Children's Court New South Wales

• Medium Neutral Citation: DFaCS (NSW) and the Colt Children [2013] NSWChC 5
• Hearing dates: 5, 6, 7, 9, 12, 13,14, 15, 16, 19 and 21 August 2013 at Parramatta
• Decision date: 13 September 2013
• Jurisdiction: Care and protection
• Before: Judge Peter Johnstone, President of the Children's Court of New South Wales

Decision

There is no realistic possibility of restoration of any of the children. Parental responsibility for each child is allocated to the Minister until the age of 18.

• Catchwords: CHILDREN - Care and Protection - children in need of care and protection - realistic possibility of restoration - allocation of parental responsibility
• Legislation Cited: Children and Young Persons (Care and Protection Act) 1998; Evidence Act 1995
• Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; DFaCS (NSW) re Abbey [2013] NSW ChC3; DFaCS (NSW) re Amanda & Tony [2012] NSWChC 13; DFaCS (NSW) re Oscar [2013] NSW ChC1; Director-General of DFaCS re "Sophie" [2008] NSWCA 250; Epperson v Dampney (1976) 10ALR 227; Hocking v Bell (1945) 71 CLR 430; In the matter of Campbell [2011] NSWSC 761; Johnson v Page [2007] Fam CA 1235; M v M [1988] HCA 68; McFarlane v BillyS; ex parte Nationwide News [2008] NSWDC 16; Re Alistair [2006] NSWSC 411; Re Josie [2004] NSWSC 642; Re Kerry (No 2) [2012] NSWCA 127; Re Louise and Belinda [2009] NSWSC 534; Re Tracey [2011] NSWCA 43; Re M (No 5) - BM v Director-General, DFaCS 253; SB v Parramatta Children's Court [2007] NSWSC 1297; Sudath v Health Care Complaints Commission [2012] NSWCA 171; The Department of Community Services v "Rachel Grant", "Tracy Reid", "Sharon Reid and "Frank Reid" [2010] CLN 1
• Category: Principal judgment
• Parties: Director-General for the Department of Family and Community Services (NSW) - (DFaCS); Rhonda Colt (Mother of Cindy); Betty Colt (Mother of Bobby, Billy, Brian, Dwayne and Carmen); Martha Colt (Mother of Albert, Jed, Karl, Ruth and Nadia); Raylene Colt (Mother of Kimberly)
• Representation: Mr D Shridhar of counsel with Mr Dalla, solicitor (Director-General); Ms E Lawson of counsel, instructed by Mr Heenan, solicitor (Rhonda Colt); Mr McLachlan, solicitor (Betty Colt); Mr J Tyler-Stott of counsel with Mr Geary, solicitor, Salvos Legal Humanitarian (Martha Colt); Ms Wells, solicitor (Raylene Colt); Mr C Wilson of counsel, instructed by Mr Crampton, solicitor (Bobby, Albert, Billy, Jed, Brian and Karl Colt); Mr M Hogg of counsel, instructed by Ms Flynn, solicitor (Ruth, Carmen, Nadia and Cindy Colt); Mr M Whelan, solicitor (Kimberly Colt); Ms L Coady, solicitor (Dwayne Colt); Ms M Neville of counsel, instructed by Ms A Walsh (Police)
• File Number(s): 2013/18-29
• Publication restriction: Pseudonyms have been used in order to anonymise the children and parties

JUDGMENT

1 These proceedings concern 12 children removed by Community Services on 18 July 2012 from the extended Colt family, a group comprised of some 40 adults and children living communally under inadequate conditions on a farm at Boorowa, near Yass.

2 The Children's Court subsequently made findings in respect of each child that he or she is in need of care and protection.

3 The Director-General seeks final orders for placement of the children in out-of-home care. It is contended that there is no realistic possibility of restoration of any child to any mother, because restoration would pose unacceptable risk of harm to the child. The Director-General submits that the only order facilitative of the children's safety, welfare and well-being is an order allocating parental responsibility to the Minister until they attain the age of 18.

4 There are four mothers to the 12 children involved, whose ages range from five to fifteen. Each of the four mothers seeks restoration to her of her child or children.

5 It is not now disputed that each of the children was neglected and that the circumstances in which they were living at the time of their removal were deficient, justifying their removal. What remains in issue are allegations of sexual abuse, incest and inter-generational sexual abuse in the wider Colt family group, both on the farm and historically.

6 Central to the Director-General's case is uncontradicted genetic evidence that demonstrates that 11 of the 12 children have parents who are either closely related to each other or who are related to each other; disclosures made by some of the children since removal of sexual abuse; and other inappropriate sexualised conduct involving some of the children.

The Colt family structure

7 An understanding of the Colt family structure is critical to an appreciation of the issues in the proceedings. The family structure is depicted in the genogram which is Exhibit K.

8 The grandparents of the children involved in these proceedings were Timothy Colt (born in 1943) and June Colt (born probably in 1948), who were married in New Zealand in 1966. They had 7 children: Rhonda, Betty, Cherry, Frank, Charlie, Paula and Martha.

9 The family moved to Australia and lived at various locations in South Australia, Victoria (where June Colt died in 2001), South Australia again, Western Australia (where Timothy Colt died in 2009), and from 2011 at the farm at Boorowa in New South Wales.

10 Rhonda Colt, Betty Colt and Martha Colt are three of the 4 mothers whose children were removed from the Boorowa farm on 18 July 2012. The fourth mother is Raylene Colt, one of Betty Colt's daughters.

11 Rhonda Colt has had 6 children: Cliff, Tracy, Timothy, Penny, Alice and Cindy. Her youngest child, Cindy was removed from the Boorowa farm on 18 July 2012. She is now 5, the youngest of the 12 children removed.

12 Rhonda Colt contends that Cindy's father is Gerry Phelps, a man unrelated to the Colt family who she met in South Australia in 2006 when she worked on his farm harvesting fruit. She further contends that the father of all her older children is Ron West, who died in 1992. Ron West was also unrelated to the Colt family. Of the 12 children removed, Cindy is the only one in respect of whom the genetic testing does not reveal that her parents were related.

13 Betty Colt has had 13 children: Raylene, Tammy, Colin, Derek, Jane, Petra, Joe, Ben (who died aged 2 months), Bobby, Billy, Brian, Dwayne and Carmen. The 5 youngest children, Bobby (now aged 15), Billy (14), Brian (12), Dwayne (9) and Carmen (8) were removed from the Boorowa farm on 18 July 2012.

14 Betty Colt contends that the father of all her children was Phil Walton, who died in 2007. She met Phil Walton, who was known within the Colt family as Tim, in about 1982 and lived with him in a de facto relationship, but who was often away for significant periods of time working in the wheat industry. Phil (Tim) Walton was unrelated to the Colt family.

15 The genetic testing, however, discloses that Bobby's parents were closely related, Billy's parents were related, Brian's parents were related, Dwayne's parents were related and Carmen's parents were related.

16 The eldest of Betty Colt's children is Raylene (now aged 30). Raylene Colt is the fourth mother in these proceedings. Her only child, Kimberly, was also removed from the Boorowa farm on 18 July 2012. Kimberly is now 13.

17 Raylene Colt contends that Kimberly's father was a man called Sven, whose last name she does not recall. He was a backpacker from Sweden or Switzerland who she met on a date in Victoria. She saw him about 3 times, but when she told him she had become pregnant, when she was 8 months pregnant, he became abusive, hit her, and left saying he never wanted to see her again, or the baby. As a result of the assault, she went into early labour, and Kimberly was born 6 weeks early.

18 The genetic testing, however, discloses that Kimberly's parents were related.

19 The next eldest of Betty Colt's children is Tammy (now aged 27). Tammy Colt has had 3 children: Fiona (4), Anna (3) and Sally (who died aged 2 months). Tammy Colt's children have been removed from her care by the Department of Human Services, Victoria. Tammy is not a party to these proceedings but I have admitted evidence of disclosures made by her to Victorian caseworkers concerning the Colt family.

20 Martha Colt has had 6 children: Donna (who died aged 2 weeks), Albert, Jed, Karl, Ruth and Nadia. Her 5 surviving children, Albert (now 15), Jed (14), Karl (12), Ruth (9) and Nadia (7) were removed from the Boorowa farm on 18 July 2012.

21 Martha Colt contends that the fathers of each of her children were unrelated to the Colt family. She said that her relationship with each of the fathers was short-term, and she has not maintained contact with any of them. She met Donna's father in Maryborough, but cannot remember his name. The father of Albert was Martin Beach, who she met in Victoria. Jed's father was Sam Wilmont, who she met in Victoria. Karl's father was Barry Heath, who she also met in Victoria. She moved to South Australia in 2001 and lived there for 5 years. She cannot remember the name of Ruth's father. Nadia's father is Neville Chart, an American on holiday in Australia, who she met while working as a fruit picker.

22 The genetic testing, however, discloses that Albert's parents were closely related, Jed's parents were closely related, Karl's parents were related, although not as closely as his siblings, Ruth's parents were closely related, and Nadia's parents were closely related.

23 The mothers dispute the genetic evidence. They contend that it is simply wrong, and in the face of their evidence as to the paternity of the children, and their denials of any incestuous relationship, the genetic evidence should be rejected by the Court.

Removal and placement of the children

24 The 12 children removed from their mothers from the farm at Boorowa on 18 July 2012 were as follows (the ages in brackets are their current ages):

Rhonda Colt (47): the child Cindy (5).

Betty Colt (46): the children, Bobby (15), Billy (14), Brian (12), Dwayne (9) and Carmen (8).

Martha Colt (33): the children Albert (15), Jed (14), Karl (12), Ruth (9) and Nadia (7).

Raylene Colt (30): the child Kimberly (13).

25 Prior to removal of the children, between 24 February 2010 and 16 July 2012, the Director-General had received seven risk of significant harm reports in relation to the children. These reports related to neglect, failure to seek necessary medical attention, failure to ensure the children were attending school and the failure to maintain a hygienic and appropriate domestic living environment.

26 On 6 June 2012 a visit was undertaken by caseworkers and police to the farm at Boorowa. This home visit revealed that there were 4 main living quarters made up of 2 caravans, a garden shed and a large shed that contained 2 tents.

27 The first caravan was reported to be in a very dirty and hazardous state, with mud, dirt, cigarette butts and rubbish on the caravan floor. Three children's beds were observed to be dirty and unmade; cooking facilities were observed to be very dirty; a barbecue gas heater, used for heating, was deemed to be unsafe for the children sleeping in the caravan.

28 The second caravan contained dirt on all surfaces, including food preparation areas and on the stove; it contained at least 2 broken windows; and presented an immediate safety risk to a child in its general condition.

29 The large shed contained a basic kitchen with a stove, refrigerator and table. The stove was very dirty. The refrigerator contained "rotten vegetables and very few items". A freezer that contained multiple food items was considered adequate but not optimal for healthy child development. A young kangaroo was sleeping on one of the children's beds.

30 Martha reportedly slept in one tent with her daughters, while her sons slept in the other tent. The condition of the tents was considered adequate with no obvious signs of danger.

31 Observations of the children were that they appeared to be dirty, wore dirty clothing and were shy and unable to make eye contact. Their speech was difficult to understand, and they appeared to have very poor dental health and hygiene. There were no toilets, showers or baths. The children had to go into the bush to go to the toilet. They hand washed in a tub of water.

32 Various other safety concerns were identified, including exposed electricity wires and large bags of rubbish adjacent to the entrance of a caravan. There were exposed chain saws without protective covers in the garden shed.

33 A safety plan was entered into, under which Rhonda Colt and her family members were to take various steps to fix windows, cover exposed wiring, not use the dangerous stoves and gas heaters, and generally clean up. The family members were asked to remove the children from the premises while this was done. The next day, caseworkers returned with two camping toilets and a camping shower.

34 A follow-up visit was undertaken by caseworkers on 8 June 2012 when it was observed that there had been a significant clean-up and other improvements in conditions. However, after further visits on 6 July and 17 July 2012, and follow-up casework, the Director-General formed the view that the children would continue to be at risk of harm if they remained at the farm, and that they were in need of care and protection. Accordingly, the children were removed on 18 July 2012.

35 Other adult Colt family members present on the day of removal included Charlie Colt, Cliff Colt, Jane Colt and Petra Colt.

36 The children were placed into temporary out-of-home care, and subsequently into longer-term placements:

• Bobby, Billy, Jed and Karl were placed together.

• Albert, Brian and Dwayne were initially placed together, but Albert was subsequently put into a separate placement on his own, due to his behaviours.

• Kimberly, Carmen and Cindy were placed together with foster carers.

• Ruth and Nadia were placed together with foster carers.

37 Over the period subsequent to their removal all of the children presented as neglected in significant ways. Most of them were discovered to be far behind age peers in terms of educational development and were functioning well below their chronological age. Their basic schooling needs had been neglected, some having had no formal schooling, and others only having started school recently, at an older age than that of peer age-groups.

38 Some of the children were developmentally delayed, others were cognitively impaired. Several of them were unable to speak intelligibly, particularly Albert, Jed, Kimberly, Karl, Ruth, Carmen and Nadia.

39 The medical and dental needs of most of the children had been badly ignored. Their immunisation had either not occurred, had never been followed up following birth, or was not up to date.

40 The majority of the children required significant dental attention. Some required medical attention. Some were reported as being unable to use a toothbrush, wash their hair, use toilet paper, or bathe themselves, or to engage in basic hygiene tasks.

41 Bobby Colt (15), Betty Colt's son; his speech was not understandable. He needed encouragement with respect to personal hygiene. He had fungal infections on his toenails. He had a walking impairment. He had a severe psoriasis of the scalp. He needed urgent dental work. He was reported to be soiling himself and wetting his bed. He had limited reading skills. He was assessed as operating at kindergarten level.

42 Albert Colt (15), Martha Colt's son; his speech was not understandable. He needed encouragement in respect of personal hygiene. He had fungal infections in his toenails. He needed urgent dental work. He appeared to have a hearing impairment. He was reported to be wetting his bed. He had limited reading skills.

43 Billy Colt (14), Betty Colt's son, was underweight and there were growth concerns. He had a skin condition. He had fungal infections in his toenails. He needed urgent dental work. He had ophthalmological problems, and mild hearing loss. His speech was not understandable. He had a moderate intellectual disability, with poor spelling, reading, verbal, and numeracy skills.

44 Jed Colt (14), Martha Colt's son, presented with a bacterial infection on the soles of his feet. He had severe bilateral hearing impairment. He needed encouragement in respect of personal hygiene. He had a tongue infection, and fungal infections on his toes. He needed urgent dental work. He was reported to be wetting his bed. His speech was not understandable. He presented as cognitively impaired. He had limited reading skills.

45 Kimberly Colt (13), Raylene Colt's daughter, was initially abusive to caseworkers, having threatened one caseworker that she was going to cut her fingers off. She also said things like, "You wait till Charlie finds out. Charlie will come and get us." She was underweight, unable to clean her teeth, use toilet paper or comb her hair. She used her fingers to eat. She required urgent podiatry attention, and was observed to have fungal infections around her toenails. She had significant dental problems, including cavities requiring urgent attention and generalised marginal gingivitis. She was also reported as having optometry, hearing and speech issues. She appeared unable to read or write. Her school counsellor reported her as having a moderate intellectual disability. Her overall cognitive functioning was extremely low.

46 Brian Colt (12), Betty Colt's son, had various fungal infections and gum disease. He did not understand showering. He had extensively decayed teeth, requiring multiple extractions and restorative work. He had borderline normal hearing with mild low frequency hearing loss. His eyes were misaligned, and he was found to require glasses. He was working at a Year 3 level, though he should have been in Year 6. When he first presented at school he could not read or write, count, or recognise numbers. He continued to display poor speech, low reasoning capacity, poor literacy and mathematical skills, and low range processing and working memory. His cognitive capacity was in the extremely low range of intelligence, and he demonstrated considerable academic delay.

47 Karl Colt (12), Martha Colt's son, was very thin and was underweight. His speech was not understandable and he presented with mild hearing impairment. He needed encouragement in respect of personal hygiene. He had fungal infections on his toenails. He walked in a shuffling fashion. He had a loud breathing at night and appeared to have tonsil and adenoid issues. He needed urgent dental work. He had limited reading skills and presented as experiencing cognitive impairment. In episodes on 8 and 11 August 2012 he threatened to stab staff with pencils, and to cut the throats of staff.

48 Ruth Colt (9), Martha Colt's daughter, upon removal, was chronically underweight and presented as neglected and malnourished. Her toenails were in a poor state, and she required urgent podiatry attention. She was unable to bathe or dry herself. She did not know how to use a toilet, or what toilet paper was. Her features were dysmorphic, and she had a misalignment of her upper front incisor teeth. She had significant dental cavities, and required urgent dental attention. Her speech was fragmented and stunted, and she appeared to have a hearing deficit. She could not read or write. Her cognitive ability was in the extremely low range.

49 Dwayne Colt (9), Betty Colt's son, had gum disease and extensively decayed teeth, requiring multiple extractions and restorative work. When he first presented at school he could not read or write, count, or recognise numbers. He had effectively missed 5 years of formal schooling.

50 Carmen Colt (8), Betty Colt's daughter, was extremely underweight. She had "shocking" dental cavities, and was unable to clean her teeth. She required podiatry treatment. She did not know what toilet paper was used for. She had eye problems. She could not read and had severely delayed language development and hearing problems.

51 Nadia Colt (7), Martha Colt's daughter, upon removal, was significantly underweight and presented as neglected and malnourished. Her feet were unclean and black. She was unable to bathe or dry herself, including an inability to wash her hands, and her hygiene skills were described as primitive. She did not know how to use a toilet, or what toilet paper was. She had not seen a toothbrush before. Her teeth were decayed. She had speech delay, requiring therapy, and she was delayed educationally. Her visual comprehension index was in the extremely low range.

52 Cindy Colt (5), Rhonda Colt's daughter, was medically examined on the day of her removal. She had a viral cold, but her health and hygiene was otherwise observed to be good, and her clothes were clean. She was suffering from an ear infection, although her mother had taken her to hospital two weeks prior to her removal to have this problem treated. She was unable to brush her teeth properly, though it is to be noted she was only 4 at the time. She could not bathe or dress herself, but unlike other children was reportedly capable of using toilet paper. But she preferred to eat with her fingers. She also required dental treatment, although it was submitted that her needs in this regard may not have been readily apparent to a lay observer, given the apparent absence of complaints of pain. Unlike the other children, Cindy presented as a well-spoken polite, bright, intelligent girl whose development was normal for her age. As previously noted, of all the children, the genetic testing demonstrated that her parents were not related.

The disclosures by some children and reports of sexualised behaviour

53 Subsequent to their removal, some of the children made concerning disclosures, exhibited sexualised behaviour or were reported to have engaged in inappropriate sexual conduct. The following are some examples of reports of such disclosures and conduct.

54 Nadia told her temporary carers that her father was her maternal uncle, Charlie Colt (23.7.12).

55 Albert, Jed and Karl disclosed to their carers that they used to torture animals at the farm, including puppies and cats. They reported mutilating the genitals of animals. Bobby and Billy made similar disclosures to their carers (24.7.12).

56 A psychologist reported that Kimberly told her during assessment that she had the same father as her mother, Raylene Colt, and her grandmother, Betty Colt (21.8.12).

57 Ruth told a psychologist that she lived with "two mums and two dads" but her "number one mum died because she was sick" (24.8.12).

58 Kimberly is reported to have said that she had "sucked Dwayne", and that Carmen had watched her suck Dwayne. Her mother, Raylene Colt, was made aware of the incident but did nothing about it.

59 Carmen is reported to have said that her father was her maternal uncle, Charlie Colt.

60 A placement report disclosed that Cindy was masturbating on the toilet (24.9.12).

61 Dwayne and Brian tied up their carers' 18 year-old granddaughter with ribbons.

62 Nadia told caseworkers that her father was her uncle, Charlie Colt, and that he was also the father of her brother and sister (18.10.12).

63 Nadia also told the caseworkers she had watched Charlie Colt and her mother, Martha Colt, having sex in the tent.

64 During contact, Brian placed his hand on Carmen's knee a number of times, and moved it up her thigh (24.10.12).

65 Ruth and Nadia disclosed to their carers that Albert, Jed and Karl used to show them books with pictures of naked men and women; that they used to touch their breasts; and that Albert used to lick their vaginas and have sex with them (28.10.12).

66 Carmen is reported to have said that she had had sex with family members; that Brian, Dwayne and Billy once took her and Kimberly to the bush, tied them to a tree and took their clothes off; and that she had watched Dwayne and Cindy have sex (5.11.12).

67 Nadia told her carers that her mother and father took photos of her vagina (6.11.12).

68 Whilst on holidays, Carmen and a boy went missing, but were found in a shower. The boy is reported to have said, "Carmen keeps asking me for sex", and had pulled her pants down before trying to pull his pants down (6.11.12).

69 In a JIRT interview on 15.11.12, Ruth said that her father's name was Charlie; that Albert had touched her bottom; that her brothers had had sex with her, and that Martha Colt knew; that Albert had licked her vagina, and had had sex with her using his penis, more than once. She later told Martha Colt, after it happened. Jed and Karl had also done similar things to her.

70 In a JIRT interview on 15.11.12, Nadia said that Albert had touched her vagina, had licked her vagina, and had inserted his penis into her vagina and anus on a number of occasions. Jed had also licked her vagina and had tried to insert his penis in her anus. She had told Martha Colt and Charlie Colt.

71 Ruth and Nadia told their carers that their father used to play with Nadia's anus, and used to put a stick in it, and his penis (22.11.12).

72 In a further JIRT interview on 23.11.12, Ruth said Albert, Karl, Jed Dwayne and Brian had all touched her vagina; that Dwayne had also touched Nadia's vagina and Carmen's vagina; and that Albert, Karl, Jed and Brian had touched her anus.

73 In a further JIRT interview on 23.11.12, Nadia said her brothers had touched her vagina and had touched her anus with their penises; that Charlie Colt had inserted sticks into her vagina; and that Charlie Colt and Martha Colt slept together in a bed each night.

74 Jed told his carers that he used to open up Ruth's bum and lick her inside; that he had watched Albert do the same; and that Karl had watched (27.11.12).

75 Karl told a worker at St Saviours that he had watched Albert open up Nadia's legs and try and lick and kiss her (27.11.12).

76 Jed and Karl told their carers that they had sexually penetrated Ruth and Nadia (3.12.12).

77 The carers of Kimberly and Carmen observed Kimberly place her hand inside Carmen's skirt. They reported that Carmen had told them that she had been touching Kimberly's "girl", that is, her vagina, and that Kimberly said she had touched Carmen's vagina. Kimberly also told the carers that the boys did that to her, and that Billy and Bobby did it to all the girls (7.12.12).

78 In a JIRT interview on 7.12.12, Kimberly said that while living on the farm the boys had touched her vagina, and that her mother, Raylene Colt, was aware of this. She had also been tied to a tree.

79 In a JIRT interview on 7.12.12, Carmen said that while living on the farm Dwayne and Brian had tied Kimberly to a tree; that Dwayne had been having sex with her and Cindy in the cubby house; that Billy had had sex with her; and that Dwayne, Bobby and Billy had touched her vagina with their penises, lots of times.

80 Dwayne told his carers that he watched his brothers and cousins masturbate using "rudey books"; that he had had sex with an 8 year-old girl in the toilets behind the Primary School, and that the girl had masturbated him; and that Brian had had sex with a different girl (21.12.12).

81 In an interview with the independent Clinician on 31.12.12, Nadia said she did not like what her brothers did to her, including touching her chest and bottom, and putting a stick in her "both sides, front and back". She told her mother, Martha Colt. Charlie Colt smacked the boys with a big belt.

82 In an interview with the independent Clinician on 11.1.13, Kimberly said she had had sex with her uncles Joe, Bobby and Dwayne, including vaginal intercourse with Dwayne. She had performed fellatio on Bobby and Dwayne. Kimberly said she had told her mother, Raylene Colt about these incidents.

83 In a JIRT interview on 17.1.13, Jed said that Charlie and Martha Colt shared a bed together.

84 Kimberly is reported to have said that Dwayne and Brian had put their penises in her mouth lots of times; that she had told her mother Raylene about this; that Dwayne had put his penis in her vagina and into her anus; and that her cousin Joe had also had sex with her on one occasion (28.1.13).

85 Brian told a mandatory reporter that he knew Carmen had "sucked Dwayne off" (28.1.13).

86 In a further JIRT interview on 29.1.13, Ruth said that Charlie and Martha Colt used to share a bed together at the farm; and that Derek Colt had been Tammy Colt's boyfriend.

87 In a further JIRT interview on 29.1.13, Nadia said that Charlie and Martha Colt used to share a bed together at the farm; and that her father's name is Charlie.

88 In a further JIRT interview on 6.2.13, Kimberly said that Joe Colt had had sex with her by inserting his penis into her vagina.

89 Cindy's carers reported that she was recently found masturbating on the toilet (8.3.13). It was also reported that Cindy had been observed masturbating in the shower. She once told the carers that Dwayne had showed her how to do that. She often tried to kiss the male carer on the lips, and was defiant when told this was inappropriate.

90 Dwayne told his carers that he and his siblings were told never to tell anyone that his father was in fact Betty Colt's father, as Betty Colt would go to gaol because her father had started having sex with her when she was 12.

The genetic evidence

91 On 28 September 2012, the Children's Court at Orange made orders for genetic testing in relation to the children.

92 A report on the genetic testing dated 29 July 2013 was prepared by Dr Susan Marks from the Child Protection Unit at the Children's Hospital at Westmead (CHW), which is relied upon by the Director-General. Dr Marks was also cross-examined before me.

93 The genetic evidence was based on buccal swabs obtained by Dr Marks from each child on 5 June 2013 at the Child Protection Unit at CHW, which she personally delivered to the Cytogenetics Lab. She subsequently received the results of the cytogenetic testing on 25 July 2013. Her report of 29 July 2013 interprets those results.

94 In Dr Marks' opinion, the cytogenetic testing demonstrated that 5 of the Colt children removed on 18 July 2012 have parents who are "closely related" and another 5 have parents who are "related".

95 Cytogenetics is the study of inheritance in relation to the structure and function of chromosomes. Homozygosity means there are identical gene patterns from both parents in a child. Where results of cytogenetic testing show that the genomic homozygosity is sufficiently excessive, the finding may trigger a suspicion for parental consanguinity or incest [27]. It is most unusual to see any but a very small amount of homozygosity in a child unless the parents are related. LCSH (long contiguous stretch of homozygosity) is a term used to describe an uninterrupted region of homozygous alleles (one of a number of alternate forms of the same gene/genetic locus). A cell is said to be homozygous for a gene when identical alleles of the gene are present on both homologous chromosomes [23]. One homologous chromosome (chromosome pairs) is inherited from the mother, the other from the father. Autosomal chromosomes refer to chromosomes other than the sex determining chromosomes or to the genes on these chromosomes.

96 An estimate of the total proportion of the LCSH in the genome can be used as a rough assessment of the degree of parental relationship. Individual results are calculated by adding all homozygous regions greater than a defined threshold. The total autosomal LCSH is then divided by total autosomal length to estimate the percentage of identical by descent (IBD) [31]. Individual results can be correlated with the predicted percentage of IBD for various degrees of relationship [32].

97 The calculation for the individual child is likely to represent an underestimate of the actual homozygous proportion. The estimate of percentage of IBD may suggest a degree of parental relationship, but with a number of provisos including that it is not evidence of a specific parental relationship [33].

98 Specifically, Dr Marks expressed the opinion that the results for these 12 children can be interpreted along the following lines:

99 The result of the cytogenetic testing of Betty Colt's son Bobby (15) indicates that his parents are closely related to each other. They could be parent/child or full siblings, or they could be half-siblings, uncle/niece, aunt/ nephew, double first cousins or grandparent/grandchild [46].

100 The result of the cytogenetic testing of Betty Colt's son Billy (14) indicates that his parents are related to each other. Possible relationships of the parents include half siblings, uncle/niece, aunt/nephew, double first cousins or grandparent/grandchild. The parents could also be first cousins [47].

101 The result of the cytogenetic testing of Betty Colt's son Brian (12) indicates that his parents are related to each other. Possible relationships of the parents include half siblings, uncle/niece, aunt/nephew, double first cousins, grandparent/grandchild, or first cousins [48].

102 The result of the cytogenetic testing of Betty Colt's son Dwayne (9) indicates that his parents are related to each other. Possible relationships of the parents include half siblings, uncle/niece, aunt/nephew, double first cousins, grandparent/grandchild, or first cousins [49].

103 The result of the cytogenetic testing of Betty Colt's daughter Carmen (8) indicates that her parents are related to each other. The parents could be first cousins, or first cousins once removed [50].

104 The result of the cytogenetic testing of Martha Colt's son Albert (15) indicates that his parents are closely related to each other. They could be parent/child or full siblings; it is less likely but possible that the parents are half-siblings, uncle/niece, aunt/nephew, double first cousins or grandparent/grandchild [40].

105 The result of the cytogenetic testing of Martha Colt's son Jed (14) indicates that his parents are closely related to each other. They could be parent/child or full siblings; it is less likely but possible that the parents are half-siblings, uncle/niece, aunt/nephew, double first cousins or grandparent/grandchild [41].

106 The result of the cytogenetic testing of Martha Colt's son Karl (12) indicates that his parents are not as closely related to each other as the other children of Martha Colt. They may be first cousins once removed or second cousins [42].

107 The result of the cytogenetic testing of Martha Colt's daughter Ruth (9) indicates that her parents are closely related to each other. They could be parent/child or full siblings; it is less likely but possible that the parents are half-siblings, uncle/niece, aunt/nephew, double first cousins or grandparent/grandchild [44].

108 The result of the cytogenetic testing of Martha Colt's daughter Nadia (7) indicates that her parents are closely related to each other. They could be parent/child or full siblings; it is less likely but possible that the parents are half-siblings, uncle/niece, aunt/nephew, double first cousins or grandparent/grandchild [44].

109 The result of the cytogenetic testing of Raylene Colt's daughter Kimberly (13) indicates that her parents are related to each other. Possible relationships of the parents include half siblings, uncle/niece, aunt/nephew, double first cousins, grandparent/grandchild, or first cousins [39].

110 The result of the cytogenetic testing of Rhonda Colt's daughter Cindy (5) indicates that her parents are not related to each other.

111 Dr Anne Turner, a clinical geneticist and head of the Department of Medical Genetics, NSW Health, supports the conclusions of Dr Marks in her report on the Colt children in these proceedings. Dr Turner, whose qualifications in genetics were not challenged, was available in court for cross-examination, but none of the other parties required her to give evidence. Her opinions are, therefore, unchallenged.

112 Dr Turner provided a genetic report in respect of the parents of Tammy Colt's child Sally. As outlined above, Tammy Colt (27) is the second daughter of Betty Colt. Tammy Colt has had 3 children: Fiona (4), Anna (3) and Sally (who died aged 2 months). The report dated 7 September 2012 is Exhibit N.

113 In this report, Dr Turner provides the unchallenged opinion that Tammy's baby, Sally, died from Zellweger syndrome, a rare genetic disease. Dr Turner examined Sally at the age of 2 weeks at Canberra Hospital. The child was extremely dysmorphic (abnormal looking), with a thick short neck and low set ears, consistent with the genetic disorder called Zellweger syndrome. Further tests seemed to confirm the diagnosis, but Dr Turner wanted to exclude other possibilities, and ordered additional testing by way of SNP microarray (also referred to as a "molecular" karotype), which looks more closely at the child's chromosomes, from the Canberra Hospital Laboratory.

114 The microarray test can also detect when the parents of a child are closely related. Sally's tests showed that 32% of her genome was arranged in long stretches of homozygosity, strongly suggesting her parents were closely related (the usual upper limit for unrelated individuals being 2%). Such a finding is "essentially impossible" to have occurred by chance for a child of unrelated parents.

The evidence of Tammy Colt

115 Tammy Colt (27) is the second daughter of Betty Colt. She has had 3 children: Fiona (4), Anna (3) and Sally (who died aged 2 months).

116 As already recorded, Sally died in Canberra hospital from Zellweger syndrome on 21 June 2012. Genetic testing has shown that Sally's parents are closely related. Dr Turner believes that both those parents are carriers of this rare genetic disease and both passed on the faulty gene to Sally. The Zellweger group of disorders is "universally lethal", usually in early childhood. Dr Turner goes on to say:

"In terms of harm to the other children and adults living in this extended family group, the risk of incest and its consequences to future offspring may be significant."

117 Dr Turner arranged to discuss the diagnosis of Zellweger with Tammy and her mother, Betty Colt, to warn of the risks to future children for this and other diseases and to discuss the role that close consanguinity between the parents had played in causing Sally's condition. But they failed to attend the appointment.

118 The whereabouts of Tammy and her two surviving daughters after Sally's death is unconfirmed, but they were discovered by Victorian Police on 16 January 2013 in a caravan park in the Mildura area. Fiona and Anna were taken into care by the Victorian Human Services Department.

119 Subsequently, Tammy disclosed to the Victorian caseworker, Ms Angela Giannakoulopoulous, that she had been in a relationship with her younger brother, Derek Colt, for the last 3 years, and that he was the father of her three children.

120 Tammy said that her mother, Betty Colt, had only recently told her that Derek was in fact her half-brother, and that prior to that she was unaware of this fact. Betty Colt also told Tammy that she did not know who Derek's father was.

121 Ms Giannakoulopoulous sat with Tammy Colt at Robinvale Court on 18 February 2013 while awaiting the calling-on of her application for an Intervention Order (AVO) against Derek Colt, who had recently threatened to kill her if "he couldn't have her".

122 Tammy went through her life history with Ms Giannakoulopoulous, in the course of which a series of startling revelations emerged. Tammy disclosed that she had been sexually abused within the Colt family from the age of 12, when other family members began having sex with her, including Colin, Timothy, Derek and Matthew. She said that the same happened to her sisters, Raylene, Tracy, Jane and Penny. Her mother, Betty Colt, encouraged this activity. They were not allowed to see a doctor when pregnant in case someone found out what was happening. There had been various miscarriages on the Boorowa farm of which she is aware. Tammy used to hide from her brothers when she could so they couldn't have sex with her, and she secretly went on the pill at age 16, without her mother's knowledge.

123 Tammy confirmed in court, under oath, that Derek Colt is the father of her children.

124 Micro-array testing of the homozygosity of Fiona and Anna subsequently carried out by the Victorian Paediatric Medical Service demonstrated that their parents are closely related.

125 Ms Giannakoulopoulous formally interviewed Tammy at the VHS office on 20 February 2013, during which she confirmed and expanded upon her earlier revelations.

126 She expressly confirmed that she, Raylene, Jane, Petra and Penny were regularly abused sexually by Timothy, Derek, Matthew and Colin, who had also started abusing Kimberly, Ruth, Nadia and Carmen. Joe, Jed and Albert were also abusing the girls on the farm.

The evidence of the independent Clinician

127 The independent Children's Court Clinic psychologist appointed to assist and advise the Court in relation to these children is Ms Linda Pfeiffer.

128 She prepared four Assessment Reports for these proceedings, pursuant to assessment orders made under s 53 and s 54 of the Care Act 1998.

• An Assessment Report dated 31 March 2013 in respect of Bobby, Billy, Brian, Dwayne and Carmen, the children of Betty Colt.

• An Assessment Report dated 5 April 2013 in respect of Albert, Jed, Karl, Ruth and Nadia, the children of Martha Colt.

• An Assessment Report dated 22 February 2013 in respect of Kimberly, the daughter of Raylene Colt.

• An Assessment Report dated 15 March 2013 in respect of Cindy, the daughter of Rhonda Colt.

129 Ms Pfeiffer also attended at the hearing when she was extensively cross-examined on 16 and 19 August 2013.

130 Ms Pfeiffer, a psychologist, is currently a private practitioner specialising in the forensic reporting of child, adolescence and trauma. She is a registered counsellor with Victims of Crime and an Authorised Children's Court Clinic Clinician.

131 She has a Bachelor of Arts Degree (Psychology major) from Charles Sturt University, Masters of Psychology from University of Western Sydney, a Diploma in Business Administration Systems, a Diploma in Neuro Linguistic Programming, Certificate IV in Crisis Management and numerous other qualifications gained over a lifetime of learning.

132 Prior to entering into private practice in 2005, she specialised for over 20 years within government and non-government agencies in working with children, adolescents and their families who have experienced trauma. This work included: Team Leader for the Social Emotional Well Being team, focussing on the 'Bringing Them Home' program for the Wellington Aboriginal Corporation Health Service; management of a state wide Drug and Alcohol Service for the NSW Department of Juvenile Justice; front-line psychologist in a busy remand centre within NSW Department of Juvenile Justice; coordination of the youth work program for homeless and disadvantaged youth with Mission Australia, Green Valley NSW and management of the Child Abuse Prevention Service in western Sydney.

133 Her clinical experience within her private practice over the past seven years has included: forensic and clinical assessments and treatment of children who are victims or offenders of sexual assault. This includes treatment of children who are demonstrating challenging and sexualised behaviours and referred to her by Family and Community Services, the NSW Child Abuse Review Team (CART) and other government and non-government agencies.

134 Her clinical practice also includes the assessment and treatment of adolescents and adults who have experienced trauma, alcohol and other drug use and / or participated in criminal behaviour.

135 This impressive level of qualifications and experience was reflected in the thoroughness of her reports and in the quality of her evidence.

136 There are over 200 pages of material in her Assessment Reports and I do not propose to summarise them in these Reasons. It will be sufficient at this stage to record that in the assessment of the independent Clinician, based on the aggregated information considered by her, that the parenting capacity of each of the four mothers is inadequate for them to re-assume parental responsibility for any of these children. Her assessment of each mother in this regard remained unvaried following her cross-examination.

137 The independent Clinician made a series of recommendations in relation to each mother and her child(ren).

138 In respect of Betty Colt and her children, the Clinician recommended:

1. Parental responsibility for the children be afforded to the Minister until they are eighteen years old.

2. Even though restoration is not favoured, Betty should be offered every opportunity to address personal issues, which currently preclude restoration.

3. That Betty Colt be referred to an agency who is able to provide her with information and strategies to assist her to deal with her children's sexual assault.

4. That Betty Colt be referred to an agency who will provide her counselling in family systems therapy.

5. That regular supervised contact on a monthly basis be negotiated between the mother, Betty Colt and the children.

6. That the subject children remain in their current placements until the outcome of the Court is determined.

7. That supervision by Family and Community Services continues as required by legislation.

8. That the children be assessed for possible developmental and behavioural support services by Ageing, Disability and Home Care Services (ADHC).

9. That a paediatrician reviews and monitors the children's service access to address their physical health needs, and that their specific dental, language, hearing, occupational therapy and speech needs be specifically assessed and offered remediation.

10. The children are also likely to benefit from specific educational support, responsive to the needs assessed above, in order to give them a chance to achieve towards their potential. They are likely to need support to continue school attendance.

11. That Bobby, Billy and Brian be referred to an agency such as New Street Adolescent Service Program or ADHC's specific program to address their problem sexualised behaviour that presents a risk to other people.

12. That Dwayne and Carmen be referred to an agency that specialises in the treatment of problem sexualised behaviour.

13. That the placement assessment and risk management planning for Bobby, Billy, Brian and Dwayne focus on containing and protecting the children, other children and the foster parents in relation to their behaviour problems.

14. That Carmen be afforded the opportunity to address her own trauma history, including her experience of sexual assault.

139 In respect of Martha Colt and her children, the Clinician recommended:

1. Parental Responsibility for the children is afforded to the Minister until they are eighteen years old.

(i) Even though restoration is not favoured, Martha should be offered every opportunity to address personal issues which currently preclude restoration.

(ii) That Martha Colt be referred to an agency who is able to provide her with information and strategies to assist her to deal with her children's sexual assault.

(iii) That Martha Colt be referred to an agency who will provide her counselling in family systems therapy.

2. That contact between Albert, Jed and Karl and their mother Martha Colt be negotiated within the context of this report.

3. That contact between Nadia and Ruth and their mother Martha Colt continue to be suspended until the children's treating therapists agree that the children have sufficiently progressed in their treatment to manage their trauma symptomatology.

4. That the subject children remain in their current placements until the outcome of the Court is determined.

5. That supervision by Family and Community Services continues as required by legislation.

6. That Jed, Karl, Nadia and Ruth be specifically referred to Ageing, Disability and Home Care in order to access disability support, training and education services.

7. That a paediatrician reviews and monitors the children's service access to address their physical health needs, and that their specific dental, language, hearing, occupational therapy and speech needs be specifically assessed and offered remediation.

8. The children are also likely to benefit from specific educational support, responsive to the needs assessed above, in order to give them a chance to achieve towards their potential. They are likely to need support to continue school attendance.

9. That Albert, Jed and Karl be referred to an agency such as New Street Adolescent Service Program or ADHC's specific program to address their problem sexualised behaviour that presents a risk to other people.

10. That Nadia and Ruth continue with their current treatment.

11. That the placement assessment and risk management planning for Albert, Jed, and Karl focus on containing and protecting the children, other children and the foster parents in relation to their behaviour problems.

140 In respect of Raylene Colt and Kimberly, the Clinician recommended:

1. Parental responsibility for Kimberly is afforded to the Minister until she is eighteen years old.

2. Even though restoration is not favoured, Raylene should be offered every opportunity to address personal issues which currently preclude restoration.

3. That regular supervised contact on a monthly basis be negotiated between the mother, Raylene Colt and the child, Kimberly Colt.

4. That the subject child remains in her current placement until the outcome of the Court is determined.

5. That supervision by Family and Community Services continues as required by legislation. It is further recommended that Kimberly be specifically referred to Ageing, Disability and Home Care in order to access disability support, training and education services.

6. That Kimberly be referred to an agency such as New Street Adolescent Service Program which specialises in the treatment of juvenile sex offenders.

7. That an actuarial risk assessment be conducted to ascertain Kimberly's risk of re-offending and to determine suitable placement in out-of-home care.

8. That Kimberly has no future contact with her uncles Bobby, Billy, Brian and Dwayne.

9. That Kimberly be afforded the opportunity to address her own trauma history, including her experience of sexual assault.

141 In respect of Rhonda Colt and Cindy, the Clinician recommended:

1. Parental responsibility for Cindy Colt is afforded to the Minister until she is eighteen years old.

2. Even though restoration is not favoured, Rhonda Colt should be offered every opportunity to address issues which currently preclude restoration. That Rhonda Colt be referred to an agency who is able to provide her with information and strategies to assist her to deal with her daughter's sexual assault, and an agency who will provide her counselling in family systems therapy.

3. That regular supervised contact continue between the mother, Rhonda Colt and her daughter, Cindy as per current arrangements.

4. That the subject child remains in her current placement until the outcome of the Court is determined.

5. That in the short term, a risk assessment and a safety plan be developed for Cindy to remain in the same placement as her second cousin, Kimberly Colt.

6. That Cindy is closely supervised whenever she is in the company of her second cousin, Kimberly Colt.

7. That there be no contact between Cindy and her cousins, Bobby, Billy, Brian and Dwayne Colt.

8. Further paediatric assessment to investigate whether there is a possible neurological basis to Cindy's night time behaviours observed in her current placement as previously described in this report.

9. That Cindy is referred to, as a matter of urgency, health services such as Links House, with the aim of addressing her previous sexual assault and subsequent sexualised behaviours.

10. That Cindy be provided with age appropriate counselling to reduce the severity of her grief symptomatology, improve her adaptive functioning and restoration and / or promotion of her normal developmental progress.

11. That supervision by Family and Community Services continues as required by legislation.

The legal context for the proceedings

142 Before proceeding to discuss the respective positions of the parties and their submissions it is important that these proceedings be understood in their proper legal context.

143 The proceedings are governed by the Children and Young Persons (Care and Protection) Act 1998. I will refer to the Act in short form as the Care Act 1998. As its full title suggests, the Care Act 1998 is concerned with the care and protection of children and young persons. These proceedings may conveniently be shortly described, therefore, as care proceedings. The objects, as set out in s 8, are to provide:

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

(b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and

(c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.

144 Decisions in care proceedings are to be made consistently with the objects, provisions and principles provided for in the Care Act 1998. Importantly, it governs not only the substantive law to be applied in the proceedings, but the practice and procedure for their conduct.

145 The Care Act 1998 is not the most precise or orderly piece of legislation one could hope for. It contains an inextricable mixture and combination of both judicial and administrative powers, duties and responsibilities. It is often difficult to precisely discern where the Department's powers and responsibilities begin and end as opposed to those of the Court. In summary, however, the Act establishes a regime under which the primary, and ultimate, decision-making as to children rests with the Court.

146 The overriding principle is that the Act is to be administered under the principle that the safety, welfare, and well-being of the children are paramount (the paramount concern): s 9(1) of the Care Act 1998. That paramount concern governs not just administrative decisions, but judicial decision-making in care proceedings.

147 This principle is the underpinning philosophy by which all relevant decisions are to be made, including decisions in care proceedings. It operates, expressly, to the exclusion of the parents, the safety, welfare and well-being of a child or young person removed from the parents being paramount over the rights or interests of those parents.

148 It is now well settled law that the proper test to be applied is that of "unacceptable risk to the child": The Department of Community Services v "Rachel Grant", "Tracy Reid", "Sharon Reid and "Frank Reid" [2010] CLN 1 per Judge Marien at [61]. Whether there is an "unacceptable risk" of harm to the child is to be assessed from the accumulation of factors proved: see Johnson v Page [2007] Fam CA 1235. This test of whether there is an "unacceptable risk" of harm to the child is the sine qua non for the application of the Act: see M v M [1988] HCA 68 at [25].

149 Secondary to the paramount concern, the Care Act 1998 sets out other, particular principles to be applied in the administration of the Act. These are set out in ss 9(2), 10, 11, 12 and 13.

150 These secondary principles include, for example, the following:

• Wherever a child is able to form their own view, they are to be given an opportunity to express that view freely. Those views are to be given due weight in accordance with the child's developmental capacity, and the circumstances: s 9(2)(a); see also s 10.

• Account must be taken of the culture, disability, language, religion and sexuality of the child and, if relevant, those with parental responsibility for the child or young person: s 9(2)(b).

• Any action to be taken to protect the children from harm must be the least intrusive intervention in the life of the children and their family that is consistent with the paramount concern to protect them from harm and promote their development: s 9(2)(c).

• If children are temporarily or permanently deprived of their family environment, or cannot be allowed to remain in that environment in their own best interests, they are entitled to special protection and assistance from the State, and their name, identity, language, cultural and religious ties should, as far as possible, be preserved.

• Any out-of-home care arrangements are to be made in a timely manner, to ensure the provision of a safe, nurturing, stable, and secure environment, recognising the children's circumstances and, the younger the age of the child, the greater the need for early decisions to be made s 9(2)(e). Unless contrary to the child's best interests, and taking into account the wishes of the child, this will include the retention of relationships with people significant to the children: s 9(2)(f).

151 There is also a set of special principles of self-determination and participation to be applied in connection with the care and protection of Aboriginal and Torres Strait Islander children: ss 11, 12 and 13.

152 The provisions of the United Nations Convention on the Rights of the Child 1989 (CROC) are capable of being relevant to the exercise of discretions under the Care Act 1998: Re Tracey [2011] NSWCA 43. Most, if not all, of the provisions in CROC have been incorporated into or are reflected in the Care Act 1998. The circumstances in Re Tracey were unusual and unique. The parties in the present matter made no submissions based on the Convention. There was, therefore, no suggestion that this Court needed to take into account any provision in CROC such that there was some different requirement, some additional principle, or some gloss that required the Court to have particular regard to in determining this case, such that I was required to go beyond the Care Act 1998 and the case law interpreting that Act and the relevant provisions, or in the consideration of the permanency planning proposed.

Practice and procedure in care proceedings

153 Care proceedings are conducted in closed court: s 104B, and the name of any child or young person involved, or reasonably likely to be involved, whether as a party or as a witness, must not be published: s 105(1). Any person who is not directly interested in the proceedings must, unless the Court otherwise directs, be excluded from the place where the proceedings are being heard: s 104B. The media is entitled to be in Court for the purpose of reporting on proceedings, subject to not disclosing the child's identity. But the common law principle of open justice is secondary to the principles in s 9(a) of the Care Act 1998, in particular the principle that the safety, welfare, and well-being of the children are paramount (the paramount concern): McFarlane v DoCS; ex parte Nationwide News [2008] NSWDC 16.

154 Care proceedings are not to be conducted in an adversarial manner, and are to be conducted with as little formality and legal technicality and form as the circumstances permit: s 93.

155 In Re Emily v Children's Court of NSW [2006] NSWSC 1009 the Supreme Court set out the manner in which care proceedings are to be dealt with by the Court.

"The learned Magistrate was required by the explicit terms of the Care Act 1998 to deal with the matter before him in the manner for which express provision is made in, relevantly, sections 93, 94 and 97 of the Care Act 1998. It is no doubt the case that those sections, broadly expressed though they are, do not empower a Children's Court Magistrate to take some sort of free-wheeling approach to an application, proceeding in virtually complete disregard of what ordinary common-sense fairness might be thought to require in the particular case. The (Court) is, however, both empowered and required to proceed with an informality and a wide-ranging flexibility that might be thought not entirely appropriate in a more formally structured Court setting and statutory context." (Emphasis added).

156 The Court is not bound by the rules of evidence, unless it so determines: s 93(3).

157 But in Sudath v Health Care Complaints Commission [2012] NSWCA 171 Meagher JA said:

"Although the Tribunal may inform itself in any way "it thinks fit" and is not bound by the rules of evidence, it must base its decision upon material which tends logically to show the existence or non-existence of facts relevant to the issues to be determined.

Thus, material which, as a matter of reason, has some probative value in that sense may be taken into account: Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 491-493; The King v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30."

158 In the present proceedings I have not determined that any of the rules of evidence should apply, except s 128 of the Evidence Act 1995, insofar as I granted certificates to each of the mothers in relation to their evidence on particular matters to which they objected on the ground of self-incrimination, arising out of the genetic evidence and the disclosures made by the children of sexual abuse to which I have referred above.

159 Whilst not strictly determining that s 55 and s 56 of the Evidence Act 1995, I did conduct the proceedings in a manner consistent with the principles in Sudath v Health Care Complaints Commission [2012] NSWCA 171 cited above and did not allow evidence not relevant to the existence of a fact in issue in the proceedings.

160 The standard of proof is on the balance of probabilities: s 93(4) of the Care Act 1998. The High Court decision in Briginshaw v Briginshaw [1938] HCA 34 is relevant in determining whether the burden of proof, on the balance of probabilities, has been achieved: Director-General of Department of Community Services; Re "Sophie" [2008] NSWCA 250.

The parties and their legal representatives

161 It will also assist in the understanding of the submissions if I briefly set out the nature and identity of the parties and their legal representatives, at least insofar as those who appeared at the hearing are concerned.

162 As I have already explained, these proceedings are brought on the application of the Director-General of the Department of Family and Community Services, seeking final care orders in respect of the children, under the Care Act 1998.

163 The twelve children are also parties to the proceedings.

164 The other parties to the proceedings are the four mothers previously identified.

165 It is usual in care proceedings for the fathers of the children concerned to be parties. In this case, for self-evident reasons already discussed, there are no fathers involved in the proceedings.

166 Some of the legal representatives were barristers and some were solicitors. In the Children's Court the reality of a split profession in New South Wales is less relevant, given that the practitioners regularly appearing in this jurisdiction are generally experienced and competent advocates, specialising in children's law and family law. Those appearing in these proceedings, at least those who were involved with the hearing, conform to that description.

167 The Director-General was represented by Mr D Shridhar of counsel with Mr Dalla, solicitor.

168 Mr R McLachlan, solicitor, appeared for the mother, Betty Colt.

169 Mr J Tyler-Stott of counsel with Mr Geary, solicitor from Salvos Legal Humanitarian, appeared for the mother, Martha Colt.

170 Ms L Wells, solicitor, appeared for the mother, Raylene Colt.

171 Ms E Lawson of counsel appeared for the mother, Rhonda Colt, instructed by Mr Heenan, solicitor.

172 Mr C Wilson of counsel appeared for the children, Bobby, Albert, Billy, Jed, Brian and Karl Colt, instructed by Mr Crampton, solicitor, as their Direct Legal Representative appointed by the Court under s 99 of the Care Act 1998, they being children over the age of 12 presumed capable of giving proper legal instructions: s 99C.

173 Mr M Whelan, solicitor, appeared for the child, Kimberly Colt, as her Independent Legal Representative, appointed by the Court under s 99 of the Care Act 1998. Kimberly required separate legal representation from the other children under 12 having regard to allegations made against her of sexual abuse of some of the other children. Although Kimberly is over the age of 12, I made a declaration, on the application of Mr Whelan, that she was not capable of giving legal instructions: s 99C(2), and appointed Mr Whelan to act for her as an Independent Legal Representative: s 99A(2)(a).

174 Mr M Hogg of counsel appeared for the children, Ruth, Carmen, Nadia and Cindy Colt, instructed by Ms Flynn, solicitor, as their Independent Legal Representative appointed by the Court under s 99, they being children under the age of 12 presumed incapable of giving proper legal instructions: s 99B.

175 Ms L Coady, solicitor, appeared for the child, Dwayne Colt as his Independent Legal Representative appointed by the Court under s 99. Dwayne required separate representation from the other children under 12 having regard to allegations made against him of sexual abuse of some of the other children.

176 Ms M Neville, solicitor, appeared for the Police, on the application that they be permitted to remain in court during the hearing (see below).

177 The role of a direct legal representative is quite distinct from that of an independent legal representative. The distinction is significant and important. The Care Act 1998 sets out the separate requirements of the two roles in s 99D of the Care Act 1998 (set out in full below).

178 Significantly, independent legal representatives exercise their own judgment having regard to the child's safety, welfare and well-being, and not bound by the child's instructions as to their wishes in the proceedings.

179 Section 99D of the Care Act 1998 provides:

"99D Role of a legal representative

Without limiting the role of a legal representative for a child or young person in proceedings before the Children's Court:

(a) the role of a direct legal representative includes the following:

(i) ensuring that the views of the child or young person are placed before the Children's Court,

(ii) ensuring that all relevant evidence is adduced and, where necessary, tested,

(iii) acting on the instructions of the child or young person, and

(b) the role of an independent legal representative includes the following:

(i) if a guardian ad litem has been appointed for the child or young person-acting on the instructions of the guardian ad litem,

(ii) interviewing the child or young person after becoming the independent legal representative,

(iii) explaining to the child or young person the role of an independent legal representative,

(iv) presenting direct evidence to the Children's Court about the child or young person and matters relevant to his or her safety, welfare and well-being,

(v) presenting evidence of the child's or young person's wishes (and in doing so the independent legal representative is not bound by the child's or young person's instructions),

(vi) ensuring that all relevant evidence is adduced and, where necessary, tested,

(vii) cross-examining the parties and their witnesses,

(viii) making applications and submissions to the Children's Court for orders (whether final or interim) considered appropriate in the interests of the child or young person,

(ix) lodging an appeal against an order of the Children's Court if considered appropriate.

The Police in court

180 At the commencement of the hearing an application was made for the police officers involved in the JIRT investigation surrounding the removal of the Colt children. JIRT is an acronym for Joint Investigation Response Team. JIRT teams are made up of officers from Community Services, Police and NSW Health set up to investigate child protection matters. Joint investigation occurs when reports of child abuse are received, mostly when there is a possibility that the abuse constitutes a criminal offence.

181 Objection was taken to the police officers concerned remaining in court during the hearing, reliance being placed upon s 104B of the Care Act 1998, which provides:

"At any time while the Children's Court is hearing proceedings with respect to a child or young person, any person who is not directly interested in the proceedings must, unless the Children's Court otherwise directs, be excluded from the place where the proceedings are being heard".

182 I dealt with the application in a separate ruling. In summary, I determined that s 104B does not apply because the police, who are the officers that were involved in the JIRT investigation, clearly had a direct interest in the proceedings.

183 I went on to say that in the event that I were held to be wrong in that interpretation of the section, I would nevertheless exercise my discretion under s 104B to permit the police officers to remain in court.

184 I said in my reasons:

"In my view, the Court should adopt a purposive approach to the construction of s 104B. Having regard to the general principles of open proceedings, in my view the proper way to apply s 104B is to ask whether the police have an interest in the proceedings and, as I have already said, they clearly do, particularly the officers who conducted the JIRT investigation. Next, the Court would ask itself whether the presence of the police is contrary to the purpose of the general requirement that the public be excluded. The answer to that proposition must be no. Finally, the Court would ask itself whether the presence of the police in court is detrimental to the safety, welfare, and well-being of the children, that being the paramount principle for the application of the Act and its various sections, and the answer to that proposition is, again, no. Finally having regard to s 93(2) the Court is permitted, indeed it is required, to conduct the proceedings with as little informality and legal technicality as the circumstances permit. In my view the two officers designated should be permitted to remain in court and I will allow them to do so."

Admission of the evidence of Tammy Colt

185 In another separate ruling during the course of the hearing, I admitted the evidence of disclosures made by Tammy Colt disclosed to the Victorian authorities, as outlined above, over objection.

186 Separate reference should be made to my reasons in respect of that ruling.

187 The evidence is undoubtedly probative, if reliable, especially if taken together with the other evidence, such as the genetic evidence and the disclosures made by the various children about sexual abuse, together with the evidence of the highly sexualised behaviour some exhibit.

188 The application to have the evidence of Tammy Colt excluded was put on various bases, both as to substance and form. These grounds were addressed extensively and comprehensively in written and oral submissions. They included a mix of not unexpected objections to the evidence, including its reliability and the asserted inability of the parties to properly test it; considerations of procedural fairness; the offensiveness of the evidence to various exclusionary rules of evidence such as the hearsay rule, unfair prejudice and the like; and other prohibitive principles drawn from traditional precepts spawned from the tenets of adversarial litigation.

189 I said, however, that those submissions require to be viewed against the clear expressions in the Care Act 1998 to the effect that care proceedings are to be conducted in a non-adversarial manner, with as little formality and legal technicality and form as the circumstances permit, and in which the Court is not bound by the rules of evidence unless and to the extent that it determines: s 93.

190 The rationale for those expressions is obvious, given that the Care Act 1998 confers on the Children's Court purpose specific jurisdiction designed for the care and protection of children and young persons from unacceptable risk of harm.

191 I said that in my view the Children's Court should only exercise its discretion to determine that any rules of evidence apply, in the clearest of circumstances, and that the discretion should be guided by considerations of protection, not exclusion. (As it turned out, later in the hearing I did determine that s 128 of the Evidence Act 1995 should be applied, insofar as I granted certificates to each of the mothers, as referred to above).

192 Undoubtedly, the Court should only rely upon evidence that is reliable. In my view, however, any consideration of the reliability or otherwise of the evidence of Tammy Colt should be assessed at the end of the hearing.

193 Her evidence, and its reliability, was in my view a matter that could only be fully and properly evaluated once the totality of the evidence had been presented, and evaluated, with the aid of submissions, at the conclusion of the hearing.

194 I expressed preliminary views on the effect of the unavailability of Tammy Colt for cross-examination. At that stage, the reasons for her unavailability had not been fully or explicitly enunciated, but they might be inferred. That, however, was in my view a matter that should also await the conclusion of the proceedings and a consideration of the totality of the evidence, once the parties had had the opportunity to address me on questions such as the weight to be given to the evidence, once it was in juxtaposition with other evidence. To exclude the evidence in isolation from other evidence would, to my mind, have been an exercise in artificiality.

195 Nor was I yet persuaded that the capacity of the parties to test the credibility of Tammy Colt's evidence was unfairly limited, and that consideration, again, should properly be evaluated only once all the evidence was presented.

196 I pointed out that these are not adversarial proceedings. Nor are they concerned with attributing guilt. It was, in fact, part of the Director-General's case that these mothers are themselves victims, at least at one level. The proceedings are, rather, concerned with the care and protection of the 12 children removed. I also reminded the parties that the interests of the mothers were subservient to the overriding principle that the safety, welfare, and well-being of the children are paramount.

197 I ruled, therefore, that for the moment I did not propose to exclude the evidence of Tammy Colt merely because she was not to be made available for cross-examination before me.

The submissions for the Director-General

198 The Director-General submitted that the totality of the evidence establishes that there is no realistic possibility of restoration of the children, and that the only order facilitative of their safety, welfare and well-being is an order allocating parental responsibility for the children to the Minister until they attain the age of 18.

199 The parenting of each mother was inadequate. It was acknowledged that the mothers have all appropriately conceded that the care environment in which the children were placed was inappropriate. Additionally, the mothers have all partaken in parenting courses in an endeavour to rectify deficiencies in their parenting. The Director-General noted that these acknowledgments and efforts are commendable. But each of the mothers continues to exhibit a lack of insight, both into the history of neglect, and into the inter-generational incest and intra-familial sexual abuse, which would place each of the children at unacceptable risk of harm if restoration were to occur.

200 It was submitted that the evidence before the Court, including the genetic testing results, the disclosures by the children of sexual abuse, and the disclosures by the children as to the identity of their fathers, points inescapably to inter-generational incestuous relationships and intra-familial sexual abuse in the Colt family.

201 Mr Tolliday gave evidence that acknowledgement by the mothers of the incidence and culture of inter-generational incest and intra-familial sexual abuse in the Colt family was a condition precedent to the commencement of therapy to deal with their own traumatic experiences and help them understand and empathise with the experiences of their children.

202 That acknowledgment was absent in the case of each mother, such that the healing process has not yet even commenced.

203 The children have engaged in sexualised behaviours and sexually abusive behaviours after being assumed into care. The evidence of Mr Tolliday and the Clinician is that such behaviours do not arise in a vacuum. They are likely to be the product of prior sexual abuse. Such behaviours are thus indicative of the children having previously been either instigators of such abuse or victims of such abuse.

204 The interdependence between the sisters and the necessity for them to extricate themselves from the wider Colt family is a pre-requisite to the commencement of any progress towards developing a capacity to provide a safe environment for their children.

205 The Clinician noted that it was a condition precedent to the children (including Cindy) being restored to the care of their mothers that each of the mothers acknowledges the sexual abuse and inter-generational incestuous relationships in the Colt family, and undertake appropriate counselling in respect to this. Until that occurs, they cannot engage effectively in the counselling and therapy necessary to confront and deal with their own complex trauma.

206 In respect of Cindy, the Director-General suggested that it is not disputed by Rhonda Colt that Cindy was not afforded an adequate level of care when Cindy was in her care. Rhonda Colt conceded, for instance, that Cindy's dental hygiene was sub-par. She sought to explain this away, by stating that she acquiesced to Cindy's sweet tooth. It was further submitted that it is incontrovertible that Cindy was raised in an isolated and secluded environment, cut off from wider society. Rhonda Colt never enrolled Cindy at pre-school and her engagement in extra-familial activities appears to have been minimal. Subjecting Cindy to a secluded and anti-social existence was unacceptable. Rhonda Colt sought to traverse or downplay this in her affidavit, calling into question whether she truly believes that the lifestyle she subjected Cindy to at the Boorowa property was unacceptable.

207 Rhonda Colt has continued to deny inter-generational incest in the Colt family. Without the acknowledgment of the inter-generational incest and intra-familial sexual abuse by Rhonda, it is unlikely that Cindy would have a protective ally if restoration occurs. Rhonda requires therapy to help her understand and empathise with the experiences of Cindy. The Clinician gave evidence that counselling and therapy could take up to 2 years post Rhonda acknowledging such matters, and that restoration should not occur unless and until such counselling and therapy takes place.

208 In respect of Kimberly, the Director-General submits that her living skills were also substandard. Since coming into care she has learned how to wash her hair, use a knife and fork and wash herself. This evidences that her previous lack of living skills were the result of the substandard care afforded to her by her mother, not the result of any cognitive impairments she may experience. This evinces that whilst in the care of Raylene Colt, Kimberly was subjected to chronic neglect. Raylene Colt initially had no insight into these factors, informing Community Services that Kimberly's health was fine whilst in her care. Raylene Colt only enrolled Kimberly in school when she was about 10 years old and only after intervention by Community Services in 2010.

209 Raylene Colt now concedes that the environment at the Boorowa property was not appropriate for Kimberly. She also acknowledges that she took far too long to take Kimberly to the dentist. Raylene Colt appears to have now acknowledged these matters and taken some steps to address deficits in her parenting. However, she is still in denial about the extent of neglect Kimberly was subjected to whilst in her care. It is submitted that her evidence evinces a prioritisation of an isolated lifestyle over the needs of Kimberly. This prioritisation has had a deleterious impact on Kimberly, who is a high needs child with significant behavioural difficulties, which are largely attributable to the care environment she endured whilst parented by Raylene Colt. Raylene Colt is unable to afford her such care.

210 Kimberly has disclosed being both a victim and instigator of sexual abuse whilst in Raylene Colt's care. She has disclosed being the victim of abuse at the hands of her uncles. Importantly, she has reported disclosing this abuse to Raylene Colt. She has also been the instigator of sexual abuse after being assumed into care, masturbating Carmen. Raylene Colt, however, denies all knowledge of Kimberly being either an instigator or victim of sexual abuse whilst in her care. She also denies that Kimberly ever disclosed to her that she was sexually abused by her uncles and cousins. Under cross-examination, she said that she did not believe the disclosures of sexual abuse made by Kimberly or any other of the Colt children.

211 It was submitted by the Director-General that the Court will treat these denials and Raylene Colt's statements about Kimberly being a liar with a great deal of circumspection. "That Raylene would be completely oblivious to such activities whilst living in an isolated and secluded property defies belief."

212 Raylene Colt also denied the allegations of incest and intra-familial sexual abuse in the wider Colt family. It was submitted that her continued denials demonstrate that she has a limited capacity to provide appropriate care and protection for Kimberly. Unless and until Raylene acknowledges issues of inter-generational incest and intra-familial sexual abuse, her capacity to engage in the therapeutic process will be impaired. Raylene Colt's failure to acknowledge the inter-generational nature of the incestuous relationships in the Colt family determines that she cannot address her own traumatic history and engage in a therapeutic process to enable her to understand how such experiences have impacted on her and Kimberly.

213 In these circumstances, it was submitted Kimberly would be placed at an unacceptable risk of harm if restored to Raylene Colt's care. Raylene Colt, who believes her daughter is a liar and is concocting stories about sexual abuse, is unlikely to be a protective ally for Kimberly.

214 Turning to the children of Martha Colt, the Director-General submitted that when Albert, Jed, Karl, Ruth and Nadia were assumed into care, they presented with features indicative of chronic neglect. Furthermore, they had only attended school for the very first time for a period of about 2 weeks after Community Services had first attended the Boorowa property in early June 2012. As a result, they were all developmentally delayed to a significant extent.

215 Since Martha Colt's children were assumed into care, they have markedly increased their ability to perform daily tasks, particularly Ruth and Nadia.

216 The Clinician concluded that Martha Colt was unable to meet her children's psychosocial, physical and education needs and that she appeared unable to understand what constituted neglect.

217 It was submitted that Martha Colt's parenting deficits are such that she is incapable of affording her children an adequate standard of care. This, of itself, is sufficient to determine that there is no realistic possibility of her children being restored to her care.

218 There are also disclosures of sexual abuse involving Martha Colt's children including abuse of Ruth and Nadia by their brothers.

219 She denied that she knew this was occurring, and said that if it any abuse involving her children had occurred at the farm, Charlie Colt did not participate in it.

220 Martha Colt also disputes the findings of the genetic testing, deposing that all her children were fathered by men who were not related to her. These assertions cannot sit with the uncontroverted evidence of Dr Marks and ought to be rejected. Her failure to acknowledge the inter-generational nature of the incestuous relationships in the Colt family determines that she cannot address her own traumatic history.

221 Martha's denials of the possibility of such activity mean that she is unable to engage in a therapeutic process to obtain an understanding of how such experiences have impacted on her and her children, and show that she is unable to provide an appropriate empathic response to her children's experiences of sexual abuse and to act as a protective ally for them. In these circumstances, it was submitted, the children would be placed at an unacceptable risk of harm if restored to Martha Colt's care.

222 Betty Colt's children, Bobby, Billy, Brian, Dwayne and Carmen, also exhibited features indicative of neglect when they were taken into care. They were lacking basic life skills, such as the ability to shower and clean their teeth voluntarily. Since coming into care, their skills in these facets have increased markedly.

223 As noted by the Clinician, Betty Colt had not responded to any of her children's health needs nor had she maintained a clean and adequate domestic environment. She had failed to ensure her children had necessary dental work. Additionally, she had not investigated any treatment of the eye problems her children experienced.

224 Additionally, the children had only had about 2 years of formal schooling, with Betty Colt enrolling them in school in 2010 after intervention by Police and Community Services. This appears to explain their developmental delay and deficits in intellectual functioning. The Clinician noted that it was concerning that Betty Colt had little awareness of her children's educational needs and had exhibited no regret that their needs were not being met whilst in her care.

225 Betty Colt now appears to accept that her parenting of the children was substandard. However, the Director-General submitted, such a concession came almost 13 months after the children were assumed into care. Given the history of chronic neglect and gross deficiencies in her parenting, her parenting capacity is still highly questionable.

226 Furthermore, the Clinician opined that Betty Colt's ability to function as an effective parent was impaired by her enmeshment in a dysfunctional intra-familial structure. She appears to still be enmeshed in her family. There is no material before the Court that she is willing to disentangle herself from her family. This factor points to her capacity to rectify her parenting issues being most questionable.

227 In all the circumstances, it was submitted, her parenting capacity is still open to question.

228 The Director-General next pointed to the disclosures by and about Betty's children since removal and noted that in spite of these disclosures, Betty Colt has denied all knowledge of such sexual abuse. She denied witnessing it, or being told about it, and denied the possibility that it may have occurred. He submitted that in circumstances where all the children were living on an isolated and secluded property, her denial of any knowledge of sexual misconduct on the part of her children or any other of the Colt children is not credible.

229 Furthermore, it was submitted, the Court has before it uncontroverted evidence that all of Betty's children are the product of an incestuous relationship. In spite of this uncontested scientific evidence, Betty Colt denied that she was related to her children's father, stating that their father was a man named Phil Walton. She has, it was suggested, conveniently stated Phil was also known as 'Tim', in an apparent attempt to explain disclosures by her children that their father was named Tim (being the name of Betty's father).

230 The Director-General noted that the percentage figures derived by Dr Marks in the genetic testing are suggestive of at least some of Betty's children being the product of, amongst other things, a father/daughter relationship. This is consistent with the children's disclosures that their father's name is Tim.

231 Additionally, Betty Colt's solicitor tendered a letter detailing that she had been informed in about 1997 that Betty, Rhonda and Martha Colt's maternal grandparents were brother and sister, following tissue typing testing being undertaken on June to assess whether one of June's kidneys could be suitable for Rhonda's daughter Alice. It is noteworthy that the issue of inter-generational incestuous relationships within the extended Colt family has been a live issue for the majority these proceedings, with the Court making orders on 28 September 2012 that Community Services arrange genetic testing of the children, following receipt of Dr Turner's report that Sally was the product of an incestuous relationship, and disclosures by children that their father's were related to their mothers.

232 Betty Colt's disclosure was made at the eleventh hour after Dr Marks' report had been made available to the parties. She acknowledged, via her solicitor, that she had not reported this previously. The Director-General questions why she had kept this information to herself until this stage, particularly in a litigious context where the issue of incest "had been swirling around for many months".

"The disclosure by Betty Colt is highly convenient. It appeared to be a move motivated by a need to discredit or explain the genetic testing results. It backfired. Dr Marks opined that it made no difference to her conclusions, as the tests conducted in respect to the SNP chromosome microarray were to determine whether the children's parents were closely related, not whether the parents of one of the parents were closely related."

233 The Director-General submitted further that assuming Betty Colt's disclosure is correct, it illustrates that incestuous activity had been occurring in the Colt family for several generations. It demonstrates that at least Rhonda Colt and Betty Colt were aware of this, but had failed to disclose it in their affidavits.

234 Betty Colt's persistent unequivocal denials illustrate, according to the evidence of Mr Tolliday and the Clinician, that she is incapable of addressing her own traumatic history. Her failure to acknowledge the inter-generational nature of the incestuous relationships in the Colt family determines that she cannot engage in a therapeutic process to enable her to understand how such experiences have impacted on her and her children. This entails that she will be unable to provide an appropriate empathic response to her children's experiences of sexual abuse and act as a protective ally for them.

235 In these circumstances, it was submitted, the children would be placed at an unacceptable risk of harm if restored to Betty Colt's care.

The submissions in respect of the genetic evidence

236 The Director-General places significant weight on the genetic evidence, which is to the effect that the parents of Bobby, Albert, Jed, Ruth and Nadia are closely related to each other, that the parents of Billy, Brian, Dwayne, Carmen and Kimberly are related to each other, and that the parents of Karl are not as closely related to each other as those of the other children of Martha Colt. Only Cindy has parents that are not related to each other.

237 Notwithstanding that the genetic evidence was uncontradicted it was submitted that I should, nevertheless, not accept that evidence.

238 The basic submission was that having regard to the denials by the mothers concerned that the children in question were the product of incestuous conduct, and their assertions as to the identity of the various fathers of the children concerned, the genetic evidence was wrong, and should be rejected. The submissions also point to asserted weaknesses in the reliability of the testing process and the interpretative shortcomings of it.

239 Alternatively, it was submitted, no weight should be given to the genetic evidence because these mothers had been denied procedural fairness because the genetic evidence was only served shortly before the hearing, and legal aid funding had not been obtained to engage an alternate expert either to conduct new testing, or to assess the results of the testing undertaken on behalf of the Director-General.

240 Mr McLachlan, for Betty Colt, made detailed submissions in his written outline that were adopted and supported by Mr Tyler-Stott for Martha Colt and by Ms Wells for Raylene Colt. Mr Wilson, for the Direct Legal Representative of the 6 older boys, also adopted the submissions of Mr McLachlan, but did acknowledge that the mothers faced a "Herculean task" in seeking to overcome the genetic evidence.

241 Dr Marks was taken to various matters that qualified or raised questions about the opinions expressed by her, both in the body of her report and by reference to two articles she relied upon (Exhibit 15), namely:

(a) "Diagnostic Implications of Excessive Homozygosity Detected by SNP-Based Microarrays: Consanguinity, Uniparental Disomy and Recessive Single-Gene Mutations" - Kearney & Others.

(b) "Quantification of Homozygosity in Consanguineous Individuals with Autosomal Recessive Disease" - Woods and others.

242 Among the qualifications clutched at by Mr McLachlan was a statement in each of the Molecular Cytogenics Reports to this effect:

"Further interpretation of these findings may rely on clinical assessment of other relevant family members, including community and cultural conditions. Additional testing by DNA profiling with a trio of analysis of parental samples to determine a more accurate biological relationship can be considered".

243 But, it was submitted, no further action was taken by the police or officers of the Director-General to undertake any DNA testing.

244 Another qualification pointed to by Mr McLachlan was this comment:

"The total proportion of LCSH in an individual is a rough estimate of the degree of biological parental relationship, however it should not be taken as a sole evidence of a specific parental relationship. LCSH estimates may vary significantly from expected proportions (co-efficients of inbreeding) due to confoundera such as unpredictable chromosome recombination and segregation patterns during meiosis, and close cultural or inbred communities".

245 The Court's attention was also drawn to other matters, including the use by Dr Marks of words such as "suspicion", "estimate", "rough assessment", and a note that the estimate of percentage of IBD can be suggestive of a degree of parental relationship, "but if this inference is made at all, it should be accompanied by an appropriate measure of uncertainty".

246 Finally, Mr McLachlan referred to the fact that this is a new form of testing which is still in its relatively early genesis, and the remarks in the conclusion of one article to the effect that "the clinical impact of LCSH detection would be more fully realized" only as SNP-based arrays gain more widespread diagnostic use and more patient series are published.

247 Mr McLachlan submitted that these matters raised question marks about the extent to which reliability can be placed upon the results provided.

248 All of these qualifications were put to Dr Marks in cross-examination, but she did not accept that they impacted upon the opinions expressed by her. She remained firm in the witness box, and her evidence as to consanguinity in all of the children, other than Cindy, was resolutely unshaken.

The submissions in respect of the evidence of Tammy Colt

249 It was also submitted that no weight should be given to the evidence of Tammy Colt. The arguments in favour of that proposition are succinctly stated by Mr Wilson in his written submissions at [10] - [14]:

"Tammy's evidence on the issue of the boys having sexual abuse perpetrated against them is vague and non-specific (it is well summarised by Mr Dalla, solicitor for the Director-General, in his submissions at paragraph 42).

Tammy's evidence on this issue is uncorroborated.

It was not possible to test Tammy's evidence as she was not made available for cross-examination (neither in person, via video link or on the telephone). No explanation was provided as to why she was not made available for cross-examination.

Tammy's assertions were made in circumstances where she, arguably, could have considered she would obtain favour in her own matter in Victoria concerning the restoration of her children if she provided assistance to the Director-General in these proceedings.

Where Tammy's evidence is uncorroborated and untested it should be rejected or given no weight. It would be unsound and procedurally unfair to make a finding based on Tammy's untested and uncorroborated evidence."

250 Similarly, Mr McLachlan, for Betty Colt, submitted at [70]:

"In making an application to reject the evidence reference was made to the general unreliability of Tammy's evidence, its changeability and that disclosures may have been the subject of undue influence or pressure."

251 He also submitted at [83]:

"While the Court's ruling in this matter is respected, the inherent difficulties in testing significant evidence, that became apparent by way of cross-examination was being relied upon by the Director-General, could not be tested meaningfully, leaving a significant question mark upon its reliability. While the evidence has been admitted, that question mark about reliability suggests that very little weight can be attributed to it either as a singular piece or source of information of child abuse, sexual abuse or as corroborative of other evidence that may be asserted and relied upon by the Director-General going to that issue. The Court is invited to so find."

252 Ms Wells made similar submissions on behalf of Raylene Colt, and added at [59] - [60]:

"The evidence in relation to Tammy is that at best she is an unreliable witness and historian. She told the Department a variety of stories as to the paternity of her children, including that one of them was from an Asian man. This apparently not being physically possible.

Tammy is of low intelligence; this is not disputed. She is also said to suffer an intellectual delay. There is little weight that can be given to her allegations given this delay and the inability of the Court to question how her allegations were made and why."

253 Mr Tyler-Stott, for Martha Colt, submitted at [33] - [34]:

"The difficulties with her evidence are legion. She is intellectually impaired, has been shown to be dishonest on the Department's own information, and may be participating with the Department and Police for a perceived advantage. Tammy would be well aware of rumours and innuendo concerning her own family, as concerns by 'towns people', go back to the 1990s.

It would not be difficult for her to fabricate and shape a story to suit the Department's case for her own perceived advantage.

Furthermore, it is logical to surmise, that various pieces of information which arose in the NSW Police and Department's investigation would have been put to Tammy over the course of her dealings with the Department's Victorian equivalent."

254 Ms Lawson made similar oral submissions for Rhonda Colt, and relied upon her detailed written submissions of 8 August 2013 on the application to exclude Tammy Colt's evidence.

255 The Director-General submitted, however, that Tammy's evidence is directly relevant to the issue of whether there is inter-generational incestuous activity in the Colt family and intra-familial sexual abuse, and is to be given substantial weight, particularly given the disclosures made by the children about sexual abuse and the genetic testing results. There is a great deal of congruence between Tammy Colt's evidence, Dr Mark's findings and the disclosures made by the children subsequent to their removal.

256 It was also submitted that there is little, if any, prejudice to the mothers. They all gave evidence in chief and denied the veracity of Tammy Colt's disclosures. Additionally, they had the opportunity to cross-examine the individuals, being Lara Crawford and Angela Giannakoulopoulous, to whom the disclosures were made. But they elected not to cross-examine those witnesses.

257 Mr Whelan, one of the independent legal representatives, was direct and to the point at [57] - [60]:

"The disclosures by Tammy Colt ...paint a vivid picture of inter-generational sexual abuse and multiple incest."

258 Mr Whelan conceded that the material from Tammy Colt was not the subject of cross-examination and the court must treat it carefully. However, the Children's Court is not charged with making a determination about the truth or otherwise of Tabitha Colt's statements, as the High Court said in M v M [1988] HCA 68 at [20] - [21]. That is to say, in this case, the Court does not need to determine whether the events described by Tammy Colt definitely took place. What this Court is doing is assessing, on the totality of the evidence, whether there is an unacceptable risk to the children, if they were to be restored. Tammy Colt's disclosures are part of the factual matrix that the Court can take into consideration, particularly when combined with the other disclosures from a number of the children and the genetic evidence.

The submissions in respect of the disclosures made by some children and reports concerning sexualised behaviour displayed by some children

259 The Director-General relied upon the disclosures made by some children about sexual abuse and upon reports concerning sexualised behaviour displayed by some children, much of which I have referred to already.

260 The submissions of the Director-General were supported by the independent legal representatives (ILR's).

261 Mr Hogg, counsel for Ms Flynn as ILR for the girls under the age of 12, submitted at [17] - [19]:

"...the ILR moves the Court to make a finding that the disclosures made by Ruth, Carmen, Nadia and Cindy are of sufficient weight to warrant the mandating of further therapeutic intervention and support. In addition the ILR seeks a finding that the Ruth, Carmen, Nadia and Cindy were sexually abused based on their disclosures and associated corroborating evidence currently before the Court.

In support of the making of this finding, it is of note that the allegations by Ruth, Carmen, Nadia and Cindy are consistent across family groups and while the Court may have some concerns regarding the evidence of Tammy Colt, given the circumstances surrounding its admission into evidence. It is submitted that where such evidence is consistent with the independent disclosures made by the children, it should be accepted."

262 Ms Coady, as ILR for Dwayne, submitted at [35] - [41]:

"Dwayne has been identified as being both responsible for sexually inappropriate behaviour upon some members of his family as well as being a victim of sexual abuse.

On 11 September 2012 Kimberly disclosed that she had 'sucked Dwayne'. Kimberly further discloses that Carmen had observed this and Raylene was made aware of the incident but did not do anything about it.

There have also been disclosures made during the JIRT process from Ruth that Dwayne had 'touched Nadia's vagina'...

On 28 January 2013 Community Services received a report of disclosures by Kimberly including Dwayne and Bobby had put their 'dicks in her mouth' a number of times.

Most recently Cindy has made a disclosure that Dwayne had sex with her. Previously this has been a disclosure by Carmen who witnessed this however significantly now Cindy herself has made this disclosure.

It is reported that Carmen told Ms Betty Colt about Dwayne and Cindy.

It is reported that Ms Raylene Colt was told about Dwayne and Cindy."

263 Mr Whelan, as ILR for Kimberly, submitted at [35] - [41]:

"Kimberly has made a number of disclosures which are reported by the Director-General.

In the caseworker's Affidavit of 8 February 2013, from paragraph 10 through to paragraph 23, a number of Kimberly's disclosures of sexual abuse are outlined. She makes a number of disclosures to the sexual health educator at Shellharbour Hospital on or about 11 September 2012 involving her performing oral sex on Dwayne. On 28 January 2013 she made a number of disclosures about her brothers Bobby and Dwayne putting "their dicks in my mouth. Last year they did it lots of times." She also concerningly reports that she told her mother Raylene and that Raylene told her off at the time, saying it was wrong and her fault. Kimberly also indicated in that same disclosure that Dwayne also "put his dick into my girl hole, he was too hard, he played with me and made me sore both in my bottom and in my special place, my girl hole".

There is also the incident disclosed 7 December 2012 when Kimberly engaged in sexualised behaviour with Carmen.

In the JIRT interview of 7 December 2012, Kimberly also makes similar disclosures of sexual abuse and in the JIRT interview of 6 February 2013 she discloses being sexually assaulted by Joe.

On this issue, at page 26 of the Clinician's report, it reports:

"During the discussion of this particular item ('being touched in a way you don't like') Kimberly made several disclosures in relation to being the victim of sexual assault by her maternal uncles, Joe, Bobby and Dwayne. Kimberly stated that she performed fellatio on Bobby and Dwayne, whilst Dwayne also had vaginal intercourse with her and that 'he made me sore because he was too hard'.

She also disclosed that Dwayne had 'touched me and played with my bottom and made me sore'. Kimberly stated this behaviour occurred frequently. When the Clinician asked if that had happened with anyone else, Kimberly replied that her uncle Joe 'had sex with me only once' and had told her not to tell anyone.

Very concerningly, the Clinician also reports:

Kimberly said that when she told her mother about these incidents with her uncles 'my mum got angry with me and told me not to do it again because I was just a little girl and that it was wrong and it was my fault and the boys are too big - she was also angry with the boys'. Kimberly also said that Betty was also angry with the boys and told mum that she wasn't happy.

All of these incidents of sexual abuse must have taken place prior to removal because Kimberly has not had contact with most of the persons named since removal."

264 Mr Wilson, counsel for Mr Crampton as the Direct Legal Representative of the older boys, notes that the only evidence that any of the boys may be victims of sexual abuse comes from Tammy Colt and Linda Pfeiffer, the Court Clinician. For reasons already noted, he submits that no weight should be given to the evidence of Tammy Colt. As regards the Clinician, he submitted that her evidence does not support the proposition that any of the boys were victims of sexual abuse (either by their mothers or anyone else). Finally he submitted:

"There is no evidence that a person engaging in sexually inappropriate conduct does so because he was also victim sexual assault. It is not open for the Court to determine that any of the boys were victims of sexual assault on the basis that they may have engaged in sexually inappropriate conduct."

265 Mr McLachlan, for Betty Colt, submitted that the Court should have a high degree of satisfaction of the probative value of evidence where serious allegations of sexual abuse or misconduct are asserted and relied upon [33] - 35]:

"It is conceded that in determining these discrete and corporate issues the Court is not required to make a positive finding if it does not believe the evidence so satisfies it but can make a finding of unacceptable risk. See M v M [1988] HCA 88.

A finding of unacceptable risk is in itself an evidentiary finding based on the probative value of evidence before the Court. While not reaching the degree of satisfaction of a positive finding it does require the Court to carefully and critically analyse the evidence before it can reach a decision of an unacceptable risk to the children and each of them. See Johnson & Page [2007] Fam CA 1235."

266 Mr McLachlan makes detailed submissions on the various disclosures and reports of sexual abuse and sexualised conduct involving the children of Betty Colt at [41] - [55]. He submitted that in relation to each matter, it was evidence that was unreliable for a variety of reasons such as inconsistency, not corroborated or tested by further enquiry, or by objective evidence such as medical examination, improbability, too general or insufficiently precise, undisclosed source, the product of hyperbole, exaggeration or bravado, etc.

267 Overall, these matters may be suspicious and concerning, but insufficiently reliable for the court to place probative value upon.

268 Mr McLachlan submitted, in conclusion, that the Court could not make a positive finding that abuse has occurred or been condoned or allowed by Betty Colt, or that she has engaged in incestuous relationships with either her children or other family members.

269 He then submitted:

"In the course of giving her evidence Betty Colt acknowledged the possibility of sexual abuse but gave reasons including the presentation of her daughter in an interview and the lack of other disclosure to her or to her family members as being sceptical. She did accept however the need to be aware of that possibility and has agreed to engage in appropriate counselling with the children and individually to assist in her knowledge and information in respect of these matters."

270 Mr Tyler-Stott, for Martha Colt, noted that she has acknowledged the possibility, and under cross-examination went as high as to say 'probability', that Ruth and Nadia have endured sexual abuse at their brothers' hands. She denies, however, that she had knowledge of this occurring, if it did occur, and denied the possibility of Charlie Colt having participated in such abuse.

271 The submissions proceed to point to reasons for treating the evidence as unreliable, including collusion, contamination, the asking of closed questions producing the desired response from the children, and introducing concepts, such as Charlie Colt being an abuser, inconsistencies and the like. Further:

"Some allowance must be made for the ages and developmental delays."

272 Finally, Mr Tyler-Stott submitted:

"It cannot be sensibly argued that there is not a possibility that Ruth and Nadia have been sexually abused. However, it is argued that there is no possibility that Ms Martha Colt knew of or encouraged any sexual misconduct between her children. Your Honour would not find any possibility that Ms Martha Colt knew or encouraged any alleged sexual assault."

273 Ms Wells, for Raylene Colt, Kimberly's mother, noted that her client asserts that she knew nothing about any sexual abuse of Kimberly, or any other person on the property. Raylene Colt's oral evidence was that if Kimberly told her about what had happened that there is no doubt she would have believed her, but this never occurred.

274 The submissions point to the fact that Kimberly suffers from an extremely low level of intelligence and is easily confused. She was assessed by her psychologist, Emma Butler, as having very little understanding of everyday issues. The Clinician conceded that Kimberly has a very short attention span, little understanding, and is easily confused.

"She (Raylene Colt) questions the at times lengthy disclosures said to have been made by Kimberly, in circumstances where the JIRT interviews clearly show inappropriate lines of questioning to the child, and where other risk of harm reporters would not be made available to the Court and the only caseworker to have investigated the allegations has disappeared."

275 Ms Wells submitted that the JIRT interviews of Kimberly should be given very little weight by the Court, and no positive findings of abuse, or the mother's knowledge of the same should be made. They were "terribly conducted" interviews, overly long, oppressive and artificial:

"The Court should find the JIRT officer, DS Hales, as being extremely obstructive during cross-examination. She could not recall any of her own training in terms of interviewing children with disabilities, and had no knowledge of training of current workers below her. She said it was just their job to get the information and it is up to the Court to decide the reliability of that information obtained... there were no proper briefings to each of the interviewers about the children's extreme level of disabilities. ...Kimberly was so difficult to understand that a caseworker had to help the interviewer interpret her answers."

276 Ms Lawson, for Rhonda Colt, made detailed submissions on the evidence of sexual abuse and sexualised behaviour relating to Cindy at [37] - [44].

277 It was submitted that the references to Cindy masturbating did not establish an nexus between such behaviour and the mother's parenting:

"Further, the Director-General has over looked the following significant aspects of the evidence:

• Cindy is first observed to be masturbating in around February 2013, approximately 7 months after coming into foster care.

• Cindy is questioned about this behaviour and informs her carer that she never used to masturbate when she lived with her mother.

• Kimberly is observed to be masturbating her younger cousin Carmen in the lounge room in the preceding months, commencing approximately December 2012.

• Carmen confirmed to the carer that Kimberly had been touching her 'girl' (the word the children use for 'vagina') and stated that 'this often happens when the girls sit on the lounge'.

• When questioned about this behaviour, Kimberly reportedly stated, with a smile, that she engages in such behaviour because 'she likes it'.

• The carer felt that she needed to provide constant monitoring and close supervision because of her concerns that Kimberly may initiate sexualized behaviours with her second cousin, Cindy, her aunt, Carmen, or the other non-familial foster children in her care.

• Cindy's contact with her mother was halved in around February 2013 and accordingly, she only sees her mother fortnightly instead of weekly.

• Cindy is a child who does not respond well to change in her routine."

278 The submissions then referred to the evidence that the reasons children engage in such sexualized behaviours can be complex and multifactorial. Then, it was submitted, it is unlikely that the Court will be able to definitively resolve the issue of why Cindy has engaged in sexualized behaviours since her removal.

279 In relation to the allegations of sexual abuse by her uncle Dwayne, it was submitted that there is no evidentiary foundation for the Director-General to make the assertion that Rhonda Colt knew that Cindy was the victim of sexual abuse by her uncle:

"Undoubtedly the Court will be troubled by some of the recent disclosures made by Cindy to her foster carer to the effect that Dwayne has engaged in sexually inappropriate behaviour with her. It is relevant to note however the ages of the children when this is alleged to have occurred."

280 Finally, in the context of restoration, Ms Lawson submitted:

"Lastly, on the issue of sexual abuse, it is anticipated that the Director-General will argue that as a result of the mother's oral evidence and her 'disbelief' of the allegations, that this somehow becomes an insurmountable obstacle to restoration. In response it is submitted that despite the mother's oral evidence in respect of this issue, she has indicated both in her affidavit and in her minute of proposed orders, she will accede to any orders or conditions which impose Departmental supervision, which restrict Dwayne (and extended family) from coming into contact with Cindy. Further, that she will comply with any referrals for counselling or therapy for both herself and Cindy."

281 In the context of the present proceedings, the Director-General will not fail to satisfy the burden of proof on the balance of probabilities simply because hypotheses cannot be excluded which, although consistent with innocence, are highly improbable: Director-General of Department of Community Services; Re "Sophie" [2008] NSWCA 250 at [67] - [68], per Sackville AJA.

282 As was conceded by Mr McLachlan, the Court is not required to make a positive finding if it does not believe the evidence so satisfies it but can make a finding of unacceptable risk. See M v M [1988] HCA 68.

283 The remarks of Sackville AJA in Re "Sophie" are pertinent:

"The reasoning process I have outlined involves an error of law. The primary Judge, although stating the principles governing the burden of proof correctly did not apply them correctly. It was appropriate to take into account the gravity of the allegation of sexual misconduct made against the father, as required by s 140(2) of the Evidence Act. It was not appropriate to find that the Director-General had failed to satisfy the burden of proof on the balance of probabilities simply because his Honour could not exclude a hypothesis that, although consistent with innocence, was highly improbable. To approach the fact-finding task in that way was to apply a standard of proof higher than the balance of probabilities, even taking into account the gravity of the allegation made against the father": [67]. (Emphasis added)

"As the High Court pointed out in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd at 171, statements to the effect that clear and cogent proof is necessary where a serious allegation is made are not directed to the standard of proof to be applied, but merely reflect the conventional perception that members of society do not ordinarily engage in serious misconduct and that, accordingly, a finding of such misconduct should not be made lightly. In the end, however, as Ipp JA observed in Dolman v Palmer at [47], the enquiry is simply whether the allegation has been proved on the balance of probabilities": [68].

284 Mr Hogg referred to the appropriate standard of proof when allegations of sexual abuse are raised, and went on to cite passages from the High Court's judgment in M v M [1988] HCA 68 at [23] ff.

285 Mr Whelan put it this way: the Court does not need to determine whether the events described took place or not. "What this Court is doing is assessing, on the totality of the evidence, whether there is an unacceptable risk" posed by restoration.

286 He also cited passages from the High Court's judgment in M v M [1988] HCA 68 at [20] - [21]:

"But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a Court exercise in criminal jurisdiction would be if it were trying a party for a criminal offence.... the resolution of an allegation of sexual abuse against the 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 averted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide range indiscretions decide what is in the best interests cannot be qualified by reassuring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of an allegation of sexual abuse on the balance of probabilities."

General conclusions on the weight to be given to the disputed evidence

287 Now that the totality of the evidence is before me, a very clear picture is evident. Like a jigsaw, that picture is made up of multiple pieces, which all fit together to produce a coherent whole.

288 The framework for the jigsaw is very firmly assembled upon three groups of evidence that I found particularly compelling: the evidence of the independent Clinician, the genetic evidence and the disclosures by various children. The other evidence, including the evidence of Tammy Colt and the evidence of highly sexualised behaviour of some of the children observed by carers, caseworkers and the Clinician, served to lend verisimilitude to the balance of the narrative, thus completing the picture.

289 The Clinician was a most impressive and credible witness.

290 I have now had the opportunity to observe many clinicians in care proceedings, and Ms Pfeiffer is amongst the top rank of that group. She was calm and thoughtful in the witness box, making concessions where appropriate, but remaining objective and firm.

291 As I have said before, the Children's Court can derive considerable assistance from independent clinicians appointed by the Children's Court Clinic. In addition to providing independent expert opinion, the clinicians can provide a hybrid factual form of evidence not otherwise available.

292 Because they observe the protagonists over a period of time, interview parents, children and others in detail and on different occasions, in neutral or non-threatening environments, away from courts and lawyers, untrammelled by court formalities and processes, clinicians can provide the Court with insights and nuances that might not otherwise come to its attention.

293 Thus, clinicians can provide impartial, independent, objective information not contained in other documents, give context and detail to issues that others may not have picked up on, and which the Court, trammelled by the adversarial process and the 'snapshot' nature of a court hearing, would not otherwise have the benefit of.

294 The Clinician in this case was thorough and detailed, and to my mind convincing, and I am persuasively guided by her observations and opinions.

295 I also propose to give significant weight to the genetic evidence, from both Dr Marks and Dr Turner.

296 The submission that the genetic evidence should be rejected based on the denials of the mothers concerning paternity of their children is specious, particularly when it is viewed in the context of the totality of the evidence.

297 The submission that I should give no weight to the genetic evidence on the basis of procedural fairness considerations is to my mind both opportunistic and eristic. It seems to be based on some notion akin to criminal law principles involving the presumption of innocence, such that the parties to care and protection litigation have the luxury of sitting back and waiting to see what the Director-General can prove before any obligation falls upon them to prepare their case. That is not the appropriate approach, having regard to the paramountcy principle under which care proceedings are required to be conducted. In any event, the mothers in this case, and their legal advisers, have been on notice for a long time that genetic evidence would play a critical role in these proceedings given the orders for genetic testing in relation to the children made on 28 September 2012 by the Children's Court at Orange. Nor could they have been under any illusion as to the probable outcome of that testing, given the report of Dr Anne Turner concerning the children of Tammy Colt. It is clear from Dr Turner's report that she arranged to meet with Tammy Colt and her mother Betty Colt to discuss the diagnosis for Sally of Zellweger, in particular the risks to future children. They did not attend the appointment and Dr Turner did not hear from Betty Colt again.

298 Beyond that, the genetic evidence is uncontradicted and in my assessment cogent and logical. The doubts, reservations and qualifications that Mr McLachlan sought to introduce fall away in the face of Dr Marks' refutations.

299 I also consider that aspects of the evidence of Tammy Colt have probative value, in the corroborative and supportive way I have described. On its own, in isolation, a court might well be disposed to rejecting such evidence, particularly courts that require a regime of strict proof and best evidence. But this is the Children's Court where, as I said in my interlocutory ruling, different considerations apply, in particular the principle that the safety, welfare and well-being of children are paramount.

300 I have summarised above my reasons for admitting the evidence of Tammy. To my mind those reasons hold good on the question of the weight to be afforded that evidence, particularly now that the totality of the evidence is before me, and given its consistency with the independent disclosures made by some of the children.

301 The suggestion of inducement was not made out. A reading of the file note from Ms Giannakoulopoulous makes it clear that Tammy's outpourings at the courthouse were spontaneous and voluntary. It was also confirmed in court, under oath. The opportunity to cross-examine Ms Giannakoulopoulous was not taken up by any mother.

302 The idea that Tammy Colt concocted her evidence is to be viewed as sophist when it is evaluated, especially given the sophisticated and elaborate nature of her disclosures.

303 Aspects of her evidence were generalised, inconsistent and contradictory, and I take that into account. But I also make allowance for her own emotional and psychological deficiencies. Overall, however, she presented connected and credible threads that assist in completing the full picture of the Colt family and life on the farm.

304 The disclosures by and about the children also have significant probative value, especially when taken together with all the other evidence.

305 These disclosures, more accurately the response of the mothers to them, have a direct bearing on the question of unacceptable risk posed if there were to be any restoration of these children to their respective mothers. I reject the proposition that it was somehow unfairly obtained. The disclosures were not limited to JIRT interviews, but came unsolicited from carers and officers from the Department, and in some cases were made to the Clinician. I propose to give the evidence appropriate weight according to the individual circumstances surrounding each of the matters raised.

Realistic possibility of restoration

306 The Director-General had made an assessment in respect of each child that there is no realistic possibility of restoration to the mother, having regard to:

(a) the circumstances of the child or young person: s 83(1)(a), and

(b) the evidence, if any, that the child or young person's parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care: s 83(1)(b).

307 The Court is required to decide whether to accept the assessment of the Director-General: s 83(5).

308 There is no statutory definition of the phrase 'realistic possibility of restoration'. And, until recently, there had been no judicial consideration of what it entailed. The leading superior court decision in respect of the phrase "realistic possibility of restoration" is In the matter of Campbell [2011] NSWSC 761, a decision by Justice Slattery.

309 I have discussed the relevant principles in a number of judgments including DFaCS (NSW) re Amanda & Tony [2012] ChC 13 at [29] - [32] and DFaCS re Oscar [2013] ChC 1 at [29] - [34].

310 I summarise those principles as follows:

• A possibility is something less than a probability; that is, something that it is likely to happen.

• A possibility is something that may or may not happen. That said, it must be something that is not impossible.

• The concept of realistic possibility of restoration is not to be confused with the mere hope that a parent's situation may improve. The possibility must be 'realistic', that is, it must be real or practical. It must not be fanciful, sentimental or idealistic, or based upon 'unlikely hopes for the future'. It needs to be 'sensible' and 'commonsensical'.

• It is going too far to read into the expression a requirement that a parent must always at the time of hearing have demonstrated participation in a program with some significant "runs on the board": In the matter of Campbell [2011] NSWSC 761 at [56].

311 There are two limbs to the requirements for assessing whether there is a realistic possibility of restoration.

312 The Care Act 1998, s 83(1) makes clear at what time the "realistic possibility" of restoration should be assessed:

"When the application for...a care order is before the Court, it is at that time the Court must assess 'whether there is a realistic possibility' [Emphasis added]. It must not at the time of the... application be merely a future possibility. It must at that time be a realistic possibility": In the matter of Campbell [2011] NSWSC 761 at [57].

313 And, as I have already stated, the proper test to be applied is that of "unacceptable risk to the child": The Department of Community Services v "Rachel Grant", "Tracy Reid", "Sharon Reid and "Frank Reid" [2010] CLN 1 per Judge Marien at [61].

314 Whether there is an "unacceptable risk" of harm to the child is to be assessed from the accumulation of factors proved: see Johnson v Page [2007] Fam CA 1235. This test is the sine qua non for the application of the Act: see M v M [1988] HCA 68 at [25].

Standard of proof

315 Before turning to consider the question of restoration, it is appropriate that I remind myself of the principles surrounding proof.

316 The burden of proving the case on the question of restoration falls upon the Director-General.

317 As I have already pointed out, the standard of proof is on the balance of probabilities: s 93(4) of the Care Act 1998. The High Court decision in Briginshaw v Briginshaw [1938] HCA 34 is relevant in determining whether the burden of proof, on the balance of probabilities, has been achieved: Director-General of Department of Community Services; Re "Sophie" [2008] NSWCA 250.

318 Mr McLachlan submitted, appropriately, that the effect of those principles requires the Court to have a high degree of satisfaction of the probative value of evidence where a serious allegation of sexual abuse or misconduct is asserted and relied upon. This does not change the onus but heightens the degree of satisfaction that must exist before a positive finding can be made by the Court:

"It is conceded that in determining these discrete and corporate issues the Court is not required to make a positive finding if it does not believe the evidence so satisfies it but can make a finding of unacceptable risk.

A finding of unacceptable risk is in itself an evidentiary finding based on the probative value of evidence before the Court. While not reaching the degree of satisfaction of a positive finding it does require the Court to carefully and critically analyse the evidence before it can reach a decision of an unacceptable risk to the children and each of them."

319 I take these submissions into account in my approach to the evidence.

Bobby, Billy, Brian, Dwayne and Carmen Colt

320 Betty Colt's children, Bobby, Billy, Brian, Dwayne and Carmen, exhibited features indicative of neglect when they were taken into care. They were lacking basic life skills, such as the ability to shower and clean their teeth voluntarily. Their living environment was inadequate and their health and dental needs had been severely neglected. Additionally, their schooling and educational needs had been ignored, contributing to their developmental delay and deficits in intellectual functioning.

321 The Clinician noted that it was concerning that Betty Colt had little awareness of her children's educational needs and had exhibited no regret that their needs were not being met whilst in her care. Only recently has she appeared to accept that her parenting of the children was substandard. The Director-General submitted that the history of chronic neglect and gross deficiencies in her parenting means her parenting capacity is still highly questionable:

"Furthermore, the Clinician opined that Betty Colt's ability to function as an effective parent was impaired by her enmeshment in a dysfunctional intra-familial structure. She appears to still be enmeshed in her family. There is no material before the Court that she is willing to disentangle herself from her family. This factor points to her capacity to rectify her parenting issues being most questionable."

322 In all the circumstances the parenting capacity of Betty Colt is still open to question.

323 The result of the cytogenetic testing indicates that Bobby's parents are closely related to each other and that the parents of Billy, Brian, Dwayne and Carmen are related to each other. For the reasons already stated I unequivocally accept the evidence of Dr Marks' interpretation of this testing.

324 I am, therefore, satisfied, that Bobby is the son of closely related parents, who fall within the category of either parent/child or full siblings, or they could be half-siblings, uncle/niece, aunt/nephew, double first cousins or grandparent/grandchild.

325 I am also satisfied that Billy, Brian, Dwayne and Carmen are the children of related parents, who fall within the category of either half siblings, uncle/niece, aunt/nephew, double first cousins or grandparent/grandchild, or they could be first cousins.

326 It follows that the assertion of Betty Colt that her children's father was Phil (Tim) Walton is wrong, and that their true father was someone in the Colt family. I am satisfied, therefore, that Betty Colt engaged in consanguineous, incestuous sexual relations within the Colt family group.

327 I am also satisfied that Betty Colt knew, and on the probabilities had known for some considerable time, of the existence of incestuous sexual conduct within her family, and within the wider Colt family, both at Boorowa and before. Thus, she remains incapable of addressing her own traumatic history.

328 It is the view of the Clinician that before restoration to any mother could be contemplated, that mother will need to acknowledge the sexual abuse and incestuous relationships occurring within the Colt family, and undertake appropriate counselling.

329 The failure of Betty Colt to acknowledge the incestuous relationships that were occurring within the Colt family means she cannot even begin engage in a therapeutic process to enable her to understand how such experiences have impacted on her and on her children, and means she does not have sufficient insight to be a protective ally to them. Until that occurs, she cannot engage effectively in the counselling and therapy necessary to confront and deal with her own complex trauma.

330 Mr Tolliday gave evidence that acknowledgement by the mothers of the incidence and culture of incest and intra-familial sexual abuse in the Colt family was a necessary pre-condition to the commencement of therapy to deal with their own traumatic experiences and help them understand and empathise with the experiences of their children.

331 As Mr Hogg pointed out, it is simply impossible at this juncture to know whether the children are the result of consensual sexual intercourse or a result of broader ongoing abuse within the Colt family of which the mothers are also victims. It is, therefore, not possible to assess how or if a therapeutic process will be obtainable for them, or to know the time frame that such a process would encompass.

332 These considerations give rise to unacceptable risk of harm to these children if restoration of them to Betty Colt were to occur.

333 Wherever a child is able to form their own view, that child is to be given an opportunity to express that view freely. Those views are to be given due weight in accordance with the child's developmental capacity, and the circumstances.

334 Bobby, Billy, Brian and Dwayne have expressed the wish to be restored to their mother's care. Carmen has indicated that she wishes to live with her mother and brothers, but should this not be possible she would like to stay with her current carers. Given the nature of the risk posed to these children by any restoration, however, and the evidence as to their level of intellectual and reasoning capacity, in my assessment their views in this regard should not be given any particular weight.

335 Counsel for the older boys submitted that if they were to self-restore there is a risk that they will cease to receive the assistance and therapy they have been receiving whilst in care. There is also a risk that the Director-General would not be involved in their ongoing care and supervision:

"However, if the Court makes and order for restoration with conditions (including requirements for supervision and ongoing therapy) then the Director-General's representatives could continue to have involvement and monitoring of the boys to ensure their safety and wellbeing."

336 I agree that it is critical that all the children, including the older boys, receive appropriate therapy. In my view, however, the risk of self-restoration is not high, and even if it were, it is not a compelling factor in the risk equation concerning restoration.

337 I find that Betty Colt is not likely to be able to satisfactorily address the issues that have led to the removal of her children from her care.

338 Having regard to that circumstance, and the circumstances of the children, I am comfortably satisfied that I should accept the assessment of the Director-General that at the present time there is no realistic possibility of restoration of them to Betty Colt.

339 Not only was Betty Colt aware of incest and consanguinity issues at her generational level in the Colt family but she was also aware that it was prevalent in the next generation. The consanguinity issues that caused the death of her granddaughter, Sally Colt, and that her daughter, Tammy, had disclosed that Sally's father was her brother, Derek, prove this. Betty Colt was invited to a meeting with Dr Turner to discuss the issue, but did not attend.

340 Betty Colt must be also aware that her other daughter, Raylene, had her child, Kimberly, from an incestuous relationship within the Colt family. On the probabilities, she had known this for some time.

341 If any doubt were to remain, the disclosures of sexual abuse and sexualised behaviour involving the children of Betty Colt are a further reason to conclude that restoration to her poses unacceptable risk.

342 There are revelations that Bobby, Billy, Brian and Dwayne sexually abused several of the girls at the farm. When that evidence is taken together with all the other evidence, it gives rise to a high level of possibility that they did abuse the girls sexually. This is productive of a high degree of concern.

343 When asked, Betty Colt did not deny the possibility that such conduct may have occurred, but her response, given after a long pause in the witness box, was guarded and to my mind unconvincing, and I was not persuaded that her concession in this regard was made genuinely and with appropriate insight. The Clinician's view was that denial by a mother of sexual abuse to her children indicates they may be at high risk of further sexual assault or ongoing sexualised behaviours if they were to be returned to their mother's care. The expert evidence is that until there is genuine acknowledgement, the risk remains, due to an inability to even begin to provide an appropriate empathic response and act as a protective ally for her children.

344 Tammy Colt's revelations serve to confirm the findings I have already made as to there being no realistic possibility of restoration to Betty Colt. Tammy Colt disclosed that she had been sexually abused within the Colt family from the age of 12, when other family members began having sex with her, including Colin, Timothy, Derek and Matthew. She said that the same happened to her sisters, Raylene, Tracy, Jane and Penny. Her mother, Betty Colt, encouraged this activity. They were not allowed to see a doctor when pregnant in case someone found out what was happening. There had been various miscarriages on the Boorowa farm of which she is aware. She also disclosed that Timothy, Derek, Matthew and Colin had also started abusing Kimberly, Ruth, Nadia and Carmen, and that Joe, Jed and Albert were also abusing the girls on the farm.

345 What is particularly worrying is the evidence that Betty Colt encouraged these activities, which tends to confirm the evidence of some children that the sexual activity on the farm was encouraged.

Kimberly Colt

346 Raylene Colt's daughter, Kimberly, exhibited features indicative of neglect when she was taken into care. She was underweight and lacking basic life skills. Her living environment was inadequate and her health and dental needs had been severely neglected. Additionally, her schooling and educational needs had been ignored, contributing to her developmental delay and deficits in cognitive functioning. She appeared unable to read or write.

347 Raylene Colt has taken some steps to address deficits in her parenting and has made some progress in obtaining insight into her neglect of Kimberly. Some of her responses in cross-examination, however, particularly as to her understanding of the medical and educational neglect, demonstrated that she still has some way to go. Additionally, I was satisfied that the Director-General had demonstrated, in respect of Raylene, that she has been particularly intertwined in and reliant on the Colt family environment, giving rise to considerable doubt as to her capacity to break away and live independently.

348 In these circumstances the parenting capacity of Raylene Colt is still open to question. Mr Whelan further submitted:

"Significantly the mother (Raylene) has not sought counselling for herself. The Clinician has suggested that depression plays a role in the substandard care provided by the mothers to the various Colt children. The Court could reasonably conclude that at least part of the reason for the mother's gross neglect of Kimberly before removal were problems with the mother's own mental health. In the absence of effective treatment of the mother's mental health, the Court could have serious concerns about the mother Raylene's capacity to care for Kimberly appropriately in the future to make sure that she did not fall back into the poor parenting... of Kimberly... which occurred previously."

349 The result of the cytogenetic testing indicates that Kimberly's parents are related to each other. For the reasons already stated I unequivocally accept the evidence of Dr Marks' interpretation of this testing.

350 I am, therefore, satisfied, that Kimberly is the daughter of related parents, who fall within the category of either half siblings, uncle/niece, aunt/nephew, double first cousins or grandparent/grandchild, or they could be first cousins.

351 It follows that the assertion of Raylene Colt that Kimberly's father was a man called Sven, a backpacker from Sweden or Switzerland, is wrong. The true father of Kimberly was someone in the Colt family. I am satisfied, therefore, that Raylene Colt engaged in consanguineous, incestuous sexual relations within the Colt family group.

352 I am also satisfied that Raylene Colt knew, and on the probabilities had known for some considerable time, of the existence of incestuous sexual conduct within her family, and within the wider Colt family, both at Boorowa and before. Thus, she remains incapable of addressing her own traumatic history.

353 It is the view of the Clinician that before restoration to any mother could be contemplated, that mother will need to acknowledge the sexual abuse and incestuous relationships occurring within the Colt family, and undertake appropriate counselling.

354 The failure of Raylene Colt to acknowledge the incestuous relationships that were occurring within the Colt family means she cannot even begin to engage in a therapeutic process to enable her to understand how such experiences have impacted on her and on her child, and means she does not have sufficient insight to be a protective ally to Kimberly. Until that occurs, she cannot engage effectively in the counselling and therapy necessary to confront and deal with her own complex trauma.

355 Mr Tolliday gave evidence that acknowledgement by the mothers of the incidence and culture of incest and intra-familial sexual abuse in the Colt family was a necessary pre-condition to the commencement of therapy to deal with their own traumatic experiences and help them understand and empathise with the experiences of their children.

356 As Mr Hogg pointed out, it is not possible to assess how or if a therapeutic process will be obtainable for any mother, or to know the time frame that such a process would encompass.

357 These considerations give rise to unacceptable risk of harm to Kimberly if restoration of her to Raylene Colt were to occur.

358 Wherever a child is able to form their own view, that child is to be given an opportunity to express that view freely. Those views are to be given due weight in accordance with the child's developmental capacity, and the circumstances.

359 Kimberly has expressed a desire to return to live with her mother to a number of people.

360 Given the nature of the risk posed to her by restoration, however, and the evidence as to Kimberly's developmental delay, in my assessment her views in this regard should not be given any particular weight.

361 It is critical that Kimberly receive ongoing counselling and therapy.

362 I find that Raylene Colt is not likely to be able to satisfactorily address the issues that have led to the removal of Kimberly from her care. Having regard to that circumstance, and the circumstances of Kimberly, I am comfortably satisfied that I should accept the assessment of the Director-General that at the present time there is no realistic possibility of restoration of her to Raylene Colt.

363 It is also difficult to believe that Raylene Colt was not aware or did not become aware of the consanguinity issues that caused the death of her niece, Sally Colt.

364 If any doubt were to remain, the disclosures of sexual abuse and sexualised behaviour involving Kimberly are a further reason to conclude that restoration to her mother, Raylene poses unacceptable risk.

365 Kimberly has made disclosures of sexual activity to a variety of independent sources, including counsellors, the sexual health educator at Shellharbour Hospital and JIRT, including sexual abuse by Joe, Bobby and Dwayne whilst on the farm, prior to her removal. This is productive of a high degree of concern.

366 What is particularly worrying is the evidence that Raylene Colt was aware of this activity.

367 What is even more concerning was the evidence of Raylene Colt that she did not believe that such conduct may have occurred.

368 The Clinician's view was that this is unacceptable:

"Raylene's failure to prevent foreseeable harm, particularly after Kimberly disclosed a sexual assault to her mother who, for whatever reason, whether that be disbelief, wanting to maintain the family homeostasis or naivety, took no further action to protect her daughter."

369 Raylene's denials indicate that Kimberly may be at high risk of further sexual assault or ongoing sexualised behaviours if she were to be returned to her mother's care. The expert evidence is that until she acknowledges the risk she will be unable to provide an appropriate empathic response and act as a protective ally for Kimberly.

370 Tammy Colt disclosed that she had been sexually abused within the Colt family from the age of 12, when other family members began having sex with her, including Colin, Timothy, Derek and Matthew. She said that the same happened to her sisters, Raylene, Tracy, Jane and Penny. Her mother, Betty Colt, encouraged this activity. They were not allowed to see a doctor when pregnant in case someone found out what was happening. There had been various miscarriages on the Boorowa farm of which she is aware. She also disclosed that Timothy, Derek, Matthew and Colin had also started abusing Kimberly, Ruth, Nadia and Carmen, and that Joe, Jed and Albert were also abusing the girls on the farm.

371 The revelation that Raylene Colt was herself the victim of sexual abuse within the Colt family serves to heighten the unacceptability of the risk of harm to Kimberly if restoration to her were to occur.

Albert, Jed, Karl, Ruth, and Nadia Colt

372 Martha Colt's children, Albert, Jed, Karl, Ruth, and Nadia, exhibited features indicative of neglect when they were taken into care. They were lacking basic life skills, such as the ability to shower and clean their teeth voluntarily. Their living environment was inadequate and their health and dental needs had been severely neglected. Additionally, their schooling and educational needs had been ignored, contributing to their developmental delay and deficits in intellectual functioning.

373 It was submitted that Martha Colt appears to accept that her parenting of the children was substandard.

374 The Director-General submitted, however, that Martha Colt remains incapable of adequately caring for her children, such that restoration would only expose them afresh to the chronic abuse and neglect that was evident prior to their removal.

375 The Clinician supported this view, and stated that Martha Colt appeared unable to understand what constituted neglect.

376 The result of the cytogenetic testing indicates that the parents of Albert, Jed, Ruth and Nadia, but that the parents of Karl are not as closely related as the other children. For the reasons already stated I unequivocally accept the evidence of Dr Marks' interpretation of this testing.

377 I am, therefore, satisfied that Albert, Jed, Ruth and Nadia are the children of closely related parents, who fall within the category of either parent/child or full siblings, or they could be half-siblings, uncle/niece, aunt/ nephew, double first cousins or grandparent/grandchild.

378 I am also satisfied that Karl is the child of related parents, who fall within the category of first cousins once removed or second cousins.

379 It follows that the assertions of Martha Colt that the fathers of each of her children were unrelated to the Colt family is wrong, and that the true father of each child was someone in the Colt family. I am satisfied, therefore, that Martha Colt engaged in consanguineous, incestuous sexual relations within the Colt family group.

380 I am also satisfied that Martha Colt knew, and on the probabilities had known for some considerable time, of the existence of incestuous sexual conduct within her family, and within the wider Colt family, both at Boorowa and before. Thus, she remains incapable of addressing her own traumatic history.

381 It is the view of the Clinician that before restoration to any mother could be contemplated, that mother will need to acknowledge the sexual abuse and incestuous relationships occurring within the Colt family, and undertake appropriate counselling.

382 The failure of Martha Colt to acknowledge the incestuous relationships that were occurring within the Colt family means she cannot even begin to engage in a therapeutic process to enable her to understand how such experiences have impacted on her and on her children, and means she does not have sufficient insight to be a protective ally to them. Until that occurs, she cannot engage effectively in the counselling and therapy necessary to confront and deal with her own complex trauma.

383 Mr Tolliday gave evidence that acknowledgement by the mothers of the incidence and culture of incest and intra-familial sexual abuse in the Colt family was a necessary pre-condition to the commencement of therapy to deal with their own traumatic experiences and help them understand and empathise with the experiences of their children.

384 As Mr Hogg pointed out, it is simply impossible at this juncture to know whether the children are the result of consensual sexual intercourse or a result of broader ongoing abuse. It is, therefore, not possible to assess how or if a therapeutic process will be obtainable for them, or to know the time frame that such a process would encompass.

385 These considerations give rise to unacceptable risk of harm to these children if restoration of them to Martha Colt were to occur.

386 Wherever a child is able to form their own view, that child is to be given an opportunity to express that view freely. Those views are to be given due weight in accordance with the child's developmental capacity, and the circumstances.

387 Albert, Jed and Karl have expressed the wish to be restored to their mother's care. Given the nature of the risk posed to these children by any restoration, however, and the evidence as to their level of intellectual and reasoning capacity, in my assessment their views in this regard should not be given any particular weight.

388 Counsel for the older boys submitted that if they were to self-restore there is a risk that they will cease to receive the assistance and therapy they have been receiving whilst in care. There is also a risk that the Director-General would not be involved in their ongoing care and supervision:

"However, if the Court makes and order for restoration with conditions (including requirements for supervision and ongoing therapy) then the Director-General's representatives could continue to have involvement and monitoring of the boys to ensure their safety and wellbeing."

389 I agree that it is critical that all the children, including the older boys, receive appropriate therapy. In my view, however, the risk of self-restoration is not high, and even if it were, it is not a compelling factor in the risk equation concerning restoration.

390 Ruth and Nadia have expressed the view to their Independent Legal Representative that they wish to remain with their current carers.

391 I find that Martha Colt is not likely to be able to satisfactorily address the issues that have led to the removal of her children from her care.

392 Having regard to that circumstance, and the circumstances of the children, I am comfortably satisfied that I should accept the assessment of the Director-General that at the present time there is no realistic possibility of restoration of them to Martha Colt.

393 If any doubt were to remain, the disclosures of sexual abuse and sexualised behaviour involving the children of Martha Colt are a further reason to conclude that restoration to her poses unacceptable risk.

394 There are revelations that Albert, Jed and Karl sexually abused several of the girls at the farm. There are revelations that Ruth and Nadia were sexually abused at the farm.

395 When that evidence is taken together with all the other evidence, it gives rise to a high level of possibility that this sexual abuse in fact occurred. This is productive of a high degree of concern.

396 Martha Colt denied any knowledge of sexual abuse of her children or on the part of her children. She, of all the mothers, at least concedes the possibility, indeed the probability of such conduct having occurred. The Clinician's view was that her denial indicates that her children may be at high risk of further sexual assault or ongoing sexualised behaviours if they were to be returned to their mother's care. Having acknowledged the risk Martha Colt, at least, can begin meaningful therapy to develop an appropriate empathic response and act as a protective ally for her children.

397 Tammy Colt's revelations serve to confirm the findings I have already made as to there being no realistic possibility of restoration to Martha Colt.

398 Tammy Colt disclosed that she had been sexually abused within the Colt family from the age of 12, when other family members began having sex with her, including Colin, Timothy, Derek and Matthew. She said that the same happened to her sisters, Raylene, Tracy, Jane and Penny. Her mother, Betty Colt, encouraged this activity. They were not allowed to see a doctor when pregnant in case someone found out what was happening. There had been various miscarriages on the Boorowa farm of which she is aware. She also disclosed that Timothy, Derek, Matthew and Colin had also started abusing Kimberly, Ruth, Nadia and Carmen, and that Joe, Jed and Albert were also abusing the girls on the farm.

399 The revelations by the children that Charlie Colt and Martha Colt slept together in a bed each night tends to corroborate the genetic evidence as to the father of some of her children. Nadia Colt is reported to have told caseworkers that she had watched her uncle, Charlie Colt, have sex with her mother in the tent, and that he was her father. It is also consistent with the evidence of Tammy Colt.

Cindy Colt

400 Rhonda Colt's daughter, Cindy, exhibited features indicative of neglect when she was taken into care, and in particular her dental needs had been neglected. Her living environment was inadequate.

401 However, of all the children, she has not exhibited any indications of developmental delay and presented as a well-spoken, polite, bright, intelligent girl. Apart from her teeth, her health and hygiene was observed to be good.

402 As previously noted, of all the children, the genetic testing demonstrated that the parents of Cindy were not related.

403 Genetic testing has not yet been conducted in respect of her older siblings, and I am unable to be satisfied, on the basis of genetic evidence, that Rhonda Colt engaged in consanguineous, incestuous sexual relations within the Colt family group.

404 Given the closeness of the Colt mothers, however, the probability is that Rhonda Colt knew and had known for some considerable time, of the existence of incestuous sexual conduct within her family, and within the wider Colt family, both at Boorowa and before.

405 There are disclosures that Dwayne had sex with Cindy in the cubby house at the farm, and that she had been abused sexually by Billy and Bobby.

406 When that evidence is taken together with all the other evidence, it gives rise to a high level of possibility that this sexual abuse in fact occurred. This is productive of a high degree of concern. What is even more concerning is that Rhonda Colt denied the possibility that such conduct may have occurred.

407 The Clinician's view was that this is unacceptable, and that her denial indicates that her child may be at high risk of further sexual assault or ongoing sexualised behaviours if she were to be returned to her mother's care.

408 The expert evidence is that until Rhonda Colt acknowledges the risk, she will be unable to provide an appropriate empathic response and act as a protective ally for Cindy.

409 I find that Rhonda Colt's denials indicate that Cindy may be at high risk of further sexual assault or ongoing sexualised behaviours if she were to be returned to her mother's care.

410 It is also difficult to believe that Rhonda Colt was not aware or did not become aware of the consanguinity issues that caused the death of her niece, Sally Colt.

411 Wherever a child is able to form their own view, that child is to be given an opportunity to express that view freely. Those views are to be given due weight in accordance with the child's developmental capacity, and the circumstances.

412 Cindy has expressed a desire to return to live with her mother.

413 Given the nature of the risk posed to her by restoration, however, and the age of Cindy, in my assessment her views in this regard should not be given any particular weight.

414 It is critical that Cindy receive ongoing counselling and therapy.

415 I find that Rhonda Colt is not likely to be able to satisfactorily address the issues that have led to the removal of Cindy from her care.

416 Having regard to that circumstance, and the circumstances of Cindy, I am comfortably satisfied that I should accept the assessment of the Director-General that at the present time there is no realistic possibility of restoration of her to Rhonda Colt.

417 Tammy Colt's revelations serve to confirm the findings I have already made as to there being no realistic possibility of restoration to Rhonda Colt.

418 Tammy Colt disclosed that she had been sexually abused within the Colt family from the age of 12, when other family members began having sex with her, including Colin, Timothy, Derek and Matthew. She said that the same happened to her sisters, Raylene, Tracy, Jane and Penny. Her mother, Betty Colt, encouraged this activity. They were not allowed to see a doctor when pregnant in case someone found out what was happening. There had been various miscarriages on the Boorowa farm of which she is aware.

419 She also disclosed that Timothy, Derek, Matthew and Colin had also started abusing Kimberly, Ruth, Nadia and Carmen, and that Joe, Jed and Albert were also abusing the girls on the farm.

420 The revelations of Tammy Colt indicate that Cindy's older sibling, Timothy, was involved in the sexual abuse, indicating a probability that Rhonda Colt was just as aware as the other mothers of the fact that sexual abuse that was occurring within the Colt family.

421 My findings in this regard are supported by the fact that Rhonda Colt opposed the presence of the Police in court, and by her reliance on a certificate under 128 of the Evidence Act 1995 in respect of allegations surrounding her son Cliff. This is not the conduct of someone with nothing to hide, particularly in care proceedings where, in relation to restoration, candidness is essential.

Allocation of parental responsibility

422 The Court must not make an order allocating parental responsibility unless it has given particular consideration to the principle in s 9(2)(c) of the Care Act 1998, and is satisfied that any other order would be insufficient to meet the needs of the children: s 79(3).

423 The principle in s 9(2)(c) of the Care Act is:

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

424 I have given particular consideration to the principle of least intrusive intervention.

425 I am satisfied, however, that any order other than allocation of parental responsibility of each child to the Minister until the age of 18 would be insufficient to meet the needs of the child.

Further conduct of the proceedings

426 It was agreed that I should proceed only to make findings for the time being in respect of whether there existed a realistic possibility of restoration of any child, and to determine the allocation of parental responsibility.

427 The findings and determinations that I have made conclude those issues in the present proceedings.

428 It remains only to determine whether the proposed permanency planning should be approved. Outstanding issues in that regard appear to include questions surrounding placement, and questions as to the adequacy of the proposals for minimum contact in the future.

429 It may be, in the light of the evidence to date, the Director-General may wish to make amendments to proposed permanency planning in respect of placement and contact.

430 Thus, a timetable for approval of permanency planning and the further conduct of the proceedings is required.

431 In the first instance, the parties should endeavour to agree on a timetable. They might also give consideration to whether a Dispute Resolution Conference (DRC) might be productive at this stage, before I resume hearing the matter.

432 I will in due course appoint a date for a Directions Hearing to plan the further hearing of the proceedings, as circumstances may require.

**********

Amendments

13 December 2013 - Deletion of location and institution
Amended paragraphs: Coversheet and paragraph 36

Decision last updated: 16 December 2013