District Court New South Wales Medium Neutral Citation: "B" (No 2) v The Secretary, Department of Family and Community Services [2018] NSWDC 174 Hearing dates: 28, 29 & 30 May, 1, 4, 5, 6 & 7 June 2018 Date of orders: 29 June 2018 Decision date: 29 June 2018 Jurisdiction: Civil Before: Judge Levy SC Decision: The appeal succeeds. See paragraph [631] for orders Catchwords: CHILD CARE APPEAL – de novo hearing of a care proceedings to determine the appropriate allocation of parental responsibility and ancillary orders – analysis of manner and extent to which FaCS considered and investigated relevant disclosures of historical child sexual abuse in the father's extended family – FaCS report file on those disclosures was "closed at triage" due to "competing priorities" – reconsideration of the issues in light of relevant evidence admitted at the re-hearing but erroneously excluded due to a ruling made at the hearing in the Children's Court Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Cases Cited: "B" v The Secretary, Department of Family and Community Services [2015] NSWDC 267 Bradshaw v McEwans Pty Ltd (1952, unreported) (1951) 217 ALR 1 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Fox v Percy [2003] HCA 22; 214 CLR 118 Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58 Strinic v Singh [2009] NSWCA 15 Category: Principal judgment Parties: The Secretary, Department of Family & Community Services (FaCS) "B" -The child "C" - Mother of the child (Applicant) "D" - Father of the child Representation: Counsel and Solicitors: Ms G Mahony instructed by Crown Solicitor for NSW (FaCS) Mr M Boys (Solicitor for the applicant mother) Ms A Fawaz (Solicitor for the father) Ms S Ross (Solicitor, Independent Legal Representative of the child) File Number(s): 2017/386548 Publication restriction: Restriction on publication of names and identifying details other than litigation pseudonyms: s 105 of the Children and Young Persons (Care and Protection) Act 1998 Judgment Table of Contents Nature of case [1] – [2] Suppression order [3] Litigation pseudonyms [4] Representation [5] – [6] Introduction and summary of conclusions [7] – [37] Overview [38] – [43] Some background [44] – [70] The parties [71] – [86] Sentinel incident on 1 January 2016 [87] – [104] Polarised positions of the parties [105] – [116] Nature of the appeal [117] – [119] Findings of the Children's Court [120] Orders made by the Children's Court [121] – [122] Orders now sought on appeal [123] Grounds of appeal [124] – [131] Procedural background [132] – [137] Evidence in the appeal [138] – [140] Issues calling for decision [141] – [142] Credibility and reliability of testimony [143] – [445] (1) Evidence of the mother "C" [145] – [213] (2) Evidence of the father "D" [214] – [260] (3) Evidence of the FaCS caseworker "H" [261] – [318] (4) Other witnesses not required to be called [319] – [320] (5) Absent evidence – caravan letting agent [321] – [326] (6) Absent evidence – the sister "E" [327] – [343] (7) Absent evidence – the paternal step-grandfather "F" [344] (8) Absent evidence – the paternal grandmother "G" [345] – [347] (9) Evidence of the Children's Court Clinician, Mr Hawton [348] – [422] (10) Evidence of treating psychologist, Ms Hagedorn [423] – [445] Issue 1 – Jurisdictional question – s 90 of the Care Act [446] – [450] Issue 2 – Aboriginal and kinship issues [451] – [455] Issue 3 – Allegations of historical child sexual abuse [456] – [492] Issue 4 – Reliability of report of Children's Court Clinician [493] – [495] Issue 5 – Domestic violence alleged against the father "D" [496] – [505] Issue 6 – Disputed alcohol abuse and volatility [506] – [522] Issue 7 – Disputed finding on better standard of care [523] – [549] Issue 8 – Possibility of psychological harm [550] – [559] Issue 9 – Concern over possible contact difficulties [560] – [572] Issue 10 – Balancing consideration for dispositive orders [573] – [618] Procedural observation [619] – [621] Implementation of orders [622] – [624] Recommendation to the Secretary, FaCS [625] – [628] Disposition [629] Costs [630] Orders [631] Nature of case 1. These reasons concern contentious child protection and placement issues arising in an appeal in care proceedings regarding the allocation of parental responsibility for a six year old boy. The proceedings were vigorously contested over the course of eight hearing days in this Court on circuit in Lismore, NSW, between 28 May and 6 June 2018. 2. The appealed decision relates to proceedings that had incrementally progressed over a 14 month period, which commenced with a hearing in the Children's Court at Tweed Heads, on 27 October 2016, and which then continued part-heard, in non-consecutive segmented hearings that took place on 27 January 2017, 2 March 2017, 28 April 2017, and 20 July 2017. The reserved decision under present appeal was delivered, on 15 December 2017. Suppression order 1. At the commencement of the hearing an order was made pursuant to s 105 of the Children and Young Persons (Care and Protection) Act 1998 ("the Care Act"), prohibiting the publication of the name of the child the subject of these proceedings, or the publication of any information or details of any other parties, witnesses or persons named in evidence, that would tend to identify that child. Litigation pseudonyms 1. To preserve anonymity of the child the subject of the appeal, the following litigation pseudonyms have been assigned instead of using actual names: "B" The child the subject of the appeal, now aged 6 years; "C" The mother of the child, now aged 50 years; "D" The father of the child, now aged 54 years; "E" The sister of the child's father, the paternal aunt, now aged 50 years; "F" The step-father of the child's father, the paternal step-grandfather, now aged 75 years; "G" The paternal grandmother, now aged 77 years; "H" The supervising Family and Community Services (FaCS) caseworker. Representation 1. Respective solicitors represented the parents. The solicitor for the mother "C" represented her on a pro bono basis in this appeal. The solicitor for the father "D" was legally aided. The child's interests were represented by a solicitor as the Independent Legal Representative ("ILR"). The Department of Family and Community Services ("FaCS"), was represented by the Crown Solicitor, who briefed counsel to appear for the Minister and his delegate, the Secretary of FaCS. In these proceedings the legal representation for FaCS was different to that in the Children's Court hearing. 2. Despite several attempted Dispute Resolution Conferences convened with a Children's Registrar made available by the Children's Court, both prior to the commencement of the hearing of the appeal, and also during the course of the hearing, the parties have, for whatever reason, found themselves unable to reach a tolerable compromise for a consensual resolution of the matters in dispute concerning the safety, welfare and well-being of the child the subject of the appeal. Introduction and summary of conclusions 1. The appellant is the mother of the child "B" who is the subject of this appeal. In summary, I have concluded that she is justifiably dissatisfied with the decision of the Children's Court delivered at Tweed Heads, NSW, on 15 December 2017. That decision refused an application by the mother "C" for parental responsibility for her child "B", to be reallocated to her following the removal of that child from her care on 16 October 2013. 2. It is appropriate at this point in my reasons, which are necessarily lengthy because of the voluminous materials requiring consideration, that in the paragraphs that immediately follow, I identify the essential basis for my conclusion that the appealed proceedings had miscarried in the Children's Court. 3. This occurred for several reasons, starting with some background events in the lead up to the hearing in the Children's Court concerning some evidentiary matters, and related evidentiary and procedural rulings made on objections taken on the second day of the hearing in that Court, on the advice by FaCS in the course of the hearing in the Children's Court: Exhibit "A", Vol 1, Tab 37, p 33.38. 4. The first reason for concluding that the proceedings miscarried in the Children's Court concerns the manner and circumstances in which FaCS, a presumed model litigant, obtained what has been demonstrated in this appeal, to be a materially flawed report from a Children's Court Clinician. At the Children's Court hearing, the mother "C" was prevented from introducing evidence and argument which would have exposed that position. In these proceedings, in light of my conclusions on the credibility and the reliability of testimony, I have found the previously excluded evidence, which was available for consideration in the appeal hearing, to be determinatively persuasive. 5. In these proceedings, the Clinician's report has been exposed as having been unfortunately procured in circumstances that involved rectifiable deficiencies identified in the briefing materials that were provided to the Clinician by the responsible FaCS caseworker "H". This meant that certain materials of relevance were not provided to the Children's Court Clinician in circumstances where FaCS knew of the existence of those other materials, and where FaCS must be taken to have known of their relevance to the task to be undertaken by the Clinician. 6. The deficiencies in those materials comprised, first, the absence of full details of the record of serious criminal convictions of the father "D", secondly, the absence of a psychological testing and assessment report that had previously been commissioned by FaCS, which revealed the father "D" to be affected by significant cognitive impairments, and thirdly, the absence of a copy of a highly relevant clinical communication letter from a consultant psychiatrist, which recorded details of alleged perpetration of historical child sexual abuse involving relevant family members of the father "D". 7. That letter from the psychiatrist related to the father's sister "E". Four years before the events in question in this case, in a therapeutic setting, the father's sister "E" had revealed to a consultant psychiatrist, a history of having endured childhood sexual abuse, allegedly inflicted upon her by her stepfather, the paternal step-grandfather "F" in this case. 8. The relevance of those circumstances to this case, if correct, is that the step-grandfather "F" had ready access and frequent contact with the child "B", who is the subject of this appeal. This raised a most important child protection issue that was, in my view, insufficiently investigated and considered in this instance. This occurred because a FaCS file relating to relevant reported events was prematurely "closed at triage" and where "competing priorities" meant the required investigation was left in an unsatisfactory and incomplete state. 9. The excluded material, which was sought to be tendered in the Children's Court proceedings, comprised a disclosed history of the alleged childhood abuse, as recorded by a consultant psychiatrist, Dr WS Wright, in a letter dated 20 March 2012, which was addressed to a colleague, Dr C Braganza, the treating psychiatrist of the sister "E", in the terms of the following extract: "… Her history is complex and really raises doubts about the diagnosis of ADHD/ADD. She described her upbringing as 'colourful'. Her brother has spent much of his adult life in jail. Her parents separated when she was very young. She said that she had been sexually abused by her step father from an early age (precise age unknown) until she left home at 14. Mrs ["E"] said that she had complained to her mother and was sent to grandmother for one month. Over the next few years she was 'sent to grandmother a lot'. Her step father was described as insane. He was not violent to her but did threaten her. …" [Exhibit "A", Vol 2, Tab 46, Annexure A] 1. Other evidence that was tendered in the appeal indicated that the disclosed history of alleged sexual abuse disclosed by the sister "E" occurred over a period when the sister "E" was aged between 4 and 14 years: Exhibit "A", Vol 1, Tab 36, p 23; Annexure "H" to the affidavit of the caseworker "H", p 24 and Annexure "L", p 35. 2. All of the above matters were obviously relevant considerations in care proceedings and were relevant to the consideration required of the Clinician, yet they were not provided to him, either by FaCS, or by any other party. 3. Those deficiencies have plainly influenced the outcome of the proceedings in the Children's Court. This has materially disadvantaged the child "B" and the mother "C". Those deficiencies, when revealed, have the consequential effect that the report, the opinions, and the recommendations of the Children's Court Clinician, on key matters in dispute, have been exposed as being deficiently skewed, and unreliable. 4. The contentious opinions and recommendations of the Children's Court Clinician were nevertheless adopted in the findings and in the conclusions of the Children's Court Magistrate. 5. The second reason for concluding that the proceedings miscarried in the Children's Court concerns certain rulings made by the presiding Children's Court Magistrate, the effect of which prevented the solicitor for the mother "C" from introducing into the evidence in those proceedings, the plainly relevant document comprising Dr Wright's cited in the extract set out in paragraph [15] above. 6. That ruling had the consequential effect that a related series of otherwise admissible and relevant questions aimed at demonstrating the inherent flaws and the unreliability of the Clinician's stated opinions, were also excluded. 7. The subject matter of the excluded correspondence and questions concerned a described course of conduct, over a period of 10 years, of alleged childhood sexual abuse on the part of the child's step-grandfather "F" towards his stepdaughter "E", the paternal aunt of the child "B", who is the subject of these proceedings. 8. Justifiably, those revelations have considerably perturbed the mother "C" because the paternal step-grandfather "F" had access to the child "B". However as a result of the cited rulings, the solicitor for the mother "C" was prevented from adequately ventilating those matters before the Children's Court Magistrate. 9. Those matters were excluded from consideration in the Children's Court because of objections by the opposing parties. Those objections were upheld, wrongly in my opinion, having due regard to the gravity of the issues to be considered and decided in care proceedings, and also having regard to the child protection consequences at stake for the child, and for his parents. 10. As a result of those rulings, when the solicitor for the mother "C" was unsuccessful in his attempts to raise the flawed nature of the report of the Children's Court Clinician, he sought a mistrial ruling from the presiding Children's Court Magistrate on the grounds that the Clinician's report was flawed. That application was deflected in short terms: Exhibit "A", Vol 1, Tab 38, p 12.44. 11. In this appeal it was revealed that the objection taken by FaCS to that material was taken on the instructions of a FaCS manager: T360.30. This apparently occurred when the solicitor who appeared and represented FaCS in the Children's Court proceedings (who is not the same solicitor who represents FaCS in the appeal or who represented FaCS in a s 90 application determined on 13 November 2015) had been asked for advice on the matter of Dr Wright's letter dated 20 March 2012, and FaCS took the course suggested by that advice: Exhibit "L". 12. Despite searches conducted by FaCS, a copy of that solicitor's advice has not been located: T348.12 – T348.18. The effect of that advice was that the 20 March 2012 letter from Dr Wright as cited at paragraph [15] above should be the subject of objection. Consequently, the objection was taken and upheld. 13. Without the opportunity of reviewing the basis and content of that advice, it is difficult to identify a justifiable basis for the position taken by FaCS on that matter. However, on the identified material that I have reviewed in this case, I remain at a complete loss to see how a proper basis could be said to exist as justification for excluding that document from tender, and from the consideration at the Children's Court hearing, where the principal issues to be determined concerned matters of child protection. 14. When those matters were ventilated in these proceedings, the solicitor for the mother "C" made the vehemently emphatic submission that: "the department's entire behaviour, demeanour and conduct in this matter has been disgusting": T362.27 – T362.31. It is not necessary for me to make a finding on that particular submission. The facts, as laid out, will speak for themselves. My task on this rehearing is to make what I consider to be the proper decision, based on the evidence presented, concerning the allocation of parental responsibility, with reasons for that decision. 15. In summary, the conclusion I have reached in my consideration of this appeal is that I have found that fundamental flaws have occurred in the lead up to, in the course of, and therefore, in the miscarried disposition of, the proceedings in the Children's Court. 16. As a result, in my consideration of the evidence tendered in these proceedings, I have come to very different conclusions to those arrived at by the Children's Court Magistrate. A material difference in the body of the evidence before the Children's Court and in the appeal was a cognitive assessment report commissioned by FaCS and dated 19 September 2015 which identified some cognitive difficulties affecting the father "D": Exhibit "P". That report had not been provided to the Children's Court Clinician or to the Children's Court Magistrate. 17. I here identify my conclusion that on this fresh hearing, the result of the proceedings should be determined to the opposite effect that was ordered by the Children's Court Magistrate. However, I consider that a number of additional facilitative orders should be made concerning the safety, welfare and well-being of the child "B" who is the subject of the appeal. This will be reflected in the orders I will make. 18. I intend that the immediate effect of my orders is that parental responsibility for the child "B", until his age of majority, should be forthwith restored and allocated to the mother "C"; that the father "D" should have reasonable access; and that in view of the described toxic communication difficulties that exist between the parents, for the next five years, the Minister should retain parental responsibility for any access arrangements sought by the father "D". Some important ancillary steps will be required for those matters to be properly managed. 19. I have also concluded that in view of the insufficiently, and therefore, incompletely investigated allegations made about the historical conduct of the paternal step-grandfather "F" as cited at paragraph [15] above, which concern alleged sexual abuse by him of his stepdaughter "E", who is the aunt of the child "B" and the sister of the father "D", the paternal step-grandfather "F" should not be allowed to have unsupervised access to the child "B", under any circumstances without the full approval and satisfaction of the mother "C" as to any reasonable arrangements she requires to be put in place for the protection of the child "B". 20. My reasons for each of those conclusions will be set out in more detail for the understanding of the parties after I have set out an overview of the proceedings and after I have identified the nature of the appeal, as well as identifying the relevant findings of the Children's Court Magistrate, and identifying the issues calling for decision. 21. In that process, I will also set out my reasons for the assessments that I have made concerning the credibility and the reliability of the respective witnesses, and my related assessments of the relevant documents, and of the oral evidence. I will then proceed to examine each of the issues which call for determination in the proceedings. My dispositive orders appear at paragraphs [629] to [631] of these reasons. 22. My overview and analysis now follows. Overview 1. The appealed decision arose from earlier proceedings whereby, pursuant to s 90 of the Children and Young Persons (Care and Protection) Act 1998 ("the Care Act"), the appellant mother obtained leave to bring the proceedings that are the subject of the present appeal: "B" v The Secretary, Department of Family and Community Services [2015] NSWDC 267. 2. That leave was granted on 13 November 2015, because the mother had, at that time, satisfied the required threshold for establishing that there was a realistic possibility for the child "B", to be restored into her care. 3. At the time such leave was granted, it was indicated to the appellant mother, that in order to succeed in an ultimate application seeking that outcome, it would be necessary to provide cogent evidence to satisfactorily establish the fact of a successful rehabilitation on her part concerning her past drug and alcohol issues: "B" v The Secretary, Department of Family and Community Services [2015] NSWDC 267, at [40] – [43]. 4. In these proceedings, the appellant mother "C" claims that she had satisfied those requirements such that she is able to care for her child "B" as a "good enough parent", but she complains that view was not reflected in the appealed decision of the Children's Court Magistrate, whose findings, were based on the materially flawed opinions of a Children's Court Clinician. 5. Instead, in reliance upon that flawed report, the Children's Court Magistrate preferred the father "D" as opposed to the mother "C", when allocating parental responsibility for the child "B". 6. The proceedings are governed by the provisions of the Care Act, s 9(1) of which requires that the Court's determination must be made according to the paramount principle of the child's safety, welfare and well-being, where that paramount consideration is the child's best interests according to those criteria. Some background 1. The child "B", who has Aboriginal heritage from his mother's side, has been under the parental care and responsibility of the Minister, FaCS, since his removal from parental care on 16 October 2013. That removal occurred after the mother "C" had made a disclosure to FaCS personnel that she was struggling with drug addiction, and wanted help with her rehabilitation. Since then, largely due to her own efforts, the mother "C" has successfully undergone significant rehabilitation, and has successfully remained drug free for the past four and-a-half years. 2. In that time, both parents, who no longer live together, have each obtained various forms of assistance and support to help them make efforts to improve their parenting and personal situations. Following those commendable efforts, the supervising FaCS caseworker "H" has conceded that both parents have fulfilled the expectations of FaCS concerning the achievement of "minimum outcomes", and it is conceded that each of them have become "good enough parents". 3. Until the unfortunate occurrence of some sentinel events at a residential caravan park on 1 January 2016, FaCS had been supporting the application of the mother "C" for the child "B" to be restored to her care. That support apparently continued, to the knowledge of the mother "C", until June 2016: T81.25. 4. Notwithstanding that earlier position of FaCS as described in the preceding paragraph, after the receipt of the Children's Court Clinician's report dated 8 July 2016, FaCS changed its view and approached the Children's Court proceedings from the standpoint that it would be recommending to the Children's Court Magistrate that the child should be restored to the father "D", and not to the mother "C". In his findings, the Children's Court Magistrate accepted and adopted that approach. 5. Since the appealed 15 December 2017 decision of the Children's Court, the child "B" has been under the parental responsibility of his father "D" generally, but also under that of the Minister, with the latter limited to only contact arrangements with the mother "C". 6. The child "B" has not been present at Court at any stage of the hearing. Prior to the hearing of the appeal, it appears that no efforts had been made to seek to ascertain the wishes of the child "B" on the question of his placement. 7. According to the evidence given in the appeal by the FaCS caseworker "H", who has had only one contact with the child "B" over the years of her involvement in the case, she understood that the child "B" had been told, or believed, that the question of his placement had already been decided and finalised on 15 December 2017, and therefore, he was apparently unaware of this appeal until the eighth day of the hearing. 8. In a courtroom discussion that arose during the hearing of the appeal, the representatives of the parties raised what were ultimately accepted as valid concerns over the utility of the child "B" being brought to court to enable a sense to be obtained of him, and of his presentation. Consequently, there was no order made requiring the child "B" to be brought to court for the purposes of s 96(1) of the Care Act. 9. On the eighth day of the hearing, the ILR sought to tender a document which was stated to be the product of an interview that she had undertaken with the child "B" on that very morning. 10. Objections and concerns were raised by the parties as to the content of the answers by the child "B" to the questions which appeared in that document. This was in circumstances where the ILR had written down the answers given by the child "B" in response to a series of pre-formulated questions, some of which were either closed or were leading in their nature. The interview had not been the subject of a video or an audio recording. 11. The content of that document, some of which was plainly unhelpful to the case of the mother "C" in seeking restoration of the child "B" to her, raised significant questions that suggested there may have been some coaching of the child "B" in respect of some of his answers relating to his attitude to his mother "C", and also as to the outcome of the appeal. By that stage, it was clear that he had become aware of the present proceedings. 12. There was no suggestion that the ILR had coached the child "B". The application to tender the document was withdrawn in circumstances where it became apparent that the ILR might have to become a witness in the proceedings. It has not become necessary to make findings as to the source of the apparent coaching of the child "B" as referred to in this context. 13. Subsequently however, the document in question was ultimately admitted into evidence as Exhibit "O", but for a very limited purpose, namely to understand the basis of some questions that I had directed to the father "D" in the final stages of his evidence, when aspects of that evidence were being explored. At this point in my reasons I wish to make it clear that Exhibit "O" is not to be regarded as a reliable source of evidence of any preference by the child "B" as to which of his parents he may wish to reside. 14. Accordingly, the analysis and the assessments that I must make in this case will be based on the oral testimony, and on the other relevant documentary evidence tendered in the proceedings, including the broad range of evidence that was placed before the Children's Court Magistrate. 15. The assessment and determination of this appeal became unfortunately complicated by the effluxion of time that has inevitably occurred between when the appealed Children's Court proceedings had commenced and when they were determined, as identified at paragraph [2] above. 16. The deleterious effect of that entire period of time during which the proceedings remained unfinalised, some 14 months, was the subject of much criticism by the mother "C". She claimed that the effect of that prolonged period of time had disadvantaged her case, where, by default, she had been deprived of meaningful parental contact for an excessive period of time, where that process had been precipitated in circumstances that were not only unfair to her, but also unfair to the child "B". 17. In order to understand that complaint, it is at this point relevant to identify some surrounding events that occurred in the chronology of events between 16 October 2013 and 23 November 2015, the latter date being when the appealed proceedings were filed in the Children's Court. 18. As at 13 November 2015, the parents were living together and were proceeding along their respective rehabilitation pathways. The child "B" was in the parental control of another family member, and then lived with the paternal grandparents, with the availability of access for the parents. At that time, the mother "C" knew nothing about the historical allegations of child sex abuse involving the paternal step-grandfather "F". 19. After 13 November 2015, pursuant to the leave granted to her on that date, the mother "C" was preparing her application to the Children's Court for the re-allocation to her of parental access responsibility for the child "B". 20. In those events, despite their past and interpersonal difficulties, which will be reviewed in further detail later in these reasons, the parents managed to achieve a relatively harmonious existence whilst sorting out their respective issues. 21. On 1 January 2016, whilst the parents were living in a rural caravan park, a sentinel event occurred between them, in which, shortly stated, the mother "C" alleged that after a conversation which caused the father considerable anger, the father "D" assaulted her, following which he took the child "B" away. I will return to those sentinel circumstances to describe them in some further detail, as an understanding of those events is of some importance to the resolution of the issues that have arisen in this case. 22. Following those sentinel events, the child "B" then remained at the home of his paternal grandparents, with ready access by the father "D" who later moved in to live there until the appealed decision of the Children's Court was delivered on 15 December 2017. On that latter date, the Children's Court allocated to the father "D" parental responsibility for that child "B" except as to contact, where the Minister retained parental responsibility for access. Since then the father "D" and the child "B" have moved to multiple various accommodation locations until he finally settled in Housing Commission accommodation about eight weeks before the present hearing: T310.27. 23. Although the outcome of the Children's Court proceedings has undoubtedly disadvantaged the mother "C" concerning matters such as her contact with the child "B", and her connection with the child's development, in these proceedings, the interests of the child "B" must take precedence over the interests of the parents. 24. Since the 15 December 2017 decision, the parties appear to have remained relatively inactive from the perspective of the preparation of the forensic issues and evidence gathering in respect of which this appeal hearing is primarily concerned. In that time, the mother "C" has had minimal contact with the child "B". Reasonably, she has expressed her consternation about that matter because she has had only 4 contact visits with the child "B" in 2018. 25. This was despite an earlier indication given to the mother by FaCS prior to the appealed decision, to the effect that it was proposed to support the allocation of parental responsibility to her, which turned out not to be the case, where the decisions and the actions taken by FaCS, have had the effect of favouring the father "D" on the question of the allocation of parental responsibility for the child "B". 26. Before setting out my findings on the issues calling for decision, I will set out some relevant matters on the following topics: 1. The situation of the parties; 2. Sentinel incident involving the parties on 1 January 2016; 3. The polarised position of the parties; 4. The nature of the appeal; 5. The findings of the Children's Court; 6. The orders made by the Children's Court; 7. The orders now sought on appeal; 8. The grounds of appeal; 9. The procedural background; 10. The evidence in the appeal; 11. Issues calling for decision; 12. Credibility and reliability of testimony. 1. In view of the unfortunate history of the matter, there is now a pressingly urgent need to address the paramount consideration that must be applied in this case, as is required by s 9(1) of the Care Act. The parties 1. The principal opponents in the proceedings are the natural parents of a boy now aged 6 years. The impression I gained during the course of the hearing was that a substantial focal element of the proceedings was that of the parents seeking to secure their own positions, with the child's needs at times being given a less prominent focus. This was perhaps understandable given the prevailing dynamics that have subsisted between the parties. 2. The child's most recent 2018 school report suggests that he is acquiring some basic achievements in core subjects at school, with progressive improvement. However, concerns have been expressed by a FaCS caseworker, and by a Clinician, but not yet formally tested to the point of diagnosis, that the child "B" might have some characteristics or features on the autism spectrum. He has not yet been professionally assessed, either medically, psychologically, or educationally, concerning such matters. 3. The father "D" is presently aged 54 years and the mother "C" is presently aged 50 years. The father "D" has two other children, adults aged 25 and 31 from a previous marriage. The father "D" and the mother "C" have each led chaotic personal lives, which to varying degrees, has in turn led each of them into significant conflict with the criminal law, particularly concerning drug use and related issues. 4. According to the record of criminal convictions of the father "D", as an adult, he has a past history of convictions for offences relating to the possession of unlicensed firearms, driving offences, assault, possessing, cultivating, and manufacturing prohibited drugs, and for resisting a police officer in the execution of duty. In the years 2013 and 2014 he has served sentences of imprisonment totalling 12 months in relation to some of those offences: Exhibit "D". 5. According to the record of criminal convictions of the mother "C", as an adult, she has a past history of convictions for stealing, assault, being a passenger in a vehicle that was used without the permission of the owner, possession of a prohibited drug, receiving and disposing of stolen property, and driving whilst unlicensed: Exhibit "D". 6. The parents have each had an unfortunate background history of significant trauma in their lives. The mother "C" convincingly described a history of domestic violence occurring in the course of her relationship with the father "D", a matter to which I shall return in due course because of the manner in which that issue was dealt with in the Children's Court. 7. The father "D" had suffered a head injury at the age of 13 years: T252.34. As an adult, in his thirties, he has experienced two cerebral haemorrhages due to ruptured cerebral aneurysms. He has had cranial surgery for those problems. Those events have apparently caused him to incur some "minor" brain damage. Psychological testing carried out on the father "D" at the request of FaCS in 2015 has revealed him to have difficulties with general knowledge, difficulty with speed of information processing, and difficulty with verbal fluency, difficulty with verbal reasoning, and difficulty with comprehension. Those difficulties must be seen to be significant in the context of this case: Exhibit "P". 8. In that regard, the psychologist who assessed the father "D" estimated him to have a low to average cognitive ability. His verbal comprehension skills have been assessed to be in the borderline range. Some of his overall scores on psychological testing for cognitive ability were said by the psychologist to be difficult to interpret, but his executive functioning was nevertheless estimated by that psychologist to be in the average range. 9. Of significance to the issues in this case, on the basis of her assessment of the father "D", and at a time when the child "B" was aged 3 years, the assessing psychologist stated that there was no evidence to suggest the father "D" had an impairment that would impede his ability to care for young children: Exhibit "P". The nature of that contemplated care was not defined in that report, which detracts from its reliability. 10. In view of the lack of supporting explanation behind that opinion, the cogency of the reasoning underpinning that view must be carefully examined in the appropriate context. 11. The mother "C" has had an unfortunate history of having been repeatedly raped by her elder brother when she was aged 11 years. Those experiences were unfortunately then followed by her own mother's lack of acknowledgment and lack of support to her concerning those events. Those circumstances have been described as representing a secondary trauma that has been visited upon her, this being in the nature of a maternal betrayal by the very person who should have been protective of her in those circumstances. 12. Understandably, those events have caused the mother "C" to suffer significant psychological problems. Those problems have been largely influential in her historical use, abuse, and reliance on drugs and alcohol, to which she has in the past resorted as a means of psychological escape from the emotional ill-effects of those events. In that affected state, she met the father "D" and a relationship then ensued between them. She said he was her drug dealer, a matter he denied. 13. The mother "C" has had a total of four children from different relationships. In addition to the child "B", her other children are respectively aged 17, twins aged 28, and 32 years. Her 17 year old son had been removed from her care many years earlier when she demonstrated parental unfitness. He has behavioural issues. There is no dispute that in the past, the mother "C" had shown poor mothering skills. The solicitor for the father "D" sought to make much of those circumstances, in my view too much, because the current situation of the mother "C" concerning her insight and capacity, has changed significantly since those much earlier chaotic times. 14. It appears that only in relatively recent times, in the course of each parent pursuing therapeutic and rehabilitation pathways in the context of the presently litigated childcare issues, that they have, to varying degrees according to their respective capacities, obtained better insights into the origins and the deleterious effects of their troubled earlier circumstances. Those matters will be analysed in the appropriate context at a later point in these reasons. 15. In the appeal, each parent, in opposition to the other, variously took defensive positions aimed at seeking to obtain orders securing parental responsibility for their son, to the exclusion of the other, except as to contact arrangements. In their evidence, they did not speak entirely well of each other on their respective parenting capacities. 16. The entire process leading up to this appeal has resulted in the accumulation of several thousand pages of material for consideration, comprising files, the transcripts of several hearings, voluminous affidavits, reports, file notes, and related documents. The length of my reasons, is an unfortunate function of the bulk of the materials requiring consideration, as also related to the breadth and the compass of the identified issues calling for decision. Sentinel incident on 1 January 2016 1. On 28 December 2015, whilst the child's parents "C" and "D" were living at a caravan park, a conversation took place between the mother "C" and "E", the sister of the father "D", who at the time also lived with her husband in another caravan at the same caravan park. 2. The mother "C" stated that whilst she was in conversation with the sister "E", in the presence of her brother, namely the father "D", the sister "E" had confided in her that her stepfather, the paternal step-grandfather "F", had repeatedly sexually molested her during her childhood years. 3. Notwithstanding that the father "D" has denied that a conversation took place in the terms stated by the mother "C", and notwithstanding affidavit evidence from the sister "E" in which she denied making such a disclosure to the mother "C", for the reasons that I will outline later in my judgment dealing with the credibility and reliability of testimony, on the balance of probabilities, even though the sister "E", and the alleged perpetrator "F" gave no oral evidence in any of the proceedings, I accept as more probable than not, the account given by the mother "C" relating to that disclosure by the sister "E" of that historical sexual molestation by the paternal step-grandfather "F". 4. On either the evening of 31 December 2015, or in the early hours of 1 January 2016, in a conversation she had with the father "D", the mother "C" raised with the father "D" the subject of the disclosure of alleged historical sexual molestation of the sister "E" by her stepfather "F", in the context of child protection issues concerning their own child "B". 5. Up until that time, the parents "C" and "D" had been living together relatively harmoniously, and they were working at their respective rehabilitation efforts. In that regard, they were successfully achieving the minimum outcomes that had been set for them as goals by FaCS as a precursor to a consideration of the restoration of the child "B" to them, or more accurately, to the mother "C". I say more accurately restoration to the mother "C" because at that time, she was the only permitted applicant for seeking such an outcome for varying the previous orders of the Children's Court. 6. The prevailing relatively harmonious existence had continued to be maintained whilst the mother "C" participated in a residential drug rehabilitation programme and the father "D" had served a term of imprisonment. 7. For the reasons that will be stated later in my judgment, I have accepted as credible, the account given by the mother "C" concerning the disclosure by "E" of those historical matters, notwithstanding the denials given in evidence by the father "D", and notwithstanding an affidavit from the sister "E" filed in the Children's Court proceedings, in which she also denied those matters. The sister "E" did not give any oral evidence so that those denials could be tested against other evidence, particularly the earlier cited contemporaneous letter from Dr Wright dated 20 March 2012 as cited at paragraph [15] above. 8. I accept that the mother "C" had decided, some time before 1 January 2016, to put their past chaotic and adverse life history behind her, and to concentrate on more positive matters of rehabilitation, living as a family, and having the child "B" restored into their care again following his removal from her care on 16 October 2013, which coincided with the release of the father "D" from gaol. With professional assistance, she had embarked on a significant pathway aimed at achieving effective rehabilitation. 9. I accept the evidence of the mother "C" about her efforts and her aims at rehabilitation around that time, despite her having had a past history of physical and emotional events in their relationship that amounted to historical domestic violence that had occurred over time. 10. The apparent serenity and progress of those circumstances changed shortly after the paternal grandparents "F" and "G" brought the child "B" to the caravan park to visit his parents "C" and "D", at around New Year's Eve 2015. 11. Shortly afterwards, and after the described disclosures to the mother "C" by the sister "E", whilst still at the caravan park, the mother "C" raised with the father "D", some child protection issues concerning the paternal step-grandfather "F". 12. On either the evening of 31 December 2015 or in the early hours of 1 January 2016, after the couple "C" and "D" had consumed some celebratory alcoholic drinks, I accept the evidence of the mother "C" to the effect that she raised with the father "D", her concerns over the subject matter of the disclosure by the father's sister "E", of alleged childhood sexual molestation by her stepfather, the paternal step-grandfather "F". 13. The parties "C" and "D" are in dispute about that matter, and about what subsequently occurred. 14. According to the mother "C", in that conversation, the father "D" became angry with her when she raised the identified disclosure by "E". She claimed that in those events she was then physically assaulted by him and he had injured her in the course of his angry response to the subject matter she had raised with him. The mother "C" stated that in those events, whilst in a dishevelled state which others have apparently interpreted as being due to intoxication and not assault, she went to seek help from other residents of the caravan park in order to call the police, but she received little assistance in that regard. 15. In contrast, the father "D" has given varying accounts of those events. Those accounts ranged from an initial denial that there had been any conversation between the sister "E" and the mother "C" in which the described sexual abuse disclosures were made. In that initial version, the father "D" asserted that the mother "C" simply woke him up and then started to assault him in "a drunken rampage", a matter denied by the mother "C". 16. The father "D" later varied that earlier account, to later acknowledge that some disclosures of sexual abuse had been made by the sister "E", but they were untrue. In my view that vacillation on the part of the father "D" was a significant indicator that is telling against the reliability of his testimony. 17. Following my assessment of the credibility and the reliability of the respective testimonies, and having regard to the evidence as a whole, for the reasons that will be made plain, I have accepted the truthfulness of the account given by the mother "C" concerning those disputed sentinel events of 1 January 2016. 18. This case is concerned with the unfortunate aftermath of those events as they have, and will continue to have, an impact on the safety, welfare and well-being of the child "B", as well as on the future relationships that child is likely to have with his parents "C" and "D". Polarised positions of the parties 1. The parents, who had been together as a couple since 2005, have been separated on less than amicable terms since the occurrence of the sentinel domestic violence event that occurred in their relationship on 1 January 2016 as described above. 2. Consequently, each of the parents has sought, for themselves, the allocation of the parental responsibility for the child the subject of the appeal. 3. In the case of the father "D", that meant seeking to preserve the status quo for parental responsibility, which at present rests with him, as was ordered by the Children's Court on 15 December 2017. However, in evidence, the father "D" has, somewhat belatedly in my view, acknowledged there is a need for the mother "C" to have an increased level of access and contact with the child "B". One is left wondering why this was not remedially addressed by the father "D", and by FaCS, at a much earlier point in time during the lead up to the hearing. 4. In the case of the mother "C", she simply seeks a reversal of the orders made by the Children's Court on 15 December 2017. 5. The ILR, who had neither met nor spoken with the child "B" prior to the last day of the hearing, along with FaCS, supported the position that the father "D" should retain parental responsibility for the child "B". Those two parties argued that the decision of the Children's Court should not be disturbed other than for a variation that provides for an increased level of contact for the mother "C" whilst the parental responsibility for the child "B" should remain with the father "D". 6. Ultimately, the ILR and FaCS have conceded that, at the present time, each parent was considered to be a "good enough parent" from the perspective of allocating parental responsibility for the child: T466.11; T437.7. 7. The Children's Court Magistrate approached his evaluation on the basis of a balancing exercise between the two parental options, guided or more properly described, misguided, as I have found, by the report and opinions of the Children's Court Clinician. 8. In the consideration that is required in this appeal, it is well recognised that in general terms, any changes made, to the presently appealed orders made in the Children's Court, should not be undertaken lightly, because of the potential for the child "B" to suffer possible resultant psychological harm if the care arrangements change. 9. During the course of the hearing, the evident antipathy that existed between the child's parents flowed into the evidence that they each gave about the other. Their past communications, without overstatement, are properly and regrettably described as terrible (T420.22 – T420.34) and comprising entrenched toxicity: T353.4. This is also evident from the content of some copies of text messages that were tendered in evidence. It is plain that the parents of the child "B" have reached an absolute low point in their ability, or more properly, inability to communicate with each other: T72.5 – T72.22. 10. It is particularly regrettable that FaCS, which for the purpose of contact arrangements, had the clearly identifiable opportunity to try and resolve or at least reduce some of that inter-parental conflict by arranging for the intervention of an external independent and skilled social worker who was well experienced in the management and attempted resolution of family conflict of that kind, did not follow through with available resources and action taken along those lines. 11. That did not eventuate because a FaCS management level decision had been made not to pursue that course. The decision not to continue with such conflict management intervention on account of the likely cost, was confirmed as recently as 27 April 2018. Evidence in the appeal revealed that some sessions would be required, each at a cost of a few hundreds of dollars plus travel expenses: T350.30 – T350.32. It was also revealed in evidence that FaCS had access to a special fund for such purposes (T355.2) but that was not pursued or made available in this case. 12. In my opinion, those management decisions by FaCS were plainly not within the spirit of facilitating, administering or maintaining the requirements of s 9(1) of the Care Act. The effect of the decision not to pursue that intervention has without doubt adversely affected the already significantly troubled interpersonal dynamics of the parents in this case. Nature of the appeal 1. This is an appeal commenced as of right by an originating summons filed on 20 December 2017, pursuant to s 91 of the Care Act. The appellant, the mother "C" has the right to pursue this appeal because she is dissatisfied with the decision made by the Children's Court concerning the allocation of parental responsibility for the child "B". 2. The originating summons which commenced this appeal has been superseded by an amended summons filed on 24 January 2018. That amended summons was later superseded by a further amended summons filed on 8 March 2018. 3. Although the appeal has proceeded as a hearing de novo pursuant to s 91(1) of the Act, in view of the positions taken by the parties it is nevertheless necessary to refer to the dispositive reasoning of appealed care proceedings in the Children's Court. This is because the father "D" sought to support those reasons Findings of the Children's Court 1. The essential findings of the Children's Court, as challenged by the mother "C", but which were sought to be maintained by the father "D" in this appeal, were as follows: 1. The historical allegations that the paternal step-grandfather "F" had sexually abused his stepdaughter "E", the child's aunt and sister of the father "D", were not accepted: Exhibit "A", Tab 40, p 8.3 – 8.21; 2. The allegations made by the mother "C" of the father "D" having perpetrated domestic violence against her were not accepted: Exhibit "A", Tab 40, pp 8.36 – 9.10; 3. It was found that the appellant mother "C" had been continuing to abuse alcohol at the end of 2015, and was therefore more likely to be a person of greater volatility than the father "D": Exhibit "A", Tab 40, p 9.12 – 9.21; 4. It was found that the father "D" would be in a position to provide a better standard of care than would the mother "C": Exhibit "A", Tab 40, p 9.24 – 9.30; 5. It was found that given that the child "B" has, until the time of the appealed decision in the Children's Court, been in the care of the paternal grandparents for almost 18 months, along with contact with the father "D", a transfer of the child's care to the mother "C" would in those circumstances give rise to a risk of psychological harm to the child "B" as a result of any changed care arrangements: Exhibit "A", Tab 40, p 9.32 – 9.39; 6. It was found that if the mother "C" was allocated parental responsibility for the child, given the poor relationship between the parents, there would likely be difficulties for the father "D" to maintain contact with the child "B": Exhibit "A", Tab 40, p 9.41 – 9.48. Orders made by the Children's Court 1. The Children's Court Magistrate went on to make the following formal dispositive findings: "Having regard to my findings that I am satisfied that having regard to the paramount principle that in every decision the health, safety and well-being of the child is paramount and having regard to my finding that Ms ["C"] would be in the circumstances less capable of caring for ["B"] than that of Mr ["D"] and having regard to the risk of psychological harm if a change to the young person's current placement were to occur, it seems to me that on balance the most appropriate decision for the Court to make is to make a finding that ["B"] is better served by the care plan which has been developed by the secretary. IN THOSE CIRCUMSTANCES THE APPLICATION TO RESCIND OR VARY THE CURRENT ORDERS MADE BY THE COURT ON A PREVIOUS OCCASION SHOULD BE UPHELD. BUT THAT IN ACCORDANCE WITH s 79(1) I SHOULD MAKE AN ORDER ALLOCATING ALL ASPECTS OF PARENTAL RESPONSIBILITY FOR ["B"] TO HIS FATHER ["D"[ UNTIL HE REACHES THE AGE OF 18, EXCEPT FOR THE PARENTAL RESPONSIBILITY FOR CONTACT WHICH IS TO BE ALLOCATED TO THE MINISTER FOR A PERIOD OF FIVE YEARS FROM TODAY AFTER WHICH IT WILL REVERT TO ["D"]. IN ACCORDANCE WITH s 76(3A) I PROPOSE TO PLACE ["B"] UNDER THE SUPERVISION OF THE SECRETARY FOR A PERIOD OF TWO YEARS. IN ACCORDANCE WITH s 76(4) I REQUEST THAT THE SECRETARY PROVIDE REPORTS AT INTERVALS OF 12 AND 18 MONTHS FROM TODAY." [Exhibit "A", Tab 40, p 10.6 – 10.30] 1. In my opinion, for the reasons that will be made plain, the dispositive findings of the Children's Court should not remain in force or effect in this case. Orders now sought on appeal 1. The variation of orders made by the Children's Court is to the effect that the mother "C" seeks for the child "B" to be placed into her parental care, so that he should reside with her, rather than residing with the child's father "D". Grounds of appeal 1. In seeking a different outcome to that which occurred in the Children's Court, the solicitor for the appellant mother "C" filed 16 grounds of appeal that covered wide-ranging matters, not all of which were relevant to the consideration that I am required to undertake. In my view, in essence, those wide-ranging grounds of appeal may be conveniently summarised as follows: 1. Whether the Children's Court Magistrate erred in allocating the care of the child to the father "D" in circumstances where the father "D" had not beforehand filed a s 90 application for rescission or variation of existing orders, and where no prior leave had been sought for such an application by him. ("Jurisdictional question"); 2. Whether the Children's Court Magistrate failed to give due weight to the question of the child's Aboriginality and Kinship as required by s 12 and s 13 of the Care Act such that a consideration of those matters required a different outcome to that which was decided by the Children's Court Magistrate. ("Aboriginality and kinship issues"); 3. Whether a disclosed perception or views of the Children's Court Magistrate concerning the incidence of lying, in instances of domestic violence revealed a procedural error. ("Views on the phenomenon of lying in the dynamics of domestic violence cases"); 4. Whether the Children's Court Magistrate placed undue weight on the evidence of the mother's historical drug abuse and post-traumatic stress disorder where, in the opinion of the FaCS caseworker, that was not an issue in the proceedings, and where the mother had already undergone treatment and rehabilitation for those matters. ("Undue concern over mother's mental health and drug history"); 5. Whether the hearing in the Children's Court miscarried because of a decision by the Children's Court Magistrate to exclude a relevant line of questioning of the Children's Court Clinician, and because of the exclusion of related documentary evidence, and whether, if such material had been admitted into evidence, such matters would have had a significant or influential impact on the proper decision to be reached in the proceedings. ("Wrongful rejection of evidence"); 6. Whether the evidence of the Children's Court Clinician, which the mother "C" claimed was seriously flawed, and which had the effect of casting doubt on the stability of the mother "C" and her mental health status, and her suitability and parental capability to care for the child, was reliably supported by cogent and acceptable reasons. ("Reliance on flawed opinion of Children's Court Clinician"). 1. During the course of the hearing of the appeal, the solicitor for the appellant mother "C" accepted that the further amended grounds of appeal, as filed, could be conveniently distilled into a formulation along the above lines, albeit ranked in a different order. 2. That said, the grounds of appeal, as filed, including as summarised above, are not necessarily determinative of the proceedings. It is therefore not necessary to give full analytical consideration to all of those matters as set out in the above distillation. This is because it is not necessary for the appellant to demonstrate error in the decision of the Children's Court Magistrate for that decision to be varied on appeal. 3. However, because the father "D", FaCS, and the ILR, each sought to support the decision of the Children's Court Magistrate except as to some concessions as to the future level of contact with the mother "C", it is necessary to analyse particular aspects of those reasons in light of the evidence, and in light of what I consider to be a patent flaw that entered into the process, which has had the effect of undermining the cornerstones that serve as the foundations for that decision. 4. Accordingly, some relevant components of the above cited formulation will be incorporated into the list of issues that I will shortly identify as calling for decision after I have reviewed the procedural background of the proceedings and identified the evidence tendered and adduced in the appeal. 5. The effect of this de novo hearing is that the evidence before the Children's Court, as tendered in the appeal hearing, together with the further evidence introduced in the course of the appeal hearing, must be analysed as to merit in the hearing on appeal, having regard to the paramount requirements of s 9(1) of the Act. 6. The ultimate issue to be determined on the appeal is the paramount consideration of the safety, welfare and well-being of the child the subject of the appeal: s 9(1) of the Care Act. 7. In the course of the hearing, it was apparent that at times, amidst the dust of conflict, that the parents, if not their legal representatives, appeared to have lost sight of that paramount issue. Procedural background 1. These appeal proceedings are the latest in a series of five sets of care proceedings relating to the child "B" following his removal from parental care on 16 October 2013. That process has occupied much in the way of public and private resources. For the sake of the child the subject of this appeal, it is hoped that at the conclusion of these proceedings, the history of legal disputation by the parents will come to an end. The historical detail of those five sets of proceedings is briefly summarised as follows. (1) – 4 June 2014 – determination of first proceedings 1. On 4 June 2014, the Children's Court at Lismore made final orders which placed the child "B" in the parental responsibility in the Minister for Family and Community Services until the child reached the age of 18 years. Those proceedings had their origins in the removal of the child "B" from parental care on 16 October 2013. Until that date, which coincided with the father's release from prison, the child "B" had resided with his mother "C". On removal, the child "B" was assigned to live with the paternal grandparents, which included the step-grandfather "F", about whom some relevant allegations have later emerged. During that time another adult son of the mother "C" had a carer's role for the child "B". (2) – 4 March 2015 – determination of second proceedings 1. On 23 January 2015, pursuant to s 90(2) of the Care Act, the mother "C" applied to the Children's Court at Lismore for leave to pursue an application to seek to vary or rescind the final orders made on 4 June 2014. In those proceedings, she sought the allocation of parental responsibility to herself. That application was refused by the Children's Court at Lismore on 4 March 2015. That refusal was stated to be because the mother "C" had not at that time demonstrated a significant change in her circumstances to warrant a grant of the leave that she sought. The mother "C" was dissatisfied with that decision. (3) – 23 November 2015 – determination of third proceedings 1. On 11 March 2015, the mother "C" appealed against the 4 March 2015 decision of the Children's Court. On 13 November 2015, that appeal was heard and determined by me at Lismore. The appeal was allowed for the reasons published at that time, and the mother "C" was granted leave to apply to the Children's Court for a variation of the earlier orders that had been made on 4 March 2015: "B" v The Secretary, Department of Family and Community Services [2015] NSWDC 267. (4) – 15 December 2017 – determination of fourth proceedings 1. On 23 November 2015, consistent with and pursuant to the leave granted on 13 November 2015, the mother "C" filed an application in the Children's Court seeking variation or rescission of the previous orders of the Children's Court delivered on 4 March 2015: Exhibit "A", Vol 1, Tab 1. The records show that on 28 January 2016, the father "D" also filed a similar application: Exhibit "A", Vol 1, Tab 16. Those applications were determined by the Children's Court on 15 December 2017, with the result that the parental responsibility for the child "B" was allocated to the father "D", as earlier described. That result dissatisfied the mother "C", who then proceeded to lodge the present appeal. (5) – The present appeal – determination of fifth proceedings 1. On 20 December 2017, the mother "C" filed the present appeal as of right. The hearing of the present appeal proceeded before me over 8 days at Lismore, between 28 May and 6 June 2018. Evidence in the appeal 1. In the appeal, two volumes of the foundation documentary evidence were tendered. Those volumes comprised Exhibit "A", Volumes 1 and 2, with a tabbed index of 48 segments. These materials included the entire range of evidence that was before the Children's Court Magistrate. Further documents in the series Exhibit "B" to Exhibit "P" will be referred to in these reasons where it becomes relevant to do so. 2. The oral evidence in the appeal was given by the mother "C": T46 – T173; Mr Michael Hawton, the assessing psychologist and Children's Court Clinician: T182 – T230; the father "D": T242 – T260; T400 – T428; and the FaCS caseworker "H", whose evidence was, for her convenience, interposed in the midst of the father's evidence: T330 – T387. Issues calling for decision 1. As already observed at paragraphs [126] to [127] above, not all of the grounds of appeal as filed required analysis and consideration for the disposition of the issues calling for decision. 2. An example of one such matter is the complaint made on behalf of the mother "C", to the effect that the disclosure or general observation by the Children's Court Magistrate to the effect that in some cases involving domestic violence, interested parties had been known on occasion to tell lies. That view is one which is well within the experience of courts dealing with contested cases concerning disputed matters of fact litigated in the context of inter-personal difficulties. A general observation to that cited effect does not of itself give rise to a meritorious ground of appeal as it does not directly involve a dispositive finding concerning the resolution of a particular dispute. 3. In my view, drawing upon the matters outlined at paragraphs [120] and [124] above, the determinative issues calling for decision in the appeal are set out as follows: 1. A jurisdictional question was raised as to whether the allocation of parental responsibility to the father "D" was a result that was open to be determined by the Children's Court in circumstances where the standing of the father in a s 90 application for rescission or variation of previous orders was questioned: Issue 1; 2. Whether an Aboriginality and kinship question, as was required to be considered and according to s 12 and s 13 of the Care Act, was duly considered or was overlooked by the Children's Court Magistrate: Issue 2; 3. Whether historical documentary evidence suggestive of relevant child sexual abuse in the extended family of the father "D" was appropriately considered, namely the historical allegations of sexual abuse involving the paternal step-grandfather "F", as allegedly perpetrated against his stepdaughter "E", as was disclosed by her to her treating psychiatrist, and whether those questions, as well as a contemporaneous document relating to such matters, were wrongly rejected in the Children's Court hearing: Issue 3; 4. Whether the report, opinions and evidence of the Children's Court Clinician provided a reliable basis for casting doubt upon the stability of the mental health status of the mother "C", and her parental capacity and suitability, and whether that evidence, when read in the light of other relevant evidence, formed a reliable guide for making the decisions required to be made in this case concerning the allocation of parental responsibility for the child "B": Issue 4; 5. Whether positive findings should be made concerning the history of alleged domestic violence by the father "D" as claimed by the mother "C" : Issue 5; 6. Whether the findings made by the Children's Court Magistrate concerning the continued abuse of alcohol by the mother "C", and the alleged volatility of the mother "C", were justified on the evidence: Issue 6; 7. Whether the findings made by the Children's Court Magistrate concerning the perception expressed that the father "D" would provide better care to the child "B", were justified: Issue 7; 8. Whether the findings made by the Children's Court Magistrate concerning the possibility of psychological harm to the child "B" in the event of changes to the parental responsibility, were justified: Issue 8; 9. Whether the findings made by the Children's Court Magistrate concerning the possibility that the mother "C" would make contact for the father "D" difficult, were justified: Issue 9; 10. The balancing consideration for dispositive orders: Issue 10. Credibility and reliability of testimony 1. The respective agendas of the parents in this case have led them, through their legal representatives, to make credit challenges to each other's testimonies. To varying degrees, FaCS and the ILR joined in some of those credit challenges. There was also a challenge made on behalf of the mother "C" to the reliability of the Children's Court Clinician, Mr Hawton. 2. In the paragraphs that follow, I set out my evaluation and review of the credibility and reliability of the evidence either adduced or otherwise tendered in the proceedings, as follows: 1. Evidence of the mother "C"; 2. Evidence of the father "D"; 3. Evidence of the FaCS caseworker "H"; 4. Other witnesses not required to be called; 5. Absent evidence – caravan park letting agent; 6. Absent evidence – the sister "E"; 7. Absent evidence – the paternal step-grandfather "F"; 8. Absent evidence – the paternal grandmother "G"; 9. Evidence of Children's Court Clinician, Mr Hawton; 10. Evidence of treating psychologist Ms Hagedorn. (1) Evidence of the mother "C" 1. In the paragraphs that follow, I set out my analysis and the basis for my conclusions concerning the attacks made to the credibility and the reliability of the evidence of the mother "C". 2. The evidence of the mother "C" was in the following form: 1. An affidavit affirmed on 23 November 2015: Exhibit "A", Vol 1, Tab 3; 2. An affidavit affirmed on 7 January 2016: Exhibit "A", Vol 1, Tab 4; 3. An affidavit affirmed on 9 February 2016: Exhibit "A", Vol 1, Tab 5; 4. An affidavit affirmed on 16 March 2016: Exhibit "A", Vol 1, Tab 9; 5. An affidavit affirmed on 4 August 2016: Exhibit "A", Vol 1, Tab 10; 6. An affidavit affirmed on 22 September 2016: Exhibit "A", Vol 1, Tab 11; 7. An affidavit affirmed on 25 October 2016: Exhibit "A", Vol 1, Tab 14; 8. An affidavit affirmed on 8 March 2018: Exhibit "A", Vol 2, Tab 46; 9. An affidavit affirmed on 29 May 2018 and filed in Court on 30 May 2018; 10. Transcript of oral evidence given in the Children's Court on 27 October 2016: Exhibit "A", Vol 1, Tab 35; 11. Transcript of oral evidence given in the Children's Court on 27 January 2017: Exhibit "A", Vol 1, Tab 36; 12. Transcript of oral evidence given in the Children's Court on 2 March 2016: Exhibit "A", Vol 1, Tab 37; 13. Oral evidence given in the appeal: T46 – T106; T110 – T173. 1. In essence, the evidence of the mother "C" was to the effect that until the described sentinel events of 1 January 2016, all was progressing well in the relationship between herself and the father "D". They were working on their rehabilitation and their fitness for parenting of the child "B" by achieving the minimum outcomes required of them by FaCS for that to occur. 2. The mother "C" said that this all changed after she brought up with the father "D" the subject of the disclosure by "E" of alleged historical sexual abuse by the paternal step-grandfather "F" towards "E", and the impact of this on the safety of their son, the child "B". 3. The mother "C" said that following that discussion, the father "D" reacted badly to the content of that discussion, assaulted her, and took away the child "B", at which time her relationship with the father "D" had irretrievably broken down. Attack on mother's credit as made by the solicitor for the father 1. The cross-examination of the mother "C", as was initially undertaken on behalf of the father "D", covered a number of matters of challenge, each of which were, in my assessment, convincingly rebutted by the mother "C" in her answers to those questions. 2. It was first suggested that the claim by the mother "C" of having been assaulted and injured by the father "D" in the earlier described sentinel event on 1 January 2016 was an unlikely occurrence as it was not reported to the police until 4 days after the alleged occurrence. 3. In her response, the mother "C" resoundingly rebutted that suggestion, including by noting that, although she was more interested in reporting allegations of sexual abuse relating to the paternal step-grandfather "F", as had allegedly been committed on his stepdaughter "E", the police nevertheless took photographs of her "horrific" injuries on that occasion: T100.9. The reporting delay is adequately explained by the intervening public holiday period. 4. The cross-examiner unfortunately cut off an answer that the mother "C" was endeavouring to give in response to a challenge to her evidence on that topic, as is evident in the following emphasised extract of the evidence: "FAWAZ: ... Q. You didn't tell the police about any other details except what had occurred, what you say occurred between you and ["E"] and ["D"]? A. I can't remember exactly what the context of my conversation was with the police what questions I was asked, what questions I gave, I can't remember if I told them about that or not, I can't say yes, I can't say no, because I really can't remember, I was asked about the assault and I was asked about the allegations made against ["F"] by ["E"] and that's - Q. You didn't tell - HIS HONOUR Q. Just a minute, so what was the substance of what you told the police on those matters? A. I told the police about the allegations that were made against ["F"] by ["E"], I told them that and I told them about the assault and I told them there, I also told them too your Honour that I didn't know whether ["B"] was in any danger, I didn't feel like ["B"] was in any danger, I told the police that, I also told the DOCS worker that and the hot line, the children's hotline, I also told them that. The police were actually the ones, they saw the bruises on my arms, the police officer did and he asked me how they got there and I told him that that was how it all occurred, it was an all a build up of what had happened. FAWAZ Q. And the injuries I put to you yesterday that the injuries according to the police were not consistent with your version of what occurred? A. Well there are photographs why don't we get them and have a look." [Emphasis added] [T115.48 – T116.28] 1. The suggestion within that last response by the mother "C", as made to the cross-examiner, to the effect that the police photographs should be inspected in order to check the veracity of what she was saying, was not taken up by the cross-examiner. That cited evidence of the mother "C" was not glaringly improbable, and it was not relevantly rebutted by the tender of police records. 2. In my view, the fact that the police ultimately decided not to proceed with charges that had been laid against the father "D" concerning the alleged assault was an irrelevant consideration as to the truth or otherwise of the allegations of assault made by the mother "C". In my view, that matter was an erroneous basis for the finding of the Children's Court Magistrate. It is noteworthy that the apprehended violence order that the police had taken out against the father "D" following the complaint made by the mother "C" remained in place. 3. A speculative suggestion was raised in the Children's Court to the effect that the mother "C" could have caused injury to herself. I do not accept that proposition, especially absent a viewing of the photographs as taken by the investigating police officers with regard to those injuries. That suggestion is also inconsistent with the fact that the police took out an apprehended violence order against the father "D" even though they did not proceed with the charge of assault that was initially laid against him. 4. On the subject of the disclosure by the sister "E" of alleged sexual abuse by the paternal step-grandfather "F", the mother "C" was challenged in cross-examination on behalf of the father "D" in a number of respects concerning the matters that flowed from the described sentinel events in a caravan park on 28 December 2015 and 1 January 2016. 5. In light of the analysis of the evidence regarding the sexual abuse allegations concerning the paternal step-grandfather "F" having molested his stepdaughter "E", I consider that the challenges to those allegations as made through the denials by the father "D" as to those disclosures, should not be accepted in the absence of corroborative oral evidence of such denials, at least from the sister "E", if not also from the paternal step-grandfather "F", neither of whom were called to give oral evidence in these proceedings. 6. The course of the rehabilitation of the mother "C", the aim of which was that the child "B" be restored to her, changed after the sentinel events on 1 January 2016. Until that time, FaCS had led her to believe that they were working towards restoring the child "B" into her care: T118.23 – T118.44. To that effect, both she and the father "D" were issued with a list of minimum outcomes they were expected to achieve for this to occur: Exhibit "C"; T341.38. 7. Ultimately, each of the parents was considered by FaCS to have achieved those minimum outcomes but for the occurrence of the sentinel events of 1 January 2016: T382.24 – T383.17. 8. The problem for restoration of the child "B" to the mother "C" after 1 January 2016 was that she and the father "D" were no longer living together as a couple: T118.40; T119.41; T120.7 – T120.10. Beforehand, the s 90 application to this Court, as determined on 13 November 2015, had only been made in the name of the mother "C": T119.8: "B" v The Secretary, Department of Family and Community Services [2015] NSWDC 267. 9. A further avenue of credit attack that the solicitor for the father "D" made to the evidence of the mother "C" in cross-examination, was the suggestion that when that s 90 application went to a hearing in November 2015, the mother "C" "in a sense" was "conspiring [with the father "D"] to give … false information": T119.25. The suggestion was that a false picture of domestic harmony was being portrayed to the Court. 10. In that regard, I accept the evidence of the mother "C" where she rejected that proposition, stating that she and the father "D" were together at that time, they had a good and harmonious relationship going between them, and that continued to be the case until the occurrence of the sentinel events of 1 January 2016, following which their relationship ended. 11. The solicitor for the father "D" sought to suggest to the mother "C" that her solicitor was representing both of them at the s 90 application to this Court in November 2015. The mother "C" has in my view satisfactorily rebutted that assertion in the following terms: "Q. Because Mr Boys was representing both of you? A. No and Ms Fawaz, you know that's not true, you were you were ["D"] solicitor and you're the one who informed him that he couldn't get Legal Aid, so that was why he never had representation. He was working and getting the pension and earning too much money and Legal Aid was not granted to him, so and we're both aware of that." [T121.14 – T121.19] 1. There was no answer to that cited rebuttal by the mother "C". I accept her rebuttal in those stated terms. 2. In seeking to undermine the effect of the content of the historical medical record dated 20 March 2012, which is cited at paragraph [15] above, and which comprised clinical correspondence between treating psychiatrists, the sister "E" was noted to have made allegations of sexual abuse against the paternal step-grandfather "F", on behalf of the father "D", Ms Fawaz suggested to the mother "C" that she had been taking drugs with the father's sister "E" in 2012, a suggestion denied by the mother "C": T101.48 – T102.1. 3. That challenge proceeded upon the basis that the suggested motive for "E" disclosing such sexual abuse, was that the sister "E" had lied about having been abused by "F" in order to obtain drugs from her treating medical specialist. That suggestion was also denied by the mother "C": T103.33 – T103.45. 4. There was no reliable evidence to support the proposition raised on behalf of the father "D" as cited above. If that matter was seen as being an important part of the case that the father "D" wished to maintain, for persuasiveness, such evidence should have been called from his sister "E". She was not called to give such evidence. Given the interpersonal and inter-family dynamics in this case, a FaCS file note purporting to give that account by the sister "E" is unpersuasive in the absence of testable oral evidence on that issue. Therefore, I consider that the matter so raised remains a hollow and unsubstantiated assertion that should be given no probative weight. Attack on mother's credit as made by FaCS 1. Counsel for FaCS made a number of credit challenges to the testimony of the mother "C". An overview of those credit challenges made on behalf of FaCS, reveals that some of the issues raised were, in the scheme of the evidence, relatively unimportant. 2. An example of one of those matters was the discrepancy between the recollection of the mother "C" concerning the precise number of times that she had received return telephone calls from the FaCS caseworker "H" when compared to the evidence of that caseworker, based on FaCS file notes concerning such matters. 3. When the mother "C" initially dealt with that topic in her evidence, she stated in effect that the FaCS caseworker had not, or had only rarely, returned the calls she made to FaCS. In contrast, after being taken to the file notes within Exhibit "C", she conceded she had spoken to that caseworker about 4 times in a period of over three and-a-half years: T149.28 – T149.32. 4. In my view, given the admittedly mutual poor communication relationship the mother "C" had with the FaCS caseworker "H", I consider that the matter so raised was of inconsequential significance. It is not necessary for me to resolve that dispute either in terms of an asserted poor recollection or perhaps a hyperbolic description. Viewed in the proper context, I consider that the issue so raised went nowhere in terms of the credibility of the mother "C". It seemed to me from the context, that the mother was simply speaking figuratively and not literally. 5. Another matter of challenge of the evidence of the mother "C" which I considered to be of little consequence, was the computation, from the witness box, of the total number of times that the mother "C" had consulted her treating psychologist. I am satisfied that in the circumstances where the materials from that psychologist were being tendered, the discrepancy between her recollection and the psychologist's records should be seen as being immaterial. I am satisfied that the mother "C" had not intended to give misleading evidence on that matter. 6. From the perspective of FaCS related issues, of far greater significance was the reliability of the recollection of the mother "C" on other key matters, such as the sentinel events, beginning from 28 December 2015, until 1 January 2016. 7. On behalf of FaCS, it was suggested to the mother "C" that she had lied in her evidence that domestic violence had been perpetrated upon her by the father "D": T74.28 – T74.32. She initially denied that suggestion: T74.34. Later in that cross-examination, she conceded that she had on a previous occasion, in a particular and different setting, and for a particular purpose, lied in denying that there had been domestic violence: T75.19. 8. In providing the context for that concession, the mother "C" explained that she had initially denied the existence of domestic violence, which had included being punched, having a tooth knocked out, having her hair pulled out (T74.47 – T75.2), and of having endured other non-physical forms of domestic violence, such as put-downs, being called derogatory names, and related demeaning abuse, including controlling behaviour and manipulation. She stated that: "It doesn't always come with a punch in the face": T77.10 – T77.33. She went on to explain the context of that issue as follows. 9. First, the mother "C" explained that there was no such domestic violence from the time the father "D" came out of gaol and when the mother "C" had gone into a rehabilitation facility, in the lead up to the events of 1 January 2016: T74.50 – T75.2. 10. Secondly, when the mother "C" had successfully pursued her s 90 application in November 2015, where she was granted leave to proceed to seek rescission and variation of earlier orders, both she and the father "D" were back together as a couple, and there had been a long period without domestic violence, where they were happy, going to counselling and to medical appointments together, and they were working towards being a normal happy family. In those circumstances, she saw no purpose to be achieved to "rehash the past if everything was going good". 11. The mother "C" acknowledged that she had lied in the cited circumstances, and for those reasons, for which she apologised to the Court: T75.25 – T75.34. I accept her explanation in that regard. 12. Prior to the 1 January 2016 events, and their aftermath, the mother "C" stated that there had been no domestic violence between 2 September 2014 and 1 January 2016: T76.4 – T76.33. She went on to explain that the realisation of the magnitude or significance of the earlier events that had occurred between them and which had constituted domestic violence only came to her after she had gone to see a domestic violence counsellor. She explained: "A. You don't, you don't sort of understand about domestic violence until you're after it. When you're so used to hearing the comments in just a passing moment or just something they saying that to you, you become so used to it it's just another thing. When you leave the relationship and you reflect on moments and you have clarity in a relationship, on that relationship, then you start to understand just the nature of what domestic violence really is and I've done a lot of counselling over that so I'm quite aware of -" [T78.14 - T78.20] 1. She further explained: "… I never looked at it like domestic violence. ["D"] and I had just started to rekindle our relationship, there was no need to keep rehashing the past and talk about things that had happened prior to him going to gaol and prior to me going into rehab, we were turning our lives around, we were making a difference, we were trying to get ourselves on the right track." [T79.6 – T79.10] 1. The explanations given by the mother "C" were not inherently or glaringly improbable in their nature or content. 2. The mother "C" had been challenged with, and denied, the suggestion that she had entered into an arrangement with the father "D" whereby they would not disclose relevant information about their relationship to the Children's Court Clinician, Mr Hawton, when he interviewed and assessed them: T79.38 – T79.42. In that regard, her explanation, which I accept, concerning the ending of their relationship in early 2016, was as follows: "A. No. ["D"] and I had met in a public place, we went to a motel on several occasions, and we discussed that we would not - we hadn't seen each other for nearly six, it had been over six months and we just thought our relationship was over, you know, it's nice and that, we're ["B"]'s parents, let's keep it cordial., let's do the right thing by each other. There was no need to run each other down. We knew we weren't going to enter back into a relationship. We knew that. So there was no need and when I did the report with Mr Horton (sic), I was never asked about my relationship with ["D"] so there was never any need for me to just say nasty horrible things. And anyway, that's not who I am." [T79.42 – T79.50] 1. The mother "C" reiterated that as the relationship between them had ended, and because they were not there "to bag each other out", it was time to move on: T80.30. She explained that therefore, and in that context, she had not volunteered the past history of domestic violence to the Children's Court Clinician, Mr Hawton, because she was not asked by him to do so: T80.30 – T80.50; T90.8. That explanation was not glaringly improbable given the relatively brief summary that Mr Hawton set out in his report concerning the content of his interview with the mother "C". I consider that Mr Hawton's report does not provide a source of contradiction of the evidence of the mother "C" in that regard. 2. The mother "C" further explained that when she went to see Mr Hawton, she had held the belief that FaCS was going to restore the child "B" back into her care: T81.25. She further explained that Mr Hawton did not ask her any questions about her relationship with the father "D" and she further explained that there was no current relationship with the father "D" at that time: T81.39 – T82.18. I accept her evidence in that regard. I reject the proposition that there had been a relevant concealment of evidence on her part with the intention to mislead the Children's Court Clinician. 3. Consistent with that finding, and for the above reasons, I also reject the proposition put on behalf of FaCS, which was denied by the mother "C", that she had "concocted" a version of herself and the father "D" to the Children's Court Clinician that "didn't represent reality". Instead, I accept her evidence where she said that she was just trying to be amicable, and not nasty or cruel about each other, as after all, they were still the child's parents: T83.18 – T83.29; T89.44 – T90.3. 4. Counsel for FaCS obtained a concession from the mother "C" to the effect that whilst at the caravan park on New Year's Eve 2015, that is, just before the described sentinel event of 1 January 2016, she had consumed some alcohol. The mother "C" has in my view convincingly denied that, at that time, she had become quite heavily intoxicated. That proposition as put, and the denial of it by the mother "C", were in the following terms: "Q. Now on that evening, prior to the incident, you were both consuming alcohol? A. We'd had a couple of drinks throughout the day with ["D"]'s parents, it wasn't like, "Oh let's get sloshy drunk" or anything, it was New Year's Day, ["D"]'s dad ["F"] had had a drink with us, we'd had a drink, we were celebrating New Year, we clapped our glasses together and that was it. Q. And that evening you end up being quite heavily intoxicated, didn't you? A. That was not true. That is not true. Q. To the extent that various residents of the caravan park have reported that about you? A. They Q. You don't accept their report? A. That is not true. That is definitely not true and can I add something else to that? Q. Not at the moment? A. Okay. HIS HONOUR Q. Well just to save time, what is it you want to add? A. The people that she's actually talking about, the residents in the caravan park is actually ["D"]'s family. [X] is the - I don't even know [X]'s last name and he's ["E"]'s partner and I couldn't tell you his last name but he's the one that I went to your Honour, I didn't have a phone, I walked up to him, I'd just been assaulted and I'd been hit in my head, I went up to him, I had all my hair falling out, I was crying, I was quite a mess. And if he took that as being intoxicated then that's on him, that's not on me but he was the only person I saw after that event. MAHONY Q. Because the police say that they went and investigated the event and in fact spoke with two witnesses? A. A month later they did, yes. Q. And both witness say that you were well affected by intoxicating liquor, is the words of the COPS report? A. I never say, like I said, I never saw anybody only [X], it was late in the night, it's an over 55's caravan park, I walked 15 mobile homes away from where I was, and it was strictly to use [X]'s phone to call the police and he wouldn't allow me to do that. HIS HONOUR Q. That implies you only saw one person? A. Yes, [X]. Q. So do you have any idea who this second witness would be? A. I have no idea your Honour, it was late in the night, it was dark, and I had no shoes on and I left the caravan park, I left the caravan what ["D"] and I were residing in and walked off and just kept heading off, but somebody could have seen me, you know, I was a mess, I was an absolute mess. I was crying, it was dark, I had no shoes on, it's a rocky road, I had to walk through the rocky road, so if anybody's interpreted that as me being intoxicated they definitely got it wrong, why didn't they come out and ask me did I need help? Why couldn't anyone come and ask me?" [T94.34 – T95.42] 1. The terms and the state of the witness accounts that FaCS relied upon to the contrary of the evidence of the mother "C" on the matter of her alleged intoxication, an important factual issue, should in my view be seen to be fundamentally unreliable as a rational source of contradiction of the evidence of the mother "C". That is so, especially where, in the face of a contest on that issue, those witnesses were not called to give evidence which could be tested, especially where the account given by the mother "C" was not inherently improbable. 2. I take that view because the police investigation as relied upon by FaCS took place about a month after the events, and it is not entirely clear as to whether the witnesses were completely independent, or somehow aligned to the family of the father "D", either as family or by friendship, or by association, as was suggested by the mother "C". The evidence of those witnesses, in the form proffered, was not capable of being tested by cross-examination. That is a significant reason for discounting that evidence, especially in view of the gravity of the allegations. 3. In those circumstances, applying what I consider to be the uncontroversial considerations of fairness, I consider the cited evidence asserting intoxication on the part of the mother "C", to be an unreliable source of contradiction to the rebuttal evidence that she gave on that topic. Attack on the mother's credit as made by the ILR 1. The ILR sought to explore the evidence of the mother "C" so as to suggest that her situation was not as stable when compared to that of the father "D" (T157.25 – T157.34; T165.44 – T165.48); that she might not be able to work with FaCS caseworkers in the child's best interests (T159.33 – T159.50); that her present accommodation was not adequate for her to look after the child "B" (T161.19 – T161.30); that her previous mothering of another of her children, who is now aged 17 years, who has behavioural issues, was not adequate (T162.45 – T163.11); and that she had an issue with volatility: T167.18 – T168.27. 2. At the time the ILR asked those questions of the mother "C", she had not yet met or interviewed the child "B": T150.20. In those circumstances, those questions were seen as being exploratory rather than representing affirmative propositions based on instructions. They were in part based on the cited findings of the Children's Court Magistrate, who had based his conclusions on what I find to be the flawed report and opinions of the Children's Court Clinician, Mr Hawton. 3. In respect of those matters, in my assessment, the mother "C", by her responses, effectively and satisfactorily addressed and answered all of the above issues as were raised by the ILR. My reasons for that conclusion will appear in the context of my reasons that address the issues calling for decision as identified at paragraph [142] above, with the exception of an assertion of alleged "volatility" on the part of the mother "C", which is separately addressed in the paragraphs that immediately follow. Further credit attack on the mother "C" as made by the father's solicitor 1. After the conclusion of the cross-examination of the mother "C" that was undertaken by the ILR, the solicitor for the father "D" was prompted to seek and obtain leave to further cross-examine the mother "C" on the issue of her alleged volatility: T167.18 – T172.20. 2. The foundation circumstances for that further cross-examination of the mother "C" were that at a FaCS supervised contact visit that occurred some months before the hearing of the appeal, the mother "C" had found herself in an unpleasant situation in a children's play area, where it had been agreed that a supervised contact visit would take place. 3. At that time, the child "B" had just been delivered to the location by a named FaCS contact support worker so that the pre-arranged contact visit could proceed. On arrival, the child "B" began to run about erratically, "screaming" and "carrying on". He was soon confronted by the mother of another child at that location, where that other mother began "rebuking ["B"] in the name of Jesus", with "spit … coming out of her mouth", where that spit fell onto her child "B". 4. The mother "C" then quickly responded by removing the child "B" from that situation. In doing so, at the time, the contact supervisor had noted that the mother "C" had said, in what appeared to me to be an aside, and not directly addressing that other mother who had been spitting: "I had to get out of there because I would have ripped the bitch's head off". 5. In these proceedings, the solicitor for the father "D" sought to utilise that indignant riposte by the mother "C" in order to seek to advantage her client in the appeal by suggesting the cited circumstances were indicative of a disposition for volatility on the part of the mother "C". 6. In that regard, the solicitor for the father "D" sought to make a case that the mother "C" was prepared to get into a fight or an argument with the parent of other children at a play centre. The mother "C" rejected that assertion, emphasising that she took the least confrontational option of removing her child from the situation in what was obviously a protective measure. 7. At the time that cross-examination took place, I indicated my impression on that matter to the cross-examiner, in that it appeared to me, the cited reaction of the mother "C", in response to the aggressive behaviour of that other mother, who had been spitting at the child "B", suggested nothing more than a primal parental reaction, without any real threat of physical violence, and which amounted to "nothing more than letting off steam in a harmless way" without making too much of a drama out of the incident. 8. When, on behalf of the father "D", the cross-examiner sought to suggest (at T171.31 – T171.42), that the cited account given by the mother was "not what happened", counsel for FaCS, who was apparently in a better command of the underlying facts, fairly intervened to object (at T171.50, T172.6), on the ground that the assumption within the cross-examiner's question was not supported or replicated by the facts as set out in the contact supervisor's report. The force of the objection was ultimately conceded by the cross-examiner: T172.17. 9. There is little doubt that each of the contesting parents sought to seize upon and to emphasise favourable aspects of their factual accounts, thereby hoping to secure the ultimate advantage in the proceedings, namely, to obtain an order allocating parental responsibility for the child "B", to the exclusion of the other parent. 10. Those objectives were not unexpected given the dynamics of this case. That said, with few exceptions, that I shall identify with specificity in the appropriate context of the consideration of the issues calling for decision, in my view, the evidence does not permit adverse credit findings to be made to the extent of making positive findings as to which party might have lied, or the extent to which this might have occurred, on particular topics. Instead, the evidence must be assessed for reliability in the course of arriving at findings of fact on the true issues calling for decision. Conclusions on the reliability of the evidence of the mother "C" 1. I formed the view that the mother "C" was an impressive witness. Notwithstanding her troubled past, she has made considerable effort to remain free of the dependent use of drugs and alcohol. I accept her evidence that she has been successful in doing so for the last four and-a-half years. To achieve this, she has had the benefit of considerable counselling and other supportive assistance. I consider that she gave her evidence articulately, truthfully, and with appropriate insight into the issues which have in the past caused her to experience difficulties in her life. 2. Those matters included the particularly difficult subject of the history of the mother "C" having been repeatedly raped by her brother, and her mother's lack of support of her in regard to those matters. Notwithstanding that in July 2016, the Children's Court Clinician described his professional interpretation of her account of those events (at Exhibit "A", Vol 1, Tab 40, p 9, par 53, namely that she gave a "dissociated presentation while describing this event that she had experienced [as] a deep emotional injury", that view, which he had reached in 2016, was not reflected in her presentation when she gave oral evidence about those matters almost two years later. I have not accepted the Clinician's evidence in that regard, for the reasons that will be made plain. 3. In discounting the suitability of the mother "C" for parental responsibility, the Children's Court Clinician recited the account the mother "C" gave to him in July 2016, to the effect that she had used drugs "to cloak her pain", and in that context, he referred to this as representing "unresolved trauma". In my view, for reasons that will be made plain in my evaluation of the evidence of the Children's Court Clinician, that conclusion was speculative, and was not supported by currently applicable evidence. 4. I found that description of the mother "C" by the Children's Court Clinician to be one that is completely inapt as a purported characterisation of the presentation of the mother "C" when giving her evidence in these proceedings some 2 years after the Clinician's assessment. 5. In contrast, in my view, the mother "C" described those unfortunate earlier traumatic events in a calm and dignified manner, without any indication of a dissociative presentation, which I was informed meant that in situations where people are affected by trauma, stress triggers operate to stop people from remembering what happened, so that to an extent they dissociate away from the trigger point, but if they are triggered, this can create unwanted, unintentional, or non-functioning behaviours: T220.10 – T220.29. 6. In his oral evidence called to explain aspects of his report, Mr Hawton, the Children's Court Clinician, considered that at the time he saw the mother "C", he did not see enough evidence to persuade him that the childhood traumas that the mother "C" had experienced had resolved: T220.29. In making that statement, which I considered to have involved a superficial assessment, he did not go on to state what it was that should be considered to be sufficient evidence on that question. In my view, absent such explanatory reasons, his clinical opinion along those cited lines must be discounted in terms of its reliability. 7. In giving the evidence as cited above, Mr Hawton accepted that, 2 years on, it was open to accept the contrary impression that I drew to his attention for comment in the following terms: "Q. What's the difference between the conversational trigger of you raising the question of past sexual trauma in the consulting room and the same person having to answer questions about those historical matters in the witness box? A. It's not the same as in vivo exposure, it's not the same. Q. In what sense? A. If I was to help the person to review there would be a long lead in to that therapy insofar as that you would you can imagine bringing up at that first interview you bring up something with somebody about their trauma without giving them the tools to cognitive behavioural tools and arousal reduction tools to cope with what they're about to do so the preparation for that would be significant before you actually got anywhere near talking about the historical events that occurred. Q. Yes, but if one can conflate those events because the appearance in the witness box leads to random questions and no preparation so if the person concerned seemed calm and rational in responses to those sort of questions does that not give you some indication of whether or not they've reached a stage of coping with past trauma? A. I wasn't here, I didn't see. Q. But if that's my impression? A. That's your Honour's prerogative of course. Q. But assuming for a moment for the sake of this discussion that's my impression, otherwise I wouldn't be asking the question. I'm just interested in your view as to whether that's an indication that she's reached a point of coping? A. At another point in time. I can only say what I was able to do at this point which is nearly two years ago so at the time what was clear to me was that no therapy at that time had been undertaken which was a request by the Department of Family and Community Services that she do that. That had not occurred at that time." [T220.49 – T221.31] 1. On the above evidence that I have cited, I consider that my own impressions of the mother "C", as guided by the cited explanatory remarks and concessions in the evidence of Mr Hawton, and also guided by Ms Hagedorn's unchallenged opinions as the treating psychologist of the mother "C", reliably lead me to conclude that Mr Hawton's opinion, which is now almost 2 years old, has been overtaken by the beneficial effects of the treatment and the supportive assistance that the mother "C" has obtained in the interim, and by the effects of time, and I consider that therefore, his cited opinion is no longer applicable in the terms that he had originally expressed them. 2. In comparing the evidence of the mother "C" on those matters to the cited account given by Mr Hawton, in the context of Ms Hagedorn's evidence as the treating psychologist, the latter of which I accept for the reasons that will be made plain, I consider that the compelling conclusion to be drawn from the described circumstances, on the balance of probabilities, is that the mother "C" has materially benefitted from the extensive therapy and counselling that she has undertaken, with the result that Mr Hawton's cited interpretation, to the extent that it could otherwise have applied, is no longer apt. 3. No party has required Ms Hagedorn to attend for cross-examination on her stated views of the mother's positive progress on those matters over the course of time. I have therefore accepted her unchallenged evidence as it was not inherently improbable in its stated conclusions. My reasons for that conclusion will be more fully set out in my consideration of the detail of her evidence. (2) Evidence of the father "D" 1. In the paragraphs that follow, I set out my analysis and the basis for my conclusions concerning the attacks made to the credibility and the reliability of the evidence of the father "D". 2. The evidence of the father "D" in these proceedings was in the following form: 1. An affidavit sworn on 26 February 2016: Exhibit "A", Vol 1, Tab 18; 2. An affidavit sworn on 21 April 2016: Exhibit "A", Vol 1, Tab 16; 3. An affidavit sworn on 27 October 2016: Exhibit "A", Vol 1, Tab 20; 4. An affidavit sworn on 2 May 2018: Exhibit "A", Vol 2, Tab 47; 5. Transcript of oral evidence given in the Children's Court on 2 March 2017: Exhibit "A", Vol 1, Tab 37, pp 74 – 81; Tab 38, pp 2 – 38; 6. Oral evidence given in the appeal: T242 – T260; T261 – T329; T400 – T428. 1. In his affidavit evidence, the father "D" denied the allegations made by the mother "C" as to him having assaulted her, and he instead claimed he was assaulted by her, whilst she was, on his evidence, allegedly "in a drunken rampage". He also claimed she was emotionally unstable, an assertion picked up by the Children's Court Clinician, and apparently accepted by him. The father "D" denied being present when his sister "E" made her disclosures to the mother "C" of historical sexual abuse by "F", and alleged that the mother "C" "made this up": Exhibit "A", Vol 1, Tab 18, par 5 – par 12. That evidence was problematic because of other evidence the father "D" gave on that subject. 2. The bulk of the affidavit material from the father "D" relates to his past participation in therapy, his domestic arrangements, contact issues, the situation of the child "B", and his own desire to maintain parental responsibility for that child. 3. In the Children's Court proceedings, the father "D" acknowledged the need to obtain professional assistance to enable civil communication with the mother "C" on matters concerning their son "B": Exhibit "A", Vol 1, Tab 38, pp 33 – 34. It is salient to observe at this point that since the time that he gave that evidence, namely, 28 April 2017, some 14 months ago, little if anything has been achieved in seeking to ameliorate that problem. That does not bode well for progress in that regard. 4. In the Children's Court proceedings, the father "D" described his accommodation, his engagement with counselling and support services, schooling arrangements, activities and remedial reading for himself so that he can assist his child with reading. 5. In those proceedings, the father "D" was also cross-examined on his history of involvement with illicit drugs. In my view, in his answers to those questions, he sought to distance himself from the factual details of his criminal record so as to give the impression of only minimal involvement in those illegal activities. 6. In the Children's Court proceedings, there was an unsuccessful attempt by the solicitor for the mother "C" to cross-examine the father "D" on the matters of concern arising from the letter of Dr Wright dated 20 March 2012. That cross-examination was disallowed: Exhibit "A", Vol 1, Tab 38, pp 10.10 – 12.39. Those matters which were disallowed in the Children's Court proceedings must be considered in these proceedings. 7. In these appeal proceedings there were a number of credit challenges made to the evidence of the father "D" as outlined in the following paragraphs: Attack on father's evidence by solicitor for the mother "C" 1. The father "D" claimed that the reason the paternal grandparents were not at court to support his position in the litigation was that they had to care of the child "B" in his absence (T282.1 – T282.12) and the step-grandfather "F" has to take the child "B" to school so he cannot come to court: T283.9. He claimed he had a letter in his pocket on that subject, but his solicitor did not seek to tender any such letter: T282.13. 2. The father "D" claimed that the reason nobody in his family provided an affidavit in these proceedings was because they were not asked to do so: T283.31. When that matter was further explored in relation to the absence of his mother from the proceedings, he answered that he didn't think he needed her to be at court: T291.35. 3. In the present context, I do not accept his cited explanations as I consider that they are unlikely to be correct, especially given the known and predictable credit challenges and issues raised in these proceedings where affidavit evidence was being relied upon. 4. When the father "D" was confronted in cross-examination with some inconvenient details that he had not addressed when they arose in an affidavit from the mother "C", he stated: "Q. Now, Ms ["C"] in her affidavit said that there was a meeting of the ["D"] family on 28 December? A. There was no, sorry, there wasn't. Q. Why didn't you put that in denial in your affidavit? A. What do you mean, put it denial? Q. Well, she made an allegation and A. Well, I didn't read her affidavit, I didn't know about her affidavit. I only know that mum and dad were there on the 24th, Christmas. I don't I didn't know about it. I don't sit down and read the affidavits. Q. So ["E"] just came and had been to Ms Fawaz's office, and made a reply to something you had no knowledge of, is that right? A. No, I don't understand where you're coming from. No. Q. What I'm saying is, Ms ["C"] said that there was an incident on 28 December 2015. She then further expanded in her material that she said to you, "What's all this about ["E"]'s allegations about ["F"]"? A. No. Q. Her evidence is that you then attacked her? A. No, she didn't. Sorry, she didn't. No." [T285.40 – T286.11] 1. Even after allowing for the fact that the father "D" has been shown to be affected by cognitive difficulties, as was identified and explained in Exhibit "P", I do not accept his evidence that he did not read the opposing affidavits as he claimed. His answer to that effect is inconsistent with his own affidavit sworn on 26 February 2016, where he plainly stated he had done so, and where he was responding to the specific content of an affidavit of the mother "C": Exhibit "A", Vol 1, Tab 18, at paragraphs 10 to 28. 2. In my assessment, I consider that the cited answers of the father "D" in paragraph [226] above were aimed at seeking to avoid the need to engage with and address a relevant question, the answer to which, if given accurately, was plainly going to be inconvenient to his case. 3. The father "D" was challenged with regard to his evidence that in the sentinel event of 1 January 2016, where his explanation was that the described event occurred when the mother "C" simply woke up and started making allegations. The relevant extract of that evidence is as follows: "Q. And ["C"] woke you up? A. Yes. Q. And then ["C"] accused ["F"] of molesting ["B"]? A. Yes. She was saying things, yes. Q. That was never in her material? A. What do you mean, it wasn't in her material? Q. She never A. Well, I don't know that. It's just what was said that night. I didn't say that. What, are you assuming that I said it? Q. No, you said that yesterday. A. Hey? Q. For the first time in these proceedings, you said that ["C"] said to you that FAWAZ: Your Honour, I object. HIS HONOUR: Wait till the question's finished, please. BOYS Q. that ["C"] woke you up, is what you said yesterday, you were asleep in the caravan? A. Yes. Q. And she said to you that, "What's all this about," or she made an allegation on your evidence, that ["F"] molested ["B"]? FAWAZ: No. HIS HONOUR: Just pause there. You have an objection to that question? FAWAZ: Well, I just ask my friend to HIS HONOUR: No, just ask me. FAWAZ: Sorry, your Honour. HIS HONOUR: What is your objection? FAWAZ: Sorry, my objection is the tone and the manner well I know sometimes cross examination can get somewhat heated at times. However, I would ask my friend to just, these are Children's Court, these are children's matters and to just perhaps tone his well just keep the tone of his voice towards ["D"], down. HIS HONOUR: Well Ms Fawaz, I understand what you're saying, but the fact is that it is cross examination and part of the purpose of cross examination as every lawyer knows, is to test evidence in chief and to put contrary propositions where necessary. At times it's necessary to develop a pace with questions in order to keep the matter alive. I don't think Mr Boys crossed the line, although certainly the decibels were higher than normal conversation, but given it's a courtroom and there is a projection space to be traversed, I don't think the objection is valid. So I think the witness can now answer the question. FAWAZ: The Court pleases. HIS HONOUR Q. Do you recall the question? A. Sorry? Q. Do you recall the question? Do you remember the question? A. No. Q. Can it please be played back? A. Yep. PLAYBACK HIS HONOUR: Right, that's enough. It's been answered, thank you. BOYS Q. It's been answered and the response was that you'd never did she say A. She said to me. Q. Yeah, what? A. Yeah, she said to me. Q. What? A. She said, "I think your father's been fiddling with ["B"]," and I just said, "No, you're off your head, no that's you know, like I that's not right to say that about someone." To just assume that. I didn't I had no apprehension of how it occurred for her to say that. Q. Throughout your material, or sorry throughout my client's material, she has consistently said that ["E"] made allegations about ["F"] molesting her A. No, it didn't happen. Q. Well what I'm saying is, where did she ever say in her material, that ["F"] had touched ["B"]? A. The night that she woke me up. Q. Well, why didn't you put it in your material ["D"]? A. Because it's the past. She has issues with this all my life we've been with her, this blokes a paedophile, this bloke touched that, it's not something at that time I just thought it was nonsense. You know, like this you're not thinking right, you know, that's the way it was." [T286.41 – T288.45] 1. I find that the evidence of the father "D" as cited above was unconvincing as to his version of events because it was not earlier raised in those terms in any of the affidavit material filed on his behalf, either in the Children's Court proceedings or in these appeal proceedings: T289.35. 2. In these proceedings the father "D" stated that despite what had occurred in the Children's Court proceedings when the subject of Dr Wright's letter dated 20 March 2012 was raised, that the first time he had seen that letter was on the sixth day of these appeal proceedings: T282.13 – T292.29; T410.19. 3. I find the evidence of the father "D" in that regard incredible given that the father "D" was represented by Ms Fawaz in those proceedings, as well as in these proceedings. Given the obvious importance of that document, I find it incredible that his solicitor would not have discussed the content of Dr Wright's letter with him before the sixth day of the hearing in these present proceedings. I do not accept his evidence in that regard. 4. When the issue of Dr Wright's letter was raised in the cross-examination of the father "D", he repeated that he did not know about it, but he went on to say "all this stuff started happening" after he had left the mother "C": T293.1 – T293.3. I found that evidence unimpressive and unpersuasive as an explanation because it did not address the otherwise credible account given by the mother "C" to the effect that whilst they were together, they were not intent on bagging each other out. 5. When that evidence was given by the father "D", I recognised the possibility that his cognitive issues could possibly have been causing him difficulty with that line of questioning. 6. Accordingly, he was given the opportunity to explain his position on the matters arising from the content of Dr Wright's letter, including on the matter of his stated lack of earlier curiosity about those matters. His answers unfortunately evolved into a disjointed and inarticulate inability to explain his claimed lack of curiosity on that important subject: T293.8 – T293.42. Even after making due allowance for his cognitive difficulties, I find myself unable to accept his cited evidence on this topic. 7. When the father "D" was cross-examined on the topic of his sister's affidavit, in which she had denied the occurrence of the sexual abuse allegedly perpetrated on her by her stepfather "F", he asserted that she was lying in that affidavit: T294.18. Later, he denied ever having read that affidavit: T296.10. It is difficult to reconcile those two apparently disparate and inconsistent positions in the content of his evidence. 8. The father "D" expanded, at some length, about how the child "B" does not speak well of his mother "C": T306.9. He later stated, in that context, that "the kid does have a wild imagination": T306.32. In those circumstances, I do not regard that account given by the father "D" to be truly indicative of the assertion that the child "B" did not speak well about his mother "C". 9. The father "D" acknowledged that the state of poor communications with the mother "C" was not in the best interests of the child "B": T309.1 – T309.3. Whatever the reason for that position, again, I find it remarkable that he has not sought to take positive steps to seek to remedy that unfortunate problem in the interests of the child "B". 10. The explanation the father "D" gave for such circumstances, namely, for not having implemented a communication suggestion for a communication book, claiming this was because he had been "moving a lot" and had things packed, and "haven't had a chance". He gave that evidence, despite being in his present accommodation for about 8 weeks: T309.10 – T309.28. In my view, that evidence demonstrates that the father "D" has a lack of insight into a most important matter that impacts on the safety, welfare and well-being of the child "B" concerning the need, of that child to have the support of appropriate inter-parental communications on matters of mutual interest and obligation. 11. The evidence of the father "D" (at T311.43 – T312.26), to the effect that he has not acted on that question for 5 months as it was too much to organise such that he needs the help of FaCS to do so, reinforces my conclusion as stated above. 12. The father "D" again acknowledged that the continued state of conflict that has persisted between himself and the mother "C" was not in the best interests of the child "B": T313.40 – T314.46. Despite that understanding, it appears that he has not taken steps to discuss with anyone who might be able to assist him with what to do to seek to remedy that situation. 13. His explanation for that inaction on his part was that he had "stopped therapy … a little back" when the child "B" started school, and he thought that FaCS was going to organise such things: T314.8 – T315.16. In my assessment, that situation, and his inaction on such an important matter, demonstrates a material lack of insight into the pressing need to resolve a serious problem which has a significant and adverse impact upon the child "B". 14. My view in that regard was reinforced by the answers given by the father "D" which revealed that he had difficulty understanding the concept of a dividing line between his own parental responsibilities and the role of FaCS in the present situation regarding contact arrangements. In giving those answers, he said that he needed the knowledge and the assistance of FaCS, and he revealed a difficulty he had in understanding the question. In my view, that evidence provides a strong indication of significant limitations in his understanding of the responsibilities of the parental role: T314.47 – T315.12. In my opinion he has revealed only superficial insights into those matters. 15. On the subject of the level of understanding of father "D" regarding the need to improve the state of his communications with the mother "C", and on the question of the need to increase the frequency of contact with the mother "C" (T401.31 – T401.40), he explained that he is "still learning all about this" and the "awkward" nature of these matters, which requires the assistance of FaCS: T402.31 – T402.42. 16. The father "D" acknowledged that it would be helpful for him to obtain clarification of his parental responsibilities and the demarcation of the role of FaCS in that regard: T428.40. That evidence, given 6 months after the father "D" had been allocated parental responsibility, is concerning as to the nature of his insight and abilities on those matters, and on the need to avoid needless conflict with the mother "C" in the interests of the child "B". 17. In the course of cross-examination, when the father "D" was tested on the subject of his proneness to become aggravated, he demonstrated the object of that questioning when he started to dramatically and demonstrably tap on the bench of the witness box when emphasising an answer to a question. In doing so he showed his aggravation when he became frustrated by those questions: T319.16 – T319.33. Later, he also acknowledged that he had become agitated on the occasion of a contact changeover: T322.31. Those were behaviours very different to the comparatively calm behaviours and attitudes he portrayed of himself as was described in the report of Mr Hawton: Exhibit "A", Vol 1, Tab 27. 18. Another matter that caused me to doubt the reliability of the insight of the father "D" into the educational needs of the child "B" arises from his evidence of his claimed understanding that the child "B" was "in the top ranks of the class" at school T406.33. 19. That understanding was not consistent with the objective content of Exhibit "B", being the child's first term 2018 school report. When the father "D" was asked to comment on that apparent difference, he explained (at T406.41 – T407.1), that the child was not at the bottom of the class and he was "excelling" and showing a difference in his results. He also stated that he may be wording his explanation wrongly: T407.1. It appears that was in fact the case. 20. When the father "D" gave his explanatory evidence concerning the nature and the history of his criminal convictions, he sought to minimise the seriousness and the significance of his involvement in those events: T411.5 – T415.2. I found that evidence unimpressive and it demonstrated an inability to face incontrovertible facts. Cross-examination of the father "D" by FaCS 1. Counsel for FaCS did not make any significant challenges to the credibility or the reliability of the evidence given by the father "D": T415.39 – T425.41. That was not at all surprising given that FaCS was seeking to uphold the dispositive findings of the Children's Court Magistrate. 2. Counsel for FaCS obtained from the father "D" a concession that the "terrible" state of communications between himself and the mother "C" cannot continue in that state: T420.22 – T420.34. As already remarked upon, the father "D" seems to have done very little in the way of seeking to ameliorate the effects of that problem. 3. It appears that the father "D" thought that the steps which needed to be taken to improve those communications were being arranged by FaCS, with the help of Ms Olivia Starr, but that those sessions did not go ahead on account of cost considerations. Although he stated that he has learnt the benefit of such arrangements (T424.42 – T425.16), he appears not to have implemented such learning, as he stated that his method of dealing with such communication problems was to just walk away: T427.40 – T427.46. That response does not auger well for the prospects of future inter-parental dealings and co-operation as to the needs of the child "B". Cross-examination of the father "D" by the ILR 1. The father "D" was not significantly challenged by the exploratory questions asked of him by the ILR. This too was not surprising given that the ILR was also seeking to uphold the findings of the Children's Court Magistrate. 2. The father "D" acknowledged that his adult son, aged 30, had occasionally come to stay with him at his former accommodation, and that he had a "criminal history" which was minimally described by the father "D" as "issues in the past": T426.1 – T426.18. Those offences included traffic offences, and car stealing: T426.19 – T426.30. I do not regard those vague descriptions to be definitive. In my assessment, the mother "C" is justifiably concerned about the possibility of negative influences on the child "B" from that identified source. 3. The father "D" agreed with the ILR that there was an "extremely high" level of conflict between himself and the mother "C": T426.45 – T427.5. He acknowledged that he lacked the means by which to approach the resolution of that conflict, but wanted to seek to rectify that situation, including by engaging with Ms Starr for that purpose: T427.20 – T427.34. It is truly puzzling as to why in this case, given the described difficulties, that FaCS did not take a more active role in that regard. I will revisit that topic when analysing the evidence of the FaCS caseworker "H". Conclusions on the reliability of the father's evidence 1. It is relevant to observe that the father "D" was a hesitant witness who, at times, when pressed during questioning, had difficulty expressing himself fluently. This appeared to be consistent with the psychological assessment made of his cognitive functioning as tested by Dr Purkis in September 2015: Exhibit "P". That hesitancy, of itself, was not necessarily a negative factor to be taken into account in the balancing exercise required in this case. However, it nevertheless became necessary to assess the reliability of the evidence of the father despite that presentation. 2. In drawing upon the matters outlined at paragraphs [214] to [256] above for the reasons there stated, in summary, I formed the view that the father "D" was an unimpressive and unpersuasive witness insofar as his ability to explain his position was concerned. That impaired articularity does not bode well for confident and effective parenting in the long term. 3. The reluctance of the father "D" to acknowledge, both to Mr Hawton and to the court the full extent of his criminal history, taken together with his cognitive impairments, raises a negative concern as to whether he could be sufficiently confident, forthright and equipped to be an effective parent to the child "B" as he grows older and his parenting needs change. 4. The solicitor for the father "D" submitted that his cognitive difficulties should not form the basis for in effect penalising the father "D" as to the placement of the child "B". I agree with the sentiment behind that submission. The fact that the father "D" has cognitive difficulties should not be used in a discriminatory sense to deprive him of the full responsibility of parenthood. However, that submission has the wrong focus. Here, the issue is the paramount needs and interests of the child "B", and not the needs of the parents. Their needs are a secondary consideration. 5. For the reasons identified in the analysis set out between [214] and [256] above, I was left with the impression that the father "D" was an unimpressive witness on matters where the subject matter in dispute was in conflict with the opposing accounts given by the mother "C". I have preferred her evidence as being more likely to be accurate and factually correct. I found his reluctance to answer questions and his vacillation in his explanations over his state of knowledge of his sister's disclosures of sexual abuse by the paternal step-grandfather "F", troubling and evasive. (3) Evidence of the FaCS caseworker, "H" 1. The FaCS caseworker "H" has tertiary degrees in social science, including a Master's degree in child and adolescent development: T332.2. The content of her casework was largely internal to FaCS, and it primarily concerned day-to-day dealings that FaCS had with its delegated external non-government agency, Foundations Care, which had managed matters such as contact arrangements between the mother "C" and the child "B". The FaCS caseworker "H" has had 15 years' experience in working for FaCS on child protection issues. In the paragraphs that follow, I set out my analysis of her evidence and the relevant FaCS documents to which her evidence relates. Sources of evidence of the FaCS caseworker "H" 1. The FaCS caseworker "H" has provided a series of 6 affidavits as follows: 1. Affidavit affirmed on 25 January 2016: Exhibit "A", Vol 1, Tab 21; 2. Affidavit affirmed on 25 February 2016: Exhibit "A", Vol 1, Tab 22; 3. Affidavit affirmed on 17 August 2016: Exhibit "A", Vol 1, Tab 23; 4. Affidavit affirmed on 9 November 2016: Exhibit "A", Vol 1, Tab 25; 5. Affidavit affirmed on 27 April 2018: Exhibit "A", Vol 2, Tab 48; 6. Affidavit affirmed on 29 May 2018, which was read on the seventh day of the hearing. The affidavit related to explanations and the context of the management of child protection issues by FaCS. 1. Most of the material in those affidavits comprised historical background information, not all of which was relevant to the issues that need to be determined. The affidavit of the FaCS caseworker "H" affirmed on 29 May 2018 set out the relevant family history and relationships, and some of the procedural history of proceedings relating to the child "B". 2. In comparing the affidavits of the FaCS caseworker "H" as listed in paragraph [262] above, with those listed on the first page of Mr Hawton's report as to his sources of information, it has become apparent that Mr Hawton was provided with an additional affidavit from the FaCS caseworker "H", namely one dated 1 October 2015. That affidavit, and the annexures to it, if it had any, was not tendered or read as evidence in these proceedings. I therefore do not know whether it contained any details of the criminal convictions of the father "D". In light of the oral evidence of the FaCS caseworker "H", I doubt such details were included given the uncertainty expressed by the FaCS caseworker "H" in her oral evidence. 3. That circumstance is unusual in this type of case, where full disclosure of relevant factual information is what is expected and required of a model litigant. However, as no party raised any issues of concern in that regard, that particular aspect of the matter does not warrant further consideration, apart from noting what has occurred. 4. The FaCS caseworker "H" had commenced her involvement in the care of the child "B" at the outset of the involvement of FaCS in the case: T332.19. For a time the agency Foundations Care was involved in the case management. In January 2018, Foundations Care transferred the case management of residual issues concerning the child "B" back to the responsibility of FaCS: T330.44. 5. The caseworker "H" has had minimal contact with the family. She has seen the child "B" on only one occasion: T384.43. More recently, her role as caseworker has now been assigned to another FaCS officer as of several weeks ago: T331.7. The ultimate plan is for the FaCS caseworker "H" to relinquish her involvement in the case of the child "B" once these proceedings have been finalised. 6. That position appears to be in response to an apparent acceptance by FaCS of the common ground position that there is a poor level of communication between the FaCS caseworker "H" and the mother "C", at least from the perspective of the mother "C". 7. The FaCS caseworker "H" confirmed that after the sentinel event of 1 January 2016 came to the attention of FaCS, contact between the child and the paternal step-grandfather "F" was suspended pending investigation of the historical sexual abuse allegations that came to light concerning "F": Exhibit "A", Vol 1, Tab 21, par 6. 8. In the course of those events, FaCS was informed that the result of the police investigation into the sentinel incident on 1 January 2016 was that no further police action would be taken into the claims that the mother "C" had been assaulted by the father "D". The same position appears to have been taken in relation to the alleged conduct of the paternal step-grandfather "F". 9. That decision appeared to have been taken on the basis that there were conflicting factual statements that were not available for scrutiny to assess the reliability of the relevant evidence that was considered by the police at that time on the question of whether a risk of significant harm remained in relation to the child "B". 10. As the full police files are not available for review as evidence in these proceedings, no inferences adverse to either party to the proceedings can be drawn from that material: Exhibit "A", Vol 1, Tab 22, par 18 to par 25. 11. However, it is relevant to review and consider what is known to exist within the COPS event narratives regarding matters in contention in these proceedings. FaCS reliance on COPS narrative 1. On an uncertain date in 2016, the police COPS investigation records relating to the sentinel events of 1 January 2016 were ultimately produced and made available for scrutiny by FaCS: Exhibit "A", Vol 1, Tab 25, pp 1 – 13. The dates contained in that record are slightly discrepant to the other evidence given in these proceedings but nothing appears to turn on those discrepancies as the police investigation took some weeks to complete. The factual sequence of those events concerning those matters was as follows: 1. Following a police interview of the mother "C" in early January 2016, in which a videoed statement was obtained from her, the father "D" was then charged with assault occasioning actual bodily harm, and an urgent apprehended violence order was obtained against the father "D" in respect of those matters. That apprehended violence order was never cancelled; 2. On 15 January 2016, the father "D" was arrested, interviewed, and he was then released. At that time he was apparently told that the charges initially laid against him would not proceed; 3. Some follow-up police investigations then continued over the course of some weeks. This included obtaining statements from the maternal grandmother "G". It appears that the contact telephone number for the sister "E" was obtained by the investigating police officers, but no statement was ever obtained by the police, either from the sister "E", or from the paternal step-grandfather "F"; 4. The police narrative in the COPS record indicates that the police inquiries revealed conflicting statements had been obtained on 16 February 2016 and on 1 March 2016. This occurred at one and two month intervals after the occurrence of the sentinel events identified by the mother "C"; 5. Given that no statements had been obtained from either the sister "E" or the paternal step-grandfather "F", the conflicting statements on the matter of alleged disclosure of historical sexual abuse could only have been polarised between the version obtained from the mother "C", as was described in her evidence, and the version obtained from the father "D", as described in his evidence. It is difficult to see how the investigation had revealed a reliably polarised state of conflicting statements when it appears there had been no attempts made to obtain interviews with either "E" or "F", those persons being the relevant actors at the forefront of those allegations; 6. If full statements were in fact obtained by the police from any other person, they were not tendered as evidence in these proceedings. However, extracts of some witness statements were included in the COPS narrative. The statements there cited were from the mother "C", the father "D", the paternal grandmother "G", and some unidentified witnesses. However, the stark position remains, that there were no statements from either the sister "E" or the paternal step-grandfather "F". 1. The above survey of the available police records reveals that the police investigation had apparently been left incomplete both from the perspective of making a definitively reliable assessment of what took place in the sentinel events of 1 January 2016, and in connection with any investigation of the disclosures of historical sexual abuse of "E" by her stepfather, the paternal step-grandfather "F". As a result, serious allegations were left incompletely investigated. 2. A decision by police officers to close an investigation is not open to be questioned in these proceedings. However, the manner in which FaCS considered and dealt with those matters involves entirely different considerations. 3. The focus of that difference is that FaCS decided to close its own investigation after the police investigation was not further pursued. The full significance of that decision only emerges from a closer examination of the FaCS file notes that were tendered in these proceedings, as set out in Exhibit "H" and in the Annexures to the affidavit of the FaCS caseworker "H" affirmed on 29 May 2018. 4. The significance of the fact of the closure of the FaCS investigation was that the temporary suspension of contact between the paternal step-grandfather "F" and the child "B" was lifted when the FaCS investigation file was closed. The material annexed to the FaCS caseworker's affidavits, and the FaCS file notes, give little indication of what, if any, risk assessment was made by FaCS concerning any risks considered to be posed to the child "B" by proposed contact with the paternal step-grandfather "F" at that time. 5. The FaCS records that were tendered in the proceedings did not suggest that the disclosures of alleged historical sexual abuse allegations against the paternal step-grandfather "F" were the subject of a detailed and concluded risk of harm investigation as it might have affected the child "B". 6. As those matters received little attention at the hearing, other than in the form of the concerns of the mother "C" over what has been described as the "Gina the Giraffe incident" (T149.45 – T150.1), I do not propose to attempt a definitive resolution of that matter in light of the limited evidence. It is nevertheless concerning that such matters are the subject of FaCS records. I do not discount the albeit remote possibility that those matters may have been more fully investigated in a separate file. FaCS approach to child protection issues 1. In order to address the child protection questions that arose in the proceedings, the FaCS caseworker "H" affirmed an affidavit on 29 May 2018. That affidavit was aimed at explaining the manner in which FaCS had responded to, and had dealt with, emergent historical sexual abuse allegations that the mother "C" had ventilated to the effect that the sister "E" of the father "D" had been sexually abused in her childhood by her stepfather, the paternal step-grandfather "F": Affidavit of FaCS caseworker "H", affirmed 29 May 2018, par 3 – par 28. 2. In that affidavit, the FaCS caseworker "H" acknowledged that the allegations of child sexual abuse of the sister "E", if accurate, presented a serious risk of harm (to the child "B") and therefore the allegations had to be acted upon. After she made a mandatory report on the matter, the further investigation of the matter was dealt with systemically, by others. At the time, the assessment of the FaCS caseworker "H", based on her knowledge and experience, was that the material to which she had access did not suggest that the child "B" had behavioural issues consistent with sexual abuse: Affidavit of FaCS caseworker "H", affirmed 29 May 2018, par 23 – par 24. 3. FaCS addressed the allegations of child sexual abuse of "E" by the paternal step-grandfather "F" in several stages. First, when these allegations initially emerged following the disclosure the sister "E" made to the mother "C" in the described sentinel events, between 7 January 2016 and 29 January 2016, some FaCS file notes were made of various contacts and relevant conversations. The end result of that process was that FaCS made a decision to close the investigation report file at the triage stage. Secondly, when Dr Wright's letter dated 20 March 2012 was later brought to the attention of FaCS on 10 March 2016, further enquiries were then pursued between 10 March 2016 and 2 May 2016, at which time the file was again closed. Documented FaCS activity between 7 January 2016 and 29 January 2016 1. A review of the relevant FaCS records which document those matters, now follows. 1. On 7 January 2016, the FaCS caseworker "H" made a file note about information she had received from the father "D" stating that the mother "C" had a "blow up" with him "over an allegation about his dad messing around with" the child "B" and that his sister "E" had made allegations about the paternal step-grandfather "F" "years ago": Annexure "B" to the affidavit of the FaCS caseworker "H" affirmed on 29 May 2018, p 12; 2. On 11 January 2016, the FaCS caseworker "H" had a conversation with the mother "C" and then made a file note in the following terms: "…[she] was worried that [the father "D"] would take [the child "B"] to his parents … [the sister "E"] made allegations re [the stepfather "F"] in front of [the father "D"] and another person – not just her": Annexure "G" to the affidavit of the FaCS caseworker "H" affirmed on 29 May 2018, p 20; 3. On 12 January 2016, a caseworker at Foundations Care, made a file note recording a concern that had been expressed by the adult son of the mother "C" stating "the thing that really worries me is that [the paternal step-grandfather "F"] sleeps in [the child "B"]'s bed". A decision was then made to inform FaCS of that concern: Annexure "F" to the affidavit of the FaCS caseworker "H" affirmed on 29 May 2018, p 19; 4. On 13 January 2016, after FaCS received a telephone call from a caseworker at Foundations Care, the FaCS caseworker "H" made a file note that the father "D" had told the adult son of the mother "C" that the paternal step-grandfather "F" had slept in the bed of the child "B" and that accordingly, the son felt uncomfortable about the child "B" going to the home of the paternal grandparents for respite that weekend. As FaCS had not at that time yet assessed the report, the planned respite at the home of the paternal grandparents scheduled for that weekend was cancelled: Annexure "E" to the affidavit of the FaCS caseworker "H" affirmed on 29 May 2018, pp 17 – 18. Clearly, that was a prudent child protection measure in the circumstances; 5. On 13 January 2016, a FaCS contact record noted that it had been reported to FaCS that a "POI", which was a reference to the person of interest being the paternal step-grandfather "F", "had stated he slept in the same bed as [the child "B"]": Annexure "H" to the affidavit of the FaCS caseworker "H", affirmed 29 May 2018, pp 23 and 25. I saw no evidence from the material tendered by FaCS to indicate that information had been made the subject of a follow-up factual investigation; 6. On 13 January 2016, a FaCS Helpline caseworker received information on the DoCS Helpline that the paternal step-grandfather "F" "does sleep in the same bed as [the child "B"] …" and that the paternal step-grandfather had "admitted this on about 30 December 2015" and had been told to stop because the sister "E" "was on the warpath about what happened to her when she was younger [in events that involved the paternal step-grandfather] and she does not find this appropriate … everyone in the family … knew this was happening to her, even the mother": Annexure "H" to the affidavit of the FaCS caseworker "H" affirmed on 29 May 2018, p 25; 7. On 21 January 2016, a FaCS caseworker spoke to the sister "E" and contrary to the effect of the note made on 13 January 2016, it was noted that the sister "E" had said she "held no concerns over [the child "B"] visiting her stepfather for respite whether supervised or unsupervised". The sister "E" apparently said that she had "heard the allegations" and "was confused as to why someone would say this": Annexure "I" to the affidavit of the FaCS caseworker "H" affirmed on 29 May 2018, p 28. That statement by the sister "E" was at odds with her affidavit sworn 3 weeks later: Affidavit of the sister "E", Exhibit "A", Vol 1, Tab 17; 8. On 29 January 2016, some named FaCS caseworkers and a named FaCS case manager (T329.21) exchanged internal emails, one of which was copied to another caseworker at the Foundations Care agency. In that email it was noted that "a decision has been made to close the report regarding the paternal step-grandfather of [the child "B"] under current competing priorities": Annexures "J" and "K" to the affidavit of the FaCS caseworker "H" affirmed on 29 May 2018, pp 30 – 31. This meant that the matter of concern had been left insufficiently and inadequately investigated; Documented FaCS activity between 10 March 2016 and 2 May 2016 1. On 10 March 2016, a FaCS file note records that whilst the mother "C" had made a s 90 application which was pending in the Children's Court. The note went on to record that FaCS had been made aware of a copy of the letter dated 20 March 2012 from Dr Wright. In the file record of that review, FaCS noted the content of Dr Wright's letter regarding the alleged sexual abuse of the sister "E" by her stepfather "F" and in that record, it was also noted that the sister "E" had (earlier) filed an affidavit denying that abuse. That affidavit comprises Exhibit "A", Vol 1, Tab 17, in these proceedings. All of this was noted in the context that, after a caseworker had spoken with the paternal aunt "E" on 13 January 2016, where in that conversation she had denied the allegations, the "report [was] not substantiated and closed". Pending assessment of those matters, the Foundations Care agency were not required to make any changes to contact arrangements, which, I infer, included contact with the paternal grandparents: Annexure "L" to the affidavit of the FaCS caseworker "H" affirmed on 29 May 2018, pp 34 – 35; 2. On 21 March 2016, two FaCS personnel, a caseworker and a caseworker manager, undertook what was referred to as a Stage 1 Secondary Assessment of the historical sexual abuse disclosures by the sister "E" as were set out in Dr Wright's letter. It was noted the sister "E" had denied the truth of the history recorded by Dr Wright but that she also acknowledged giving that history to him. It was noted that her stated explanation for having done so was that she had lied in order to obtain prescription drugs. Although the sister "E" had agreed to provide a consent form to allow FaCS to access her medical records held by Dr Wright and Dr Braganza, that consent was never forthcoming: Annexure "N" to the affidavit of the FaCS caseworker "H" affirmed on 29 May 2018, pp 39 – 40; 3. On 21 April 2016, a FaCS file review record made by a caseworker following a follow-up discussion with the sister "E", noted that on the advice of her psychiatrist, Dr Braganza, "E" would not be signing the consent form to allow FaCS to have access to her medical files. The sister "E" was told by FaCS that access was required to corroborate her version of the allegations of historical child sexual abuse and drug addiction issues: Annexure "R" to the affidavit of the FaCS caseworker "H" affirmed on 29 May 2018, p 46; 4. On 28 April 2016, a FaCS file review record noted that the sister "E" had still not signed the consent forms for access to her medical records and had still not made any contact with FaCS about that issue. The effect of this note recorded the assumption that the sister "E" would not be giving FaCS the consent that had been requested of her: Annexure "S" to the affidavit of the FaCS caseworker "H" affirmed on 29 May 2018, p 47. The fact that no consent had been forthcoming from the sister "E" did not mean that the ability of FaCS to investigate that matter was at an end; 5. Nevertheless, on 2 May 2016, FaCS made a file note which recorded that it had been determined that the file on the report was "closed at triage", and therefore, the Foundations Care agency was advised that the report was "not substantiated": Annexure "T" to the affidavit of the FaCS caseworker "H" affirmed on 29 May 2018, pp 48 – 49; 1. The effect of closing the investigation file relating to historical child sexual abuse allegations, concerning the sister "E" and the paternal step-grandfather "F" at the triage stage, has been that those allegations have never been fully or adequately investigated. 2. Subsequently, on 6 October 2016, a further event of relevance occurred in relation to the behaviour of the child "B". On that date, in a Staff File Shift Report, a Foundations Care contact worker recorded the following observation of what occurred at a contact visit when the child "B" came to a table to eat: "It was then that [the child "B"] bent over on all fours and made explicit gestures of pointing to his bottom with his right hand. He kept repeating this gesture for some moments and I heard him say Gina Gina thats where Gina goes several times over." [Affidavit of FaCS caseworker "H", affirmed 29 May 2018, Annexure "V", pp 57 – 58] 1. The reference in that note to "Gina" was a pet toy giraffe belonging to the child "B". The FaCS records make other references to a "Gina the Giraffe" incident, and it was also raised in the evidence: T149.45 – T150.1. In view of the fact that those matters have not been comprehensively investigated I do not need to analyse that matter in further detail in these reasons, other than to note, with concern, that they remain under-investigated from the perspective of child protection issues. 2. Subsequently, following the release of Mr Hawton's clinical report dated 8 July 2016, FaCS removed the child "B" from his family placement, and the child "B" was then placed into the care of the paternal grandparents until the s 90 application was determined: Exhibit "A", Vol 1, Tab 23, par 3. The above matters remain incompletely investigated. Approach taken by FaCS to disclosure of Dr Wright's letter of 20 March 2012 1. The FaCS caseworker "H" gave oral evidence on the seventh day of the hearing: T330 – T387. During her oral evidence, a series of collated file notes comprising Exhibit "H" were tendered, along with an email from her dated 21 March 2016, addressed to the solicitor who was engaged to represent FaCS in the appealed hearing before the Children's Court. 2. The affidavit of the FaCS caseworker "H" affirmed on 29 May 2018 has brought to light a number of matters of concern, as follows. 3. On 21 January 2016, it was noted that a FaCS caseworker spoke to the paternal aunt "E", and made a file note of that conversation in the following terms, relating to the paternal step-grandfather "F": "["E"] advised me that she held no concerns for ["B"] visiting her stepfather for respite whether supervised or unsupervised. She stated that she had 'heard the allegations' and when asked to tell me what she had heard, she said that these were allegations that her stepfather – POI in this report – had sexually abused her as a child. She denied the allegations and stated that she was confused as to why someone would say this". [Annexure "H" to affidavit of FaCS caseworker "H" affirmed 29 May 2018, p 27] 1. The answer attributed to "E" in the file note cited above was apparently inconsistent with the content of Dr Wright's letter of 20 March 2012 as extracted at paragraph [15] above. In circumstances where it was contemplated that the paternal step-grandfather "F" was likely to have access to the child "B", that apparent inconsistency demanded adequate investigation and reconciliation by seeking commentary from all of the relevant persons. 2. As a result of that minuted discussion with the sister "E", at a time when the police investigation arising out of the events of 1 January 2016, including the allegations of sexual abuse of "E" remained incomplete, FaCS nevertheless apparently accepted the cited account from "E" and determined that there was no concern over any risk of significant harm for the child "B" as the alleged victim of the abuse had denied the occurrence. 3. This was in circumstances where no statement had ever been obtained from the paternal step-grandfather "F" concerning those matters. Remarkably, the FaCS file was then closed. The circumstances were unusual, to say the least. 4. Subsequently, on 10 March 2016, the FaCS caseworker "H" became aware of the highly relevant letter dated 20 March 2012 from Dr Wright to Dr Braganza, as cited at paragraph [15] above. She was made aware of that letter because the solicitor representing FaCS in the Children's Court proceedings forwarded a copy of it to her after he had received a copy of it from the solicitor who was acting for the mother "C": Affidavit of FaCS caseworker "H", 29 May 2018, par 18. 5. After FaCS became aware of Dr Wright's letter dated 20 March 2012, and after having received the affidavit from the paternal aunt "E" which denied the allegations of sexual abuse, the FaCS caseworker "H" made contact with the paternal aunt "E" on 21 March 2016, in order to try and obtain a comment from her on the content of the 20 March 2012 letter from Dr Wright to Dr Braganza. 6. In that discussion with FaCS, the paternal aunt "E" admitted, contrary to the evidence of the father "D", and contrary to her affidavit sworn on 12 February 2016, that she had in fact made the cited disclosure of sexual abuse to Dr Wright, but she now claimed in that conversation that she had lied in that disclosure, and she said that it had been made at the suggestion of the mother "C", in order to obtain the prescription drug Dexamphetamine. 7. In that 21 March 2016, telephone call between FaCS and the sister "E", the paternal aunt "E" was also noted as having agreed to give to FaCS her consent for access to be obtained to her psychiatric records as held by Dr Wright and Dr Braganza: Affidavit of FaCS caseworker "H", 29 May 2018, Annexure N, p 2. 8. A subsequent FaCS file review on 28 April 2016 noted that the paternal aunt "E" had never attended in order to sign consent documents to allow FaCS to have access to her medical records: Affidavit of FaCS caseworker "H", affirmed 29 May 2018, Annexure S, p 2. 9. It appears from the FaCS file notes bundled into Exhibit "H", at pp 35 and 43, that on a date that is difficult to discern from the document, a FaCS caseworker made the notation: "the allegations against p/step-grandfather was not substantiated by the CSC following a thorough assessment". It is not clear from that file note as to what was said to have been the constituent elements of that "thorough assessment". It is clear that the file note did not fit that description. 10. The compelling view that emerges is that the described circumstances did not comprise a sufficient investigation of those matters from the perspective of child protection. Closure of report file by FaCS 1. On 2 May 2016, astonishingly in my view, in a series of internal emails, a number of internal FaCS communications took place, as follows: 1. A FaCS casework manager noted in an email to the FaCS caseworker "H" that FaCS had been unable to obtain the consent of the paternal aunt "E" for access to her medical records. At that point, it was plain that the investigation of the sexual abuse disclosures remained incomplete, Nevertheless, it was decided the matter was "closed at triage"; 2. The FaCS caseworker "H" then asked that manager whether the NGO Foundations Care could be advised that the "report was not substantiated" and that manager replied : "yes please"; 3. Foundations Care was then advised that the FaCS assessment was "completed … regarding allegations that [the] paternal step grandfather had sexually abused the paternal aunt (when she was younger). The outcome was that the report was not substantiated.": Affidavit of FaCS caseworker "H", affirmed 29 May 2018, Annexure "T", pp 48 – 49. 1. The matters outlined at paragraph [302] above were truly remarkable given that it was known that the child "B" had frequent contact with the paternal step-grandfather "F". 2. In my opinion the series of events described in the preceding paragraph reveals a concerningly superficial, insufficient, and therefore incomplete investigation into serious allegations of sexual abuse that had a potential to impact upon the safety, welfare and well-being of the child "B". 3. The compelling conclusion is that the historical sexual abuse disclosures contained in Dr Wright's letter dated 20 March 2012 remained substantially under-investigated in that neither the alleged victim nor the alleged perpetrator were adequately followed up as part of what an ordinarily expected investigation would include where the child "B" was known to be readily accessible to the paternal step-grandfather "F", about whom concerning historical disclosures had been made. This was in the context that the paternal step-grandfather "F" was able to have contact with the child "B". 4. No evidence appeared within the tendered FaCS materials to reveal what, if any, steps had been taken to find the sister "E" and to further seek to obtain her consent or to take other available investigatory steps to access the records that FaCS were interested in reviewing. 5. In those circumstances, where FaCS had the substance of the allegations as contained in a contemporaneous clinical letter of communication between psychiatrists, and where FaCS was in possession of the affidavit from the sister "E" filed in the Children's Court proceedings in which she denied the allegations, it is remarkable that no further investigatory steps were taken in this case to seek to reconcile those concerning matters. One such step would have been to find the sister "E" and to obtain a comprehensive statement from her which definitively dealt with these matters. She was a compellable witness if a party needed to have her oral evidence placed before the Court. So too were each of the paternal grandparents. 6. Wide investigatory powers and avenues were available to FaCS at the time. There is no controversy in that regard. FaCS had recourse to avenues of investigation which, if required, gave it the means by which to obtain access to medical records, either with or without consent. FaCS had the power to investigate and to seek factual statements from relevant persons on matters that touched upon child protection issues. 7. On the evidence presented in this case, it seems that no such statements had been obtained from either the sister "E", the paternal step-grandfather "F", or the paternal grandmother "G". In addition to seeking more details from the clinical records relating to the sister "E", all of those matters were relevant avenues of enquiry in the circumstances of this case. Instead, it seems, the "competing priorities" that prevailed as at 29 January 2016, continued to have effect. It is not possible or necessary in the context of this case to determine whether this was an issue of resources. However, in my opinion, the fact remains, that a serious question of child protection appears to have remained insufficiently investigated. 8. It is perplexing and difficult to understand why the FaCS file on that question was "closed at triage" where the state of investigation of an important issue of child protection that had the potential to impact upon child safety, was left incomplete. Management of inter-parental communication difficulties 1. Some other matters of curiosity emerged from the oral evidence of the FaCS caseworker "H" concerning explanations relating to the bundle of FaCS file notes that were produced in her evidence: Exhibit "H", and the Annexures to her affidavit affirmed on 29 May 2018. 2. Foremost amongst those matters was the apparently comparative historical difference between how the father "D" was dealt with by FaCS and its delegated agency, Foundations Care, and how the mother "C" was dealt with, as explained below. 3. As part of the mother's rehabilitation and related psychological treatment, on 1 July 2016, the mother's treating psychologist, Ms Hagedorn, made a reasonable request, directly to FaCS, for assistance in arranging for the involvement of the child as part of a therapeutic process which involved a parenting programme through Griffith University on the Gold Coast, Queensland, where Ms Hagedorn considered this to be therapeutically necessary. 4. In the circumstances of this case, in one way or another, the mother "C" was always going to be involved in the life of the child "B". This was either as a parent with parental responsibility, which was FaCS's position up until Mr Hawton's opinions recommended otherwise, or as a parent with access through contact visits. On either basis, irrespective of the outcome of the proceedings, both the child "B" and the mother "C" stood to benefit from the programme recommended by Ms Hagedorn. 5. Although FaCS was asked to assist in that regard, without expressing any opposition to that proposal, FaCS left the decision on that request entirely to its delegated agency, Foundations Care: Exhibit "H", pp 10 – 12. In oral evidence, the FaCS caseworker "H" explained that the reasons for the decision concerning that request being left to Foundations Care are not apparent, but she said that this was not on account of the likely cost. The Foundations Care agency did not approve the request: T338.4 – T338.33. There is no sound explanation within the evidence that would appear to justify that decision. 6. At that time, and by those events, the mother "C" became significantly disadvantaged. That disadvantage also impacted on the welfare and the well-being of the child "B". Also at around that time, the FaCS file notes show that as at 26 July 2016, which is after Mr Hawton's report had been obtained by FaCS, the FaCS caseworker "H" had already determined that on the s 90 application brought by the mother, FaCS would be informing the Children's Court Magistrate that it was the intention of FaCS to restore the child "B" to the father "D" "as per Clinician's recommendations": Exhibit "H", p 15. 7. In those events, if that recommendation gained acceptance, then in the interests of the child "B", it was even more important to upskill the ability of the mother "C" to the benefit of the child "B" in that more limited setting. 8. It is also concerning that the therapy provided to the child "B" by the child and family trauma specialist, Ms Olivia Starr, since 25 July 2017, and to which the child "B" had positively responded (Exhibit "A", Vol 2, Tab 48, p 7, par 56) was to the knowledge of FaCS, discontinued for cost reasons: Affidavit of FaCS caseworker "H" affirmed on 29 May 2018, par 37. It is profoundly concerning that this occurred when FaCS had a special fund it could draw upon for that purpose and approval could be readily obtained for this avenue of assistance: T355.2. (4) Other witnesses not required to be called to give evidence 1. Some of the witnesses who had been called to give evidence in the Children's Court proceedings were not called to give evidence in the appeal because their evidence in that court related to parenting issues that did not need to be revisited in the appeal beyond that already recorded evidence which formed part of Exhibit "A", as follows: 1. The daughter of the mother "C": Exhibit "A", Vol 1, Tab 35, pp 2 – 26; 2. The adult son of the mother "C": Exhibit "A", Vol 1, Tab 36, pp 42 – 50; 3. The wife of the adult son of the mother "C": Exhibit "A", Vol 1, Tab 36, pp 33 – 41. 1. Certain other witnesses, namely the real estate letting agent for the caravan park where the sentinel event of 1 January 2106 occurred, the father's sister "E", and the paternal grandparents "F" and "G" were not called to give oral evidence. Comment therefore arises from the absence of those witnesses, as follows. (5) Absent evidence – caravan park letting agent 1. As part of the attack on the credit of the mother "C" in these proceedings, FaCS tendered Exhibit "K", which comprised a copy of a FaCS file note prepared by the caseworker "H" on 18 January 2016. That file note related to a conversation that took place between the FaCS caseworker "H" and a female real estate letting agent for the caravan park. Her first name was given, but it was incompletely redacted from Exhibit "K". She had indicated that she did not want to give evidence: T344.40 – T344.42. 2. The document was tendered in an apparent endeavour to support an assertion that the sentinel events of 1 January 2016 as they involved the mother "C", occurred in a manner different to how the mother "C" had described them in her evidence. 3. However, the most cursory examination of Exhibit "K" reveals that it should not be assigned any probative value for the purpose of resolving any matter of gravity raised as a contested issue of fact in these proceedings, as explained below. 4. The document refers to an event that occurred "about 10 days before 18 January 2016", that is, not on 1 January 2016. On that issue alone, on its face, without other explanatory evidence, the inherent margin for error in that description was too great for the document to be assigned any probative weight. 5. Furthermore, the document refers to events allegedly reported by others but not witnessed by the manager, who was therefore not the letting agent, to the effect that the mother "C" was apparently heard "screaming about 2am in the morning" and that "neighbours never heard a thing from [the father "D"] only [the mother "C"]". The document refers to "complaints about [the mother "C"] since they moved in". Those matters, which in reality amount to unsubstantiated gossip, are too vague, prejudicial and unreliable to form the basis of making adverse credit findings. 6. In my view, Exhibit "K" is an unreliable basis upon which to seek to impugn the credit or the reliability of the mother "C". The hearsay content, and the lack of opportunity to fairly test its content, makes it a plainly prejudicial document. Without the opportunity to test the content of that document, it is an unfair basis upon which to seek to undermine the evidence of the mother "C". Notably, she was not reliably identified in the document as the person who was heard to have been screaming at the caravan park as alleged. The doubtful date for the described event also undermines its relevance. I therefore do not give its content any probative weight in the evaluation that is required in this case. (6) Absent evidence – the sister "E" 1. In this case, where the father "D", and FaCS, each seek to rely upon the proposition that allegations of a disclosure by the sister "E" of sexual abuse of her by her stepfather "F" were false, and are denied by her, the unexplained absence of any testable supporting evidence from the sister "E" is in my view, most telling against the case of the father "D", insofar as he seeks to maintain that those allegations are false. 2. That circumstance compellingly leads me to the conclusion that the position relied upon by the father "D", and by FaCS, namely that allegedly, there were no such disclosures by "E" of sexual abuse, cannot be accepted as being factually correct in light of the content of Dr Wright's letter dated 20 March 2012, which tends to confirm that such alleged abuse occurred. 3. In arriving at that view, I have not overlooked the circumstance that such denied allegations may have been too embarrassing and too hurtful a topic upon which "E" might want to give evidence, that is, she may not want to be compelled to give evidence on such matters. However, without specific evidence to that effect, no adequate explanation has been given for not calling her as a witness. 4. The content of the contemporaneous document comprising the letter dated 20 March 2012 from Dr Wright (Exhibit "A", Vol 2, Tab 46, Annexure "A"), as cited at paragraph [15] above, in which the allegations by "E" of sexual abuse over time by her stepfather "F" were set out, plainly requires an explanation from the sister "E" who provided that history at a time when there were no litigation dynamics at play if a contrary position is sought to be maintained. That is especially so since at one point she is recorded as having given that history to Dr Wright. 5. In these proceedings, it is not sufficient for the father "D" to simply and dismissively say, as he did, that the sister "E" told lies about those matters, or that she habitually told stories along the lines of the content of that recorded account, which was asserted by him to be untruthful, as a means by which to gain the sympathy of her boyfriends: T259.46; T263.15. The opinion of the father "D" in that regard, without supporting evidence from his sister "E", should carry no probative weight in these proceedings. 6. In arriving at that view, I have not overlooked the fact that the sister "E" has sworn an affidavit on 12 February 2016, in which she has categorically denied the allegations of sexual abuse by her stepfather "F", and that she did so in very specific terms. However, the contrary position as summarised in Dr Wright's letter requires an explanation from her. Given the contemporaneous historical content of Dr Wright's letter dated 20 March 2012 which was provided well before the dynamics of this litigation were at play, any explanation given by her requires that it be tested for its reliability, as explained below. 7. In her affidavit sworn on 12 February 2016, at paragraphs 11 to 16, the sister "E" described the assertion made by the mother "C" to the effect that "E" had said she had been molested as a child by her stepfather "F", as a terrible and disgusting story made up by the mother "C" for her ulterior motives of making out her case for restoration of her child into her care: Exhibit "A", Tab 17. That account by the sister "E" is inconsistent with the FaCS file note in which it was noted that she in fact gave that history to Dr Wright as recorded by him in his letter dated 20 March 2012. 8. The affidavit from the sister "E" was sworn and received into evidence in the Children's Court proceedings in circumstances where the deponent, the sister "E", did not give oral evidence. Similarly, she did not give evidence in the present appeal proceedings. 9. Ordinarily, sworn evidence of that kind, on its face, must be given some weight, but in my view, that cannot be so in this case. This is because not only was the witness unavailable for cross-examination on such an important issue that was central to the outcome of the case, that evidence was in my view resoundingly contradicted, first, by a contemporaneous medical history that preceded the sworn denials of sexual abuse by some 4 years, and secondly, by the file note made by a FaCS caseworker, as previously cited. 10. The sister "E" was the only person who could have given any of those conflicting explanations. For any such explanations to be given weight, for considerations of fairness, there would have to be an opportunity for the affected parties to test and to reconsider those matters by cross-examination. 11. In those circumstances, the contemporaneity of the historical account given by the sister "E" to her consultant psychiatrist, as set out in that psychiatrist's letter dated 20 March 2012, must be given great weight in preference to the subsequent untested denials by the sister "E": Fox v Percy [2003] HCA 22; 214 CLR 118. 12. Absent the availability of any testable supporting evidence from the sister "E", in considering the factual issues raised in this case, I find that it is insufficient, and simply not credible, for the father "D" to dismissively assert, as he did, that his sister "E" lied to her psychiatrist about her history, whether or not she allegedly did so at the suggestion of the mother "C", for the purpose of obtaining prescriptions for otherwise legally unobtainable drugs. 13. Without such supporting testable evidence from the sister "E" to that effect, I find the assertion by the father "D", as outlined above, fanciful and unbelievable. That purported explanation did not even rate a mention in the affidavit that was relied upon from the sister "E", which I find to be a most telling factor against an acceptance of that explanation. 14. For completeness, I should also add that the denials by the father "D" of sexual abuse disclosures made by his sister "E" against the paternal step-grandfather "F" appear to me to have an unreliable foundation, as is evident from his own affidavit sworn on 26 February 2016: Exhibit "A", Tab 18. 15. At paragraphs 10 and 11 of that affidavit, the father "D" stated, in response to the content of an affidavit by the mother "C" sworn on 7 January 2016 (where she stated in Exhibit "A", Tab 4, par 5) that on 28 December 2015, the sister "E" had disclosed sexual abuse by "F"), that the mother "C" had made this story up, and that no such disclosure had been made. 16. In my view, the explanation as cited above is most problematic as it is internally inconsistent, as is evident from the following extract from that affidavit sworn by the father "D": "11. I refer to paragraph 5. I was not present when ["E"] made the disclosure, because no disclosure was made. ["C"] has made this up." 1. Be that as it may, I consider that the subjective accounts given by the father "D" and the untested account of the sister "E" are outweighed by the probative weight of the contemporaneous clinical account contained in the objective clinical record made by Dr Wright on 20 March 2012: Exhibit "A", Vol 2, Tab 46, Annexure "A". (7) Absent evidence – the paternal step-grandfather "F" 1. No evidence was called from the paternal step-grandfather "F", either in the Children's Court or in the appeal hearing. Whilst there is some evidence suggesting that he was unavailable as he takes the child "B" to school or needs to look after the child "B" (T283.9), that does not seem to be a sound reason for him not to give evidence, either in person, by audio-visual link, or by telephone, each of which is permitted by the commonly employed procedures of courts in this State, where such measures are made available where this may be required for the convenience of the parties and their witnesses. (8) Absent evidence – the paternal grandmother "G" 1. The paternal grandmother "G" provided an affidavit sworn on 27 October 2015: Exhibit "A", Tab 2. That affidavit was relied upon by the mother "C" in the earlier s 90 appeal proceedings. It described the mother "C" as always having been "a good mum" before the removal of the child "B", and that since the removal of the child "B" and the attendance of the mother "C" at residential rehabilitation, the mother "C" has been drug free to her observation. She described the fact that the child "B" loved both parents and had interacted well with both parents, and she supported restoration to both parents. 2. Although the mother "C" stated in her affidavit affirmed on 29 May 2018 (at paragraphs 9 and 10), that her relationship with the paternal grandparents had changed after the sister "E" had made her disclosures, which were then revealed to the paternal grandparents, I infer from the above account that the views of the maternal grandmother about the mother "C" have not materially changed. 3. If the position were otherwise, I consider that any changed views on her part, in which she might have made negative statements about the mother "C", would most likely have been included in a supplementary affidavit from her, as she should be taken to be in the "camp" of the father "D", and such an affidavit is glaringly absent from the evidence in this case. (9) Evidence of Children's Court Clinician, Mr Hawton 1. In preparation for the Children's Court proceedings, pursuant to s 53, s 54, and s 55 of the Care Act, on 21 April 2016, the parents jointly applied for an Assessment Order for a Children's Court Clinician to assess the child "B", and to assess both parents for suitability to assume parental responsibility. The Clinician was also tasked to assist in determining whether restoration of the child "B" to either parent was recommended: Exhibit "E". 2. FaCS assembled and prepared the briefing documents to the Clinician. The Clinician whom FaCS briefed, was Mr Michael Hawton, a psychologist. In his report he concluded that, on balance, the child "B" should be placed into the care of the father "D". In these proceedings, the critical question that emerges from Mr Hawton is whether his opinion was reached on a reliable basis. 3. In the assessment task assigned to Mr Hawton, he was asked to assess the nature and the quality of the relationship that the child had with his parents, the child's emotional and psychological well-being, and whether there were any relevant impacts on his behaviour and development. It appears that Mr Hawton was not asked to assess the child's preference for placement, and he was not asked whether the child had sufficient insight to express a meaningful view on that question. 4. Mr Hawton was also tasked with investigating the understanding of the parents on child protection concerns, parenting capacity, issues impacting on those capacities, parental understanding of the child's development, his physical, psychological and educational needs, and the potential ability of the parents to meet those needs. Any known parental cognitive disability, such as was known to FaCS in the form of Exhibit "P", was a directly relevant consideration to those assessments. 5. If there was a letter of instruction provided to Mr Hawton it was not available for examination in these proceedings. However, the Application for Assessment (Exhibit "E") reveals that he was given a series of 17 affidavits, 16 of which formed part of the evidence in the proceedings, as was also confirmed on the first page of Mr Hawton's report dated 8 July 2016. 6. At the time that Mr Hawton was briefed, FaCS was well aware of the criminal history of both parents. Mr Hawton's recollection was that the only information he could recall of the criminal past of the father "D" was that he had been growing cannabis, and that he had been supplying drugs: T189.30. That was obviously an inadequately incomplete rendition of the more extensive criminal record as set out in Exhibit "D", which was well known to FaCS. 7. At the time Mr Hawton was briefed, FaCS was also well aware of a detailed psychological testing report dated 19 September 2015 which identified some significant cognitive difficulties that affected the cognitive abilities of the father "D". Mr Hawton was not provided with the 19 September 2015 report from the psychologist Dr Purkis (Exhibit "P"), which detailed those difficulties. At paragraphs [77] to [78] above, I have already identified those matters, which were not briefed to Mr Hawton. 8. The details of the criminal record of the father "D" and the details of his known cognitive difficulties were matters of some significance to the consideration of the tasks required of Mr Hawton as detailed at paragraph [351] above. 9. In evaluating Mr Hawton's assessment report, apart from matters of alleged volatility of the mother "C" and an inferred state of lesser stability of the mother "C" when compared to the father "D", it has ultimately become unnecessary to examine Mr Hawton's evidence in detail from the perspective of the present parenting abilities of the parents. This is because the case was conducted on the basis that both parents are to be considered as "good enough parents": T466.11 and T437.7. That said, the report of Dr Purkis dated 19 September 2015 (Exhibit "P") is a document of great relevance to the required analysis as it impacts on the likely future ability of the father "D" to meet the evolving parenting needs of the child "B" who is now aged only 6 years. 10. In light of the already identified briefing deficiencies underpinning Mr Hawton's assessments, my analysis of his report proceeds upon the basis of an assessment of the adequacy of the methodology he adopted, the nature and the extent of the materials he was given, the reliability of the assumptions upon which his opinion was based, and whether those assumptions are sufficiently like the proven facts so as to render his expert opinions, and his reasons for those opinions and the related conclusions, reliable: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58, at [9]. 11. Mr Hawton gave evidence in the Children's Court proceedings on 27 January 2017: Exhibit "A", Vol 1, Tab 36, pp 2 – 23. He gave evidence in the appeal on the 6th day of the hearing: T182 – T230. Mr Hawton's report dated 8 July 2016 1. Mr Hawton's assessment report was dated 8 July 2016: Exhibit "A", Vol 1, Tab 27. His report was based on various intervening and observational assessments that he had carried out on the four occasions he identified between 6 June 2016 and 7 July 2016. 2. Mr Hawton's initial assessment took place at his rooms on 6 June 2016, with the father "D" and the mother "C", separately. He then conducted a further assessment of the father "D" and the child "B" together, at their home, on 18 June 2016. He did not interview the mother "C" in her home environment. He said that was because he saw no reason to do so: Exhibit "A", Vol 1, Tab 36, p 20.39. Presumably, this was because the child "B" was not living with the mother "C" at that time. He then conducted two telephone interviews with the mother "C" on 4 July 2016 and 7 July 2016. 3. The mother "C" considered that she had been given an unequal, and therefore, a lesser opportunity of being assessed by Mr Hawton, including with regard to the comparative time spent with the child "B". In his oral evidence, Mr Hawton rejected that proposition. On behalf of the mother "C", it was further maintained that the father "D" was unreasonably advantaged by the process of Mr Hawton's assessment because the child "B" resided with him and the assessment was therefore necessarily skewed in favour of the father "D". 4. The perception of the mother "C" in that regard was perhaps understandable because the father had greater and more frequent access to the child "B", including day to day access, compared to her own opportunities for contact. 5. On balancing those factors, I accept that in the circumstances, Mr Hawton did his best to make his assessment fair in the time available, and having regard to the respective locations of the parties. 6. I did not consider that the described process had the effect of causing disadvantage to the mother "C", although it is understandable that she may have felt otherwise because at the time, she had less contact with the child "B" than did the father "D", and this was obviously a disadvantageous factor when viewed from her perspective. That said, it is not of great relevance in an assessment of the paramount issue in this case, as is required by s 9(1) of the Care Act. 7. However, some key matters of concern have arisen from my consideration of Mr Hawton's report, and from his evidence, on the question of the reliability of his evidence and his opinions in this case. 8. These concerns relate to whether he had adequately characterised and sufficiently understood the extent of the criminal history of the father "D"; the relevance of that matter to the issues to be considered pursuant to s 9(1) of the Care Act; the reliability of his opinion as to the likelihood of a risk of harm to the child arising from allegations of sexual abuse allegedly perpetrated by the paternal step-grandfather "F" on his stepdaughter "E", who is the sister of the father "D"; and whether there are acceptable reasons that justify his recommendation for the father "D" and not the mother "C", to be allocated parental responsibility for the child "B". 9. Those matters will be considered in the context of an analysis of Mr Hawton's evidence on those topics and on the ultimate issue calling for decision in that regard. In the paragraphs that follow, I set out my review of Mr Hawton's evidence, his opinions, and the conclusions I have arrived at concerning those matters. Mr Hawton's evidence in the Children's Court 1. Before Mr Hawton gave his evidence in the Children's Court proceedings he had read two unspecified clinical letters from Ms Hagedorn, and he had also read her affidavit: Exhibit "A", Vol 1, Tab 36, p 2.41. 2. In his evidence in the Children's Court, Mr Hawton referred to his opinions in his report to the effect that the mother "C" had "indications" of unresolved post-traumatic stress disorder: Exhibit "A", Vol 1, Tab 36, p 3.15. He said that he declined to "speculate" about Ms Hagedorn's diagnosis on that matter, and as to whether or not the mother had resolved her past trauma: Exhibit "A", Vol 1, Tab 36, p 3.35. However, a fair reading of his report suggests that he did speculate on that very matter, unwarrantedly, in my view. 3. In his evidence in the Children's Court, Mr Hawton declined to engage with Ms Hagedorn's opinions that were in the materials that he had read. In my view, that course has had the effect of undermining the analytical utility of his evidence as given to the Children's Court, where the materials provided by Ms Hagedorn, as the treating psychologist, were highly relevant to the consideration he had been asked to undertake. Instead, with little in the way of supporting evidence, he persevered with his view that the mother "C" still had unresolved trauma such that the child would be better off with his father: Exhibit "A", Vol 1, Tab 36, p 12.46 – 12.49. 4. In the course of that evidence, Mr Hawton kept on returning to the view that the mother "C" had unresolved trauma: Exhibit "A", Vol 1, Tab 36, pp 15.45 – 16.12. He took that view of the situation of the mother "C" without having undertaken a considered engagement and analysis of Ms Hagedorn's contrary clinical views, as the treating psychologist. 5. In my assessment, there were other problematic aspects of Mr Hawton's evidence in the Children's Court proceedings. In cross-examination the transcript shows that when questioned, the effect of some of his responses to questions was that he deflected the focus of some relevant questions: Exhibit "A", Vol 1, Tab 36, p 7.22, p 16.30, p 17.42, p 18.35 – 18.47, p 19.21 – 19.41, p 21.9. 6. In my view, of particular significance to Mr Hawton's consideration of child safety and protection issues, was the criminal history of the father "D", which included firearm offences, assault, drugs possession and manufacture, and resisting a police officer in the execution of a police duty. A careful reading of Mr Hawton's report reveals that the criminal history of the father "D" is given a mention in only scant and passing terms. An unresolved question arises as to what he was told about that history as it does not directly appear in the briefing materials he was given. 7. I do not know whether those details appeared as part of the material in the FaCS affidavit of the FaCS caseworker "H" which was dated 1 October 2015. Without evidence, I am not prepared to infer that those details were included in that affidavit. The FaCS caseworker "H" was uncertain as to whether those details were briefed to Mr Hawton and this was not clarified: T372.30 – T372.33. 8. Mr Hawton's summary of the history of the father "D" is set out in paragraphs 20 to 34 of his report between pages 4 and 6: Exhibit "A", Vol 1, Tab 27. Nowhere in that summary is there any reference to him having asked the father "D" about his criminal antecedents, or about his drug use, which was quite unlike the approach he took to questioning the mother "C" on that matter, which appears at paragraph 50 on page 9 of his same report. 9. At paragraph 72 of his report, Mr Hawton drew upon the history he obtained from the father "D". He stated, of the father "D" that : "He would like to think that his past behaviour is a good indicator of how he would be better able to parent [the child "B"] than [the mother "C"]. This raises the question of whether the factual details of the past history of the father "D", as portrayed by him, was adequately exposed to Mr Hawton. 10. In his account of that history the father "D" gave to Mr Hawton, it appears that, as recorded by Mr Hawton, and as cited in paragraph [376] above, that it was a selective version. So too was the history the father "D" provided as summarised at paragraphs 20 to 34 of Mr Hawton's report, where there was no mention of a significant past criminal history. 11. The only direct reference that Mr Hawton made to the criminal history of the father "D" was at paragraph 85 on page 15 of his report, where he stated: "85. While ["D"] is clearly no angel, both in respect of his criminal background and his cultivation of drugs, he has taken concrete steps – seen by others – to better himself so that he can become a better parent. He comes across as a naïve person who has allowed himself to become involved in a relationship with a more evenly emotional but somewhat damaged partner". [Emphasis added] 1. In the Children's Court, when Mr Hawton was asked whether he had seen the criminal record of the father "D", he answered in equivocal terms if not evasive terms, as follows: "A. I've seen that he had misbehaved a lot": Exhibit "A", Vol 1, Tab 36, p 16.30. That answer did not indicate whether he had seen the details of the criminal record of the father "D". 2. In my view, that cited answer was not only uninformative, but it also lacked meaningful content in the context of the consideration of an expert witness who was expected to be, and was purporting to give, evidence intended to assist a court to deal with an important issue relating to the placement of a child. His answer simply deflected the import of a most relevant question. 3. My view in that regard is reinforced by the following interchange that occurred between the solicitor for the father "D" and Mr Hawton in the Children's court proceedings, as follows: "BOYS Q. So he has quite a long criminal history, is that correct? A. Yeah well, I mean that's a value judgment but yes he has been in trouble with the law on a number of occasions." [Emphasis added] [Exhibit "A", Vol 1, Tab 36, p 17.5] 1. The answer cited in the above extract of evidence, using the diluted expression "in trouble with the law on a number of occasions", appears to me to be a significant understatement on an important matter, where it appears that view was either based on ignorance of the full particulars of the criminal record of the father "D", or it simply deflected the force of the question. 2. I cannot determine which of those alternatives is apt. Either way, the answer raises significant doubts about the completeness of Mr Hawton's analysis on the suitability of the father "D" to be allocated parental responsibility for the child "B". 3. In his evidence in the Children's Court proceedings, Mr Hawton said he did not consider that the father "D" was a risk to the child "B" from the perspective of his criminal history: Exhibit "A", Vol 1, Tab 36, p 17.7. 4. It is difficult to understand how he could reasonably state that opinion when he did not know the full details of that criminal history. It appears clear from the evidence tendered in the appeal hearing that he was inadequately informed of the details of that history. A history of drug cultivation, possession, manufacture, firearm offences, and a history of imprisonment, are obvious matters requiring further exploration in the context of an evaluation of child safety issues, including on the question of whether the affected parent is likely in the future to be able to continue to remain free to care for the child, a matter that directly touches upon the likely stability of the child's environment. 5. On that latter point, Mr Hawton did not venture into speculation as to whether the criminal past of the father "D" was likely to recur in the future, a matter that could have an impact on his future ability and availability to care for the child "B". 6. However, and in contrast, with very little supporting evidence, Mr Hawton was prepared to speculate that the mother may not have resolved her own childhood traumas and previous drug dependency, speculating about "whether it is too little, too late, if that makes sense": Exhibit "A", Vol 1, Tab 36, p 16.10. 7. On the issue of the criminal past of the father "D", the solicitor for the mother "C" sought to explore whether Mr Hawton had asked the father "D" whether there had been any significant issues in his life. Initially, that line of questioning was interrupted, and then cut short: Exhibit "A", Vol 1, Tab 36, pp17.50 – 18.10. 8. When the solicitor for the mother "C" sought to again engage Mr Hawton with that question about whether there had been any significant issues in the life of the father "D", Mr Hawton's answers had the effect of deflecting from the force of the questioning, as is evident in the following interchange: "Q. I put it to you you asked ["D"] was there any significant issues in his life and he said no. What do you say to that? A. That is not the kind of question I would because it's too general and a bit nebulous. So I don't know that I did but unless you can show me the paragraph. Q. Well I'll have to? A. I would have - I would possibly have recorded from what he told me. Q. That's what you've done. You have asked him a question, were there any you know significant issues in your childhood or in your past? A. I don't believe I did but look it's quite possible that he said I had, in his own view of things compared to Ms ["C"] I believe he did say, if this is what you're asking. He did say I've had a more stable background or words to that effect than Ms ["C"]. I believe he did say that. Q. And you accept that? A. Well-- Q. You accept that after looking at his criminal record? A. Well, Mr Boys, the way these reports are done, there are reports by the mother, reports and I quote them, all right. I asked questions that go to the issue, is this parent capable in themselves psychologically, emotionally, socially, are they functioning okay. So there is two main issues and a Children's Court Clinic report. Is this parent psychologically, emotionally, socially okay. That's one issue and then the second issue which is as important is can this person look after a child in their care. Do they have an awareness an empathy, a certain sense of ability to look after a child. That is the way these reports are done. They are an assessment of, is this person psychologically, mentally, socially able to look after themselves. Are they ordered. Do they have a sense of flexibility in their thinking? Can they look after themselves. That is one issue. Then the other issue is can they look after the child. So if you're asking me, did I get information from him about his current functioning, yes. I did. As I did of Ms ["C"]." [Exhibit "A", Vol 1, Tab 36, pp 18.14 – 18.47] 1. It appears from his answers as cited above that Mr Hawton did not proceed to question the father "D" on the details of his criminal history, or if he did, it appears that he did not record any answers given by the father "D" in any discussion that might have touched upon that matter. 2. I suspect that if the father "D" had given Mr Hawton full factual answers to any such questions, and had provided a less self-serving, selective or an unvarnished version of his past life, including his criminal history and his relationship with the mother "C", than as was summarised by Mr Hawton, a report with a different content and emphasis would most likely have been obtained from Mr Hawton. 3. In the Children's Court proceedings Mr Hawton was asked by the solicitor for the mother "C" to indicate what the child "B" had said to him about the prospect of him being with his mother. The answer given by Mr Hawton had the effect of deflecting the question in a way that did not at all address what if anything the child "B" had said about the mother. The question was aimed at assisting the court. The answer given was unhelpful as it avoided the substance of the question: Exhibit "A", Vol 1, Tab 36, p 19.21 – 19.41. Mr Hawton's evidence in the appeal 1. In Mr Hawton's evidence in the appeal, he acknowledged that one of the factors that he considered would have a relevant bearing upon an assessment of suitability for parenting is the need to consider the matter of a past criminal history: T190.35. 2. In that regard, I asked him to consider whether he had perhaps mischaracterised the seriousness of the father's criminal history by his diluted comments as cited in paragraphs [378], [379] and [381] above. He responded by conceding as much: T189.5 – T189.34. 3. In my view, that circumstance must fundamentally detract from the reliability of his earlier assessment and his expressed conclusions on a material matter, namely, the risks to the child "B", if he were to be placed in the care of the father "D" who had a relevant criminal history, including having served time in gaol. 4. In other significant evidence that Mr Hawton gave in the appeal, he confirmed that for the formation of his opinion on the matter of alleged sexual abuse of the sister "E" of the father "D" by their stepfather, the paternal step-grandfather "F", he had discounted that allegation, and he had simply relied upon the denial by the father "D" as to whether such events had occurred: T183.50. He also relied on the denial by the sister "E", as stated in her affidavit at Exhibit "A", Vol 1, Tab 17. 5. Without intending any criticism of Mr Hawton concerning his methodology on that matter, as will be made plain, that analysis was based on the sparseness and the superficiality of the materials with which he had been briefed by FaCS. 6. On that subject, when Mr Hawton was asked to address what in my view is the crucially relevant and corroborative content of Dr Wright's letter dated 20 March 2012, in which the sister "E" was recorded as having disclosed an affirmative history of sexual abuse by her stepfather "F", as having in fact taken place, his answer initially avoided the question by proceeding to a deflected discussion: T184.25 – T185.17. 7. However, when Mr Hawton was further pressed on that matter, he acknowledged that a history of child sexual abuse of the kind identified within the letter from Dr Wright, would be a relevant matter to consider in his assessment on the question of a potential for a risk of harm to arise for the child "B" from the step-grandfather "F", who had ready access to that child: T185.24. 8. Although Mr Hawton's evidence was that, in his assessment, he had discounted, or had placed little weight, on the allegations that were denied by the sister "E" in her affidavit (T185.25 – T185.33), when he was taken to the content of Dr Wright's letter, he later fairly acknowledged that if he had received a letter with the content of Dr Wright's letter, he would have seen it as being significant, and agreed that it was a matter worthy of consideration: T186.29. He also said that if he had been provided with Dr Wright's letter he would have questioned the father "D" about its contents: T200.3. 9. Unfortunately, Mr Hawton was not given the otherwise available opportunity to do so before he formed his opinions as set out in his report dated 8 July 2016. 10. In my view, the consequence of those circumstances and concessions is that Mr Hawton's consideration, and his resultant views, must be seen to have been based on a materially incomplete consideration of importantly relevant factual circumstances. 11. In my opinion, Mr Hawton's cited acknowledgements provide reinforcement for the view that his report in this case is materially unreliable. 12. Unfortunately, Mr Hawton was not given the opportunity to consider Dr Wright's letter as none of the parties had requested him to consider the obvious matters of concern that arose from that letter. In my view that circumstance also undermines the reliability of his assessment in this case. 13. In my view, that deficiency in the briefing process is a matter that renders Mr Hawton's report, his opinions, and his evidence, unreliable in these proceedings as his assessment has been revealed to be materially flawed. The problem could have been readily remedially addressed before the hearing of the appeal if any of the parties had seen fit to do so. There was no sound reason for a party not seeking to obtain a supplementary report from Mr Hawton on that critical matter in these circumstances. A direction could have been sought to that effect if there was no consensus between the parties. 14. Consequently, as best I can on the evidence before me, I must undertake my own evaluation, given the problematic reliability of Mr Hawton's evidence as explained above. 15. The critical matters identified above are not the only matters of concern that undermines the reliability of Mr Hawton's assessment, and his evidence. 16. In that regard, an additional question arises as to the significance of the objectively identified cognitive difficulties that affect the father "D". That too was a matter well known to FaCS, but not briefed to Mr Hawton. 17. Instead of FaCS briefing Mr Hawton with a copy of Dr Purkis' assessment report comprising Exhibit "P", he was only provided with her abbreviated and much less informative version, Exhibit "F", which led him to conclude that he should accept the undefined and unqualified representation made to him by the father "D", that he had been given the "all clear" for caring for children. That was a misleading circumstance on such an important matter. 18. Mr Hawton acknowledged that the potential deleterious effects of an acquired brain injury was a relevant matter to be considered in the assessment of suitability for parenting because of the potential for a consequential spectrum of functional difficulty to arise: T191.12 – T191.29. Mr Hawton did not undertake a cognitive assessment of the father "D". 19. Instead, he said he did not see anything in his psychological make up that made him think that he was unwell or mentally unfit: T190.14 – T190.19. That opinion was based on a most minimalist form of disclosure of the results of a psychologist's evaluation of the father "D". The account provided by the father "D" to the effect that he had been given the "all clear" paid no regard to his objectively assessed cognitive difficulties, which in my view, must be seen to be a very significant matter, and which must also be seen to materially qualify the "all clear" statement. 20. A problematic matter of opinion that arose in Mr Hawton's evidence concerned his views on whether the mother "C" had recovered from her childhood trauma of sexual abuse by her brother and the lack of support from her mother on that matter. When Mr Hawton was questioned about his stated impression that the mother "C" had not yet resolved her childhood traumas, initially, his answers had the effect of diverting from the force of the question: T193.45 – T193.50. He appeared to me to be reluctant to acknowledge that post-traumatic stress disorder was amenable to treatment: T194.22 – T194.40. 21. Mr Hawton was asked to explain the manner in which he understood the balancing exercise that he had outlined at paragraph 81 of his report. In that exercise, he seemed to have adopted the simplistic focus that, on the one hand, the father "D" had fulfilled some or all of the undertakings asked of him by FaCS, and on the other hand, it struck him that the mother "C" had not yet addressed her past painful memories of childhood trauma, and that the father "D" had not experienced the background trauma in the same way that the mother "C" had encountered in respect of her described childhood trauma, and that the mother "C" had not completed her drug rehabilitation programme: T195.8 – T196.1. 22. It appears that in undertaking that exercise, Mr Hawton did not consider the reasons for the mother "C" not completing the full extent of that programme, namely a shortfall of 3 weeks, as explained at paragraph 14 of her affidavit affirmed on 29 May 2018, because she needed to help her daughter who had a difficult pregnancy and she needed the mother "C" to look after her two children. In any event, I consider that identified shortfall has been adequately addressed by the further therapeutic attendances by the mother "C" on Ms Hagedorn. So much is clear from Ms Hagedorn's evidence. 23. In my view, the balancing exercise that Mr Hawton undertook in his report, and which was adopted by the Children's Court Magistrate, represented an unduly superficial and incomplete view which was insufficiently informed by other material facts that came to light in the appeal, as identified in the preceding paragraphs: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58, at [9]. 24. Mr Hawton also engaged in what I considered to have been unfounded speculation about the motives of the mother "C". In his report, he described the mother "C" as seeing shadows where others see none. He explained that allegations that the mother "C" had made against the father "D" concerning the 1 January 2016 events at the caravan park were either refuted or unproven: T207.3 – T207.4. At best, that analysis by Mr Hawton was a nebulous view of the facts from the perspective of a risk of harm assessment relating to a child. Having reviewed all the evidence on those matters, I have come to very different conclusions to Mr Hawton on those matters. 25. Mr Hawton said he had not been asked to review the evidence that Ms Hagedorn had given in the Children's Court: T197.50. On that account alone, irrespective of the other matters I have reviewed in the preceding paragraphs, I consider that, Mr Hawton's evidence should be discounted. This is because, for whatever reason, he declined to adequately engage with Ms Hagedorn's material and opinions, which revealed a different view to the ones which he had expressed, and where those matters require a reasoned reconciliation. 26. In summary, for the above reasons, I was left with overwhelmingly significant reservations about the reliability of the evidence of Mr Hawton. 27. It became plain that he had not been sufficiently briefed by FaCS on important child protection issues, namely, the father's criminal history, and allegations of previous sexual abuse of a minor by the paternal step-grandfather "F", who had access to the child "B". 28. Furthermore, as hardly needs stating, it is somewhat disturbing that in a case where parenting suitability was being investigated, and where FaCS knew from the results of an earlier cognitive assessment of the father "D" that FaCS had commissioned in 2015, where the father "D" was assessed as having some significant and objectively identified cognitive difficulties, including with expression and comprehension issues, that the expert report dealing with and defining those matters, which was in the possession of FaCS, was not briefed to the Clinician for his consideration. 29. If Mr Hawton had been given that report it would have assisted him in the assessment he was required to make, especially where, as is the case here, he did not undertake his own cognitive assessment of the father "D". 30. The above analysis compels me to the conclusion that in light of the identified deficiencies, the report of Mr Hawton is unreliable as a source of assistance for guiding the consideration required in this case. (10) Evidence – treating clinical psychologist, Ms Lauren Hagedorn 1. The mother "C" relied upon the evidence of Ms Lauren Hagedorn, a clinical psychologist whom she had consulted for therapy, first in 2014, and then in 2016. Ms Hagedorn provided an affidavit sworn on 28 November 2016 in the Children's Court proceedings: Exhibit "A", Vol 1, Tab 15. She also gave oral evidence in those proceedings: Exhibit "A", Vol 1, Tab 36, pp 24 – 37. She was not required to give oral evidence in these appeal proceedings. Background treatment by Ms Hagedorn 1. In October 2013, after the removal of the child "B" from her care, the mother "C" commenced a programme of psychological rehabilitation therapy for substance dependence. She had a total of 7 sessions of therapy between October 2013 and February 2014 before she entered into drug rehabilitation treatment at the Fairhaven Rehabilitation Centre. The last 4 of those 7 sessions were with Ms Hagedorn, who had facilitated her entry into that centre. Therapy sessions with Ms Hagedorn 1. Following the described sentinel incident on 1 January 2016, which saw the breakdown of the relationship between the mother "C" and the father "D", and at the referral of a general practitioner, the mother "C" was again referred to Ms Hagedorn for further supportive therapy. That treatment was in conjunction with some assistance that had been provided to the mother "C" by other mental health services. 2. Ms Hagedorn's affidavit tendered in the proceedings, at paragraphs 9 to 18, chronicled the determined efforts of the mother "C" to maintain a positive mental outlook, to free herself from the grips of addiction, to engage with appropriate therapies, and to seek a state of personal fitness for the restoration of the child "B" into her care. Ms Hagedorn also recounted the efforts of the mother "C" to not only address and accept responsibility for her past history of substance abuse, but also in relation to her past issues that had arisen relating to her experience of domestic violence, childhood trauma, regulation of emotion, self-care and parenting. 3. In those events, after treatment, Ms Hagedorn concluded that in her opinion, the mother "C" no longer exhibited signs of a woman experiencing post-traumatic stress disorder from child sexual abuse. In her reasons for that opinion, she noted the ability of the mother "C" to openly discuss that trauma, and had the ability to identify the impacts of sexual and domestic violence trauma on her former choices and substance abuse. In particular, Ms Hagedorn recorded her informed clinical observation that the mother "C" no longer experienced dissociative or flashback episodes, and, reasonably, only experienced trauma-related hypervigilance when reasonably concerned over the safety of her family: Exhibit "A", Vol 1, Tab 15, par 19 – par 22. 4. Significantly, Ms Hagedorn expressed a series of opinions to the effect that: the mother "C" had appropriately dealt with her childhood sexual trauma history through therapy; she had undergone and participated in rehabilitation and domestic violence programmes; she no longer required ongoing intervention, having effectively processed that trauma, and was thus able to move forward. 5. In contrast to Mr Hawton's speculative query as to whether the mother "C" had adequately processed her childhood trauma history, Ms Hagedorn stated that there was no clinical justification for suggesting the previous trauma history that had been appropriately dealt with, prohibited the mother "C" from becoming an effective parent: Exhibit "A", Vol 1, Tab 15, par 23 – par 25. 6. Ms Hagedorn expressed the further opinion that the mother "C" did not present a risk of relapse. Her opinion was supported by cogent reasons, which satisfactorily explained why she held those cited views. Ms Hagedorn noted that the mother "C" had received cognitive behavioural therapy aimed at dealing with her symptoms of anxiety, depression, guilt, frustration and sadness. She also suggested that those symptoms were not unexpected in circumstances where the child of the mother "C" had been removed from her care, with only restricted brief periodic access permitted: Exhibit "A", Vol 1, Tab 15, par 32 – par 35. 7. Ms Hagedorn also expressed the opinion that the mother "C" had appropriately participated in goal setting related to financial management, the pursuit of independent living conditions, she had progressed well with therapy and demonstrated better management of duties, she was a reliable client who actively engaged in the therapy process, and she continued to build personal resiliency as a parent: Exhibit "A", Vol 1, Tab 15, par 43 – par 46. 8. Also of significance to the issues to be decided in this case, is Ms Hagedorn's view that the mother "C" had taken the opportunity, through therapy, to learn about children with autism, and how to help and manage children with that condition: Exhibit "A", Vol 1, Tab 15, par 39 – par 40. Ms Hagedorn's commentary on the report of Mr Hawton dated 8 July 2016 1. At paragraphs 49 to 56 of her affidavit, Ms Hagedorn noted Mr Hawton's speculative commentary. She plainly disagreed with the implication raised by Mr Hawton that the mother "C" had not completed her work of dealing with the impact of her earlier childhood trauma on her parenting. Her comment in that regard came from the very significant vantage point she had of having treated the mother "C" for those problems in a series of clinical consultations over the course of time. She was plainly in a better position than Mr Hawton to reliably form a concluded view on such matters. 2. Ms Hagedorn noted, correctly in my view, the speculative focus of Mr Hawton's commentary in that regard, by his use of the word "may", namely that the mother "C" "may" do some further work on those issues. In my view, Mr Hawton's speculative comment has, without adequate foundation in the evidence, unhelpfully served to discount in his assessment, the more accurate appraisal that was undertaken and explained by Ms Hagedorn. 3. At paragraphs 54 to 56 of her affidavit, Ms Hagedorn identified Mr Hawton's unsuccessful attempt, after normal business hours on 6 July 2016, to contact her for a discussion, and her unsuccessful attempt to reach him the next day, only to be told, on 7 July 2016, that he had already finished his report, which was in fact dated 8 July 2016. That was an unfortunate last minute series of miscommunications prior to Mr Hawton issuing his finalised report. 4. Picking up on that miscommunication process, it is most regrettable that none of the parties in this case chose the readily available course of seeking to arrange or facilitate a professional meeting between Mr Hawton and Ms Hagedorn to seek to clarify matters of assumption and disagreement concerning the clinical details of the matters that Mr Hawton had focussed upon, and to seek to define and refine the areas of professional agreement or disagreement, aimed at identifying the matters of fact and opinion that were truly in dispute, and which required adjudication. 5. Having read the entire materials that have been tendered in this case, in my view, if that latter course had been taken, much cost, effort, burden on resources and time, not to mention frustration, anxiety and the uncertainties for the parties, as is undoubtedly associated with contested litigation, could have been materially reduced, if not avoided. Ms Hagedorn's oral evidence 1. Ms Hagedorn gave evidence in the Children's Court proceedings on 27 January 2017: Exhibit "A", Vol 1, Tab 15, pp 24 – 37. By that time, she had engaged with the mother "C" in 29 therapy sessions, which in her view, indicated that the mother "C" had continued to maintain her sobriety. Consequently, Ms Hagedorn did not consider her to be at risk of relapse: Exhibit "A", Vol 1, Tab 15, p 27.35. 2. Ms Hagedorn considered that following the therapy that the mother "C" had undertaken, she had achieved a state of acknowledgment of her past issues regarding her trauma history, and was appropriately dealing with that history: pp 31.1 – 31.7. I accept that opinion as satisfactorily reasoned and reliable. 3. Ms Hagedorn did not carry out a full parental capacity assessment: p 38.13. She could not have done so because she had not seen the child "B" for assessment: Exhibit "A", Vol 1, Tab 15, p 25.30. The child "B" was not available to her for that purpose. 4. Ms Hagedorn confirmed that as at the last treatment session she had with the mother "C", she no longer met the symptom level of post-traumatic stress disorder and did not need ongoing engagement with intervention for that condition: Exhibit "A", Vol 1, Tab 15, p 36.20 – 36.32. In my opinion, that view should carry much greater persuasive weight on that question compared to Mr Hawton's speculation based expression of doubt on that matter. Conclusion concerning Ms Hagedorn's evidence 1. At the time the Children's Court proceedings were heard, Ms Hagedorn's cited opinions were based on many hours of therapeutic engagement with the mother "C". Her opinion stated that the mother "C" had parental capacity to appropriately care for the child "B", and demonstrated an insight and willingness to comply with any reasonable requirements that might be required of her by a court in that regard, according to the needs of the child: Exhibit "A", Vol 1, Tab 15, par 57 – par 59. 2. As no opposing party was in a position to contradict the opinions of Ms Hagedorn, it is understandable that both FaCS and the ILR have conceded that the mother "C" is a "good enough parent". 3. I consider that no rational basis emerges from within the evidence or from the submissions to cast material doubt upon the validity of those clinically based opinions, and on the underlying factual circumstances of the mother "C" as cited by Ms Hagedorn. I consider the evidence of Ms Hagedorn provides a reliable basis to assist in guiding the decisions that must now be made in this case. 4. I now turn to my consideration of the issues calling for decision, as identified at paragraph [142] above. Issue 1 - Jurisdictional question – s 90 of the Care Act 1. On behalf of the appellant mother "C", her solicitor questioned whether the decision of the Children's Court Magistrate, by which parental responsibility was allocated to the father "D", was outwith the jurisdictional parameters for the hearing in that Court. 2. That argument proceeded upon the basis that it was the mother "C", and not the father "D", who had initiated the appealed s 90 application in the Children's Court, and therefore, according to that argument, the allocation of parental responsibility to the father "D" by the Children's Court, was not open to be made in those proceedings. In my opinion, for the reasons that follow, that argument must be rejected. 3. First, once the s 90 rescission application brought by the mother "C" in respect of previous orders arose for determination, the Children's Court was at that time empowered to make whatever revised or varied parental allocation orders that it thought to be appropriate according to the paramount principle of what it considered to be the child's need for safety, welfare and well-being. The mother's s 90 application had the clear effect of opening up that issue for decision by the Children's Court Magistrate. 4. Secondly, following the grant of leave to the mother "C" on 13 November 2015, on 28 January 2016, a second s 90 application had in fact been filed, this time on behalf of the father "D": Exhibit "A", Vol 1, Tab 16. Whilst it is true that the father "D" had not beforehand obtained leave to file that application, the issues of rescission or variation of prior orders had already been opened up for consideration because of the grant of leave on 13 November 2015, which allowed the mother "C" to make that application. 5. Accordingly, I conclude that the Children's Court Magistrate did not make any error in undertaking his consideration of a s 90 application for variation in favour of the father "D", contrary to what was contended on behalf of the appellant mother "C". However, the appropriateness of that allocation of parental responsibility to the father "D" is a separate issue to be determined in these proceedings. Issue 2 – Aboriginal and kinship issues 1. Section 12 and s 13 of the Care Act mandatorily requires that in care proceedings involving a child with Aboriginal heritage, in the hierarchy of considerations, Aboriginal and related kinship considerations must be applied in determining the appropriate placement of such a child in need of care and protection. 2. On behalf of the appellant mother "C", it was argued that the Children's Court Magistrate erred in making his parental allocation decision in relation the child "B" because in his reasons for decision, there was no mention made of the Aboriginality of the child and his mother, nor was there any consideration of the cited statutory requirements that should follow such a status. 3. In my opinion, that argument is flawed, and it must be rejected. This is because the cited s 12 and s 13 Aboriginality considerations only arise if it is beforehand determined that it would be inappropriate for the child to be placed with a parent. Once that circumstance is recognised, this puts to an end the Aboriginality and kinship argument raised on behalf of the appellant. 4. It is only in the circumstances of a proposed non-parental placement that the cited s 12 and s 13 hierarchy of considerations arise. In this case, once the Children's Court Magistrate determined that the father "D" should be allocated parental responsibility for the child, the cited s 12 and s 13 hierarchical considerations did not arise for any further consideration, and they did not have any further application. 5. Accordingly, I conclude that the Children's Court Magistrate did not make an error as to the Aboriginality issues, as was contended. He did not overlook questions of Aboriginality or kinship. They simply did not arise for consideration. Issue 3 – Allegations of historical child sexual abuse by step-grandfather "F" 1. In his reasons for decision, the Children's Court Magistrate did not accept the historical allegations that the paternal step-grandfather "F" had sexually abused his stepdaughter "E", the child's aunt and sister of the father "D": Exhibit "A", Tab 40, p 8.3 – p 8.21. In these proceedings, the father "D" sought to uphold that conclusion. 2. In my opinion, that conclusion was most problematic because the of rejected tender of the letter dated 20 March 2012 from Dr Wright, as cited at paragraph [15] above. The exclusion of that letter from the evidence necessarily limited the parameters and factual content of the evidence to be considered on that question. Dr Wright's letter was indisputably relevant to the issue to be considered. In my opinion, the rejected tender of that letter resulted in a miscarriage of the proceedings before the Children's Court Magistrate. 3. The content of Dr Wright's letter disclosed a history of serious alleged child sexual abuse having occurred in the family of the father "D", with the alleged perpetrator being the paternal step-grandfather "F". That history was directly relevant to the required consideration of the safety, welfare and well-being of the child "B" where it was likely that child would, from time to time, likely be in the company of the paternal step-grandfather "F". Those matters had a direct bearing on the central issue in the proceedings: s 9(1) of the Care Act. 4. The factual content of disclosures contained in Dr Wright's letter, and the consequential questions that would ordinarily have been expected to flow from that material, was wrongly excluded from the consideration that was required in the Children's Court proceedings. In this de novo hearing, the required consideration now follows. 5. An allegation made against an adult concerning historical sexual abuse of a minor, here the stepdaughter "E", is an allegation of the utmost gravity. It involves an allegation that serious criminal offences have been committed by the paternal step-grandfather "F". 6. When serious allegations of that kind arise for consideration in care proceedings, where the paramount focus is the safety, welfare and well-being of the child, a finding that such matters were likely to have occurred, is not a matter that requires proof beyond reasonable doubt, as would be the case in a criminal trial where the issue to be determined is that of guilt or innocence concerning the conduct under consideration. 7. Instead, in these proceedings, proof that such matters are most likely to have occurred must be comfortably established on the balance of probabilities, on weighing the evidence for that proposition, and any evidence to the contrary, commensurately with the gravity of the matter alleged: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. 8. In taking that approach to the present case, I consider that there is credible and satisfactory evidence from the mother "C" that, in the lead up to the described sentinel events, on 1 January 2016, the sister "E" had in fact told the mother "C" that she had been sexually abused by her stepfather, the paternal step-grandfather "F". 9. In that regard, I do not accept the denials proffered by the father "D" or the sister "E" to the effect that disclosure did not occur as claimed by the mother "C". 10. In that consideration I have also undertaken a two stage evaluation of the evidence to consider the likely truth of the content of the disclosure by the sister "E", of historical sexual abuse by her stepfather, the paternal step-grandfather "F". The first stage of that evaluation involves an examination of the disputed evidence without reference to any of the content of Dr Wright's 20 March 2012 letter, and the second stage comprises an examination which includes reference to the content of that letter. 11. On the first examination, without the availability of the 20 March 2012 letter from Dr Wright, in sequence, the state of the evidence that touched upon the subject of whether or not there had been a disclosure by the sister "E" of alleged child sexual abuse by the paternal step-grandfather "F" comprised: 1. The cited evidence from the mother "C" concerning the conversation she had with the sister "E" at the caravan park, in which the sister "E" allegedly disclosed a history of child sexual abuse of her by the paternal step-grandfather "F"; 2. The initial denials by the father "D", in the form of an affidavit and oral evidence, to the effect that there was no such conversation or disclosure, and the subsequent vacillations within the evidence of the father "D" on that subject that served to cast doubt on the truthfulness of his denials; 3. The denial by the sister "E", in affidavit form filed in the Children's Court, where she denied that she had made any such disclosures to the mother "C", where that denial was untestable because the sister "E" was not called to give oral evidence; 4. The further untestable denial by the sister "E", in which she stated that such allegations were disgusting, and where she indignantly questioned who could make such allegations, thereby making insinuations that the mother "C" was lying about the conversation in which she claimed that the sister "E" made such a disclosure; 5. The further untestable evidence of a material change in the evidence given by the father "D", to the effect that such allegations were not new to him, but which he said were nevertheless untrue, and where he claimed that such statements by the sister "E" were motivated by her apparent need to gain the sympathy of boyfriends; 6. The further untestable evidence of the father "D" to the effect that when the sister "E" had been confronted with the untruthfulness of the allegations of historical child sexual abuse by the paternal step-grandfather "F", she had acknowledged that the allegations were untrue, and had apologised for making such statements; 7. The absence of testable evidence in these proceedings from either the sister "E", the paternal grandmother "G", or the paternal step-grandfather "F" on disputed matters of fact; 8. Various accounts of denials by the sister "E", the paternal grandmother "G" and the paternal step-grandfather "F", as noted in hearsay accounts, including in the COPS narrative, affidavits, and FaCS file notes, but not in the form of testable statements, whether signed or otherwise adopted as true 1. In that first stage examination, I am very mindful of the fact that the paternal step-grandfather "F" was not a party to the proceedings in the Children's Court, he is not a party to the proceedings in this Court, and he was not called to give evidence in either proceedings. In those circumstances, especially where he is not represented in these proceedings, in undertaking a balance of probabilities factual assessment, I must proceed very carefully in considering the truth or otherwise of the allegations that have been made concerning the paternal step-grandfather "F". 2. At this first stage of the evaluation, a view must be formed as to whether or not the mother "C" gave credible and reliable evidence as to the fact and content of the alleged conversation that she claimed to have had with the sister "E". In that regard, the mother's evidence was open to be tested and challenged, as occurred in the Children's Court, and in these proceedings. 3. The mother's evidence was not inherently improbable, the denials were not persuasive, and I therefore consider as acceptable her evidence that the cited conversation, with the cited content, occurred as she recounted. 4. In examining the question of whether it was likely that such child sexual abuse occurred as claimed by the sister "E", allowance must be made for the fact that in determining questions of fact, reasonable minds may differ on the conclusions to be reached on the consideration of the evidence on such issues. 5. The findings of the Children's Court Magistrate must be viewed in that light. In those terms, on the necessarily limited evidence that he had before him on account of his exclusionary ruling, it must be concluded that the Children's Court Magistrate was entitled to form the view that he would not accept the allegations that the paternal step-grandfather "F" sexually abused his stepdaughter "E". 6. However, in the second stage of the evaluation, when the fact and the content of the 20 March 2012 letter from Dr Wright are given due consideration, it has the effect of providing independent contemporaneous corroboration that the sister "E" had in the past given an account of alleged childhood sexual abuse perpetrated upon her by her stepfather "F". That evidence was directly relevant and confirmatory to an assessment of the credibility and the reliability of the evidence of the mother "C" on the question of whether it was likely that the sister "E" had in fact recounted the same disclosures she had made to Dr Wright in 2012, as the mother "C" claimed were made to her in 2015 by the sister "E". 7. When the additional information within Dr Wright's letter is considered, in that context, it not only provides compellingly significant corroboration for the evidence of the mother "C" on that critical matter, but it also considerably undermines the scope for traducing the evidence of the mother "C", as occurred in the Children's Court proceedings, where, adopting Mr Hawton's expression of doubt, it was found the mother "C" saw shadows where there were none. I consider that expression of doubt should be rejected as being contrary to the evidence. 8. Accordingly, I find that conversation in question in fact took place between the mother "C" and the sister "E" on 28 December 2015 and it was in the terms as described by the mother "C". 9. In the second stage of the consideration on this topic, it is plain that the available evidence disclosed the existence of an unresolved risk of significant harm to the child "B" because of the past events as disclosed above, involving the paternal step-grandfather "F", and because of the scope for him to have contact with the child "B". 10. The materialisation of Dr Wright's letter dated 20 March 2012 is a matter that demanded further consideration according to the primary focus that the alleged historical child sexual abuse behaviour of the paternal step-grandfather "F" has an impact upon the paramount question of the safety, welfare and well-being of the child "B". 11. In that inquiry, I consider that in these proceedings, where consideration is to be given to the questions of conduct relating to the step-grandfather "F" towards his stepdaughter "E", the interests of the paternal step-grandfather "F" are fairly protected by the effect of the suppression order that I have made at the outset of the proceedings in the terms set out at paragraph [3] above. Furthermore, in these proceedings, the paternal step-grandfather "F" is not in a position of jeopardy concerning an adverse finding made against him concerning the commission of any criminal offences. 12. Instead, the essential question here, is whether the evidence, that is relevant to the question posed by s 9(1) of the Care Act, identifies an unacceptable risk of harm that is likely to influence the manner in which these proceedings should be determined. That question requires that a probability based view be formed as to whether the alleged conduct in fact occurred, as disclosed. 13. In my assessment, on the available evidence that I have reviewed and cited in my reasons, having due regard to the gravity of those allegations, the answer to that inquiry must unquestionably be expressed in the affirmative. 14. The evidence comprising the 20 March 2012 letter from Dr Wright to Dr Braganza relating to the sister "E" should have been admitted into evidence in the Children's Court proceedings on the issue of whether there was an unacceptable risk of harm to the child "B", and also on questions concerning the credibility and reliability of testimony of key participants generally. The letter was objected to on a spurious basis. 15. Furthermore, and beforehand, the letter in question should also have been provided to Mr Hawton as it was a relevant matter for him to consider when he was interviewing the mother "C" and the father "D" in carrying out the assessments that were required of him. Mr Hawton confirmed that view in his oral evidence in these proceedings, where he acknowledged that if he had Dr Wright's letter, he would have asked questions about its contents: T200.3. It is astonishing that he was not provided with that letter. 16. In my view, if Mr Hawton had been provided with a copy of that letter which contained the obviously corroborative content, it is most unlikely that he would have made the critical comment at paragraph 79 of his report in which he said of the mother "C" that "she sees shadows where there are none", a comment which not only influenced his assessment of the mother "C", but which also adversely influenced the Children's Court Magistrate when he cited that opinion in making his findings, where he referred to, and adopted Mr Hawton's formulation that the allegations by the mother "C" were "seemingly false": Exhibit "A", Vol 1, Tab 40, p 4.47. 17. Accordingly, I find that when the cited evidence was erroneously excluded from the proceedings in the Children's Court, those proceedings miscarried. 18. I also find that on a consideration of that evidence in this fresh hearing, a material aspect of incredibility and unreliability emerges concerning the evidence of the father "D". This was exposed concerning his denials of alleged sexual misconduct on the part of the step-grandfather "F" and his denials about whether a conversation on that subject took place with the sister "E" on 28 December 2015. The effect of that evaluation leads me to conclude that, on critical matters of fact in dispute in these proceedings, the evidence of such denials by the father "D" should not be accepted because his evidence in that regard is unreliable. 19. When the competing factual scenarios are considered in light of the forgoing analysis, recognising the allegations involve gravity comprising serious sexual misconduct on the part of the paternal step-grandfather "F", an analysis of that matter on the balance of probabilities leads me to the conclusion that on the state of the evidence and the investigations carried out thus far, those allegations are most likely to be factually correct: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. 20. That conclusion is not the same as a finding of guilt concerning criminal sexual assault upon a minor. It is a finding made on the balance of probabilities in civil proceedings where an issue has arisen and which needs to be determined, namely whether it was more likely than not that the described conduct did in fact occur. The person whose conduct has been scrutinised in that way is protected by anonymity. 21. When allegations of historical sexual abuse or misconduct arise in child care proceedings, they demand adequate investigation in the appropriate manner. In the present case, for so long as those matters were left insufficiently and incompletely investigated, an unresolved question remained about the possible existence of an unacceptable risk of harm to the child "B". 22. That much is evident from the initial response of FaCS, when the allegations of historical child sexual abuse first emerged. When FaCS was first notified of them, both FaCS and the police initially took them very seriously. This is evidenced by the immediate suspension of any contact between the child "B" and the paternal step-grandfather "F". The resumption of that contact only occurred because the investigation of those matters, such as it was, was left in an insufficient and incomplete state. 23. This occurred in circumstances where the FaCS file on those issues was "closed at triage" and where "competing priorities" meant that a more comprehensive consideration of those matters did not proceed to a satisfactorily reasoned resolution. 24. The matter was instead mis-described as "unsubstantiated". That description was only made possible in the circumstances because the matters raised were under-investigated by FaCS. In fact there was scant evidence of any further effort being made to ascertain whether there was confirmation, refutation or non-substantiation of the concern over historical child sexual abuse of the paternal step-grandfather "F" upon his step stepdaughter "E". 25. Although the alleged victim denied the occurrence of the events, that denial was contradicted by the content of the letter from Dr Wright dated 20 March 2012. The FaCS documents tended to not reveal any sustained further attempts to seek a statement that reconciled the conflicting accounts she had given. Without such a reconciliation, there remained an insufficient and incomplete investigation of a risk of serious harm to the child "B". The closure of the FaCS file in those circumstances was remarkable. It was also remarkable that the suggestion that the paternal step-grandfather "F" had slept in the same bed as the child "B", as was suggested on 13 January 2016 and identified at sub-paragraph (4) of paragraph [284] above, did not seem to have been the subject of an investigation, according to the documents tendered. 26. Those unsatisfactory circumstances have had knock-on effects, which must now be taken into account in making the determinations required in these proceedings, where those conclusions give some guidance to the further disposition of these proceedings. Issue 4 – Reliability of report of Children's Court Clinician, Mr Hawton 1. In this appeal, challenges were made to the reliability of the 8 July 2016 report from the Children's Court Clinician, Mr Hawton, which was extensively cited and relied upon in the reasons given by the Children's Court Magistrate in arriving at his decision. That Clinician's report, and the related evidence, has been called into serious question by the analysis that I have undertaken as set out at paragraphs [348] to [422] above. 2. After a careful comparative review of the evidence and the opinions of Mr Hawton and Ms Hagedorn, for the reasons stated between paragraphs [348] to [422] above, I prefer the opinions of Ms Hagedorn on the issues in dispute as they provide the more reliable guide to making the necessary findings on the matters to be considered in addressing the central issues calling for decision in these proceedings. 3. As already identified in some detail, with reasons, in the paragraphs I have cited, I have concluded that the evidence and the opinions of Mr Hawton on critical matters in dispute in this case, form an unreliable and an unsatisfactory basis for determining any issue in contest that has arisen in these proceedings. Issue 5 – Domestic violence alleged against the father "D" 1. In his reasons for decision, the Children's Court Magistrate did not accept that the father "D" had perpetrated domestic violence on the mother "C": Exhibit "A", Vol 1, Tab 40, pp 8.36 – 9.10. In my opinion, for the reasons that follow my review of the evidence, I have arrived at the opposite conclusion to the findings made by the Children's Court Magistrate on that question. 2. The Children's Court Magistrate based his finding on that question on the view he had formed of the credibility and the reliability of the evidence of the mother "C". Those views became erroneously infected by the assessment that Mr Hawton provided of the mother "C" in his report dated 8 July 2016. My reasons for concluding that the analysis of Mr Hawton is materially flawed and unreliable on those matters, appear at paragraphs [357] to [421] above. 3. The Children's Court Magistrate drew heavily upon the opinions within the report of Mr Hawton: Exhibit "A", Vol 1, Tab 27. In that regard, at Exhibit "A", Vol 1, Tab 40, pp 4.36 – 5.49, the Children's Court Magistrate cited and adopted a series of statements extracted from paragraphs 79, 80, 81, 82, 84 and 86 from Mr Hawton's report that were critical of the factual account given by the mother "C". 4. In contrast, in my own assessment of the evidence. I have accepted the mother "C as a credible witness on the matters of fact in dispute in these proceedings, including on the question of the occurrence of domestic violence committed by the father "D" towards her, both in the sentinel events of 1 January 2016, and historically, as she has convincingly described in her evidence. 5. The first matter of note on the issue of domestic violence concerning the sentinel events of 1 January 2016, is that after the mother "C" had complained to police officers that she had been assaulted by the father "D", the police officers obtained an apprehended violence order for her protection. It is significant that despite a decision by the police not to proceed with an assault charge against the father "D" in respect of the allegations of assault that arose from the sentinel events of 1 January 2016, that apprehended violence order has remained in place. 6. The second matter to note is that unlike in the reasons of the Children's Court Magistrate on this issue (at Exhibit "A", Vol 1, tab 40, p 37), I draw no adverse inferences against the proposition that there was domestic violence merely because police decided, in view of the conflicting statements, not to proceed with an assault charge against the father "D". 7. I have heard the conflicting evidence of both the mother "C" and the father "D" on this topic. As explained and summarised at paragraphs [214] to [260] above. I have found the father "D" to be an unimpressive and dismissive witness on matters of conflicting evidence. In contrast, I consider that the mother "C" gave truthful and unemotive accounts of those events, which I accept. 8. Accordingly, I accept that on 1 January 2016, in the sentinel events that occurred at the caravan park, the father "D" physically assaulted the mother "C" as she has claimed. 9. The relevance of that issue to these proceedings is that in the course of the interpersonal animosity that has subsequently evolved from those events, in the ancillary orders that I propose to make, I consider that in the interests of the child "B", there should be some supervisory protections put in place. 10. The rationale behind that approach is to seek to avoid interpersonal difficulties that might potentially occur at the handovers at future contact visits pending the achievement of an anticipated state of greater stability and harmony of relations between the parents, after the tensions associated with these proceedings hopefully recede with the passage of time. Issue 6 – Disputed alcohol abuse and volatility of the mother "C" 1. The stated perception of the Children's Court Magistrate was that at the end of 2015, when the sentinel events occurred, the mother "C" was still abusing alcohol. He therefore found that she was a person of greater volatility than the father, as cited at sub-paragraph (3) of paragraph [120] above: Exhibit "A", Vol 1, Tab 40, p 9.12 - p 9.21. 2. In my review of the evidence, and for the reasons that follow, I have arrived at a different view to those findings as stated by the Children's Court Magistrate, and which the mother "C" disputes. Disputed finding of continued alcohol abuse 1. The finding that the mother "C" continued to abuse alcohol at the end of 2015 was based on what I consider to be the unreliable and self-serving evidence of the father "D", and the similarly unreliable evidence of the unnamed caravan park witnesses whom I do not accept on that issue. I do not accept the evidence of the father "D" when he stated that in the sentinel events of 1 January 2016 the mother was in a "drunken rampage". Instead, I prefer and accept the evidence of the mother "C" on that issue, as explained at paragraphs [187] to [188] above. 2. In arriving at the above conclusions, I have not overlooked the evidence of the mother "C" to the effect that on New Year's Eve, she had consumed some alcohol: T94.36. In my view, that was a flimsy and unsound basis upon which to infer, as the Children's Court Magistrate found, that she was continuing to "abuse alcohol". I reject the suggestion that she was doing so at that time. 3. In my view, the evidence for the proposition relied upon was unreliable, unsafe and largely untestable. It was most likely based on incorrect assumptions as to the post-assault and dishevelled presentation of the mother "C", which was misinterpreted by others. 4. The consumption by the mother "C" of a small quantity of alcohol for celebratory drinks on New Year's Eve does not amount to her continuing to abuse alcohol. I accept the evidence of the mother "C" on that topic, as well as the objective evidence comprising the affidavit of Ms Hagedorn affirmed on 28 November 2016, Exhibit "A", Vol 1, Tab 15. In my view, the finding of continued alcohol abuse at the end of 2015 was without acceptable or reliable foundation in the evidence. Disputed finding of volatility 1. The basis for the finding by the Children's Court Magistrate of volatility on the part of the mother "C" was the assessment to that effect, made by Mr Hawton. The mother "C" disputes that finding. 2. On my review of the evidence, it appears the Children's Court Magistrate has simply adopted the formulation expressed in the flawed assessment and report by Mr Hawton on that topic. 3. That assessment appears to have been based upon the self-serving account given to Mr Hawton by the father "D" and also on the content of a contact worker's file note of a contact visit where the mother "C" was quoted as reacting to an abusive incident in a park involving an enraged woman who was spitting abusive remarks at the child "B". I have reviewed and analysed that incident and the mother's protective response, at paragraphs [195] to [201] above. 4. In that incident, there was no direct threat made to any person. The incident brought up and relied upon by the father "D", and as argued in these proceedings was nebulous as an indication of volatility on the part of the mother "C". At best, as was indicated to counsel in the course of submissions, the mother's non-physical and verbally expletive reaction to a direct threat to her child, muttered some distance away from the risk of flare-up into physical confrontation, was simply letting off some metaphorical steam in a situation that had become charged, and where she was being instinctively protective of her child. The issue has been artificially elevated well beyond its true evaluative importance. 5. In my assessment, that incident does not provide a reasonable basis for a finding of volatility on the part of the mother, relatively or otherwise. 6. On a comparative consideration of alleged volatility, the only volatility that appeared to me to arise in the proceedings was, as observed at paragraph [246] above, when the father "D" was being cross-examined. At that time, in apparent frustration at being questioned, the father "D" proceeded to emphatically and repeatedly thump the benchtop of the witness box area when attempting to respond to a matter of contention put to him in cross-examination. 7. It is plain from the citation by the Children's Court Magistrate of selected parts of paragraph 79 of Mr Hawton's report (at Exhibit "A", Vol 1, Tab 40, p 4.38), where he made conclusions tacitly accepting the version of the father "D" that the mother "C" is "temperamentally explosive", and that she was the "more fiery" parent (at Exhibit "A", Vol 1, Tab 40, p 5.6), he based his conclusions on such matters he was not able to objectively verify from the evidence before him. Those assumptions appear to have come from an unreliable self-serving history obtained from the father "D", and I do not accept those assumptions. 8. I consider therefore, that the previous findings as to the assumed volatility, manipulativeness, unpredictability, comparative emotional immaturity, and less stability of the mother "C", are based on a flawed and incomplete process of evaluation. Support for that conclusion is the absence from Mr Hawton's report of any discussion indicating that he had put those matters to the mother "C" in order to provide her with a fair opportunity for comment on those matters. 9. Accordingly, I consider Mr Hawton's report should not be relied upon for the purpose of making adverse judgments about the mother "C" concerning alleged continued alcohol abuse and volatility. I consider those claims are not reliably made out on the evidence. In contrast, Ms Hagedorn's evaluation and report gives no such indication of the problematic behaviours described by Mr Hawton. I prefer and accept Ms Hagedorn's assessment of the mother "C" in that regard. Issue 7 – Disputed finding on better standard of care 1. The Children's Court Magistrate concluded that the father "D" would be in a position to provide a better standard of care than that which would be provided by the mother "C": Exhibit "A", Vol 1, Tab 40, pp 9.24 – 9.30. 2. In my opinion that view was arrived at on the basis of a superficial analysis of the evidence without a consideration of the otherwise available results of specialist psychological evaluation of the father's cognitive difficulties: Exhibit "P". 3. Neither the Children's Court Magistrate nor Mr Hawton had the psychological testing reports of the father "D" (Exhibit "P") before them. This was because neither the legal representative of the father "D", nor FaCS, had made that material available for consideration. It was only tendered in these proceedings when the fact of its existence was exposed: T207.45 – T208.24; T431.17. Beforehand, only a very brief account of the psychological testing of the father "D", was placed before the Children's Court: Exhibit "F". That brief account omitted any mention of the cognitive difficulties that affected the father "D". 4. Exhibit "F", which was dated 29 September 2015 and authored by Dr Helena Purkis, a clinical psychologist at Griffith University, was addressed to whom it may concern, in the following terms, and omitted any of the cognitive difficulties of the father "D" as was stated in Exhibit "P": "… This letter is for the purposes of providing information regarding a psychological assessment conducted with ["D"] (DOB: XX/X/XX). ["D"] attended three sessions at Griffith Health Clinics on 24/7/15, 21/8/15 and 9/9/15 during which a comprehensive psychological assessment was conducted. The purpose of the assessment was to access ["D"]'s intellectual and executive functioning. There was no evidence of significant impairment in intellectual or executive functioning in the current assessment. On the basis of the current assessment there was no evidence to suggest an impairment that would impede ["D"]'s ability to care for young children. Please do not hesitate to contact me at Griffith Health Clinics on 18000 188 295 if you have any concerns or questions." 1. It is not clear as to whether a copy of Exhibit "F" had been provided to Mr Hawton for his clinical assessment. It may possibly have been annexed to the affidavit of the FaCS caseworker "H" as affirmed on 1 October 2015, which was provided to Mr Hawton. That affidavit was not read or tendered in these proceedings so I cannot form a concluded view of that matter. 2. On its face, the letter from Dr Purkis comprising Exhibit "F", which as I have already observed, made no mention of the identified cognitive difficulties that were found on testing of the father "D", raised no concerns over any impairment of the ability of the father "F" to care for young children, as was stated in those brief terms. 3. However, when the full report of Dr Purkis, comprising Exhibit "P" is examined, a very different picture emerges, once those cognitive difficulties affecting the father "D", as identified in Exhibit "P", are considered in context. 4. Exhibit "P", which was dated 19 September 2015 was commissioned by FaCS in NSW from a psychologist located in Queensland "for a cognitive assessment to provide information as to whether a previous brain trauma has implications for the ability of the father "F" to parent a young child". The letter of instruction or the actual commissioning terms for the report was absent. 5. Exhibit "P" was a report which set out a discussion of cognitive test results relating to the father "D". The reference to "the low average to average cognitive ability" referred to in the context of "Difficulties" as set out on page 5 of the report, were demonstrably absent from inclusion in the shorter form of letter comprising Exhibit "F" issued by the same author, and prepared 10 days later, without further testing. 6. I draw the inference from the provenance of Exhibit "F", that it was either FaCS or the father "D" who had requested the shorter form of report to present to Court to assist in the s 90 application that was determined by me on 13 November 2015. 7. On the above analysis, I am comfortably satisfied that FaCS had the 19 September 2015 Exhibit "P" report in its possession when it provided other relevant information to the Children's Court Clinician, Mr Hawton. It remains unexplained as to why the report comprising full psychological test results, Exhibit "P", was not briefed to Mr Hawton, as it provided a much more informative picture of the intellectual abilities and disabilities of the father "D" than that which appeared in Exhibit "F". Those matters were very relevant to the assessments that Mr Hawton was required to undertake. 8. Putting aside the question of whether or not the omission to supply a copy of the longer document, Exhibit "P", to Mr Hawton in favour of including only the shorter document, Exhibit "F", if it was in fact included, was intended to mislead, objectively, in that context, it nevertheless appears to have that effect. 9. The content of the more expansive report comprising Exhibit "P" was plainly relevant to Mr Hawton's assessment task, in which he concluded, at paragraph 86 of his report, with the opinion that the father "D" is of a more stable disposition, and was likely to provide the child 'B" with more predictable and secure circumstances. 10. The conclusion of Exhibit "P" states: "On the basis of the current assessment there was no evidence to suggest an impairment that would impede ["D"]'s ability to care for young children." 1. In my view, Dr Purkis' more expansive 19 September 2015 report, comprising Exhibit "P" should have been placed before the Children's Court by FaCS as its content was a most relevant consideration to the matter to be decided. In my view, a court examining that document would at once recognise the sparseness of the reasoning for the conclusion cited at paragraph [534] above, where the context was that of care in the sense of parental responsibility for a child, a responsibility that has many facets. 2. The cited statement by Dr Purkis that there was no impediment in the ability to care for young children, was not correlated, by reasons, to the nature of the contemplated care. The reference to care was not identified to include sole parental responsibility, or child minding in the sense of baby sitting or after school care, or holiday care, or any variations along those lines. In my view, the limited terms of the opinion, as expressed, render the document to be a meagre if not unreliable source of support, for a conclusion that there was no cognitive impediment to the fathering skills of the father "D". 3. In my opinion, it is difficult to see how someone in the position of the father "D", who has been found to have a low average to average cognitive ability, and with identified difficulties with general knowledge, speed of information processing, difficulties with verbal knowledge and fluency, as well as difficulties with reasoning and comprehension could be considered to be the most suitable choice for sole parental responsibility in comparison to another parent who does not have those intellectual impairments. 4. In my view, if the Children's Court Magistrate had been given the report comprising Exhibit "P" when considering that issue, Exhibit "P" would have been seen as representing a most significant item of evidence that, more likely than not, would have been highly influential in a comparative analysis of the respective positions of the parents, especially where they had both fulfilled the "minimum outcomes" as was required by FaCS, and where the mother "C" was not afflicted with the cognitive problems that were objectively identified in the father "D" on psychological testing. 5. A burning question therefore arises as to why FaCS did not see fit to place Dr Purkis' full report comprising Exhibit "P", before the Children's Court Clinician and also before the Children's Court for consideration. That report was highly relevant to the exercise. I do not need to resolve that question in this consideration. 6. Restricting myself to the task that I am required to address, noting that the matters of alcohol abuse and volatility that had been presumed to have affected the mother "C" do not arise for the reasons already outlined, it is difficult to envisage how a parent afflicted with cognitive burdens of the kind objectively revealed in the father "D", when compared to an otherwise suitable person not afflicted by such intellectual impairments, would be a preferable person to be allocated parental responsibility for a 6 year old child until his 18th birthday. 7. In the projected timespan of the next 12 years until the child "B" reaches the age of his majority, a significant part of parental responsibility would reasonably involve assisting and supporting the child's educational understanding, his progress through life's milestones, as well as dealing with an understanding of the child's emergent and changing needs over the course of those years. In this case some of those matters are likely to be complex. 8. The strengths of the father "D" with regard to physical activities, such as swimming and running, as identified and emphasised by him, would be just some of the many facets of parental responsibility that would need to be considered in that projected time frame. 9. In considering those matters, it is difficult to see how the required process of preference could be properly weighed toward the father "D", who has the significantly disadvantageous and identified cognitive problems, as opposed to the mother "C", who shows no signs of those problems, and who on the contrary, appears articulate, insightful, caring, appropriately informed on childcare issues, and who seems able to express herself without difficulty, including on matters where there might be a need to advocate for the child. 10. In my assessment, when the identified cognitive difficulties afflicting the father "D" are given proper consideration, in particular with regard to his expressive difficulties, from an educational perspective alone, it is difficult to see how the long term care of the child "B" would be better provided by the father "D" in comparison to the mother "C", where she has shown herself to be relevantly articulate, insightful and protective. 11. The activities by the father "D" in taking the child "B" swimming and running, whilst beneficial to his development, are but only small aspects of the broader consideration required in the context of this case when viewed over the longer term of the next 12 years until the majority of the child "B". There are many other facts to consider, notably matters of insight into the needs of the child "B", other things being equal. 12. In my view, the objectively identified and acknowledged communication difficulties that affect the father "D", must be seen as being an influential factor to be taken into account in any dispositive findings concerning the allocation of parental responsibility for the child "B". 13. The mother "C" has impressed me as being a good advocate and protective carer for the child "B". Her present accommodation, whilst not satisfactory for living with a child in her care, is only temporary. She has identified satisfactory temporary options pending the allocation of suitable housing, as has previously occurred in the circumstances of the father "D". 14. The mother "C" has attended appropriate courses to improve her parenting skills to the point where she should be regarded as a good enough parent. A concession to that effect by FaCS would not have been made lightly. Her income is from a pension, which is little different to the economic position of the father "D". She has taken steps in seeking professional assistance to inform herself of the evolving special needs of the child "B". She intends to ensure that the child "B" maintains his current schooling. 15. None of those described circumstances are suggestive of the mother "C" being inadequately equipped for parenting, or of having an inadequate consideration of the needs of the child "B". Issue 8 – Possibility of psychological harm 1. As a specialist jurisdiction, the Children's Court is well placed to understand and to appreciate that it is possible for a risk to arise that might affect the safety, welfare and well-being of a child, whereby a child might suffer psychological harm when existing parental attachments are disturbed or disrupted by transferring an already established regime of care from one parent to another by an order of the Court. 2. The Children's Court Magistrate correctly identified that risk: Exhibit "A", Vol 1, Tab 40, p 9.32 – 9.39. In this case, unlike in other jurisdictions, it is not necessary to have expert evidence to sustain a general conclusion to the effect that such a risk was thought to exist in the generic sense: Strinic v Singh [2009] NSWCA 15. 3. In this case, absent specific evidence of any specific risk due to specifically identified intrinsic factors specific to the child "B", either in the form of an opinion from an expert, or otherwise, the argued issue of risk if there were to be a change of care arrangements in this case seems to me to be restricted to a generic risk, which is not determinative. 4. For a risk to be determinative, where the undisputed evidence is that the child "B" was adequately attached to each parent, something more than speculation of the kind undertaken by Mr Hawton and adopted by the Children's Court Magistrate, was required to tip the balance in favour of the finding that a change in the allocation of parental responsibility was likely to cause the child "B" to incur psychological harm: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352; Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1. 5. In light of the above analysis, I consider that there is no reliable evidence, other than generalised speculation, to support the conclusion that a generic risk of harm should be assigned a determinative importance in this case, as was contended by the father "D", FaCS, and the ILR. 6. In the present case, the factors that militate against the generic risk being given a determinative significance are that the mother "C", who has no cognitive impairments, is loving and protective of the child, she has engaged and continues to be willing to engage in facilitative services for the avoidance of conflict, she intends that the child's schooling not be changed or disrupted, she does not engage in conduct or conversation that is in derogation of the father "D" in her dealings with the child "B", and she recognises the importance to the child "B" of having a positive contact relationship with his father "D". She is also in a better and more committed position than the father "D" to develop and to maintain the connection between the child "B" and his Aboriginal heritage. 7. The mother "C" has reached that point of insight with the assistance of the psychological counselling and therapy that she has received to date. She has decided to step away from the negative aspects of her former relationship with the father "D". This could only be supportive of the child "B". 8. In those circumstances, absent specific evidence of any particularly identifiable vulnerability of the child "B" to psychological harm from a changeover of care, I consider that in this case the submitted risk, which is generic, is non-determinative. In my opinion, to focus a decision on a generic risk represents an invalid and unreliable reason for maintaining the status quo where other more significant determinative considerations reveal that the conclusion should be otherwise than that which was decided on 15 December 2017. 9. In reaching the above conclusion I have taken into account, and have not overlooked, the fact that the child "B" has had only minimal contact with the mother "C" over the last 2 years. In my view that unsatisfactory fait accompli is not a negative indicator that should operate against the mother, especially where there are other concerns to consider with regard to the safety, welfare and well-being of the child whilst in the care of the father "D", in circumstances where the paternal step-grandfather "F" might have some access to the child "B", a matter that is of concern, as was expressed by the mother "C". 10. As a consequence of the foregoing analysis, absent specific expert evidence on the issue, I reject the submission that there is a significant risk that psychological harm would be likely to occur to the child "B" if his care was to be transferred from his father to his mother. Issue 9 – Concern over possible contact difficulties 1. The Children's Court Magistrate found that if the mother "C" was allocated parental responsibility for the child, given the poor relationship between the parents, there would likely be difficulties for the father "D" in maintaining contact with the child "B": Exhibit "A", Vol 1, Tab 40, pp 9.41 – 9.48.The implication of that finding is that the poor state of inter-parental communication is the fault of the mother "C", which I consider to be an oversimplification in this case. 2. In contrast to that finding, in evidence, the mother "C" expressed her own concern that at the end of any compulsory supervision period by FaCS, as ordered by the Children's Court Magistrate, after FaCS closes its file, the father "D" would then proceed to deny her access to her son. She also expressed her concern that the father has done very little to ensure the child "B" maintained any connection to his Aboriginal heritage: Affidavit of the mother "C" sworn 29 May 2018. 3. Having studied the evidence, based on past events, I consider it more likely than not, that if the father "D" retained parental responsibility for the child "B", his relative inaction and his apparent inability, without external assistance, which has not yet been engaged, to seek to remedy the parlous state of inter-parental communication difficulties, is likely to continue. That can only be to the detriment of the child "B". He appears to have been waiting for FaCS to sort out the problem instead of taking any initiatives himself. 4. I am led to that view by the plainly limited insight that the father "D" has displayed in relation to that issue to date. In that regard, not only are his proffered excuses for his inaction unacceptable, such as not having unpacked, after moving house some time ago, but they cast significant doubt upon his motivation and upon problem solving skills, where the psychologist Dr Purkis identified problem solving as being one of his few cognitive strengths: Exhibit "P". 5. For the foregoing reasons, I am comfortably satisfied that the conclusion of the Children's Court Magistrate, in which concerns were expressed about contact difficulties that might arise for the father "D", was based on unwarranted speculation. In my assessment of the evidence adduced in this de novo hearing, the converse of that concern is more likely to be the case if parental responsibility remained with the father "D". 6. I am satisfied that the difficulties the mother "C" has herself experienced, such as contact limitations that she has had to accept at significant times, such as at Christmas, and on birthdays, are unlikely to abate if the father "D" continues to have the allocation of parental responsibility. 7. The perceived difficulties contemplated by the decision of the Children's Court Magistrate appears to have only arisen because of the unaddressed antipathy that has developed between the parents, which FaCS has well recognised and understood, yet has left unaddressed. This has been despite the availability and the opportunity for appropriate resources to be employed to arrange for remedial expert intervention regarding that problem, in the paramount interest of the child. 8. In my view, in those circumstances, there is a compelling obligation on FaCS, morally if not legally, to redress that problem, which needlessly became exacerbated when FaCS denied approval for the further engagement of Ms Olivia Starr, or someone of like qualifications, skill and experience, to remedially work with the parties on their difficult family issues. Facilitative orders are required concerning contact and conflict management issues. 9. It is reasonable to conclude from the evidence of the FaCS caseworker "H", that the assistance of Ms Starr, or someone of like qualification, skill and experience, will be available to assist with working on and dispelling the misperception that the father might possibly encounter "difficulty" over contact in the future. 10. Accordingly, I do not accept the notion that if the mother "C" was to be allocated parental responsibility for the child "B", the father's ability to maintain contact with the child "B" would be made difficult. In my view, an unduly adverse view of the mother "C" was taken in that regard, perhaps influenced by Mr Hawton's report, which I find to be unreliable as a guide to determining such matters. 11. That adverse view of the mother "C" does not coincide with my assessment of her, or her attitude to her responsibility to ensure the child "B" continues to have relevant and meaningful contact with his father "D". In my view, the mother "C" has adequately educated and equipped herself on that matter, and she appears to me to have a much more insightful attitude to that question, compared to the father "D". 12. However, for more abundant caution, and to ensure that proper contact arrangements are made and maintained, as indicated to the parties during the hearing, I propose to make a facilitative order for the practical involvement of FaCS on contact matters, for a further 5 years: T355.40. 13. Consequently, in the common interest the parents have in the safety, welfare and well-being of their child, they will have no choice but to establish a working relationship of comity in that regard. To ensure that occurs, the parents will need to establish and maintain a working relationship with a new FaCS caseworker for that purpose, which will continue for the ensuing five years. In light of the history of inter-parental conflict, it seems that this would be best implemented with the assistance of Ms Starr, or someone of like qualifications, skills and experience. Issue 10 – Balancing consideration for dispositive orders 1. Having reviewed the historical and factual circumstances as disclosed in the evidence in this case, and having addressed the issues calling for decision in the above analysis, it now remains necessary to address the balancing consideration of the final issue, namely the appropriate allocation of parental responsibility for the child "B", including the need for ancillary orders as to contact arrangements for the parent who will not be allocated parental responsibility. Balance considered by the Children's Court Magistrate 1. In the Children's Court proceedings, that balancing consideration was undertaken pursuant to s 90(6) of the Care Act, as follows: 1. The child "B" had been in the care of his paternal grandparents for almost a year and-a-half since 26 July 2016, with almost daily contact with his father "D": s 90(6)(c) of the Care Act; 2. The child "B" had an attachment of equal strength to each of his parents: s 90(6)(d) of the Care Act; 3. On the question of parental capacity, FaCS had formed the view that the best interests of the child "B" would be served if he was to be placed in the parental capacity of the father "D", with allowance for contact rights for the mother "C": s 90(6)(e) of the Care Act; Exhibit "A", Vol 1, Tab 40, p 7.18 – 7.37; 4. Since the child "B" has been in the care of his paternal grandparents for almost 18 months, with regular and extensive contact with the father "D", if care were to be transferred to the mother "C" there would be a risk of psychological harm to the child in such circumstances: s 90(6)(f) of the Care Act. 1. The assessment of the Children's Court Magistrate, which balanced those considerations, went on to find that the mother "C" is "continuing to address her mental health issues" arising from her childhood, and he focussed upon the concern of Mr Hawton about the volatility of the mother "C": Exhibit "A", Vol 1, Tab 40, pp 7.39 – 8.3. 2. That assessment was followed by a critical finding made on the balance of probabilities, in which he could not find that the paternal step-grandfather "F" had been assaulting his stepdaughter "E", and in the face of conflicting evidence, he could not be satisfied that the sister "E" had disclosed the fact of such alleged childhood sexual abuse, as claimed by the mother "C": Exhibit "A", Vol 1, Tab 40, pp 8.5 – 8.21. 3. On the issue of the credit of the mother "C", the Children's Court Magistrate indicated "it would seem to me very suspicious that [the mother "C"] has made the allegations [of the disclosures of sexual abuse against the step-grandfather "F"] and that it was "likely that those allegations were made for her benefit": Exhibit "A", Vol 1, Tab 40, p 9.7 – 9.10. 4. After dealing with contested issues of alleged domestic violence, which (at Exhibit "A", Vol 1, Tab 40, p 9.5) were not accepted, and after making findings on alleged alcohol abuse and volatility on the part of the mother "C", and on the risk of psychological harm as analysed in connection with Issue 6 above, the following critical finding was made: "I take into account those findings and having regard to that evidence and those findings it seems to me that having regard to taking into account the capacity of the parents to provide an adequate standard of care it is likely in my mind that [the mother "C"] could provide [the child "B"] an adequate standard of care, that would seem to be attested by her other children, however on balance I would think the evidence supports the conclusion that [the father "D"] would be in a position to provide a better standard of care than that of [the mother "C"]." [Exhibit "A", Vol 1, Tab 40, p 9.24 – 9.30] 1. The Children's Court Magistrate also found that if the child "B" was in the parental care of his father "D", "it is more likely that [the father "D"] would take action to ensure that [the child "B"] did maintain his relationship with his mother" rather than it being "likely that there would be significant difficulties in [the father "D"] maintaining contact with [the child "B"]" if he were to be in the parental care of his mother "C": Exhibit "A", Vol 1, Tab 40, pp 9.47 – 10.1. 2. The factual bases of almost all of those assessments were challenged in the appeal hearing, except as to the acceptance of the acknowledged parental capacity of the mother "C" and the equality of attachment to the respective parents. I have found that the remaining challenges made by and on behalf of the mother "C" were appropriately sustained on the evidence adduced, such that the cited findings of the Children's Court should not stand. 3. The Children's Court Magistrate accepted the parental allocation recommendation as made by FaCS. In contrast to that position, I find myself unable to accept that recommendation as it was based on a process of incomplete investigation of serious matters raised. The FaCS recommendation was also based on a Clinician's report that did not consider relevant matters of cognitive difficulties of the father "D", the disclosures of Dr Wright's letter dated 20 March 2012, and the fact that the FaCS investigation was "closed at triage" where relevant matters were not followed up due to "competing priorities". Balancing consideration in this fresh hearing 1. In arriving at my conclusions, I have also had the benefit of the significant additional evidence that the Children's Court Magistrate did not have before him when he undertook his consideration and reached his conclusions, which are summarised at paragraphs [574] to [579] above. That exercise, which must now be undertaken afresh, now follows. Relevance of ill-founded concerns over past mental health issues of the mother "C" 1. The suggestions that the mother "C" has ongoing mental health issues, and that she would be likely to make contact with the father "D" difficult, were, on my analysis, ill-founded. 2. I consider that the mother's past mental health issues, as arising from her childhood sexual trauma, and her related addiction issues, have been adequately dealt with, as explained by her treating psychologist, Ms Hagedorn. There was no credible or reliable evidence to the contrary. I do not accept Mr Hawton's suggestions to the contrary, as already explained in my analysis of his evidence at paragraphs [348] to [422] above. Assumed difficulties over contact arrangements if father was not allocated care 1. In contrast to the stated prediction of likely difficulties in the father "D" maintaining contact, as cited at paragraph [579] above, that issue has adversely impacted on the mother "C". The problem seems to relate to the apparent inability of the father "D" to find an appropriate way, either with or without assistance, to move away from those difficulties. 2. As explained at paragraphs [241] to [245] and [251] to [252] above, the father ceased therapy and seems to have taken the position of relying on FaCS to resolve his communication difficulties. As he said in a moment of candour, he is still learning about such matters: T313.25. 3. As a result, the mother "C" and the child "B" have had inadequate contact. FaCS was seemingly unable to resolve that problem, and have ceased funding Ms Starr's efforts at seeking to address aspects of the interpersonal difficulties which fuelled that problem. That state of inadequate contact cannot be allowed to continue to have an adverse impact on the child "B". Impact of cognitive difficulties on insight and parenting capacity 1. There is no dispute that the mother "C" is capable of providing the child "B" with an adequate standard of care. That was the effect of the finding of the Children's Court Magistrate as cited at paragraph [574] above. I have also reached the same conclusion on that question. 2. In my view, the matter of great significance, which the Children's Court Magistrate did not have before him, was the objectively identified cognitive difficulties that have affected, and which will in my view continue to affect, the father "D". Exhibit "P". 3. In my opinion, in the circumstances that prevailed at the Children's Court hearing, the issue of the parenting capacity of the father "D" was significantly obscured from full consideration because the psychological testing report of Dr Purkis, dated 19 September 2015 (Exhibit "P"), was not made available for the consideration of either the Clinician or the Children's Court Magistrate. 4. In my opinion, the cognitive difficulties identified as affecting the father "D", as set out in Exhibit "P", do not auger well for his long-term care of the child "B", whose evolving needs for insightful and focussed parental support and guidance, including with regard to his schooling, will increase as he matures towards adulthood. 5. In my view, the mother "C", who does not have any such cognitive difficulties, has the greater insight, and is able to articulate and appropriately advocate to best meet the needs of the child "B". 6. In comparison, the ability of the father "D" to meet that avenue of need is limited by his cognitive difficulties, as is evidenced by his relative inarticulateness, and his need for assistance to be provided to him by the school to assist his son to progress with school work. In my view, given the cognitive difficulties that are evident as defined in Exhibit "P", the ability of the father "D" to adapt and to meet the increasing challenges the child "B" will face in his education, is doubtful. Without intending any disrespect to the father "D", he is an unsophisticated person whose abilities are unlikely to increase commensurately with those evolving challenges. 7. In reaching that conclusion I have not overlooked the submission made on behalf of the father "D" that his cognitive difficulties, which were concealed at the first hearing, and which were only revealed belatedly in these proceedings, should not form the basis for orders that would penalise him or which would be discriminatory of him on that account. Whilst I generally agree with that sentiment, in my view, that submission diverts from the true issue that must be considered in this case. 8. The cited submission on behalf of the father "D" clearly has the interests of the father "D" as its focus, whereas, instead, the proper focus should be on the paramount question, and the needs of the child "B": s 9(1) of the Care Act. 9. On that approach, I consider the needs of the child "B" are best served if parental responsibility were to be allocated to the mother "C". If the submission of the father "D" were to prevail on account of the argued discriminatory consideration, I consider that needless disadvantage would be occasioned to the child "B". Matters of candour, probity and self-interest 1. The evidence in this case has revealed that, in particular circumstances, each parent has, for differing reasons, concealed matters calling for truthfulness, and has not been entirely forthcoming on the subject of the past incidence of domestic violence in their relationship. This has raised questions of candour and probity, as such matters have the potential to adversely impact upon what otherwise might be good or adequate parenting of the child "B". 2. In the case of the mother "C", she had in the past lied about her experience of domestic violence in her former relationship with the father "D". As outlined at paragraphs [175] to [186] above, she explained that she did so at a time when she thought that to reveal that history, would have served no purpose, as the relationship in question was over. In these proceedings, I consider that she had the insight to appropriately acknowledge and to apologise for that earlier lack of candour. I consider those circumstances are unlikely to have an impact on the child "B" at this time. 3. In the case of the father "D", more serious considerations arise over his candour, probity and insight in the face of a self-interest issue that arose in these proceedings, namely, his desire to retain parental responsibility for the child "B". 4. Whilst it is true that, as the Children's Court Magistrate observed, the phenomenon of parties telling lies in the context of allegations of domestic violence is not new, where such matters have the potential to adversely impact on child protection issues, a benign view cannot be taken of statements that misrepresent the true circumstances where there is a potential for an adverse impact on the safety, welfare and well-being of the child "B". 5. In my assessment, as explained below, the father "D" has relevantly misrepresented the truth in relation to such circumstances. 6. That view is evidenced by the vacillating denials and concessions made by the father "D" as to whether there had been disclosures made by his sister "E" of historical childhood sexual abuse by the paternal step-grandfather "F". Those matters have been analysed at paragraphs [341] to [342] and [484] above. I have found the evidence of the denials by the father "D" on those matters to be unreliable, and I have not accepted them. 7. It is relevant to observe that those disclosures of alleged childhood sexual abuse of the sister "E" by the step-grandfather "F" have been objectively corroborated by the contemporaneous correspondence from Dr Wright, yet they have been left under-investigated by FaCS. 8. For that reason, in my view, there is no room for compromise on this question where the paternal step-grandfather "F" has had ready access to the child "B". If parental responsibility remains with the father "D", that access is likely to continue, and in my view, on the evidence that I have cited in my reasons, in the circumstances of the incomplete investigation that now prevails, contact with him would plainly constitute an unacceptable risk of significant harm to the child "B". 9. In light of those matters, I cannot be satisfied that if concerns over such allegations arose again, and where the child "B" might be at a relevant risk of significant harm, that the father "D" would display complete candour, such as has in the past occurred in relation to the disclosures that the sister "E" has made about the paternal step-grandfather "F". On the evidence, I cannot be satisfied that in any response by the father "D" he would not again proffer dismissive protective denials, which, if accepted, would deflect from any issue of concern that arose. 10. Putting to one side questions of whether the vacillating factual positions of the father "D" on such matters as reviewed at paragraphs [341] to [342], and [484] above, were either deliberate statements of untruth aimed at securing an advantage, or whether they should be more benignly characterised as merely involving limited insight on his part, it gives rise to what I consider to be a real concern over a potentially unacceptable risk of significant harm to the child "B", which if it occurred, would be difficult to monitor. 11. In the paramount interest of the child "B", the need for candour on an important issue of child protection ought not be the subject of a compromise finding. In my view, in this case, there is no room for any benefit of a doubt to be given to the father "D" in such circumstances. Other factors to consider 1. It is common ground that the child "B" is equally attached to both parents. There is no reliable evidence other than generic considerations, to suggest that any change in the allocation of parental responsibility from the father "D" to the mother "C" would produce actual psychological damage to the child "B". There is no professional assessment to the contrary. 2. In my view, any such generic risk of psychological harm is a matter that may be appropriately addressed by the provision of skill and assistance being made available to all concerned parties. That is an avenue of assistance that has been cut off until now. 3. The first instance findings as to the length of time that the child "B" has lived with the father "D", and his parents, insofar as it could be a relevant factor, is in my view, materially outweighed in this case by the incomplete investigation of the disclosure of allegations of child sexual abuse by the step-grandfather "F". In those circumstances, I consider that if the child "B" were to remain accessible to the paternal step-grandfather "F", those circumstances would, on the present evidence, represent an unsatisfactory situation. 4. It is true that at present, and only relatively recently, the father "D" has acquired better accommodation than the mother "C". This occurred because he has been lately assisted into a Housing Commission house. 5. In contrast, the present accommodation of the mother "C" in a boarding house is less satisfactory. However, that situation should be seen as being only temporary: T45 – T50. I am satisfied that if she was allocated parental responsibility, she would have access to other temporary and more suitable options available to her. Also, given that she has been on the waiting list for Housing Commission accommodation for 19 years it is likely she would get the same consideration in that regard as was given to the father "D": T62.43. 6. In light of the parental responsibility orders that I propose to make, I consider that her housing situation will be unlikely to remain as an outstanding issue for long. 7. I accept the evidence of the mother "C" where she stated that she is committed to maintaining the present schooling arrangements. She has been acquiring relevant information and insight into meeting the evolving special needs of the child "B". The mother "C" has also continued to maintain her sobriety and her drug free state. She has readily available and committed access to the skilled support of Ms Hagedorn, and she has shown willingness and insight into engaging with appropriate avenues of assistance. 8. In addition to the factors outlined above, I consider that it is more likely the mother "C", rather than the father "D", would pursue a concerted commitment to ensuring the child "B" continues to discover and maintain a connection to his Aboriginal heritage. Conclusion on allocation of parental responsibility 1. There are no contraindicating factors for allocating parental responsibility of the child "B" to the mother "C". 2. In balancing those matters, I conclude that on the question of which parent would be in a better position to provide a better standard of care, a comparison between the situation of the mother "C" and the father "D" compels me to the view that this criterion is best met by the allocation of parental responsibility to the mother "C". 3. However, I consider it prudent in the circumstances to add the proviso that, in view of past communication difficulties, and to ensure safety and stability in the contact handovers, as already indicated to the parties, that for the next 5 years, the Minister should have parental responsibility in respect of contact arrangements with the father "D". Procedural observation 1. In this case, as observed at paragraphs [433] to [437] above, with some forethought by the parties in advance of the hearing, either with or without directions, the divergence of opinions between experts could have been explored and resolved more efficiently through the readily available procedure of requiring expert witnesses who held differing opinions to meet in order to try and reach consensus on issues capable of agreement, and to identify the factual basis of any residual areas of disagreement. Their evidence could have been given concurrently before undertaking the task of making such findings. 2. Although the Uniform Civil Procedure Rules 2005 which provide for such processes do not apply to care cases, there appears to be no sound reason why such an approach could not be adapted and tailored for implementation in proceedings in the Children's Court, or in a care appeal. 3. It is unfortunate that in their respective preparations, the parties did not approach the matter with that process in mind. Perhaps this problem could be addressed in an appropriately framed Practice Direction that would require the parties in such cases to give case-managed pre-hearing consideration to such matters, in consultation with the Court at an interlocutory stage. In the absence of agreement on such matters, directions could readily be made to facilitate the process in the event there is disagreement as to the procedure to be adopted. Implementation of orders 1. The process of transferring parental responsibility from one parent to the other by an order of a court is well recognised as a source of mixed feelings and reactions. The expectation of the Court is that in the best interests of the child "B", the parents will co-operate in a civil manner to ensure a smooth and non-traumatic handover of care when implementing the orders made in this case. 2. The immediate expectation is that the mother "C" should have a sensibly staged increasing level of unsupervised contact with the child "B", with reasonable but not disruptive frequency, until she obtains suitable accommodation for the child "B" to commence living with her full time at her premises. 3. In the event difficulties arise in achieving a consensus on those matters I grant leave to the parties to apply, on short notice, supported by affidavit evidence, for facilitative orders and directions to be made for the implementation of orders. Recommendation to the Secretary, FaCS 1. Having identified in my reasons some concerns over inter-parental communication difficulties, pursuant to s 85 of the Care Act, I recommend to the Secretary, Family and Community Services, to engage Ms Olivia Starr, or a person of like qualification, skill and experience, forthwith to therapeutically work with the father "D", the mother "C" and the child "B" on the following matters: 1. The implementation of these orders; 2. Communication issues between the parents; 3. Reducing conflict between the parents; 4. Formulating suitable and agreed care consistent with these orders. 1. I make that recommendation in the paramount interests of the child "B" who has undoubtedly been adversely affected by the protracted process of this litigation, including by having been influenced against the mother "C" as is evident from the content of Exhibit "O", as referred to at paragraphs [52] to [56] of these reasons. 2. The combined effect of the terrible and toxic state of inter-parental communications, as referred to at paragraphs [33], [113] and [251] in these reasons, has to be dismantled and reshaped into a co-operative working arrangement. This will require professional assistance, as has been observed at paragraphs [255], [318], [567] to [568] and [572] above. 3. The urgent need for the recommended intervention now arises in this case because although it had been provided on a previous occasion, as observed at paragraph [252] above, it was terminated, evidently for cost reasons notwithstanding that a special fund exists for that purpose: T355.20. This has had an exacerbating effect on the now entrenched communication difficulties experienced by the parents. FaCS has acknowledged that the problem cannot be resolved independently by the parents: MFI "7", par 78. That problem needs to be urgently addressed in the paramount interests of the child "B", who must, as best as is practicable, have an enduring relationship with both of his parents. Disposition 1. The appeal must be allowed and the decision of the Children's Court delivered at Tweed Heads on 15 December 2017 must be rescinded and set aside. Consequential facilitative arrangements reflective of the changed circumstances are now required, in conformity with my findings. Costs 1. No costs submissions were made at the hearing. Exceptional circumstances must be shown to exist before a costs order may be made in these proceedings: s 88 of the Care Act. I will hear the parties if any such order is sought. Orders 1. I make the following orders: 1. Pursuant to s 90(7)(a) of the Care Act, the orders made in proceedings numbered 2017/206220 in the Children's Court at Tweed Heads on 15 December 2017 concerning parental allocation and contact issues, are rescinded and set aside; 2. Pursuant to s 90(7)(b) of the Care Act, the mother "C" is to have sole parental responsibility for the child "B" until the child "B" reaches the age of 18 years, save as to the terms of order (3) which follows; 3. Pursuant to s 90(7)(b) of the Care Act, The Minister, Department of Family and Community Services, is to have parental responsibility for the child "B" for all issues concerning contact between the child "B" and his father "D", for the next 5 years from today's date, after which all parental responsibility for the child "B" until he reaches the age of 18 years, will revert to the mother "C"; 4. A new care plan is to be prepared that provides for the implementation of the above orders, including for contact arrangements between the child "B" and the father "D"; 5. Pursuant to s 86(1)(b) of the Care Act, any contact arrangements proposed between the paternal step-grandfather "F" and the child "B" are to be supervised, to the satisfaction of the mother "C"; 6. The parties are to prepare a minute to reflect the above orders; 7. I will hear the parties on the question of costs; 8. The proceedings are stood over to 10.00am on Friday 13 July 2018 or such other varied date as may be ordered, for the purpose of approving any consequential or ancillary orders that may be required; 9. Liberty to apply on short notice for further or other orders if required. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 June 2018