A v Secretary, Department of Communities and Justice (No. 4)

In this judgment, in order to conform to orders made on 3 April 2019 by Schmidt J in a short judgment published as A v Secretary, Family and Community Services (No. 3) [2019] NSWSC 369 in separate but related proceedings in the Common Law Division of the Court, members of the family at the centre of the proceedings are identified by letters of the alphabet.

Her Honour’s judgment “No. 3” was incidental to her earlier, substantive judgment published on 5 February 2019 as A v Secretary, Family and Community Services (No. 2) [2019] NSWSC 43.

That judgment refers to a still earlier judgment of Harrison J, published to the parties on 14 December 2018 with the Medium Neutral Citation of [2018] NSWSC 1925, not readily accessible to the public on the Caselaw website. That judgment, I assume, was intended by Schmidt J to serve as judgment “No. 1”.

In these proceedings, in the Equity Division, I adopt a case name that conforms to her Honour’s model, with a designation as judgment “No. 4”.

By a summons filed on 24 September 2019 and amended on 28 October 2019 the plaintiffs (A and B), pursuant to section 91 of the Children and Young Persons (Care and Protection) Act 1998 NSW (“the Care Act”), appeal from final orders made by the Children’s Court of NSW (“the Children’s Court”) on the 23 September 2019, pursuant to section 79 of the Care Act, in respect of two children (both girls), C and D, respectively the third and fourth defendants.

The orders made in relation to the child C (born in October 2006 and now aged 13 years) provide for all aspects of parental responsibility for the child to be allocated to the Minister administering the Care Act (the first defendant) for a period of two years and thereafter to the father of the child (the fifth defendant, E), who resides in New Zealand, to the exclusion of her mother, A.

The orders made in relation to the child D (born in July 2017 and now aged two years) provide for parental responsibility for the child to be allocated to the Minister until she attains the age of 18 years, thus displacing from responsibility for her care both her mother (A) and her father (B).

An appeal lies to this Court from the orders of the Children’s Court because the orders under appeal were made by the President of the Children’s Court: Children’s Court Act 1987 NSW, section 22A; Children’s Court Regulation 2014 NSW, clause 5. Normally, appeals of this nature lie to the District Court of NSW.

Section 91 of the Care Act provides a right of appeal to a person who is dissatisfied with an order (other than an interim order) of the Children’s Court. An appeal under the section is by way of a new hearing. In disposition of an appeal, the Court may confirm, vary or set aside the decision under appeal. The Court has all the functions and discretions of the Children’s Court material to a disposition of the appeal.

The plaintiffs (A and B) are self represented. The children, C and D, are each separately represented by a legal representative appointed pursuant to section 99 of the Care Act. C’s father, E, did not appear in the present proceedings although, for a short time (on 23 September 2017), he did appear in the Children’s Court as an observer without direct participation in the proceedings in that court. Counsel for the Minister and the Secretary, Department of Community and Justice (the first and second defendants respectively) informs the Court that the Secretary has kept E informed of developments in this Court.

Given that a section 91 appeal is a new hearing, the Secretary accepted responsibility for carriage of the proceedings on appeal, and the onus of proving the case for care orders. The standard of proof required is proof on the balance of probabilities (Care Act, section 93), having regard to the principle (associated with Briginshaw v Briginshaw (1938) 60 CLR 336) that the degree of proof required by this civil standard may vary with the gravity of the fact to be proved: NU v NSW Secretary of Family and Community Services [2017] NSWCA 221 at [52]-[54]; M v M (1988) 166 CLR 69 at 76-77.

The Secretary’s primary submission was that the plaintiffs’ amended summons should be dismissed and the Court should order that the orders of the Children’s Court be confirmed. The legal representatives of C and D supported the Secretary’s case and joined in the making of that submission.

The children, C and D, were removed from the care of the plaintiffs on 15 September 2017. The proceedings in the Children’s Court were commenced by the Secretary on 20 September 2017 by the filing of an application initiating care proceedings pursuant to section 61 of the Care Act, together with a report of the same date in support of the application. The application sought care orders on a single ground (for which section 71(1)(c) of the Care Act provides); namely, that each child has been, or is likely to be, physically or sexually abused or ill-treated.

The central concern of the Secretary (which, having reviewed the evidence and heard from both plaintiffs, I share) is that:

C has been diagnosed (during an admission to Westmead Children’s Hospital on 15-17 October 2019) as having “an adjustment disorder with a depressed mood”. The Hospital’s assessment is that she “likely suffers from PTSD [Post Traumatic Stress Disorder] and has ongoing issues relating to abandonment”.

In my assessment, the mother, A, is an intelligent, well-intentioned, caring mother; but, sadly, since no later than 11 September 2017 (when C’s complaint was officially drawn to her attention) she has been, and she remains:

B’s denial that he sexually abused C has been accompanied by a competing narrative (advanced by him, with A’s active support) that C has made, and maintained, her complaint against him as retaliation for an attempt by him (on 28 July 2017) to discipline her for engagement in sexually explicit communications via the internet with a boy, or boys. In advancing that narrative, B has made (as I find) false statements to the police, and in an affidavit read in the Children’s Court (and in this Court), to the effect that C had engaged in sexually inappropriate behaviour by transmission of “nude” photographs of herself via the internet.

The mother, A, does not recognise her dependency on B for information about the allegedly lewd behaviour of C relied upon by B as a refutation of C’s complaint of sexual abuse. In my assessment, she is not open to acceptance of any criticism of B, even when she professes otherwise. She is too thoroughly convinced of B’s rectitude (and C’s propensity to lie) to acknowledge any truth in C’s complaint.

On 22 September 2017 the Children’s Court made interim orders allocating parental responsibility for the two children to the Minister until further order.

On 12 December 2017, by consent but without admissions, Blewitt CM found that the children were in need of care and protection, a foundational finding (pursuant to section 71 of the Care Act) that “established” the jurisdiction of the Children’s Court to consider what orders should be made (having regard to sections 72, 78, 80 and 83 of the Care Act) in “placement” of the children in care. Cf, Department of Family and Community Services (DFaCS) and Nicole [2018] NSWChC3 at [13], [23]-[25] and [28].

In April 2018 the plaintiffs applied to have Blewitt CM’s findings set aside. Crompton CM dealt with their application as one to have the question of whether the children were in need of care and protection (the jurisdictional, “establishment” phase of care proceedings, for which section 71 of the Care Act provides). On 23 August 2019 the plaintiffs’ application was dismissed.

The Secretary then sought to pursue an application for final care orders.

Before that application could be heard, the plaintiffs applied to this Court for orders (seeking administrative law relief and invoking the Court’s parens patriae jurisdiction) challenging the Children’s Court’s findings that the children are in need of care and protection. That application was dismissed by Schmidt J on 5 February 2019: A v Secretary, Family and Community Services (No. 2) [2019] NSWSC 43.

The President of the Children’s Court heard the Secretary’s application for final orders on 20, 21 and 22 May and 23 September 2019. In substance, he granted the Secretary’s application in relation to both children.

By these proceedings, the plaintiffs seek orders to the effect that the children (or, at least, the younger child, D) be restored to their care. As illustrated by their amended summons, they have exhibited some hesitation about the orders sought in respect of the older child, C. At various times, they have conceded that she is in need of care and protection and that, having regard to her expressed wishes, it would be difficult to give practical effect to any order for restoration.

C has expressed, and reiterated, a strong wish to live with her father (E) and his family in New Zealand.

Both plaintiffs were born in 1982 and are now aged 37 years. Their marriage is, for both of them, a second marriage. A is the mother of both children, C and D. B is the stepfather of C and the father of D.

C is the child of A’s first marriage, to E. That marriage ended in a separation in 2010 and, subsequently, divorce. After the separation, A moved to Australia from New Zealand. E continues to live in New Zealand with his current wife and a child of their marriage. He was born in 1979 and is now aged 40.

The plaintiffs were married in a religious ceremony in January 2015 and, in law, in February 2016. In between those times, B’s divorce came through. D is the child of the plaintiffs’ marriage.

B has three children by a first marriage. They live with his former wife in Fiji. He left Fiji in 2014. He has not returned to Fiji since that time.

Both plaintiffs were born in Fiji. They are ethnically Indian. They identify themselves as devout Muslims, the faith in which they have endeavoured to raise the children, C and D. E, also, is a Muslim.

The plaintiffs live in an outer suburb of Sydney.

At the time C was allegedly sexually abused by B (mid-2016-September 2017) she was on the point of entry to puberty. She was in Years 5 and 6 at school. She has this year completed Year 8.

The orders of the Children’s Court under appeal in respect of the older child (C), and associated formal findings, are to the following effect:

The orders of the Children’s Court under appeal in respect of the younger child (D), and associated findings, are to the following effect:

In the course of hearing the Secretary’s application for final orders, the President, on the application of the plaintiffs, allowed the “establishment” phase of the proceedings to be re-opened. On 20 May 2019 he held, with short reasons in support of his finding, that there was sufficient evidence before the Court to enable him to be satisfied that continuation of the intervention of the State had been and was justified in the interests of the safety, welfare and well-being of the children. He was satisfied, in short, that the children had been, and continued to be, in need of care and protection.

C (and, indirectly, D) came to the notice of the Secretary’s Department on Monday 11 September 2017 when a counsellor at C’s school (a faith-based private school at which C was then a Year 6 student) submitted a Risk of Significant Harm (ROSH) report (of the type for which section 29 of the Care Act provides) which reported that C had disclosed to the counsellor a pattern of sexual abuse experienced by C, at the hands of B, dating back to mid-2016.

The counsellor’s report arose out of a telephone call received by her on Sunday 10 September 2017 from a member of the school’s staff who reported that, earlier that day, the staff member had received information from two of C’s school friends that (at a sleep over on the night of Friday 8 September 2017) C had told them that she had been sexually abused by B.

On the morning of Monday 11 September 2017 the school counsellor cautiously engaged C in conversation, providing an opportunity for C to open up.

The counsellor’s typed “Session Notes” of the day include a statement by C that “there’s been a lot going on at home” and observations to the following effect:

During the course of 11 September 2017:

The school counsellor’s “Session Notes” for 12 September 2017 record a telephone conversation she had that morning with a Departmental officer who reported that, the previous evening: (a) C had maintained the version of events she had reported to the Departmental officer and the police on 11 November 2017; (b) C “had also reported that she was in a relationship with a 15 year old boy in New Zealand who she had met online”; and (c) C had “reported that she was not feeling part of the family since the baby [D] was born”.

The same Notes record advice by the Departmental officer about a meeting the officer had had with A. The mother was “reportedly adamant that she [did] not believe the disclosure [by C of sexual abuse]. She reported that there was an element of truth in [C’s] disclosure, regarding the massage by the step-father, but that it was in the presence of [A] and not sexual in nature.

On 15 September 2017 Departmental officers met with A for several hours, in the absence of B, at the conclusion of which they served on A an order for removal of the children from the plaintiffs’ care.

On 19 September 2017 the Police advised the Department that they had completed investigations into C’s complaint and decided that, in the absence of additional supporting evidence to confirm C’s allegations, no formal action would be taken on the complaint.

A NSW Police Force “COPS” transcript provides a record of the course of the police investigation.

The police officers who interviewed C on 11 September 2017 recorded that she “presented as a highly intelligent young child she was very clear in understanding truth and lies, [she] was highly articulate and displayed wisdom well beyond her years”. When cross examined on the hearing of the appeal, B agreed with that general assessment of C.

The COPS entry for 11 September 2017 records that, after the completion of their interview with C, the police investigators spoke with A and, then, with B. The record includes observations to the following effect:

There is no evidence before the Court that the police, having determined at any early stage to take no action against B, continued their inquiries. The COPS transcript records (against the date 3 October 2017) a status report, “No further investigation”. The police appear to have treated C’s complaint as an allegation of “sexual intercourse – vaginal” and, a case of “online grooming”.

The evidence in the Children’s Court proceedings, and on appeal in this Court, did not include a screen shot of any electronic messages or images, or a technical analysis of any electronic equipment attributable to A, B or C. In the absence of such evidence the Court cannot exclude, or embrace, a suggestion (advanced by the defendants) that B may have been the ultimate source of vulgar emails attributed to C and “boys” with whom C was said to be corresponding. She, herself, spoke only of correspondence with a single 15 year old boy.

As expressed in the report made by the Secretary in support of the Secretary’s Application Initiating Care Proceedings, notwithstanding the decision taken by the Police, Departmental officers: (a) “are of the strong belief [that C’s] disclosures are reliable, and supported by information provided by the family, school and other parties”; and (b) “continue to be satisfied, based on the information available at the present time, that sexual harm has been caused to [C] by [B]”.

In the Court’s analysis of the evidence no weight is given to statements of belief, opinion or conclusion by the police or Departmental officers. Their evidence is important insofar as it explains the sequence of events or reports of statements made (in particular) by C, A or B; but the Court is bound to form an independent, objective view of the evidence, not simply to rely on views expressed by others.

C’s handwritten notes of 11 September 2017 deal with two separate incidents, respectively numbered “1” and “2”. The notes relating to the second incident are incomplete because the police arrived to interview C before she finished them.

The notes relating to “incident 1” are to the following effect:

C’s notes relating to “incident two” are to the following effect:

C was interviewed by two police officers on 11 September 2017. One (“officer 1”) was female. The other (“officer 2”) was male.

They commenced their interview by exploring C’s understanding of the difference between “truth and lies”, which was correct. They also secured her agreement to “talk [only] about the truth and what really happened”, an agreement acknowledged at the end of the interview when C confirmed that she had told the officers the truth, without lies.

The transcript of the police interview provides an elaboration of C’s handwritten notes which is consistent with the notes.

When asked by officer 1 what had happened with B, C responded: “He I don’t know how to say it, uhm he has pedophilic desires”. Later in an answer to officer 2, C explained what she meant by “pedophilic desires” as “when an older, man or woman who is over the age of 16, they are having sexing desires with a younger [person]”.

Under questioning by officer 1, C described a pattern of conduct which progressed from B oiling her back, to massaging her breasts and touching her vagina and, for that purpose, removing her clothes. She also described the experience of B rubbing his penis against her vagina (without penetration); exposing himself to her fully naked; inviting her to touch his penis; and sucking her breast. The transcript makes graphic reading.

Most of it is directed to C’s description of encounters between herself and B. However, in the course of the interview C disclosed that she had reported B’s behaviour to two school friends and, about a fortnight before the interview, to her mother. In those disclosures C described what B is said to have done to her as “rape”, an expression which C defined as “touching, even touching me in an inappropriate way”.

The transcript records the following questions and answers on the topic of C’s disclosure to A:

On 20 September 2018 (a year or so after the end of the police investigation into C’s complaint against B, and much the same distance from when the children were taken into care) the Secretary’s Department received a Risk of Significant Harm (ROSH) report which stated that C had made disclosures beyond her initial disclosures. The Department decided not to explore the further disclosures because C was safe in Out of Home Care and, believing her initial disclosures, the Department did not wish to traumatise her further by having her re-interviewed by case workers.

A redacted form of the 2018 ROSH report was in evidence before the Children’s Court, and on the hearing of the appeal. Counsel for the Secretary explained that the report was redacted (in a manner consistent with section 29 of the Care Act) to protect the identity of the person who made the report to the Department.

Under the heading “Reported Information”, the redacted report included observations to the following effect:

C’s chronology of events, and other details, were challenged by the plaintiffs during the hearing of their appeal (not entirely without cause) but there is a broad consistency in C’s description of her experience of B, corroborated by incidental details.

Importance can attach to seemingly incidental detail. An example of this is that C’s complaint came to attention not through design on C’s part but through friends who reported a private disclosure to a school teacher who, in turn, reported it to a school counsellor. Exposure of a recantation by C of her complaint against B as a “lie” came to notice via a similar path, not by premeditation on C’s part. A’s pressure on C to withdraw her complaint against B also emerged in a casual conversation, not by formal means. A lack of premeditation on C’s part is inconsistent with the plaintiff’s theory that C has been driven by an urge to retaliate against B’s disciplinary restriction of her use of social media.

After the children were taken into care, A had regular opportunities to speak to C in circumstances which were required to be supervised. The Department’s inquiries suggest that, contrary to its expectation, the system of supervision may have broken down, providing to A opportunities to speak to C without the participation of a third party supervisor. A denies that she spoke to C at any time without direct supervision.

The school counsellor’s “Session Notes” for 27 October 2017 record that C presented herself to the counsellor for the purpose of recanting her allegations of sexual abuse. The notes record entries to the following effect:

The counsellor’s “Session Notes” for 3 November 2017 record an entry to the following effect:

The counsellor’s “Session Notes” for 13 November 2017 record an entry dealing with an individual counselling session with C that day. The entry includes observations to the following effect:

About a year after her recantation C told her foster carer that A had counselled her to withdraw her complaint about B. The carer, on 23 October 2018, reported statements made by C to C’s Departmental Case Manager in an email (with the subject heading, “Cover-Up”) to the following effect:

On 22 May 2019 the President of the Children’s Court received evidence from the children’s carer by telephone. She was cross examined by A and by the legal representatives of C and D.

In cross examination by D’s legal representative, the carer was asked about the circumstances in which she came to send the email of 23 October 2018 extracted above. An exchange to the following effect (not responsive to the question) is recorded in the transcript of evidence:

In performance of his statutory role (for which section 99D of the Care Act provides) C’s legal representative placed before the Court formal “Statements of Wishes” dated 14 March 2019 and 13 August 2019 recording C’s “wishes” as to what should happen in these proceedings. Counsel for C informed the Court, from the bar table, that C’s wishes remained as set out in the Statement dated 13 August 2019.

At core: (a) C does not wish to live with A and B, principally because of the presence of B, but possibly also because she is concerned that A does not believe her; (b) in circumstances in which A continues to live with B, her preferred option is to live with E in New Zealand; and (c) she requests the Court to make an order that her ipad and ipod be returned to her, and that she be entitled to use social media.

Two observations about C’s perspective in the Statement dated 14 March 2019 provide elaboration on why C’s preferred option is to live with E in New Zealand. First, the Statement records, C “did not wish to be separated from her sister [D] but understands that that is likely to happen”. Secondly, C “has come to understand that [a placement of her to live with A, provided that B does not reside with A] will not happen because her mother [A] will not separate from [B]”.

C’s appreciation that she and D are likely to be separated in future care arrangements is a significant, but qualified, development. Her discharge summary from The Children’s Hospital on 17 October 2019 confirms that she has a strong protective connection with D, having assumed something of a parental role in relation to her. Separation from D, should C move to New Zealand, remains a primary concern for her. Her mental state is, in part, a function of a profound sense of hopelessness about her family situation and a protective urge vis a vis D and their mother as against B. C harbours a sense of guilt about the ongoing exposure of A and D to B.

C’s preference to live with her father [E] in New Zealand may be taken to have been informed, at least in part, by her two visits to New Zealand to spend time with her father this year. She visited him, in supervised circumstances, during trips to New Zealand on 26-28 January and 13-19 July 2019.

C’s Statements of Wishes canvass a number of issues of importance to her beyond the central question of her placement. A notable one concerns her access to social media, a question best left to those who have parental responsibility for her. The focus for attention in this judgment is upon whether the orders under appeal should be displaced, and if so, with what consequential orders.

In addressing those questions, in the context of C’s expressed wishes, account needs to be taken of one specific piece of evidence.

Following a contact visit on 15 October 2019, C expressed her wishes, and her vulnerability in a dramatic fashion, as recorded in the affidavit of a Departmental officer (to the following effect):

Observations of this type about B make it unlikely that when (on 20 March 2018) C referred to “Dad” when asked in an age-sensitive questionnaire, “Is there anyone you would like to be seeing that you are not?”, she was referring to B. Her full answer to the question was “My Dad (probably not gonna let)”. I take this, in truth, to be a reference to E, to whom A was antagonistic.

At the age of two years, D is not in a position to provide the Court with a Statement of Wishes such as those relating to C.

The plaintiffs’ withdrew from the proceedings before the President in the Children’s Court without submitting themselves to cross examination on their affidavits. This they did, ostensibly, because E arrived at court to observe the proceedings, much to the consternation of A. However, on the hearing of the appeal, A explained that they withdrew from the proceedings because of an apprehension that the President was likely to rule against them.

Both plaintiffs gave evidence on the hearing of the appeal. Their Children’s Court affidavits were in evidence on the appeal, as was all other evidence adduced before the Children’s Court. In giving their evidence on appeal, they were each allowed an opportunity to make a sworn opening statement in the witness box and, after cross examination, to make a closing statement analogous to what might have been done in re-examination had they been legally represented. They were, in turn, cross examined by counsel for the Secretary, counsel for C and the legal representative for D.

In giving their evidence, each plaintiff endeavoured to be responsive to the case advanced by the Secretary and on behalf of C and D. In both giving evidence and making submissions, the more articulate of the plaintiffs was A. On the whole, with B’s express acquiescence, she had carriage of the plaintiffs’ submissions.

In giving their evidence, and in making submissions, both plaintiffs adhered to their case that: (a) C’s allegations against B are simply not true, but a fiction; (b) C is in need of counselling of some indeterminate type to help her to come to an understanding that her allegations are fictional; (c) although nothing is said against the suitability of E and his wife in a parental role vis a vis C, there is an unacceptable risk that, if allowed to live in New Zealand, C will engage in improper contact with her 15 year old boyfriend or other boys; (d) although it would be difficult for C to return to the family home to live with them as a couple, that is the most desirable outcome of these proceedings; and (e) if both children cannot be restored to their care, D at least can and should be. At various times the plaintiffs seemed reconciled to a probability that C could not return to their home, but would go to New Zealand to be with her father; but they were not entirely at peace with such an outcome.

A personal fear B expressed in his evidence is that, if C moves to New Zealand to live, on the basis of a finding that he has sexually abused her, and their community comes to regard him as a sexual abuser of children, his personal safety may be at risk. Whether such a fear is realistic was not explored in the evidence or submissions.

In giving her evidence, and in making submissions, A demonstrated a passionate concern for the welfare of her children, subordinated to an unwillingness or inability to believe any of C’s criticisms of B, and an unquestioning loyalty to B. Her unwillingness or inability to believe C, or to disbelieve B, is beyond her capacity to acknowledge in any meaningful way.

Having thanked this Court for helping her to look afresh at issues raised by the proceedings, A finished her evidence with a concession that she would probably not believe that B had sexually abused C even if he were to be convicted of an offence of having done so. To a degree apparently not accepted by her, A’s “knowledge” of the nature and course of the relationship between B and C appears to have been dependent upon what, how much and when B told her about his contact with C.

In cross examination, A’s confident assumption that she had discovered C taking a picture of her vagina to send to a boy, or boys, via social media was shown to be open to challenge; no such pictures were ever seen by A, and C’s device could well have been placed on the floor, not far from her body, not to take pictures of her vagina, but simply put aside as she endeavoured to hold shut a door A was endeavouring to open against her. This confrontation between mother and daughter can be explained in terms of C’s determination to enjoy social media and A’s determination to limit her access to social media: a battle of wills between parent and child. C’s conduct can be explained as typical of a juvenile, without the necessity of attributing to her sexual impropriety of any kind.

In giving his evidence, B was at pains to convey the idea that A was “the boss” of the house and he merely submitted to her domestic rule. That does not sit comfortably with evidence that he took charge of “discipline” for C, even if allowance is made (as it must be made) for the fact that, in mid-2017, A was preoccupied in coping with D’s recent birth.

Much of the cross examination of B was directed to confirmation that: (a) B had substantial opportunities to be alone with C when, for example, A was engaged in paid employment; (b) B had opportunities, which he took, to monitor C’s use of social media, providing opportunities for him to groom C; and (c) contrary to statements made by him in an affidavit, and to the police, there were never any “nude photograph” of C or images of her “in a state of undress”. In my assessment, each of these points can fairly be taken to have been confirmed during the course of B’s cross examination.

B’s attempts to explain his false statements about “nude photographs” or the like were particularly troubling.

In cross examination, he was driven to concede that there were only ever two photographs of C to which he referred in his responses to C’s complaint, both of which depicted C’s clothed upper body, wearing standard clothing of a type purchased for her by her mother. There never was a literally “nude” photograph of C, or anything close to that. Nor was there any photograph depicting her “in a state of undress”.

B’s justification of his statements to the contrary (that they were a function of “our culture”) does not do justice to the facts that: (a) C was in each picture fully clothed, wearing clothes acceptable at home; and (b) B made his statements to people in authority, not necessarily attuned to his “culture”, in an endeavour to persuade them, and A, that C was in some way lewd, in need of ordinary parental discipline.

Accepting that the plaintiffs’ “culture” may prioritise female “modesty” outside the home, and that a concerned parent of any “culture” might have misgivings about an 11 year old daughter having email chats with a 15 year old boy, the vice in B’s statements is that they were intended to disparage C, to discredit her in the eyes of her mother and inquiring minds outside the family circle, and to deflect any investigation of his conduct. At a time when candor was imperative, he was less than candid.

The plaintiffs invited the Court, on appeal, to consider the question (generally regarded as referable to section 71 of the Care Act) whether any jurisdiction for the State’s intervention had been “established” (by a finding that the children were “in need of care and protection”) as well as the later “placement” phase of care proceedings said to be referable to sections 72 and 83, and ancillary provisions, of the Care Act.

The orders under appeal depend upon findings adverse to the plaintiffs (challenged by the plaintiffs) in both the “establishment” phase and the “placement” phase of care proceedings. It is necessary, therefore, to consider both. Nevertheless, in management of an expedited hearing of the appeal, I declined the plaintiffs’ application that I deal with the proceedings in two separate, procedural stages. The establishment phase and the placement phase of the proceedings were dealt with in the one appeal hearing.

The primary focus of the appeal was on the operations of section 71 and 72 of the Care Act. Detailed, separate consideration was not given to the Secretary’s “care plans” for the children (Care Act, section 80) or the Secretary’s “permanency planning” for them (Care Act, section 83), although attention was given to the section 83(1) question “whether there is a realistic possibility of [the children] being restored to their parents within a reasonable period”.

Section 83(1) of the Care Act is in the following terms:

As before the President in the Children’s Court: (a) the permanency planning for C proposes that she be placed in the permanent care of her father, E, in New Zealand; (b) the permanency planning for D proposes that she remain in the care of authorised carers; and (c) the plaintiffs oppose the Secretary’s permanency planning and seek restoration of both children to their care, thereby focussing attention on whether the Court (upon a consideration of the Care Act, section 83) should accept the Secretary’s assessment that there is no realistic possibility of the children being restored to the plaintiffs within a reasonable period.

Conformably with section 7 of the Care Act, guidance in disposition of the appeal is available in sections 8 and 9 of the Act. Those sections are in the following terms:

The 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.

Sections 71 and 72 of the Care Act are in the following terms:

The case advanced by the Secretary, with support from the legal representatives of C and D, focusses attention on section 71(1)(c) of the Care Act.

During the hearing of the appeal, the plaintiffs conceded (for example, in written submissions marked as MFI P15, paragraphs 9-13) that, consistently with a rejection of C’s complaint of sex abuse against B, a finding could be made that C was in need of care and protection on the ground (for which section 71(1)(b) of the Care Act provides) that they acknowledge that they have had serious difficulties in caring for C because, on their case, she has made unfounded allegations against B and they have been unable effectively to control her.

The plaintiffs’ approach accommodates C’s now insistent desire to live with her father, E, in New Zealand as the only practical option available to her; their inability, as a couple, to cope with C; and her growing despair at A’s refusal, or inability, to believe her.

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]).

To sidestep this question in these proceedings would not assist A, in particular, to come to terms with the truth of what has happened to her children. Nor would it assist rehabilitation of C, much of whose welfare is tied to her distress at being disbelieved by A. Finally, it would not assist B to understand the standards required of a paternal figure in contact, particularly, with a young female. It might, perversely, encourage him to think that he can get away with abusive conduct.

The Secretary bears the onus of proving that the section 71(1)(c) ground upon which reliance is placed is made out by the evidence. Intrinsically, that ground requires consideration of whether C’s complaint of multiple incidents of sexual assault upon her by B can, and should, be accepted as factually correct.

In his reasons for judgment the President of the Children’s Court declined to find that C’s disclosures of sexual abuse were concocted. On the contrary, his findings included the following:

Having reviewed the evidence that was before the President, and having heard the evidence and submissions of the plaintiffs, my independent assessment of the Secretary’s case is essentially the same.

In my opinion, the evidence of C’s disclosures of sexual abuse at the hands of B, in the context in which those disclosures were made (and, over time, reaffirmed notwithstanding pressure on C by A to withdraw them) compels a finding (which I make) that B did sexually abuse C (between about mid-2016 and September 2017 or thereabouts) in substantially the way C described her encounters with him. In making that finding I am conscious of the gravity of an allegation of sexual abuse as it affects the plaintiffs, as well as the importance of the paramountcy principle in care proceedings: M v M (1988) 166 CLR 69 at 75-77.

In my opinion, C’s disclosures have a ring of truth about them which cannot be discounted by criticism of particular aspects of her version of events or by the fact that, in a state of emotional turmoil, she at one time retracted her complaint against B in order to appease A. As B himself conceded in his oral evidence, the terms in which C articulated her complaint against him on 11 September 2017 were out of character for the young lady C was. The length of the period over which, since September 2017, C has maintained her complaint against B is such as to undermine the plaintiffs’ contention that she was simply motivated by a desire to retaliate against B for his restriction of her use of social media. She has maintained her complaint against him despite her distress in being separated from A and D.

In my assessment, the credibility of C’s disclosures is reinforced by B’s self-serving attack (based upon false statements about “nude” photographs or the like) designed to discredit C, coupled with A’s demonstration of an unquestioning loyalty to B even at the expense of her children. I do not accept, as A would have it, that she has simply applied an independent, rational mind to an objective assessment of C’s disclosures; she has been blinded by her dependency for information upon, and her devotion to, B. B’s conduct, as related by C, marks him out as a persistent predator, exposing both children to an unacceptable risk of harm. A’s continued refusal, or inability, to deal empathetically with C and her unwavering support for B, mark her out as incapable of providing protection for the children and, therefore, also an unacceptable risk of harm.

Although I accept that, in common with youngsters of her generation, C may (as her mother firmly believes) have something akin to an “addiction” to social media, in the absence of evidence of screen shots and technical analysis of her equipment and that of B I am not comfortable with attributing to C any social (let alone sexual) “impropriety” beyond having email contact with a single 15 year old boy.

It needs to be said, however, that, even if C had been sexualised by contact with one or more vulgar, adolescent males, that could not, in my assessment, explain the graphic detail of her allegations of sexual abuse against B or, still less, justify conduct vis a vis her of the type she attributes to B.

In my opinion, the ground for care orders for which section 71(1)(c) provides has been made out in relation to both children, not merely C. C has been “physically or sexually abused or ill-treated” (and, if returned to the plaintiffs’ care, would be likely to be) at the hands of the plaintiffs, and, although she has not yet been physically abused, D is “likely to be” as she grows older. A lack of insight into child protection concerns and a lack of preparedness to engage with responsible authorities can justify a finding (which, in these proceedings, I make) that each child is in need of care and protection: Department of Family and Community Services (DFaCS) and Nicole [2018] NSWChC3 at [31].

The children were in need of care and protection at the time they were taken into care in September 2017 and, but for the arrangements made after they were taken into care, they would still be in need of care and protection today for substantially the same reasons. Each of the plaintiffs, for the reasons identified, is and was at all material times an unacceptable risk of harm to the children such that an order for restoration of the children to their care (jointly or severally) should not be made: M v M (1988) 166 CLR 69 at 77-78; The Secretary of the Department of Communities and Justice (DCJ) and Fiona Farmer [2019] NSWChC5 at [67]. The pre-condition for a care order for which section 72 of the Care Act provides is satisfied.

I accept the Secretary’s submission (as did the President) that neither plaintiff is likely to be able satisfactorily to address the issues that led to removal of the children from their care in September 2017. Despite the passage of time they remain deeply, and perhaps irretrievably, in denial. They have no coherent plan for how to deal with C’s fear of restoration to a household of which B is a member. Nor have they demonstrated an openness to professional assistance should they encounter difficulties with the children.

In the context of section 83 of the Care Act, I am satisfied that the children should not be restored to the care of the plaintiffs, jointly or severally, and that there is no realistic possibility of restoration of the children to them, jointly or severally, within a reasonable time, if ever.

I am satisfied, that there is a realistic possibility of restoration of C to the care of her father, E, thus providing a foundation for the Secretary’s permanency planning for C. On the hearing of the appeal there was no real criticism of the parenting skills of E or the domestic environment in which E and his wife care for their child, and propose to care for C. C looks to life with E, in New Zealand, as her best available option for safety and stability in her home life.

Having reviewed the whole of the evidence (including the evidence before the Children’s Court and the additional evidence adduced on appeal), and having considered the parties’ submissions on appeal, I am satisfied that the formal findings and orders made by the President on 23 September 2019, in relation to each child, are correct and ought to be confirmed.

Accordingly, I order that:

Dismissal of the plaintiffs’ summons carries with it a release of the Minister from an undertaking to the Court not to allow C to travel outside NSW (as intended, to New Zealand) without prior notice to the plaintiffs.