factors which in my view point to the present need for a care and protection order are as follows:

1. The age of the child: At the time of the final hearing the Child A was less than ten months old. Accordingly, the child is effectively helpless and in total reliance on the care and protection and judgment of the carer or, if the child was restored, the mother, B. Counsel for the mother did not dispute this was a relevant factor;

2. The finding in relation to the sexual assault of the Child C: Even taking into account my finding that there is no evidence supporting the conclusion that the mother is the perpetrator of the relevant injuries or had knowledge of the assault, the assault (or injuries) which I have found did occur whilst the Child C was in the mother’s general care. How it occurred is uncertain. This, in my view, is an important factor to be taken into account. However, having reflected on the matter carefully, I would not find that it alone warranted a care and protection order on the basis that the assault exposed the Child A to a serious risk of harm in the future including of sexual assault and thus satisfied s 71(1)(c) of the Act. The mother appeared to me to be genuinely perplexed as to how the injuries had occurred and was not seeking to cover up a person’s responsibility known to her. Overall, she exhibited real care for A. She now does not live with the other adults who were present on 24 January 2013 although she is probably likely to associate with some of them in the future. I am satisfied that she would show a degree of real vigilance in relation to any risk of sexual assault or abuse of A;

3. The mother’s lack of insight into the seriousness of the injuries suffered by C: This is a factor to be taken into account as discussed above. The injuries to C were serious and should reasonably be recognised as such;

4. The mother’s drug history: The mother has admitted taking ICE for asserted pain in January 2019. Although the open admission of this is to the mother’s credit, the fact that she would decide to resort to taking ICE as a pain relief mechanism is a serious matter which indicates a failure by the mother to understand the dangers of illegal drug ingestion to herself and others. I also take into account the positive finding of methamphetamines and amphetamines in May 2020. Although the mother asserted that it was an incorrect finding, there is no satisfactory evidence to indicate that conclusion is warranted. After that finding, the mother missed a number of urine analysis tests. Although she stated that she was not sent texts related to her appointments she could give no good reason for not ringing Departmental officers to clarify the test times when she knew that frequent testing was sought. I am currently not satisfied that there has been a consistency of urine analysis tests over a sufficient period to establish a clear pattern of the mother being drug free from illicit drugs. This raises unacceptable risks of the Child A being ill-treated or his basic needs not being met by the mother under s 71(1)(c) and (d) of the Act if there was a restoration to the mother;

5. The mother’s relationship with drug users: In her oral evidence the mother stated that the asserted father of the Child A, Y, was a user of cannabis and the drug amphetamines (known as ICE) during their relationship in 2019 although the latter drug was not taken in her presence: T237.9-.37. I accept this evidence as well as the mother’s evidence that Y did not reside with her. However, the mother conceded that she maintained her relationship with Y (whom she saw virtually every day) for six months even after she became aware he was a user of cannabis and ICE: T240.26-.44. In my view, this raises real and serious concerns in relation to the mother’s realisation and awareness of risk factors relating to drugs both to herself and her child. The mother also confirmed that she travelled with Y in his car even though she was aware he was a drug user: T311.23-.T312.5. This also raises concerns about the mother’s appreciation of risk to herself and any child travelling with her. In my view, the safety of the child is a basic need under s 71(1)(d) of the Act;

6. The aggressive response of the mother to caseworkers in text messages in relation to urine analysis tests in 2020: The court can understand a degree of frustration by the mother in requirements to undertake urine analysis tests in the course of a busy life with frequent contact visits with the Child A. However, while this is understandable, the aggressive and offensive language used by the mother in the texts is not acceptable in circumstances where the caseworkers are seeking to protect the Child A. This is a factor to be taken into account as showing inappropriate anger by the mother and an inability to work with caseworkers to resolve issues (such as moving the place of drug testing which she did not request) but in my view in the circumstances is not a significant factor by itself in all the circumstances;

7. Concerns about the mother’s mental health: On the evidence, the mother was a victim of childhood sexual assault. The evidence from the police records supports a number of serious incidents relating to violence by the mother. The material relating to police events or COPS entries was not referred to in the December 2019 Safety Assessment as the detail of it was not available at the time to the Department. The police records and the evidence raise serious issues about the mother’s ongoing mental health which in my view needs to be thoroughly assessed. In 2007, I find that the mother was taken to a mental health facility under the relevant legislation because of her behaviour. In 2008, the mother attacked the maternal grandmother including pushing and kicking her. The mother admitted this in her evidence and said she regretted it and it was a response to being slapped by her mother. In 2017, the mother is recorded as making threats to her mother to firebomb her mother’s house in circumstances where the mother’s own children, C and D, were in the maternal grandmother’s custody. The mother claimed this threat was made by her partner at the time using her phone and she found out about the texts two weeks later. However, the mother admitted remaining in a relationship with this man even after becoming aware of the very serious threats he had made: T275.30-.38. This is a matter of serious concern and raises questions about the mother’s ability to assess dangerous situations and clearly inappropriate conduct. The mother has also admitted that she has suffered from (and was diagnosed with) depression and anxiety, although the mother asserts that this has resolved. The assertion by counsel for the mother in her submissions that the mother is the best judge of her mental health in the light of this history cannot be accepted. I accept the submissions of the Secretary and the Independent Legal representative on this issue. These matters raise in my view serious concerns in relation to the mother’s ongoing mental health which should be subject to a proper and thorough review and, if required, treatment. The evidence in my view satisfies s 71(1)(d) of the Act in the sense there is currently an unacceptable risk that A’s basic physical and psychological needs will not be met if there is restoration. This is an important factor pointing to the need for a care and protection order in my opinion;

8. The mother’s relationship with Z is a matter of concern: I am not satisfied that I can make a finding on the balance of probabilities that the mother has ever been in a sexual or romantic relationship with Z. Many factors point to this. Z has asserted such a relationship and that he has resided at the mother’s premises. Z was at the mother’s premises when police arrived for a welfare check. Z used the mother’s premises as an address on his initial bail. These matters all point to some form of relationship between the mother and Z. The mother claims that it was only a friendship and that she has ceased contact. However, the evidence establishes that the mother and Z were not only friends for a significant period of time but have mutual friends: T302.32; T320.4-.20. The mother has stated that she is willing to move her address and not provide her address to Z. Z has a history of violence and drug use. The friendship between the mother and Z and his criminal history as well as their recent contact and concerns in relation to his childcare history, establish matters which in my view support the present need for a care and protection order under s 71(1)(c) of the Act. This is a factor I take into account. I also note that the mother attended court when Z appeared even though she was aware that he had been arrested by police for outstanding warrants: T323.47. Why she would do that for a person who was not known to her well is unclear. I found her explanations as to this issue difficult to accept: T326.28-.38; Mother’s shorter 27 September 2020 affidavit paragraph 7. A lengthy distancing (in time terms) of the mother from Z will need to be established.

Conclusion

208. Taking into account the evidence, the submissions of the parties and the factors which I have referred to above as being established by the Secretary, and also taking into account in particular the paramount principle in s 9(1) of the Act, I find that the Child A is in need of care and protection due to an unacceptable risk to the child of harm arising from the factors which I have found.

209. It is clear that a finding of an unacceptable risk of harm to a child may be assessed from an accumulation of factors proved according to the relevant civil standard of proof: Bell-Collins Children, above at [26]. The unacceptable risk to the child of harm in the present case requires as a minimum a thorough mental health assessment of the mother (with any treatment as recommended), the undertaking of urine analysis tests over a sufficient period to establish a clear and consistent pattern of the absence of illicit drug use by the mother, the attendance at appropriate courses relating to gaining insight into the seriousness of the injuries to C as well as avoiding persons and relationships exposing the mother and children to risks of violence, abuse and drug use and a risk assessment of the mother’s proposed plans and accommodation for the child if restored.

210. In my view, it is unnecessary to identify the particular subsection of s 71 which is established by the Secretary due to the inclusive nature of the section.

211. However, if I am wrong in relation to this, I would not base my decision on the basis of s 71(1)(c) concerning the risk of sexual abuse but there being currently an unacceptable risk of harm to the Child A in relation to:

1. Physical abuse or ill-treatment risks concerning Z and potential access to the Child A following a restoration under s 71(1)(c);

2. Basic safety, physical and psychological needs of the child concerning the risk factors which I have pointed to as being established under s 71(1)(d): this includes the mother’s drug taking, her mental health and her willingness to stay associated with known drug users or persons making threats;

3. The lack of insight which I have found in relation to C’s injuries.

212. In my view, it is unnecessary for the court to rely on s 106A of the Act for its conclusions. The Court is satisfied that the evidence establishes the need for a care order apart from s 106A. However, I note that the fact that C and D have been taken from the mother without restoration is prima facie evidence that the Child A, the subject of the care application, is in need of care and protection. If it was necessary to decide the point, in my view the mother has not provided evidence sufficient to rebut the prima facie position under s 106A(2) of the Act. In finding this, I accept the submissions of counsel for the mother that a number of the risk factors present when C and D were taken into care no longer exist.

213. Even if a ground is established under s 71 of the Act, the court retains a discretion whether to make an order that the child is in need of care and protection. I see no reason in the present case why I would not, as a matter of discretion, make such an order as sought.

214. I also note that the principles of CROC which need to be taken into account do not in my view point to a different conclusion: see Re Henry [2015] NSWCA 89 at [264]-[268]. I accept the oral submission of counsel for the Secretary on this point.

Determination

215. For the above reasons I make the following orders:

1. The appeal is allowed.

2. Orders made by the Children’s Court on 18 September 2020 are set aside.

3. Pursuant to ss 71-72 of the Children and Young Persons (Care and Protection) Act 1998 (NSW), the Child A is a child in need of care and protection.

4. Liberty to apply on three business days’ notice to the Associate to Dicker DCJ.

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