Donnely v Swan
[2024] NZHC 1332
•24 May 2024
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004 AND SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980, THE NAMES OF THE PARTIES AND OF THE PERSON UNDER THE AGE OF 18 YEARS WHO IS THE SUBJECT OF THE PROCEEDINGS HAVE BEEN ANONYMISED.
FICTITIOUS NAMES ARE USED. THE DECISION DOES NOT INCLUDE THE NAME OF ANY PERSON, PARTY OR SCHOOL REFERRED TO IN S 11B(4)(a)(ii) OF THE FAMILY COURT ACT
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-485-053
[2024] NZHC 1332
UNDER the Care of Children Act 2004 IN THE MATTER
of an appeal against an interlocutory decision
BETWEEN
DONNELY
Appellant
AND
SWAN
First Respondent
MEAD
Second Respondent
Hearing: 22 May 2024 Counsel:
P N Ross for Appellant
M G Taylor for Respondent
No appearance for Second Respondent S E Hughes – counsel for the child
Judgment:
24 May 2024
Reissued:
17 July 2024
JUDGMENT OF RADICH J
DONNELY v SWAN [2024] NZHC 1332 [24 May 2024]
[1] In a Family Court decision, a number of incidents of sexual abuse by Mr Donnely towards his daughter, Clara, were found to have been proven.1
[2] Mr Donnely says that there were insufficient primary facts to support inferences upon which the Judge’s findings were based and that the decision should be set aside. In this decision, I consider whether, in making the findings, the Judge erred.
The essential facts
[3] The Family Court proceedings between Mr Donnely and Ms Swan, Clara’s parents, have an 11-year history. They began when Clara was three. She is now 14.
[4] The greater part of that background is not relevant to this appeal, which is limited to considering the factual findings made by the Family Court Judge in the decision under appeal. That decision was described by the Judge as a “fact-finding exercise” which engaged s 5(a) of the Care of Children Act 2004. Under subs 5(a), when considering a child’s welfare and best interests (which, under s 4, is the paramount consideration in proceedings under the Act) a relevant principle is that a child’s safety must be protected and, in particular, a child must be protected from all forms of violence from all persons.
[5] The factual findings made by the Judge were that four particular incidents of sexual abuse by Mr Donnely on Clara were proved.2
[6] The Judge’s findings will then be used by the Family Court in assessing the application of s 5(a) to the various applications relating to Clara’s guardianship that are before it.3
1 [Donnely] v [Swan] FC Wellington FAM-2013-0741-428, 26 April 2023, per Judge Black [Family Court decision].
2 At [117].
3 Described in [15] below.
Background
[7] Clara was born in 2010 in City A. Her parents separated approximately six months later. Mr Donnely moved to City B a month after the separation. Ms Swan and Clara remained in City A.
[8] A July 2019 report to the Family Court under s 132 of the Care of Children Act includes the following entries in an Oranga Tamariki record of “reports of concern” on 26 August 2013:
The notifier reported that [Ms Swan] had made allegations in March 2013 that [Mr Donnely] was a paedophile and was touching [Clara]. The notifier said that [Ms Swan] did not expand on the allegations and [Mr Donnely] went to Police to report the concerns. According to the notifier, Police did not document the concerns; the matter was not reported to the Ministry, and contact between [Mr Donnely] and [Clara] continued.
The notifier reported that the previous day [Mr Donnely] had reported that [Ms Swan] was again making the same allegations that he was touching [Clara] inappropriately. The notifier said that in July 2013 [Clara] had been in the care of her paternal grandmother, [Ms Mead]. The notifier reported that [Ms Mead] had asked [Clara] about the concerns. [Clara] allegedly said that her daddy was touching her and was going to hurt her. [Ms Mead] then allegedly asked [Clara] if someone had told her [Mr Donnely] was going to hurt her, to which [Clara] allegedly responded yes. [Ms Mead] allegedly asked [Clara] if [Mr Donnely] had told her he was going to hurt her, and [Clara] allegedly said no. [Ms Mead] then allegedly asked [Clara] if [Ms Swan’s then partner] had told [Clara] that [Mr Donnely] was going to hurt her, and [Clara] allegedly replied yes.
[9] Another incident reported to Oranga Tamariki at about that time was to the effect that Ms Swan’s now ex-partner had hit Ms Swan and Clara and punched holes in the wall. As a result of these allegations, Clara went to live with Mr Donnely and Ms Mead for some months in 2013. It would appear that she returned to City A to live with Ms Swan in early 2014.
[10] In 2016, the Family Court began to hear competing care applications by Mr Donnely and Ms Swan. The hearing was adjourned part-heard when it became apparent that Ms Swan had not been honest with the Court and others. She had said that her relationship with her former, abusive, partner had ended when it had not. Judge Callinicos was critical of Ms Swan in his decision but went on to approve a
parenting order that had been prepared by consent after the adjournment.4 The order provided for Clara to transition to shared care with Mr Donnely and Ms Mead, who was added as a guardian. Under the order, Clara was to be in the care of Ms Mead at least every second weekend and for at least one overnight stay during the week following. Clara and Ms Swan could have contact twice-weekly by electronic means and face-to-face contact once a month.
[11] In April 2017, Clara was referred to WellStop – a counselling service – by her primary school for assessment following concerns about inappropriate sexual behaviour on Clara’s part towards boys at her school. Ms Mead’s evidence to the Family Court was that Clara then went to WellStop every week for about two and a half months. However, WellStop records show that Ms Mead stopped taking Clara to sessions after session number two, telling WellStop that Mr Donnely would be unwilling to come to a session and that she was unwilling to engage further. It was said in the WellStop report that “Clara was keen and excited to engage in treatment” but that the treatment was terminated abruptly.
[12] In April 2019, Ms Swan spent time with Clara in City B. She said that Clara told her that Mr Donnely had been hitting her, and about other matters that were of concern to Ms Swan. A report was made by her to Oranga Tamariki. Ms Swan saw Clara again in City B in May 2019. Ms Swan caught the bus to City B and stayed with Clara at a backpackers there. Ms Swan’s evidence was that she was talking to Clara at the backpackers during the afternoon of the day on which she had collected her and that Clara had quite suddenly told her about a number of occasions on which she had been sexually abused by Mr Donnely. I will not describe them in this decision but they relate to a number of incidents and include a number of details, including of characteristics of Mr Donnely’s private parts.
[13] Ms Swan reported the disclosures to the police, who met with her the following morning. Although a police officer discussed a safety plan with Ms Swan, which would involve Clara staying with Ms Mead while allegations were being investigated, Ms Swan said in evidence in the Family Court that “I just didn’t trust leaving [Clara]
4 [Donnely] v [Swan] [2016] NZFC 393.
in [Ms Mead’s] care. I didn’t think that she would keep [Clara] away from [Mr Donnely]”. In addition, it is Ms Swan’s evidence that Clara had told her that she did not want to stay with Mr Donnely and that, in her experience, Oranga Tamariki tended to write off any concerns that she raised with them. Accordingly, she arranged for her mother to travel from City A and to take her and Clara back to City A. In the meantime, Ms Swan had spoken to her lawyer and had been advised that the disclosures made were enough to justify her bringing Clara back to City A on the basis that an application would be filed on Monday, as was then done.
[14] Clara then attended an open ‘child-focused interview’ with the social worker, during which a disclosure was made. As a result, she undertook two separate ‘specialist child witness interviews’. During the specialist child witness interviews, Clara made over 33 disclosures of abuse on the part of Mr Donnely. Again, I will not recount the details but it is enough to say that she described sexual behaviour on Mr Donnely’s part of an often unique and peculiar nature.
The procedural steps that followed
[15] In May 2019, Ms Swan filed three parenting order applications to change the existing parenting orders in Mr Donnely’s favour5 and Mr Donnely filed five different applications to maintain or enhance the parenting order that was in place.6
[16] The existing parenting orders were suspended by a Family Court Judge to enable the applications to be considered.
[17] The applications came, first, before Judge Callinicos on 29 July 2019, who concluded that there was at that stage insufficient information from the police about the outcome of evidential interviews for him to make any form of order.7
5 An application to vary parenting order, an application to settle a dispute between guardians in relation to schooling and an application to revoke Court-appointed guardianship on the part of Ms Mead.
6 An application for a warrant to enforce the parenting order, an application to vary the parenting order, an application for a new parenting order, an application to rescind order to suspend the previous order and an application for a further warrant to enforce a parenting order.
7 [Swan] v [Donnely] [2019] NZFC 5841.
[18] The applications then came before Judge Doyle on 6 September 2019. Judge Doyle, too, did not feel that she had sufficient information to return Clara to City B or to affirm the allegations.8
[19] The Judge was of the view that Clara needed to be assessed properly by a psychologist:9
She needs to be assessed by someone who is an expert and can tell me what this child’s emotional and cognitive function means. Does she know the difference between right and wrong, between truth and falsehood? Is she compellable? Could someone tell her things and her make them up and repeat them and take them on as her own? Is she clever enough to be able to remember those stories and regurgitate them? Is she capable of making up or recalling information that she has been given that may be outside of her own experience but can be woven into a story, such as the detail that is involved in the evidential interviews she has given? Is she capable of constantly lying to the police, to her lawyer, to the Court?
[20] Mr Garner, a clinical psychologist engaged under s 133 of the Care of Children Act, addressed the points that Judge Doyle had raised. I will come to the terms of his report shortly. It was given on 31 March 2020. By then, nearly seven months had passed since the hearing before Judge Doyle. Fixture arrangements were made – and adjusted – before the applications were heard before Judge Black over four days beginning on 9 November 2021. The hearing was adjourned part-heard to enable information from WellStop to be obtained. Another hearing day was then allocated in June 2022 leading to the decision in April 2023.
[21] The timeframe from 2019, when the allegations were made and the applications were brought, to April 2023 is well and truly beyond a timeframe that can be considered to be reasonable in circumstances in which:
(a)Clara’s welfare and interests are paramount;
(b)the most serious of allegations had been made and remained unresolved;
(c)parenting outcomes remained unresolved;
8 [Swan] v [Donnely] [2019] NZFC 7209.
9 At [17].
(d)the delays occurred from when Clara was aged between nine and 13 years; such important years in a person’s development; and
(e)under s 4(2)(a)(i) of the Care of Children Act, decisions affecting a child need to be made and implemented within a timeframe that is appropriate to the child’s sense of time.
The Family Court hearing
[22] Judge Doyle’s concerns were addressed in Mr Garner’s report under s 133 of the Care of Children Act. His findings were material in the Family Court hearing.
[23]Some of the key findings in his report are these:
(a)He found the evidential interviews with Clara to be remarkable for the range and extent of disclosures she made and given their nature.
(b)The number and range of disclosures “is contra-indicative of ‘coaching’ by [Ms Swan]” being the explanation for the disclosures because coaching typically involves specific behaviours, minimum details and the repetition of terms and phrases with an absence of contextual information.
(c)There was a great deal of contextual information in the interviews. So much so that there were inconsistencies. Mr Garner presumed that it was the inconsistencies that resulted in the police not proceeding to a prosecution of Mr Donnely.
(d)The inconsistencies were another contra-indication that the disclosures were due to coaching because coaching prevents inconsistencies. It was more likely, he thought, they were due to Clara confusing different incidents.
(e)The manner of delivery by Clara was contra-indicative of coaching. She delivered her accounts in a conversational manner, in the form of a narrative.
(f)Clara knows the difference between right and wrong and she understands that telling the truth is important because of the impact on other people. She is not able to maintain a lie once directly challenged.
[24] At the hearing, the Judge heard from Mr Donnely, Ms Swan, Ms Mead, Mr Garner and from the authors of two earlier s 132 reports.
The decision under appeal
[25] After considering factual matters and relevant provisions in the Care of Children Act, the Judge said that the approach to be taken in a sexual abuse case like this is to glean from the evidence the strands that could constitute the material of possible sexual abuse and to weave them together in order to deduce whether there had been abuse.10 From a summary provided in H v G, the Judge referred to the following set of relevant principles:11
(a)In dealing with the allegations of sexual abuse, the civil standard of proof applies but that is from the perspective of the seriousness of the allegation.
(b)The Court should not, for strong practical and family reasons, make a positive finding of abuse unless it is driven by the particular circumstances of the case to do so.
(c)Where the Court is satisfied that abuse has not occurred, the allegation should be expressly rejected.
(d)If the Court cannot reach a conclusion with confidence, then it should consider if the child would be exposed to an unacceptable risk and should make any care or contact orders to address that risk.
[26] I discuss the Judge’s findings later in this decision. For present purposes the scheme of the Judge’s analysis of the evidence in order to make findings on the questions before him was this:
10 Family Court decision, above n 1. at [51], citing DSW v C [1991] NZFLR 350.
11 At [54], citing H v G [2003] 1 NZLR 985 which, in turn, cites M v Y (1993) 11 FRNZ 186 and
S v S [1994] NZFLR 26.
(a)He analysed the disclosures made by Clara in her specialist child witness interviews, finding that, for the most part, her allegations were made out.12
(b)He considered the proposition that Clara’s disclosures were the result of coaching by Ms Swan and concluded for a number of reasons that they were not.13
(c)He found on the basis of “the weight of the evidence” and of “the strands of evidence taken together” that the allegations that Mr Donnely had behaved in sexually inappropriate ways towards Clara were proved to the requisite standard.14
[27] The Judge found that four particular incidents had been proved; but that several other allegations made by Clara may or may not be true.15
The arguments on appeal
[28] It is said for Mr Donnely that the evidence before the Judge was not satisfactory and that elements of it are contradictory. It is said that the decision, ultimately, was based upon inferences and that there were insufficient primary facts to support them. A range of points are identified as having been relevant but not having been given sufficient consideration.
[29] Mr Ross submitted that the Family Court’s assessment should start again on the basis of further information, including a focused expert assessment on paternal alienation (or the ‘resist/refuse’ dynamic, as it has come to be called).
[30] Overall, it is said that there are too many inconsistencies, too many unsubstantiated claims and simply not enough in the way of primary facts to avoid a conclusion that inferences drawn are unsafe and are tantamount to conjecture or speculation.
12 At [107] and [109]–[113].
13 At [108].
14 At [114]–[116].
15 At [117] and [118].
[31] For Ms Swan, Mr Taylor says that the Judge’s reasoning process was sound, that he took all relevant evidence into account, that any inferences drawn were logical and that there was no basis for interfering with the decision. Similarly, Ms Hughes, for the child, has expressed the view that it was open to the Family Court Judge to make the findings he did on the basis of the evidence before the Court, including from the parties, social workers and the Court-appointed psychologist.
Principles
Approach to appeal
[32] The appeal is brought under s 143(3) of the Care of Children Act under which a party may appeal an interlocutory or interim order with the leave of the Family Court.16
[33] An appeal under s 143 is a general appeal that proceeds by way of rehearing where the appellant bears the onus of satisfying the Court that it should differ from the Family Court’s decision.17 This Court is only justified in interfering with that decision if it considers the decision is wrong; in other words, the Judge erred. If an error is found, this Court will come to its own assessment of the merits of the case afresh. It can rely on the Family Court’s reasons in reaching its own conclusions, but the weight to be given to those reasons is a matter for this Court.18 In considering the weight to be given to the decision of the Court below, relevant factors include whether it had a particular advantage such as relevant expertise or the opportunity to assess the credibility of witnesses, where such assessment is important.19
16 Mr Donnely was granted leave to appeal in [Donnely] v [Swan] FC Wellington FAM 2013-041- 428, 22 November 2023 (Minute of Judge Black).
17 Under s 143(4) of the Care of Children Act 2004, the High Court Rules 2016 and s 128 of the District Court Act 2016 apply as if it were an appeal under s 72 of the District Courts Act; Swayne v Lush (1998) 17 FRNZ 415, [1999] NZFLR 49 (HC); and Austin, Nicholls & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
18 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31], per Blanchard, Tipping and McGrath JJ.
19 Austin, Nicholls & Co Inc v Stichting Lodestar, above n 17, at [5].
Care of Children Act
[34] Section 3 provides that the purpose of the Act is to promote children’s welfare and best interests, and to facilitate their development, by helping to ensure that appropriate arrangements are in place for their guardianship and care and to recognise certain rights of children.
[35] Under s 4, the welfare and best interests of a child in his or her particular circumstances must be “the first and paramount consideration”. To that end, the Court must take into account the principle that decisions affecting a child should be made and implemented within a time frame that is appropriate to the child’s sense of time.20 And it must take into account the principles in s 5,21 including the principle that a child’s safety must be protected.22
[36] The principles that apply to assessments of sexual abuse were identified correctly by the Judge, as observed in [25] of this decision. The essential elements of those principles for the purposes of this appeal are that a finding of abuse can arise from the evidence assessed cumulatively and that, in dealing with allegations of this type, the Court should apply the civil standard of proof – the allegation will be proven if the Court is satisfied that it is true on the balance of probabilities.23
Analysis
[37] As Ms Hughes said, the options for the Court were to determine that some or all of the allegations were true, that they were made up by Clara or that she was ‘coached’ into making them by her mother. Mr Garner’s evidence, under cross- examination from counsel for the appellant in that hearing, was that a combination of all three is most likely. He said:
Well, I think it highly, highly improbable that the explanation for all of the disclosures in the evidential interview is that [Clara] made it all up, that there was no coaching, that there was no factual basis to it … it needs to be considered that a combination of all three explains the, the vast arrays of disclosures that she’d made. All three being some factual basis, some
20 Care of Children Act, s 4(2)(a)(i).
21 Section 4(2)(a)(ii).
22 Section 5(a).
23 H v G, above n 11.
influence or coaching from mum and some exaggeration and making up by [Clara].
[38] The Judge’s conclusions were that, while some of Clara’s allegations were untrue or exaggerated or unable to be proved, a number of them were able to be proved.24 He dismissed the proposition that Clara’s disclosures were the result of coaching. My task is to whether that decision was wrong on the grounds advanced by the appellant. Was there enough evidence of primary facts to support the Judge’s conclusions?
[39] In this case, the Family Court Judge had the benefit of watching the two specialist child witness interviews given by Clara, of hearing and seeing the parties to the appeal and other relevant witnesses including the report writers. And he had the opportunity of asking questions of those people, which he did in a focused and appropriate way. He applied his expertise as an experienced Family Court Judge when forming views on the evidence he saw and heard.25 As I mentioned in [33], these are relevant factors in considering the weight to be given to the Judge’s decision.
[40] With that starting-point in mind, I turn to consider the Judge’s conclusions under three primary heads. First, I look at the Judge’s findings on the likelihood that allegations of sexual abuse by Clara were able to be established. Secondly, I consider the Judge’s findings that allegations of Clara having been coached can be discounted. And, thirdly, I consider the appellant’s submissions that a number of relevant matters make the decision unsafe.
The Judge’s conclusions on Clara’s disclosures
[41] The Judge’s conclusions on the veracity of Clara’s disclosures were certainly open to him. They are underpinned by Ms Swan’s evidence but, more so, by the extensive and detailed disclosures of sexual abuse at the hands of Mr Donnely that Clara gave during two lengthy evidential interviews that were conducted with her in June 2019. As I have said, there are over 33 claims of abuse made by Clara in those interviews. They are not general allegations. Rather, they relate in material ways to a
24 Family Court decision, above n 1, at [113] and [114].
25 H v S [1997] NZFLR 289, (1997) 15 FRNZ 418 at 18.
number of particular acts of sexual abuse. Particular details of a number of the acts are such that the prospect of them being made up by a nine-year-old child, in the absence of unmonitored internet access (which Clara did not have), must be well and truly in doubt.
[42] I agree with the Judge’s comments that it is most unlikely that there were other plausible sources of information for Clara to obtain such particular knowledge of certain types of sexual activity as to enable her to construct a false narrative.26
[43] Moreover, some of the particular items described by Clara in her interviews, such as handcuffs, lubricant, condoms and bullets, were found in Mr Donnely’s house by the police in the execution of a search warrant. As Mr Ross says, it may not be untoward for a household to have items of that sort but the point here is that Clara knew about them and about the uses to which they were put.
[44] As Mr Garner said in his report, there was a great deal of contextual information in the interviews, so much so that there were inconsistencies. While the inconsistencies may have been such as to cause the police to form the view that the criminal standard of proof would be difficult to meet, they are as Mr Garner said likely to be due to Clara having confused different incidents.
[45] Mr Garner makes the point that Clara delivered her account in a conversational and narrative manner. It was not delivered in a manner that was urgent or forced. She did not begin by talking about sexual behaviour. When she did start to talk about that behaviour, it was interspersed with other disclosures. Mr Garner was satisfied that Clara knew the difference between right and wrong, knew that telling the truth is important and struggled to maintain a lie once challenged. Her accounts were described as being coherent. Mr Garner described Clara, when talking about the sexual behaviour, as being shy and reserved. He concluded that he had no reason to doubt the veracity of the information that she was giving.
[46] The Judge’s decision did have a sufficiently clear factual footing – through the video interviews, through Ms Swan’s evidence, through the expert evidence of
26 Family Court decision, above n 1, at [109].
Mr Garner and through evidence of a more circumstantial nature such as the location of items in Mr Donnely’s house and described by Clara in the course of her disclosures.
[47] Moreover, I agree with the Judge’s conclusions that Clara’s behaviours, which led to her referral to WellStop in April 2017 are consistent with there having been at that time recent sexual abuse.27 It is most concerning that Ms Mead withdrew Clara from that counselling when it had been seen as important by the school but before it could provide any benefit for Clara.
[48] Ms Mead’s evidence that WellStop was of the view that Clara had been subject to historic abuse is not correct. It is not borne out by the WellStop documents. It is not credible, as the Judge said, to suggest that after two sessions the counsellor would reach a communication of that sort and communicate it to Ms Mead without recording the conclusion or the fact of the communication. To the contrary, the WellStop report is confined to observations of the type referred to in [11] above. I see it as being fair for the Judge to have concluded that this was a further example of Ms Mead attempting to present a version of events which bolstered her son’s case.
The Judge’s conclusions on whether Clara had been coached
[49] The Judge gave five reasons for not accepting that Clara could have been coached:
(a)There was insufficient opportunity for Clara to have been coached into making disclosures of sexual abuse by her father. Ms Swan had only seen Clara twice in 2019 – once for her birthday and then at the time of the disclosures.
(b)Clara made no disclosures of a sexual nature to Ms Swan during the April 2019 visit.
27 At [110].
(c)It is unlikely that Ms Swan would have been able to extract false disclosures from Clara just during the afternoon of the May visit.
(d)The number and range of disclosures is contra-indicative of coaching.
(e)The theory of the case presented by Mr Donnely and Ms Mead – that the 2019 disclosures were a continuation of earlier false allegations of sexual abuse made against them by Ms Swan – does not fit with the history of the proceedings. For example, the “touching’ allegation in the extract quoted in [8] above was something that was in fact reported to Oranga Tamariki by Ms Mead and Ms Swan was unaware of it at the time.
[50] Furthermore, as the Judge said, in addition to Ms Swan’s relative lack of contact with Clara at relevant times, there was limited access to internet material in the households of either Ms Swan or Mr Donnely and there were no other plausible sources of information for Clara to obtain the knowledge that would be needed to construct the type of narrative that she was able to present.28
[51] The Judge’s findings were supported by Mr Garner’s evidence. As mentioned in [23] above, he saw the number and range of disclosures as being contra-indicative of coaching. The detail given by Clara, the contextual information provided and the inconsistencies all pointed away from coaching, as did the way in which Clara presented during the interviews.
[52] As Mr Garner said, when replying to a question in the Family Court proceeding:
It would be exceedingly difficult for a parent to coach a child to make all of those disclosures … I really can’t fathom [Ms Swan] and [Clara] in some way conspiring to create that raft of incidents.
28 At [109].
Other points raised by the appellant
[53] Mr Ross raised a number of points that were seen as being relevant and as supporting the position that there were insufficient primary facts for the Judge to reach the conclusions he did in the decision under appeal. I look at each of them:
(a)It is said that Ms Swan had a track record for lying to the Court. Reference is made in particular to the untrue evidence she had given in 2016, as mentioned in [10] above. However, the Judge accepted that Ms Swan had, as he put it, “a history of lying to the Court, culminating in the 2016 consent”.29 In addition, I do not see that Ms Swan’s lies over her past relationship align with the coaching allegations that are made.
(b)It is said that some of what had been claimed has been disproven, particularly the presence of guns and a drug plant at Mr Donnely’s house. It is said that police searched but did not find these things. However, there was a period of nearly two months between the point in time at which Mr Donnely would have read the relevant allegations in the Family Court documents and the time at which the search occurred. Several items described by Clara were in fact found by the police during the execution of the search warrant.
(c)It is said that disclosures made by Clara during her evidential interviews in relation to inappropriate sexual behaviour on Mr Donnely’s part towards other children were not supported in evidential interviews conducted by police. However, as Ms Hughes has observed, the other children about whom disclosures were made by Clara were the subject of an initial child-focused interview30 but, did not disclose anything untoward so the investigation went no further. As Mr Garner said in evidence, non-disclosure in child-focused interviews is not surprising.
29 At [61].
30 As mentioned above in relation to the process to which Clara was subject, where a complaint raises a potentially criminal act, a child-focused interview is undertaken by a social worker. It is only if a child discloses something in that interview that a specialist child witness interview follows.
(d)It is said that Clara had indicated consistently her preference to live with her mother. The suggestion, as I understand it, is that there was a form of collusion designed to achieve this outcome. However, that is not relevant to the Judge’s determination that abuse occurred. Although under the Care of Children Act, Clara’s views must be taken into account, the focus in this proceeding is on whether a certain set of facts in issue can be supported on the evidence.
(e)It is said that, although Ms Mead gave evidence in relation to the WellStop engagement that was false, that was not evidence given by Mr Donnely. That is correct. But Ms Mead was a party to the applications that were before the Judge. As I have said, it is of considerable concern that material evidence of the WellStop engagement was not given to the Court by either Mr Donnely or Ms Mead.
(f)It is said that there were in fact opportunities for Clara to have been coached. Reference is made to the prospect of telephone and video contact. Reference is made in addition to allegations on Ms Swan’s part of inappropriate sexual behaviour by Mr Donnely towards Clara at earlier points in time which were not made out in an ensuing investigation – suggesting a pattern of allegations on Ms Swan’s part. However, the evidence shows that there were no video calls and that phone calls were monitored by Mr Donnely or Ms Mead. Many were on speakerphone. Moreover, the allegations made on Ms Swan’s part at earlier points in time were not fully investigated. A child-focused interview was conducted but, as mentioned, if no disclosure is made, further steps are not taken. This is not something that in my view could undermine the Judge’s findings.
(g)It is said that the allegations made by Clara were made when she was in a backpackers lodge with her mother. That is so but the most direct evidence was made through the evidential video interviews.
(h)It is said that there were anomalies in Ms Swan’s evidence about the way in which she took Clara back into her care in City A immediately after the disclosures were made. I have referred to the sequence of events in [12] above. I see the position as reflecting a strong desire on Ms Swan’s part to avoid the prospect of any further risk of harm to Clara. While she had acquiesced in arrangements for Clara to go to Ms Mead, and while she had suggested that she would be getting the bus home, the fact that she arranged for her mother to come and pick them up instead is an understandable reaction and, again, does not detract from the basis upon which the Judge’s findings were made.
(i)From December 2020 until June 2022, Mr Donnely and Ms Mead had supervised contact with Clara. Mr Ross referred to the supervisor’s reports of the contact sessions showing Clara to be reserved, and at times rude, but, on a number of occasions, to be ‘warming up’. From this, the point is made that the Family Court should look at the issues again with a focus on the potential for parental alienation (the resist/refuse dynamic) to be operating here. However, as Ms Hughes said, Clara did not wish to attend these sessions and did so only through support from Ms Swan and interventions from her (Ms Hughes). Moreover, as Mr Garner said when giving evidence, there is no blanket rule on how children who are the victims of sexual abuse will behave. As I see it, this is not a point which advances matters one way or another.
[54] For all of these reasons, I cannot accept, as Mr Ross has put it, there were too many inconsistencies, too many claims that were incapable of corroboration or which were not sustained to enable the findings to be made. I cannot accept that the findings are based purely on inference that is tantamount to conjecture or speculation. To the contrary, the conclusion I have reached from the evidence – assessed cumulatively – is that there was no error in the Judge’s decision. I reach that conclusion on the basis of the evidence on the record. It is reinforced by the advantage the Judge had in assessing and testing the evidence himself.
Outcome
[55]For these reasons, the appeal is dismissed.
[56] The names of the parties and of the child are to remain anonymised, through the use of the names that have been adopted in this decision.
Radich J
Solicitors/Counsel:
Cathedral Lane Law, Dunedin for Appellant Te Aro Law, Wellington for First Respondent Sarah Hughes, Wellington for the child
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