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.

JUDGMENT

1These 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.

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

3The 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.

4There 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.

5It 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.

6Central 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

7An 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.

8The 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.

9The 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.

10Rhonda 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.

11Rhonda 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.

12Rhonda 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.

13Betty 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.

14Betty 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.

15The 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.

16The 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.

17Raylene 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.

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

19The 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.

20Martha 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.

21Martha 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.

22The 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.

23The 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

24The 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).

25Prior 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.

26On 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.

27The 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.

28The 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.

29The 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.

30Martha 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.

31Observations 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.

32Various 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.

33A 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.

34A 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.

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

36The 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.

37Over 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.

38Some 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.

39The 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.

40The 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.

41Bobby 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.

42Albert 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.

43Billy 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.

44Jed 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.

45Kimberly 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.

46Brian 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.

47Karl 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.

48Ruth 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.

49Dwayne 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.

50Carmen 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.

51Nadia 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.

52Cindy 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

53Subsequent 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.

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

55Albert, 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).

56A 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).

57Ruth 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).

58Kimberly 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.

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

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

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

62Nadia 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).

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

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

65Ruth 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).

66Carmen 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).

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

68Whilst 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).

69In 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.

70In 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.

71Ruth 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).

72In 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.

73In 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.

74Jed 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).

75Karl 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).

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

77The 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).

78In 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.

79In 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.

80Dwayne 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).

81In 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.

82In 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.

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

84Kimberly 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).

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

86In 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.

87In 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.

88In 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.

89Cindy'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.

90Dwayne 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

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

92A 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.

93The 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.

94In 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".

95Cytogenetics 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.

96An 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].

97The 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].

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

99The 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].

100The 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].

101The 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].

102The 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].

103The 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].

104The 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].

105The 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].

106The 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].

107The 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].

108The 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].

109The 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].

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

111Dr 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.

112Dr 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.

113In 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.

114The 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

115Tammy 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).

116As 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."

117Dr 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.

118The 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.

119Subsequently, 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.

120Tammy 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.

121Ms 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".

122Tammy 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.

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

124Micro-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.

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

126She 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

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

128She 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.

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

130Ms 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.

131She 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.

132Prior 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.

133Her 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.

134Her 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.

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

136There 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.

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

138In 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.

139In 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.

140In 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.

141In 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

142Before 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.

143The 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.

144Decisions 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.

145The 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.

146The 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.

147This 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.

148It 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].

149Secondary 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.

150These 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).

151There 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.

152The 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

153Care 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.

154Care 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.

155In 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).

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

157But 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."

158In 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.

159Whilst 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.

160The 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

161It 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.

162As 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.

163The twelve children are also parties to the proceedings.

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

165It 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.

166Some 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.

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

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

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

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

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

172Mr 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.

173Mr 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).

174Mr 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.

175Ms 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.

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

177The 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).

178Significantly, 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.

179Section 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

180At 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.

181Objection 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".

182I 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.

183I 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.

184I 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

185In 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.

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

187The 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.

188The 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.

189I 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.

190The 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.

191I 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).

192Undoubtedly, 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.

193Her 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.

194I 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.

195Nor 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.

196I 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.

197I 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

198The 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.

199The 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.

200It 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.

201Mr 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.

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

203The 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.

204The 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.

205The 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.

206In 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.

207Rhonda 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.

208In 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.

209Raylene 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.

210Kimberly 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.

211It 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."

212Raylene 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.

213In 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.

214Turning 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.

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

216The 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.

217It 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.

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

219She 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.

220Martha 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.

221Martha'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.

222Betty 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.

223As 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.

224Additionally, 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.

225Betty 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.

226Furthermore, 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.

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

228The 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.

229Furthermore, 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).

230The 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.

231Additionally, 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.

232Betty 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."

233The 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.

234Betty 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.

235In 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

236The 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.

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

238The 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.

239Alternatively, 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.

240Mr 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.

241Dr 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.

242Among 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".

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

244Another 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".

245The 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".

246Finally, 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.

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

248All 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

249It 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."

250Similarly, 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."

251He 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."

252Ms 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."

253Mr 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."

254Ms 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.

255The 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.

256It 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.

257Mr 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."

258Mr 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

259The 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.

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

261Mr 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, Nadi