Director of Child Protection Litigation v NM [2018] QChC 7

CHILDREN’S COURT OF QUEENSLAND CITATION: Director of Child Protection Litigation v NM & Anor [2018] QChC 7 PARTIES: DIRECTOR OF CHILD PROTECTION LITIGATION (defendant) v NM (first respondent) and MS (second respondent) and LYRENE WIID (Child’s Separate Representative) FILE NO/S: 4384/17 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: Children’s Court of Queensland DELIVERED ON: 28 February 2018 DELIVERED AT: District Court at Brisbane HEARING DATE: 24 January 2018 JUDGE: Reid DCJ ORDER: (i) Appeal allowed (ii) Remit the matter for referral to Children’s Court for determination by a Magistrate other than the Magistrate who determined the matter. CATCHWORDS: APPEAL – dismissal of application for protection order – whether summary dismissal warranted - where applicant’s primary witness recants – effect of initial statement based on hearsay evidence of a child’s complaint – need to consider circumstances in which witness recants – need to observe witness give evidence and be cross examination – inappropriate determination of the application – need to remit the matter for trial – observations on the possibility of resolving the matter in a conference. -- 1 of 17 -- 2 MDS v Director of Child Protection Litigation & Ors [2017] QChC 6 - followed Dale v Scott ex-parte Dale (1985) 1 Qd.R. 406 – followed Donaghey v Donaghey [2011] FamCA 43 Child Protection Act 1999 (Qld) ss 5A, 5C, 105, 122 COUNSEL: K Ashen for the appellant S Keim SC with him M Tanlon for the respondents S Kissick for the separate representatives SOLICITORS: Officer of the Director of Child Protection Litigation for the appellant Best Wilson Buckley for the respondents Lyrene Wiid for the separate representatives Introduction [1] This is an appeal by the Director of Child Protection Litigation (the Director) against an order of a learned Magistrate sitting in the Children’s Court, summarily dismissing an application by the Director for a child protection order requiring the Chief Executive to supervise a child’s protection for a period of one year. The appeal is pursuant to s 122 of the Child Protection Act (CPA). Effectively the order sought by the Director was that the child’s father (MS) not have contact with the child other than when an authorised person or a person approved in writing by the Chief Executive was present. Initial Complaint [2] Departmental concerns about the child, W, arose because the child’s mother (NM) informed police in July 2016 of matters which suggested that MS had sexually abused the child about three weeks earlier. W was born on 28 February 2012, so was four at that time. On 24 July NM swore a statement outlining what she knew of the alleged abuse. [3] She swore in that statement: i. That on a Tuesday about three weeks earlier (thus about 4 July 2016, but the precise date is not important) she was asleep, having taken anti-depressant -- 2 of 17 -- 3 medication which made her drowsy. In the early morning she said W stirred and MS went to her room . ii. She heard W’s bed creak and said the child said “in a panicked state ‘Dad, Dad’”. Soon after she said W said “Ow Ow Ow” and again shortly after called “Mummy Mummy Mummy.” iii. She went into the child’s room and saw W and MS spooning. She said MS appeared shocked and pushed W away. She said she noticed W’s pants “were slightly down at the back and I could see the top of her bottom”. iv. She asked W what was wrong and the child replied “Daddy just hurt me” and then cried. v. That during the next afternoon the child was “picking and scratching at her bottom” and “walking like she had a wedgy or as if something was irritating her bottom”. W also complained of a sore mouth and throat and said it “hurt to do poos”. vi. That she noticed that night that W’s lips were swollen and slightly discoloured and that she had cracked lips in the corner on both sides of her mouth. She said MS discouraged her from taking W to a doctor when she asked him if they should do so. She said this was out of character as MS was usually “all for taking her to the doctor.” vii. About a week later the child told her that MS had touched “my privates”. She said W pointed to her vagina and also to her mouth and bottom to show where MS had touched her. She said W described that MS had used his fingers and put them in her “care care”, a term NM said the child uses to describe her vagina. viii. The child very explicitly demonstrated how MS had touched her, lying down on her back, spreading her legs wide open and touching her vagina. -- 3 of 17 -- 4 ix. That the child also calls a penis a “snake” and said that MS’s “snake” went inside. She described it as being “hard like a rock” and that it had hurt her and caused her to cry. x. The child’s anus was red and irritated and that when she wiped it W would complain that it was sore. xi. That W demonstrated with a white door stop that NM gave to her, what MS had done. She says the child rubbed the door stop on her bottom, did circular motions around her bottom and put it in and out of her mouth. [4] The comments NM swore the child had made and her actions are very disturbing. They contain significant detail that a four year old would not be expected to know. If true, they would cause any reasonable person to be concerned that the child was at serious risk of substantial harm. They might of course not be true – because, for example, the child made them up (although the detailed descriptions given by a four year old child are themselves a cause for some alarm) or because the mother herself made up the allegations. There could be other explanations. [5] In any case it seems to me the allegations raise significant issues which required investigation in order to properly protect the child. [6] As a consequence of NM swearing that statement the Department of Communities, Child Safety and Disability Services (the Department) became involved. MS was removed from the house. Although there has been some variation in this arrangement over time, for most of the time since he has lived away from the house and any contact he has had with the child has been supervised. At the moment such supervision is provided by the child’s mother or other family members but MS still does not reside at the house with NM and W. Legal principles [7] The purpose of the Child Protection Act is expressly stated in s 4 thereof to be for the protection of children. Section 5A sets out that the main principle for administering the Act is that the safety, wellbeing and best interests of a child are paramount. I have underlined the phrase in the section because in my view it means, amongst other things, that in matters of procedure concerning applications under the Act a court -- 4 of 17 -- 5 should adopt an approach designed to ensure the best interest of a child are met. Whilst this gives to a court significant flexibility in the conduct of proceedings it is not an unfettered power. In my view, observations of his Honour Judge Morzone QC, DCJ in MDS v Director of Child Protection Litigation & Ors [2017] QChC 6, although dealing with questions of the admissibility of evidence in proceedings under the Act, are also relevant to questions of court practice and procedure. [8] His Honour said at [22] of his reasons, in relation to s 105 of the Act which provides that the court is not bound by the rules of evidence, that: “The court ought have all pertinent information to fulfil the paramount purpose of the proceedings to protect children ensuring that the safety, wellbeing and best interests of a child are paramount. In doing so the rules of evidence and procedure should serve and not thwart that purpose.” (my underlining) [9] In so concluding his Honour referred to observations of Kelly J in Dale v Scott ex- parte Dale (1985) 1 Qd.R. 406 at 413 that “where the paramount purpose is the welfare of the infant, the procedure and rules of evidence should serve and certainly not thwart that purpose.” [10] I mentioned these matters because, in this case, the learned Magistrate took the unusual course of acceding to an application by counsel for the parents, supported by counsel for the child’s separate representative, to dismiss the application for a protection order during the presentation of the applicant’s case, and before it had been completed. Her Honour did so before she had the benefit of seeing NM or MS give evidence and be cross-examined. The Magistrate did so immediately after hearing a recording of an interview between police and W conducted pursuant to s 93A of the Evidence Act. It is fair to say she was unimpressed by that interview. [11] In bringing her application counsel for the parents submitted that the evidence in that s 93A recording represented the applicant’s case “at its highest”. That submission, in my view, was incorrect and probably arises from a misunderstanding of the force and effect of the statement that NM provided to police on 24 July and which I summarised earlier. Because the Children’s Court was not bound by the rules of evidence the content of that affidavit was evidence of the facts contained in it. Whilst in criminal proceedings it was evidence only of preliminary complaint, and so relevant only to -- 5 of 17 -- 6 the issue of the credit of W, in proceedings under the Act it had a much greater significance. In my view the application made to dismiss the application for the protection order, and the Magistrates acceding to that application, both exhibit a misunderstanding of the force and effect of that statement, in proceedings for a child protection order. Another possible explanation of the submission that the s 93A recording represented the applicant’s care “at its highest” is that counsel considered that because, in an affidavit filed in the proceedings, NM had effectively recanted from that earlier police statement, its force and effect was minimal, on even non- existent. [12] Such a view is incorrect. In order to discard the force and effect of the initial statement it is first necessary to determine that the contents of the affidavit is true. That requires consideration of the circumstances in which NM recanted from her earlier statement. Only if a tribunal of fact considered these matters and concluded the original statement was wrong, and that W did not make the complaint NM said she had could it be said that the s 93A statement represented the applicant’s care “at its highest.” NM’s Recantation [13] It is of some importance to understand that NM and MS had been together for some 15 years. They are engaged. NM says in her affidavit of 6 November 2017, filed in the Children’s Court proceedings below, that she was herself sexually abused by older cousins when growing up. She says she has, partly as a consequence, been very vigilant in protecting W from any such abuse. About a month prior to July 2016 she said she suffered a distressing miscarriage which emotionally affected both her and MS. She commenced drinking more than usual, became angry and on occasions would yell at MS. Sometimes she says she said inappropriate things. She also, on occasions, said she smoked “a small amount of marijuana”. She was prescribed antidepressants which she had taken as earlier outlined on the night of the alleged abuse. [14] In about June 2016 she says she began attending a local church and there met new friends. Two of them, she said, had also been abused as children and when she told them of the incident concerning W they became very forceful in demanding she take the child to hospital and, later, similarly demanding she speak to police. -- 6 of 17 -- 7 [15] In her affidavit filed in the court NM gives a very different account of the events of the Tuesday night involving MS and W, and of the aftermath. She says in that affidavit for example: i. That the back of the child’s track pants being down could, she now realises, just have been from W moving around. ii. W’s comment “daddy just hurt me” she attributes to the child being “tired and cranky”. iii. The child’s difficulty, in going to the toilet was something that occasionally happened with her. She also said her picking and scratching of her bottom, she now attributes “to constipation”. iv. The soreness in her mouth she now felt was because the child “may have been coming down with something”. v. She also says she asked questions of the child (which, curiously in my view, she describes as “leading questions”) relating to possible sexual abuse. She says she became obsessed with questioning W about it and said that she now thinks she asked her many hundreds of times about it, over about two weeks. vi. She said W would usually say that MS had not done as she asked or alleged but eventually said “yes, daddy did hurt me”. [16] In other respects too, what NM swears in her affidavit of 6 November 2017 is vastly different to the statement she gave police in July 2016. It is important to note however that she does not in her affidavit explain why the very specific detail of the demonstration she says W gave of that abuse that I have earlier set out was wrong. She seeks to explain that the earlier statement she gave was affected by pressure placed on her from people she had met at church, from the pressure she felt when speaking to police, and from her own mental health. -- 7 of 17 -- 8 Children’s Court hearing [17] The trial before the Magistrate commenced on 13 November 2016. Counsel appeared for the Director, and for MS and NM. In addition, counsel appeared for Ms Wiid who had been appointed as the separate legal representative for W. In addition, Ms Johnson appeared, briefly, on behalf of Goolburri Recognised Entity. [18] A Recognised Entity is a body recognised by the Act to make representations on behalf of an Aboriginal or Torres Strait Islander child where a significant decision is to be made concerning that child. No doubt this is to give effect to s 5C of the Act which provides that in respect of, inter alia, an Aboriginal child, it is a principle of the Act that the child should be allowed to develop and maintain a connection with the child’s family, culture, traditions, language and community and the long term effects of a decision on the child’s identity and connection with their family and community should be taken into account. The submissions of Ms Johnson are at pps 2.7 ff of the transcript of the hearing. I shall refer to them later. [19] On 14 November the learned Magistrate heard and determined the application, made the previous day, to dismiss the Director’s application for a Child Protection Order. It is against this order that the Director appeals. [20] In her reasons the learned Magistrate notes the Director’s reliance on the statement of NM to police that I have referred to. She says that the Director also relied on the s 93A statement of the child of that same date. The application by counsel for the parents of W to dismiss the application was immediately after the s 93A recording of the child had been played. [21] I have listened to the recording. It is unsurprising the Magistrate found the recording less than compelling. That too is unsurprising considering W’s age, and the fact what the interviewer was unknown to her. [22] In my view, the Director’s case thus depended very substantially on an acceptance of the statement NM made to police. Hearsay evidence contained in it was of course admissible evidence of the facts having regard to the provisions of s 105 of the Child Protection Act to which I earlier referred. [23] That section also provides that the burden of proof in the matter was “on the balance of probabilities”. I accept that this means that the Briginshaw test was applicable, -- 8 of 17 -- 9 rather than the balance of probabilities as understood in civil litigation. This issue was extensively analysed by Morzone QC, DCJ in the MDS decision earlier referred to, and whose reasoning I adopt. [24] The learned Magistrate in dismissing the Director’s application for a protection order appears to have been influenced by the following: i. The lack of reliable complaint by the child in the s 93A statement (see para 12 and para 35 of the judgment) and the submission of counsel for the parents that “the s 93A interview reflects the (Directors) case at its highest” (para 9 of the judgment). The Magistrate was concerned about the conduct of the child’s s 93A statement and in particular the possibility that she may have been influenced by NM (para 25 of the judgment). ii. The fact the initial police investigation had concluded it was highly doubtful an offence had occurred, although the Magistrate noted a subsequent police audit noted only that an offence could not be proven to the requisite standard, and so the offence should be marked “remain unsolved” (para 4 and 5 of the judgment). iii. That there was what the Magistrates described as “a raft of affidavit material” on which the Director “relies heavily” in support of its application (para 7 of the judgment). iv. The submission of the representative of the Goolburri Recognised Entity, Ms Johnson and the concerns that representative had about the conduct of the child’s s 93A recording (para 11 of the judgment). Her Honour accepted Ms Johnson’s assessment that “this is a case of intergenerational trauma.” (para 34 of the judgment). v. The lack of concern NM was said to have after viewing MS in bed with W. In this regard the Magistrate said “at the time NM did not think anything further of it” (para 14 of the judgment). -- 9 of 17 -- 10 vi. NM’S recanting from her earlier statement (para 15 of the judgment). I have referred to this already but observe that her Honour does not, in my view, adequately analyse why that happened, or the circumstances in which NM did so. vii. The fact that NM had told the social assessment report writer, Mr Shepherd, that at the time of the police statement she was in “a really bad place” and “probably manifested these things in my head and blew them out to grand scales” (para 17 of the judgment). So too, the Magistrate noted that NM said she had told Dr De Silva, a doctor who examined W at the hospital on 24 July, that she may have been projecting her own fears on to her daughter (para 21 of judgment). viii. An examination by Dr De Silva on 24 July, some three weeks after the relevant incident, found that there was no conclusive evidence of trauma to the hymen or of forceful vagina penetration. The learned Magistrate described this as “telling” (para 20 of the judgment). ix. The fact there was no history of either parent with the Department, no record of domestic violence and no criminal record for either parent. In addition MS had been assessed by a psychologist, Ms Johnstone as being a low risk of sexual offending in her report to the Department (para 34 of the judgment) [25] The Magistrate accepted at para 22 of her judgment that it was unusual to dismiss an application for a child protection order at an early stage but acceded to counsel for the parents submission that “all the (Directors) evidence is before the court (in affidavit form) and even without cross-examination the ‘Director’ would fail to prove that W was a child in need of protection”. [26] At paragraph 34-35 of her judgment the Magistrate then said: 34 “Having heard from Ms Johnson for Goolburri, the recognised entity, I am satisfied on the balance of probabilities that this is a case of intergenerational trauma, where NM, as a result of her historic childhood abuse combined with the miscarriage of a -- 10 of 17 -- 11 much wanted child has projected her fears on to her daughter W which has led to the application before the court. 35 Having considered the content of the s 93A interview, the mother’s statement to police and her sworn affidavit in these proceedings, the conclusions reached by Mr Shepherd together with my finding that this is a case of intergenerational trauma I am not satisfied the abuse as alleged by the applicant occurred at all and therefore W is not a child who suffered significant harm.” Consideration [27] I have said already that I have great difficulty in seeing how it was possible to determine that abuse did not occur without the benefit of having NM give evidence before her and be cross-examined. The determination of whether NM was honest in her recanting of the statement she made to police was critical to the determination the Magistrate made. If NM had recanted for example, in order to preserve her relationship with MS, it would be an indication that she was prepared to, and indeed had, placed her own self- interest above the interests of W. That possibility was in my assessment something the Magistrate needed to carefully consider, and it does not appear she did. [28] If such circumstances prevailed it would be my view that the Magistrate would have had to have concerns, serious concerns, about the wellbeing of the child. That is not to say of course that the Magistrate would inevitably have so found. My point is just that without having observed NM, and indeed MS, give evidence I am not satisfied that she was in a position to determine the matter by reference only to those matters to which she referred. [29] The issue was also not one to be determined by a recitation of the opinions of the psychologist, Ms Johnstone who prepared a risk assessment report or Ms Johnson, the representative of the Goolburri Recognised Entity, or by the report of Mr Shepard obtained by the independent representative. Such evidence is placed before the court to assist it in resolving the matter and -- 11 of 17 -- 12 cannot be used as a substitute for a determination by the presiding Magistrate of the issues before her, including resolution of issues of the credit of NM. [30] Counsel for the parents, and for the separate representative, both referred me to a body of evidence concerning the history of the matter and assessments by others of the risk of harm to the child. I was referred to interviews between the child and the departmental officers and between the parents and such officers. There was evidence that the child’s school attendance and behaviour at school was entirely unremarkable. She appeared well cared for and happy and was described as a gold student by her teacher (see for example pp 174, 211, 241 and 411 of the appeal bundle). [31] I have referred already to the medical examination of De Silva (see p 346 ff of the appeal bundle). Ultimately the doctor concludes there was no conclusive evidence of forceful vaginal penetration. Importantly however he said that such findings don’t exclude the fact that sexual abuse may have occurred (see p 348). In my view such a finding is a neutral finding and it was not correct to describe it as “telling”, as the Magistrate did. [32] A feature of this case concerned the risk assessment of Ms Johnstone the psychologist, in her report to the Department of 20 July 2013. Ultimately, Ms Johnstone reported that MS was a low risk of sexual violence. Importantly, she also concluded NM’s capacity to protect W from abuse, if it occurred, was compromised. [33] She noted NM indicated that as far as she is aware there have not been any specific or spontaneous disclosures by W (see p 452, para 131). She also reported that NM said that if W made a specific disclosure she would ask MS to leave the home (para 132). She had earlier reported that when asked whether MS had assaulted her W “always” said he hadn’t. Ms Johnstone notes that this assertion is contrary to the contents of the police report of NM. [34] In my view it is not only contrary to that statement but no proper attempt has been made by NM to explain her statement to police that W not only told her of specific abuse but demonstrated what had occurred, most tellingly by using the doorstop that I earlier referred. -- 12 of 17 -- 13 [35] NM, when speaking to Ms Johnstone and to others recorded in other material, seeks to explain this change by claiming people she had met through the church had pressured her to report the alleged abuse and caused her to jump to inaccurate conclusions and by the assertion she was projecting abuse she had suffered onto her child. [36] In my view the inadequacy of NM’s explanation for her recanting from her statement to the police is a critical matter that needed to be carefully determined by the Magistrate. [37] I fail to see how the Magistrate could accept so readily NM’s inadequate explanation for the vastly different versions in her two statements, and in the absence of any adequate explanation, fail to see how the Magistrate could reasonably conclude the matter as she did without at least having the opportunity to see NM be cross-examined about the issues. NM’s reliance also on others telling her that MS “would not do that” (re abuse W) and of being in a vulnerable place (see p 453, para 135) do not satisfactorily explain the conflicts in her testimony. [38] In my view, it was important to consider the personal circumstances of NM at the time she recanted from her police statement. Ms Johnstone records (p 459, para 172) that once authorities became involved and MS had to leave the home NM “became more uncertain around the allegations”. Ms Johnstone concludes (para 173) that NM has “her reliance on or allegiance to” MS and, (at para 211) says she has a degree of emotional reliance on him. [39] I also note that in an interview on the day after signing her police statement (p 175 of the bundle) NM “she is torn and confused”. Importantly, in view of the specificity of NM’s statement about W’s allegations she also said that W had never been exposed to anything inappropriate and did not know anything about a woman bleeding (p 176.5). That comment is a reference to the paragraph in her police statement (para 46) in which she said that W said that after the abuse there was blood on her vagina and bottom and that MS wiped it off. She also said (para 50) that she had noticed blood stains and kept two pairs of W’s underpants that “had blood stains” around the crutch and anal areas. She said that although the underpants have been washed they still have -- 13 of 17 -- 14 blood stains on them. In her affidavit filed in court she says that a few days after the police statement she again looked at the underpants and says “they really showed what looks like little stains of faeces rather than blood.” That, of course, is no explanation for her earlier assertion that W had told her she had bled and that in circumstances where W, because of her age, had no knowledge of women bleeding. [40] On 26 July NM told a Child Safety Officer (CSO) that she felt “like dirt” and that it “is hard being away from the home environment and (W) misses dad and misses home”. She described being “shell-shocked” and said that MS “is all she has known” (p 177). She said she had been “doing it tough” and that MS was “the man that she loves and been with; she is torn between her child and her husband”. It was no doubt matters such as this that Ms Johnstone was referring to when she spoke about the fact that NM “became more uncertain around the allegations” as a result of MS having to leave home. [41] Although Ms Johnstone assessed MS’s risk of sexual violence as being low the ultimate determination of that question was a matter for the Magistrate and in part depends on appropriate findings whether the alleged abuse occurred. It is not a trial by expert witness but a trial the by court having the assistance of expert evidence. [42] Her Honour, in light of the finding that MS had not sexually abused W then turned to consideration of whether W was an unacceptable risk of suffering significant harm and does not have a parent able and willing to protect her from harm. That of course is the test pursuant to s 10 of the Act for determining whether W was a child in need of protection. Unsurprisingly, in view of her Honour’s finding that abuse as alleged had not occurred, she found W was not at an unacceptable risk of suffering such harm. [43] In deciding that question her Honour referred to the analysis of Murphy J in Donaghey v Donaghey [2011] FamCA 13 relating to assessment of risk against a background of alleged sexual abuse. His Honour in that case relied in turn on observations of the High Court in M v M (1988) 166 CLR 69 at 76 that: -- 14 of 17 -- 15 “Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse ...” [44] In this case, too, determination of whether sexual abuse has occurred is not necessarily determinative of what is in the best interests of W, or of whether W was a child in need of protection. That is not to say, however, that a failure to properly consider the issue of whether abuse occurred can be overlooked in determining whether the learned Magistrate’s finding that W was not a child in need of protection was appropriate. [45] The assertion by Ms Johnson, who appeared for the Goolburri Recognised Entity was also relied by the Magistrate. In her short submission to the court Ms Johnson expressed concerns about the intergenerational trauma she said the family had experienced. She said NM’s own abuse in her childhood was “pretty relevant to the matters at hand for (W)”. It seems she submitted that this was relevant because of the effects of such intergenerational trauma on W and the need to consider that when viewing the s 93A recording, especially in circumstances where police had not sought any cultural advice prior to conducting that hearing (see T2-7, l 43 to T-8, l 25). [46] Ms Johnson then submitted W had a strong relationship with her family and community and submitted it was “paramount that (W) maintains those connections in a consistent and regular basis”. [47] In my view whilst that submission arguably had relevance to the assessment by the Magistrate of W’s s 93A statement, and was clearly relevant to the question how best to cater for W’s best interest, it had, in my view, limited relevance to the determination of whether or not abuse had actually occurred. [48] In my view it was not appropriate to conclude NM’s reporting of W’s comments to her about suffering abuse at the hands of MS was the result of intergenerational trauma suffered as a result of NM’s own abuse when she was a child. In my view there is insufficient factual support for any such assertion. It belies the lack of -- 15 of 17 -- 16 explanation by NM for recanting from the details of the complaint made to her by W as set out in the police statement. [49] In my opinion it was only possible for the Magistrate to conclude that NM was incorrect about what she had said in the statement to police if she had the benefit of hearing and seeing NM give evidence and be cross-examined. Her determination to end the application by acceding to the application of the parents’ counsel was misguided and causes me to conclude that, despite the wide discretion reposed in the Magistrate in conducting the matter to adopt a flexible procedural approach, her Honour’s determination, in this case, was made in error. Conclusion [50] Unfortunately, such considerations cause me to conclude that the appeal should be allowed and the matter remitted to the Children’s Court for determination by a Magistrate, other than the Magistrate who determined the matter. [51] That ruling does not mean that, inevitably, the application must proceed to a further hearing. It is always open to the parties to attempt to resolve the matter. In my view, it is certainly possible that the parties could resolve this matter by means of a settlement conference. It is clearly in the interests of W to continue to have a relationship with both parents, if this can be achieved without exposing her to unacceptable risk of harm. The report of Ms Johnstone assesses MS as being a low risk of sexual violence. At paragraph 216 of the report she also notes that research has demonstrated that the presence of a non-abusive adult in the home can assist to moderate risks of sexual harm. She also says that while NM’s capacity to protect W is currently assessed as compromised, this could be enhanced to a degree to sufficiently ameliorate MS’s low level of risk. [52] In my preliminary assessment, a resolution of the matter which: (a) requires MS to attend courses or programs designed to ensure he properly understands the adverse effects of sexual abuse on a child’s psychosocial development; and (b) requires NM to attend courses to enhance her capacity to protect W by increasing her self-esteem and self-assertiveness; -- 16 of 17 -- 17 (c) allows, for a time, periodic assessment by the Department including someone such as Ms Johnstone to ensure W’s appropriate psychosocial development; and (d) gives the Department, for a time, access to W’s school, medical and perhaps other records might well allow NM, MS and W to resume cohabitation in a setting that adequately protects W from unacceptable risk. [53] I am not in a position to make that assessment on the material before me (for the same reasons that I have determined the Magistrate ought to have seen NM and perhaps MS give evidence) but it does seem to me that precludes the possibility of such a resolution at a conference between the parties. -- 17 of 17 --