Perry v Kinnear & Ors

District Court of NSW|2020-08-24

9 Category: Principal judgment Parties: Mrs Isabell Perry (Plaintiff)

Mrs Leisha Kinnear (Second Defendant) Representation: Counsel:

Paul & Labuzin Lawyers (First & Second Defendants) File Number(s): 2018/00106299 Publication restriction: N/A

PLEADINGS & ISSUES

The plaintiff commenced proceedings against the defendants and the State of New South Wales by Statement of Claim filed on 5 April 2018. Proceedings between the plaintiff and the State of New South Wales (as the third named defendant) were resolved on 9 April 2019.
At the commencement of the hearing, the defendants, submitted that the Statement of Claim did not describe any extant duty of care known to law, because the allegations arose out of the parent/child relationship.
I determined that a duty of care was owed by each of the defendants to the plaintiff. My ex tempore reasons for judgment were delivered on day 2 of the hearing. Whilst not to be read in place of the judgment [Perry v Kinnear & Ors (No. 1) [2020] NSWDC 897], I select the following paragraphs to elucidate the content of the duty of care: "48 In these proceedings, the plaintiff sues the first and second defendants as separate tortfeasors. 49 In Hahn v Conley (1971) 126 CLR 276 at 283 to 284, Barwick CJ started a passage by saying that where there is a cause of action available to the child, the blood relationship of the defendant to the child will not constitute a bar to the maintenance by the child of the appropriate proceeding to enforce the cause of action, and the Chief Justice stated: "I think that the view for which there is most judicial support and the view which commends itself to me is that the moral duties of conscientious parenthood do not as such provide the child with any cause of action when they are not, or badly, performed or neglected. Further I think that the predominant judicial view to be extracted from those cases and again a view which commends itself to me as correct is that, whilst in particular situations because of their nature and elements there will be a duty on the person into whose care the child had been placed and accepted to take reasonable care to protect the child against foreseeable danger, there is no general duty of care in that respect imposed by the law upon a parent simply because of the blood relationship. Also, parents, like strangers, may become liable to the child if the child is led into danger by their actions." 50 And further on, his Honour added: "In the case of the parent, as in the case of the stranger, it seems to me that the duty of care springs out of the particular situation: the extent and nature of the steps which it may be necessary to take to discharge their duty may well be influenced by the fact of parenthood, though parenthood is not itself the source of the duty." 51 His Honour said that the view expressed by McCarthy J in McCallion v Dodd (1996) NZLR 710 at 729 should be accepted as correct. Due to the nature of this opposition to the amendment, I'm going to go to that judgment for completeness, but before doing so, wish to express the opinion that what I said of this case, drawing on the foundations of tortious liability as spoken of by the Chief Justice in the Modbury case, does not expand upon extant law when one bears in mind what Barwick CJ said in Hahn v Conley. 52 This is not an action against moral duties of conscientiousness of parenthood. It is an action alleging the most deplorable physical and emotional assaults by one individual on a child, the individual standing in the duty borne relationship of vulnerability of the child, they being a Foster Carer and in loco parentis. This is the particular situation and these are the nature or elements of which Barwick CJ spoke and which are to be observed in the application of principle in any particular case. What was said in McCallion v Dodd at 729 by McCarthy J included that there is: "…no legal duty on a parent qua parent basis, and independently of any otherwise recognised specific duty of care to protect and control the parent's child, which on breach gave the child a right of action." 53 However, that does not mean the child cannot enforce against the parent the rights of action in tort which the law gives the child against those who harm him or her. McCarthy J had: "no doubt at all that a child can sue his father for recognised torts, for example, for assault, for libel for failure of the duty which a motorist owes to a passenger in his car." 54 McCarthy J said that the occasions when a child can sue his parent in tort are the result of specific situations in which the parties find themselves. His Honour stated that: "In those situations, the fact that the defendant is a parent may, as a matter, be very immaterial, but the relationship is not the foundation of the right of action. It is the situation which creates the enforceable duty."
The hearing was conducted on the basis of the Amended Statement of Claim (ASOC) filed with leave on day 2, 25 August 2020. Amended Defences (AD) were filed by each defendant on 15 September 2020 (T426; wrongly dated as signed on 16 September 2020). On 31 March 2021, after close of evidence, Further Amended Defences were filed, pleading limitation of action defences.
At paragraph 9 of the Amended Statement of Claim, the plaintiff provided particulars of the allegations of sexual assault, which did not by the descriptions given, well identify all of the events of sexual assault alleged in the running of the case. In the hearing, the plaintiff alleged that the first defendant sexually assaulted her, as follows: 1. Starting from some weeks or months after the plaintiff commenced to live in the Kinnear household, the first defendant groped the plaintiff's breasts, touched her vagina and on occasion digitally penetrated her vagina when tickling her and also touched and on occasion digitally penetrated her vagina in the course of a bottom‑slapping game, without her consent, which events occurred in the lounge room of the home and in the presence of other members of the Kinnear family (ASOC at [9(a), (b) and (c)]; plaintiff's opening at T15.40‑16.05; Plaintiff Closing Written Submission (MFI 20) at [1.10 and 1.14]); 2. The first defendant groped the plaintiff's breasts and rubbed sun cream onto her breasts when it was not requested or required by sun exposure (ASOC at [9(a), (b) and (c)]; Plaintiff Closing Written Submission (MFI 20) at [1.18]); 3. The first defendant sexually assaulted the plaintiff by digital penetration of her vagina, without consent, during driving lessons (ASOC at [9(d)]; plaintiff's opening at T16.20; Plaintiff Closing Written Submission (MFI 20) at [1.15]); 4. Between 10‑18 April 2010, at "Beachcomber" holiday house, Bulwer, Moreton Island, Queensland, the first defendant held the plaintiff on top of him whilst laying on a bed and inserted ice into her vagina, without her consent (ASOC at [9(e)]; plaintiff's opening at T16.20; Plaintiff Closing Written Submission (MFI 20) at [1.16]); 5. In July 2010, in a caravan at Tweed Heads, New South Wales, where members of the Kinnear family stayed whilst attending a ("Cooleys") car show at Coolangatta, the first defendant without her consent "moved the Plaintiff's hand whilst in contact with his penis until he ejaculated" (ASOC at [9(f)‑(g)]; plaintiff's opening at T16.20; Plaintiff Closing Written Submission (MFI 20) at [1.17]); 6. In November 2011, during the Southern Cross University Open Day, in a room of the AZA Hotel, Lismore, the first defendant invited the plaintiff into his bed when she was sick and without her consent rubbed her vagina (ASOC at [9(b)‑(c)]; plaintiff's opening at T17.33‑35; Plaintiff Closing Written Submission (MFI 20) at [1.20]; T68.45); 7. In January 2012, in a cabin at Lismore Lake Holiday Park, prior to the plaintiff's commencement at Southern Cross University, Lismore, the plaintiff woke up naked, the first defendant without her consent having entered her bed whilst she slept and the first defendant was touching her body whilst masturbating his erect penis (plaintiff's opening at T17.33‑35; Plaintiff Closing Written Submission (MFI 20) at [1.21]).
Whilst not a particular of sexual assault pleaded in the ASOC and not identified in the plaintiff's opening as an event from which liability arose; there was a substantial contest at the hearing concerning the plaintiff's allegation that the first defendant watched the plaintiff showering by looking through the bathroom window of the home, from positions of at the lounge room glass doors and at the master bedroom glass doors. The plaintiff did not give evidence that this action caused her to apprehend that sexual contact with her by the first defendant was to occur.
Paragraphs [10] and [11] of the ASOC pleaded that the first and second defendants were confronted by the second defendant's sister‑in‑law (Ms Turner) saying that the plaintiff had complained to her of sexual assault by the first defendant which would fall within [9(1)] above. The case put by the plaintiff was that Ms Turner, on the occasion of the September/October 2010 school holidays, told the second defendant of a "smacking game", wherein the first defendant smacked the bottoms of girls in the family, in the course of which sometimes his fingers touched the plaintiff's vagina.
Paragraphs [13A]‑[14] of the ASOC pleaded that the second defendant, having been notified by Ms Turner and as "a foster parent and/or by reason of being in loco parentis" deliberately (for the purposes of s 3B(1)(a) Civil Liability Act 2002 (NSW) (CLA)) failed to take reasonable steps to prevent the first defendant's sexual assaults and abuse, occurring. Liability of the second defendant is alleged to arise only after Ms Turner's notification to her: plaintiff opening at T12.40‑50.
The defendants did not admit (first defendant - AD at [3]; second defendant - AD at [3]) ASOC [7], which pleaded that between March 2009 and 21 April 2011 the plaintiff was placed by the Department with them in out‑of‑home care, as foster parents and thereafter resided with them until January 2012.
The facts of the plaintiff residing with the defendants between 5 March 2009 and January 2012 and of her being placed with them as Foster Carers by the Department, were not contested in the hearing (see Exhibit Q - the Department's records). That, as Foster Carer and/or by reason of being in loco parentis, the second defendant owed the plaintiff the duty of care pleaded in ASOC at [13B] was ultimately conceded by the second defendant at [11] of AD. Whilst the first defendant pleaded denial of that duty of care (AD at [4]), at the conclusion of the case, it was not contested by either defendant.
The second defendant did not contest the allegation of her failure to act to procure the first defendant to cease assaulting the plaintiff, to supervise the first defendant's conduct with the plaintiff or otherwise to report the allegations in order to prevent such sexual assault and abuse by the first defendant from continuing (ASOC [13]B‑[13]F and [14]). Her defence was to deny both that the first defendant sexually assaulted the plaintiff and that Ms Turner provided that notification.
In her closing written submissions (MFI 20) at 1.1, the plaintiff included in the description of her cause of action against the second defendant: "Her own abusive controlling treatment of the P". That allegation does not describe a basis for damages pleaded or run in the case against the second defendant.
As explained at [7] above, the duty of care, the breach of which each defendant is sued upon, is not composed of duties or standards of moral or conscientious parenthood. No such cause of action is known to the common law of Australia. The plaintiff sues the first defendant for the recognised tort of assault and the second defendant for deliberately failing to protect her from that assault. They, standing in the role of parents, were subject to liability, if the sexual assaults are proved: Hahn v Conley (1971) 126 CLR 276 at [283]‑[284] per Barwick CJ; McCallion v Dodd (1966) NZLR 710 at [729], (putting aside for the moment application of the Civil Liability Act 2002 (NSW) to consideration of breach of duty by the second defendant).
In the context of the duty owed, the inclusion of emotional abuse with the expressed claims of physical and sexual abuse (ASOC at [9]) is to be read as emotional abuse in association with the specific claims of sexual abuse: see ASOC [1].
The core issues for determination of liability are: 1. Whether or not the plaintiff has proved the allegations of sexual assault at the hand of the first defendant; and 2. If the plaintiff is successful as to the first issue; then whether or not the second defendant was notified by her sister‑in‑law, Ms Alberta ('Bea') Turner, during the September/October school holidays 2010 of the first defendant's sexual assault of the plaintiff.

BURDEN OF PROOF

In order to succeed on each of her allegations of sexual assault, the plaintiff must satisfy the civil burden of proof of on the balance of probabilities: s 140(1) Evidence Act 1995 (NSW). The Court must take into account that the plaintiff's allegations of sexual assault are allegations of heinous criminal activity, when deciding whether or not it is satisfied to that civil standard: s 140(2) Evidence Act 1995 (NSW). That the Court, when determining whether or not it is so satisfied, must contemplate the gravity of the matters alleged and take into account the matters now listed in s 140(2), is not new.
Dixon J, stated in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 at 361‑362, the following passage, often quoted for application of the principle: "The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency."
Whilst case law authority is not required for the observation that the allegation of sexual abuse by a Foster Carer upon the child within their care is an allegation of heinous criminal activity; in M v M (1988) 166 CLR 69; [1988] HCA 68 at p 67, the Court observed that the above quoted passage from the judgment of Dixon J in Briginshaw's case has "direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute".
In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd & Ors (1992) 67 ALJR 170; (1992) 110 ALR 449; [1992] HCA 66 at [2], the plurality (Mason CJ, Brennan, Deane and Gaudron JJ) explained application of the Briginshaw principle, as follows: The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud [case law cited]. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear [case law including Briginshaw v Briginshaw cited] or cogent [case law including Briginshaw v Briginshaw cited] or strict [case law including Briginshaw v Briginshaw cited] proof is necessary "where so serious a matter as fraud is to be found" [case law cited]. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct [case law cited] and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
Most recently, in Nguyen v Tran [2018] NSWCA 215, at [62], and Musa v Alzeaiawi [2021] NSWCA 12, the Court of Appeal has restated that s 140(2) and application of the Briginshaw principle does not provide a standard of proof other than, on the balance of probabilities. Application of s 140(2) in this case where the nature of the cause of action is sexual assault (not only but including when the plaintiff was a child), requires me to be conscious of that grave nature of the allegations when considering the answer to whether or not the evidence persuades me on the balance of probabilities.

PLAINTIFF'S Memory CAPACITY CHALLENGED BY THE DEFENDANTS

In closing written submissions, the parties properly described the contest as "a word on word case" (Defendants at MFI 21 at [99]; Plaintiff at MFI 22).
The common ground is that the plaintiff, possibly in consequence of a predisposition (her birth parents suffered mental illness) and problematic parenting during her infant and first‑half of adolescent years, suffers complex mental health issues. She has from time‑to‑time been variously provisionally diagnosed as suffering Attention Deficit Hyperactivity Disorder, Post‑Traumatic Stress Disorder and commonly Borderline Personality Disorder with Anxiety and Depression. She started to self‑harm at the age of 13 years, typically by cutting herself high on her thigh region. She has attempted suicide on multiple (a clinical note recorded 8) occasions.
The defendants submitted that the plaintiff's mental health issues give insight to the unreliability of her evidence. In Closing Written Submissions (MFI 21) at paragraphs [65] and [67]‑[69]; the defendants put: "[65] Of importance to any assessment of the plaintiff is an understanding of the nature of the illnesses from which the plaintiff is diagnose[d] as suffering. Each of the reports [Ms Troy, Clinical Psychologist, dated 18 May 2018 (Exhibit F and Exhibit 22 - tendered by both parties) and Dr Skinner, Psychiatrist, dated 18 March 2019 (Exhibit 27)] describes a diagnosis of border line personality disorder and it [is] submitted that this is a recognised major psychiatric illness. Its features are critical to the weight and understanding that this court would and will accord to the plaintiff in these proceedings. … [67] The medical material tendered in this case establish[ed] mental serious illness including the likelihood of the diagnosis of borderline personality disorder well before the (sic) Ian and Leisha Kinnear and their children came to accommodate the plaintiff in their own home. [68] It is submitted that the circumstance that the plaintiff suffers borderline personality disorder, has a history of psychological illness including persistent delusions is a matter and quality of the plaintiff which must be taken into account in assessing the reliability of the (sic) or any disputed account given by her both before trial and at trial in these proceedings. [69] It is the submission on behalf of Ian Kinnear that the account of the plaintiff of sexual assault by Ian Kinnear is the consequence of other grievances described by her (claimed restrictions on telephone; claimed too much control by Leisha Kinnear; disadvantage compared with the other children; reunification with Cheryl[‑L]ynne and Ernest Perry; her own confused identity together with a well‑documented delusional aspect."
The defendants' ultimate submission in written reply to the Plaintiff's Reply Submissions (MFI 23) and in final oral submissions (T789.45‑T790.10) was that, albeit there was no onus on the defendants to prove anything, an available explanation of the source of the plaintiff's allegations was that over time she developed "a delusion" of the events in an environment of her "vivid history of psychological illness and continuing disability", to be viewed in the context of her having failed to complain to either Amy, with whom she was very close, or her treating counsellor, Ms Blenkin. The defendants submit that the plaintiff's complaint to Ms Turner was "…testing to see what would be the response to a complaint…". Further, that the plaintiff's withdrawal of her account given to police of various sexual assaults, including the allegation of insertion of ice into her vagina in New Zealand in 2011, which "complaint" was subsequently "withdrawn" and then, three years later, attending Queensland Police to make her formal statement to police, (Exhibit D), but then withdrawing that; are all facts consistent with "… a growing belief in something that didn't occur." We know that frequently happens because people do give accounts to justify their own failures in life. There are many examples in the public arena of people who make up a false story, even a sincerely held false story, and we say that this is such a case. It developed".
This finally put defence submission requires some immediate corrections. They are: 1. The plaintiff was not diagnosed as suffering delusions and denied that she had; 2. The proposition that the plaintiff complained to Ms Turner to test what would be the response, was never put to either the plaintiff or Ms Turner, nor did any witness suggest it; and 3. The plaintiff did not withdraw the allegation that the first defendant pushed ice into her vagina; rather, in 2014 she told NSW Police, that sexual assault happened during a Winter holiday in New Zealand in 2011; but in 2017 she told Queensland police it happened on about Easter, in 2010.

Chronological Sketch

The sexual assaults are alleged to have occurred over a period of more than two‑and‑a‑half years whilst the plaintiff, between the ages of 16 and 18 years, lived in the Kinnear household. It is of assistance to provide a chronological sketch of relevant events before considering challenges to the plaintiff's credit. After that, each of the allegations of sexual assault and the allegation of Ms Turner's notification to the second defendant, will be considered in detail.
Throughout these reasons, references to page numbers within Exhibits are references to pagination appearing at the bottom right‑hand corner of pages taken from the MFI 5/Joint Court Book and MFI 9/Defendant Court Book. I have adopted this approach for convenience. This is the pagination used in the hearing and appearing in the transcript. Also, it is convenient to select this number because some documents and pages had been paginated more than once.
When living with her parents, the plaintiff attended Manning Valley Anglican College, Taree. In 2009, when she commenced to reside in the Kinnear household, the plaintiff was in year 10 at that school. The plaintiff was a hyperactive child of attention‑seeking behaviours, impulsivity and a frustrating lack of focus with direction given to her by her parents. She attributed this to her ADHD, then undiagnosed. By 2009, her behaviours had caused significant stress in the family and her mother was not coping with her. The plaintiff had self‑harmed since the age of 13 years. On 5 March 2009, following an argument with her father triggered by not more than she not being ready when he arrived to pick her up from her casual work at the local KFC, he drove home, leaving her there. This resulted in the second defendant picking the plaintiff up and the plaintiff commencing to stay in the Kinnear household. The evidence of events surrounding that transition from living with her parents to living with the Kinnear household is explored in greater detail later these reasons.
The defendants' children were then of the following ages: Chantelle (21 years), Jake (17 years), Amy and Brock (11 years). The plaintiff was about to turn 16 years of age (on 21 April).
In April 2009, the defendants applied to Family & Community Services for the Support Care Allowance. On about 12 May 2009, case worker Mr Adam Buchtmann, visited the Kinnear family home for the purposes of assessment. This was the only Department attendance at the home. On 16 June 2009, a Permanent Care Order was made and the Support Care Allowance was approved, with the date of the commencement of the placement being 27 April 2009 (Exhibit Q, pp 205‑206). The Department's documents (Exhibit Q), do not show a continuing allocation to a caseworker, except for Mr Buchtmann up to June 2009. The plaintiff maintained that, whilst a schoolgirl, she on more than one occasion, telephoned the Taree office of the Department with the intention of complaining of the first defendant's sexual assaults, but did not proceed to make a complaint because Reception was not able to identify her caseworker and she could not bring herself to speak to staff who were not her allocated caseworker about the assaults (T306.20‑30, T310). The plaintiff's evidence in this regard is consistent with the Department's records of caseworker allocation and with records subsequently made by treating medical practitioners of the plaintiff's difficulty with disclosing the information (see in particular discussion of Exhibit G/Exhibit 24 following). The plaintiff agreed with the cross‑examiner putting that she struggled to trust even medical practitioners with disclosure of complaints of sexual assault and that, on one occasion, she terminated services of a psychologist because he touched her arm (T376.08‑11).
The plaintiff alleged that some weeks or months after she commenced to live with the Kinnear family at 5 Sarah Close, Old Bar, NSW, the first defendant started to inappropriately touch her bottom, grasp her breasts and touch her vagina. She said these assaults occurred in front of the whole Kinnear family, in the open plan, kitchen/lounge area of the house. It is alleged these assaults frequently occurred throughout her living in the Kinnear household.
In 2009, the second defendant took the plaintiff to a consultation with the Kinnear family doctor at Old Bar, Dr Cheung. Dr Cheung provided a referral for the plaintiff to Ms Blenkin, Psychologist in Taree. Between 9 September 2009 and 15 December 2010, the plaintiff consulted Ms Blenkin on 21 occasions. The plaintiff did not complain to either Dr Cheung or Ms Blenkin of sexual assault by the first defendant. The plaintiff's explanation for this was that due to the second defendant's engagement with the consultations, the plaintiff did not trust the confidentiality of consultation sufficiently to make that disclosure. Her evidence was consistent with the objective evidence of Ms Blenkin's clinical documentation. That the plaintiff did not complain to Ms Blenkin will be considered in more detail later in these reasons.
During 2009 to 2010, the plaintiff's school friend, Ms Scofield, observed the first defendant putting his arm around the waist of the plaintiff, moving her close to him and that his hand would touch her bottom and the plaintiff would wriggle away. Ms Scofield also considered comments made by the first defendant to be inappropriate.
Sometime after 21 April 2009 (the plaintiff's 16th birthday), the plaintiff obtained her Driver's Learner Permit and in 2009 commenced driving lessons. Over 2 ½ years, she received instruction from the defendants and Mr Cork, a professional driving instructor. The plaintiff obtained her driver's licence in early 2012 when living at Lismore whilst attending Southern Cross University. The plaintiff alleges that the first defendant digitally penetrated her during driving under his instruction.
Between December 2009 and January 2010, the plaintiff finished Year 10 at Manning Valley Anglican School and was moved to start Year 11 at Taree High School, at which school the Kinnear children attended.
The plaintiff alleges that during a Kinnear family holiday on or about 10‑18 April 2010, at the "Beachcomber" holiday house at Bulwer, Moreton Island, Queensland, the first defendant sexually assaulted her by inserting ice into her vagina, without her consent.
The Plaintiff celebrated her 17th birthday on 21 April 2010.
The plaintiff disclosed to school friend Erin Holman (now Frost) "everything that had been happening to me" at the hand of the first defendant "from the tickling, bum slapping, breast grabbing, the car lessons and what happened at Moreton Island" (plaintiff's formal Police statement, Exhibit D at [24] and T211.45). Ms Frost declined the plaintiff's solicitor's invitation to give evidence in the hearing. Exhibit D is hereafter referred to as "the plaintiff's formal Police statement".
The plaintiff alleges that she was sexually assaulted by the first defendant whilst he and she were watching television in the Kinnear family caravan at a caravan park in Tweed Heads, New South Wales. With the defendants, Amy, Brock and Jake, she was attending a car show named in the evidence as "Cooley on the Rocks" and "Cooleys", which reference is adopted in these reasons. The plaintiff chronology (MFI 1) attributed the date July 2010. The second defendant said it was on a long weekend (T477.34; T551.25). Ultimately, the date in 2010 was not identified in the evidence.
For the September/October 2010 school holidays, the defendants asked Ms Turner (sister‑in‑law of the plaintiff's mother and of the second defendant) if the plaintiff might stay with her during the school holidays in order for the Kinnear family to have a break from the plaintiff. At this time: 1. The plaintiff, whilst staying with Ms Turner, informed her that she found it hard to fit within the Kinnear household and was confused with the way things ran at times in the Kinnear household; 2. The plaintiff informed Ms Turner that the first defendant tickled and smacked her on the bottom, during which activity the first defendant's fingers would touch the plaintiff's vagina. 3. Ms Turner notified the second defendant of the inappropriateness of the "smacking game" and of the plaintiff having said that the first defendant touched her vagina.
On 13 October 2010, the plaintiff attended the Taree office of the Department of Community Services in relation to her want to contact her birth parents and was informed that she should discuss her request with the second defendant (Exhibit Q, p 203; T310). The plaintiff did not complain of sexual assault.
The Plaintiff celebrated her 18th birthday on 21 April 2011 whilst attending a Kinnear family holiday to Geelong, Victoria.
Between 24 June 2011 to 8 July 2011, the plaintiff accompanied the Kinnear family on a holiday to New Zealand.
At a mutual friend's 18th birthday at Cundletown, Taree, the plaintiff informed Ms Scofield that the defendant had put ice in her vagina and of multiple instances of sexual assault at the hand of the first defendant (timing inferred by age of 18 years).
On about 30 September 2011, the plaintiff attended a Kinnear family holiday to Valla Beach, NSW.
After returning from Valla Beach, the plaintiff was asked to cease residing with the Kinnear family. The plaintiff and the defendants contest how the separation came about.
The plaintiff soon after went to live with Ms Scofield's family. Whereas the defendants say this was for a couple of weeks, the plaintiff's case is that it was for a couple of months.
In November 2011, the plaintiff completed her Higher School Certificate examinations at Taree High School and was subsequently offered entry into a Bachelor of Nursing degree course at Southern Cross University, Lismore.
In November 2011, the plaintiff and first defendant travelled together by car to Southern Cross University, Lismore, Open Day. The plaintiff alleges that she was sexually assaulted by the first defendant whilst staying overnight in a room at the AZA Hotel, Taree.
In January 2012, the plaintiff and first defendant travelled to Lismore by car together for the plaintiff's commencement of her university nursing degree course. On arrival, the plaintiff's previously organised, share home accommodation was not available. The plaintiff and first defendant stayed overnight in a cabin at Lismore Lake Holiday Park. The plaintiff alleges that she was sexually assaulted by the first defendant.
In March 2012, the plaintiff attended Jake Kinnear's 21st birthday party at Old Bar, Taree.
During 2012, the plaintiff attended Southern Cross University, Lismore, studying nursing, but did not continue with the course in 2013.
Between 13 April 2012 and April 2013, the plaintiff attended Goonellabah Medical Centre, in Goonellabah, NSW, about 16‑18 times without giving any history of sexual assault by the first defendant to her doctors (note that, from 30 December 2012, the plaintiff was attending sexual assault counselling elsewhere, but through referral from Lismore Base Hospital).
On 30 December 2012, at 4:00pm, the plaintiff attended Lismore Base Hospital, having overdosed on ibuprofen for a headache during a bout of heavy consumption of alcohol. The clinical nursing notes recorded that the plaintiff complained of past history of sexual assault whilst in foster care. On discharge, the plaintiff was given contact numbers for mental health services (including the name of a psychologist toward whom she could seek referral from a GP) and for sexual assault services.
Over June and July 2013, the plaintiff attended Dr Tiongco of Goodna Family Medical Centre in Queensland, in regard to a Mental Health Plan relating to her complaint of abuse at the hand of the first defendant (plaintiff in‑chief, T77.45; no cross‑examination).
On 8‑9 August 2013 and 19 November 2013, the plaintiff attended Dr See at Camp Hill in Queensland, in regard to a Mental Health Plan relating to her complaint of abuse by the first defendant (plaintiff in‑chief at T78.50; not challenged in cross‑examination).
On 24 November 2013, at Redlands Hospital, Queensland, the plaintiff complained of sexual assault by the first defendant over a three year period. The notes (Exhibit G; Exhibit 24) include the following history of symptoms given by the plaintiff: 1. Emotional lability and poor emotional regulation; 2. Impulsivity; 3. Need for attention; 4. Low self‑worth and self‑regard; 5. Has attempted suicide 8 times since the age of 13 - last suicide attempt was earlier this year requiring hospitalisation for OD of paracetamol and ibuprofen [Comment: this was the Lismore base Hospital care referred to above]. 6. DSH [Comment: deliberate self‑harm] - cutting upper thighs and scratching wrists; 7. Difficulty maintaining friendships / relationships - states that "people don't want to stay friends with me" and "people get angry with me all the time". 8. Precipitating factors identified by the plaintiff included "discussed her sexual abuse with her mother two days ago. Father encouraging her to file charges". 9. Psychiatric history included ADHD, anorexia (not formally diagnosed?); "likely undiagnosed borderline personality disorder"; 8 suicide attempts. Thought content included: "…+++++ negative self‑worth - states that she hates herself. Is a bad person. Not worth anything. Strong need for attention. Complains of racing thought and intrusive negative thoughts. Fleeting suicidal ideations. General increasing acopia [Comment: inability to cope]." 1. Insight was recorded as: "Poor - states that she does not know why she has such a need for attention. She does not know why she is doing the things she is doing or how to fix it. She made for a difficult historian due to not answering questions. She had to be asked several times to elaborate on certain topics. Sometimes, the information needed to be sought from her partner." [Comment: bold emphasis added because considered in later assessment of manner of evidence giving] 1. Cognitive assessment included: "Memory: ? poor - she did have some difficulty remembering some things. For example, when asked how her mother reacted when she told her about the sexual abuse, she stated that she did not remember - this was only two days ago. Attention: Poor - she attributes this to her ADHD" 1. The notes recorded recent self‑harming and ongoing ideation to self‑harm. 2. Included in the Assessment recorded was: "++++distressed and teary. +++psychosocial stressors." 1. The plaintiff was in relationship turmoil with her then same‑sex partner, Jo, who had discovered the plaintiff's impulsive behaviour of sending naked pictures of herself to strangers on the internet. The clinical note was: "Some neuroveg disturbances that seem chronic in nature. Could be a mild underlying mood/affect depression. Strong negative cognitions regarding self‑worth/regard. No psychotic features observed. No drug or alcohol problems. Likely has undiagnosed borderline personality disorder." 1. She was assessed as low acute risk of suicide with a medium chronic risk of suicide and a medium acute risk of self‑harm into the future. The plaintiff was referred to Dr Cook for treatment of ADHD only.
Dr Cook prescribed Ritalin for ADHD. The plaintiff did not complain of sexual assault by the first defendant to Dr Cook but, at the time, she was under the care of Redland Hospital, Bayside Mental Health Team to whom she did report sexual assault (the plaintiff in‑chief, T79.15; Exhibit G; Exhibit 24).
On 10 January 2014, the plaintiff was driven to Tamworth Police Station by her father and alone discussed with a female officer sexual assault by the first defendant (COPS Event Summary - Exhibit 32). The Event Summary records in part: "the victim was very emotional whilst speaking with police and would only disclose the intimate details of the allegation to a female officer…The process was explained to the victim in relation to reporting the matter. The victim stated she did not know if she wanted to make a formal statement at this point…Will seek counselling before making a decision on whether to make a formal statement of complaint".
On 15 January 2014, the plaintiff attended Dr Aciu at Mt Gravatt, Queensland, for a Mental Health Plan related to her complaint of abuse at the hand of the first defendant (plaintiff in‑chief, T78.30; not challenged in cross‑examination).
On 9 July 2014, the plaintiff attended Women's Health at Ipswich Hospital, Queensland, and informed Ms Vikraman, Social Worker, of a history including the following (Exhibit 23): 1. Prior to living in the Kinnear household, she suffered ADHD and was a troublemaker because of same; 2. Her mother used punitive punishment and emotionally abused her; 3. She was fostered to the defendants; 4. The second defendant verbally and emotionally abused her the whole time she lived with the family - keeping different rules for the plaintiff to follow than for the other children; 5. The plaintiff never felt part of the Kinnear family; 6. The first defendant sexually abused and raped her multiple times; 7. The plaintiff disclosed sexual abuse to "another aunty" (the evidence infers this would be Ms Turner) and it made things worse for her after that; 8. Nobody believed her and everybody started isolating her more and harassment by the second defendant increased after the plaintiff's disclosure to Ms Turner; 9. The plaintiff's partner, Jo, was very supportive and was helping the plaintiff to make a statement with police and to move on with her life.
On 12 May 2015, the plaintiff attended Dr Jawad of Spring Lakes in Queensland for a Mental Health Plan arising from her complaint of abuse at the hand of the first defendant (plaintiff in‑chief, T77.25; not challenged in cross‑examination).
On 17 December 2016, the plaintiff attended the counter at Ipswich Police Station, Queensland, and reported that during the period of her living with the Kinnear family at the home at Old Bar, NSW, and other occasions, the first defendant indecently groped her breasts and genitalia (under her clothing), penetrated her vagina with his fingers and ice cubes and forced her to bathe with an open window so that he could see in and watch her. "Most offences occurred in NSW, one in QLD" (Exhibit 33, p 291) [Comment: The only sexual assault which the plaintiff alleges in this case to have occurred in Queensland, was the insertion of ice into her vagina at Moreton Island].
The plaintiff completed her formal police statement at Springfield Police Station, Southern Ipswich Command, Queensland, on 19 April 2017, although it is dated 5 February 2017 (Exhibit D, pp 26‑35).
Between 27 January 2017 and 4 September 2018, the plaintiff attended general practitioners at Metro Medical Centre, Springfield Lake Metro, Queensland. The clinical notes (Exhibit 26) record the following: 1. On 4 May 2017, the plaintiff reported auditory and visual hallucination for two months - hearing someone telling her that she will go to hell if she eats pork - seeing pigs telling her not to eat them. 2. [Comment: The 4 May 2017 Metro Medical Centre record of report of hallucination is the only report of hallucination and later dated clinical notes refer only to that single report (see 18 December 2017, Exhibit 26, p 371). The plaintiff's oral evidence, which was consistent with clinical records, was that visual hallucinations did not continue for two months, but that there was a single visual hallucination (T82.35‑50; T355.50‑T365.05). The plaintiff said she experienced auditory hallucinations for two months (T356.25‑39). For the single visual hallucination, the plaintiff was prescribed Risperidone for two weeks only. The clinical notes record no delusions (bold emphasis added)]. 3. CT Brain scan was normal. 4. On 12 May 2017, Dr Jawad recorded the plaintiff was booked to see a psychiatrist on 2 June 2017, relaxation meditation was helping and a history including: no delusions, auditory hallucinations or visual hallucinations. Dr Jawad provided the plaintiff with a letter regarding her Mental Health Plan. 5. On 2 June 2017, the plaintiff consulted Dr Randhawa, Psychiatrist at Apollo Specialist Medical Centre, arising from her complaint of abuse at the hand of the first defendant (the plaintiff in‑chief at T78.25; no cross‑examination). 6. On 30 June 2017, the plaintiff underwent electroencephalography under Dr Bonev, which dismissed any organic brain cause of her symptoms of anxiety (the plaintiff in‑chief at T76.40 and T77.10; no cross‑examination).
On 21 August 2017, Queensland Police Solicitors' Office Report Details included an event summary (Exhibit 33, p 292) in the following terms: "…nil disclosures in relation to this exact offence occurring in QLD Health staff. This matter is to be unfounded as there is no chance for a successful prosecution given nil independent witnesses and no other evidence available. There are other matters of abuse which have been disclosed to QLD Health and will be forwarded to NSW Police as offender and all other occurrences occurred there. A report will be furnished and sent for further investigation to NSW". This entry is of limited persuasion, for the following reasons: 1. Its focus was only to the alleged insertion of ice into the vagina at Moreton Island, that being the only event said to have occurred in Queensland; 2. In cross‑examination, the plaintiff said that she was never informed of that internal police decision; 3. The plaintiff had complained of sexual assault at the hand of the first defendant to treating medical practitioners as set out in the above chronology; 4. The plaintiff said that she found dealing with the Southern Ipswich Command police officer arduous and, after three months, was dissuaded when informed that they had lost her documents of authority for the obtaining of medical records. The solicitor's summary of 21 August 2017 included that doctor's reports from Hospitals had been received, but there were no references to whether or not the investigation for the obtaining of medical records was complete. 5. There is no evidence that Queensland Police ceased prosecution from 21 August 2017 or on the basis of that entry. To the contrary, the entry two months later on 21 October 2017 reads: "The victim phoned Police stating that she wished to withdraw the matter as it was making her anxious and causing her problems. Victim stated that she is not ready to proceed with this matter and may not be able to deal with it. Withdrawal to be obtained."
On 24 October 2017, the plaintiff completed the Queensland Police Service Withdrawal of Complaint form (Exhibit E).
On 18 December 2017, the plaintiff received a referral from Dr Hossain of Metro Medical Centre, Spring Lake Metro, Queensland, to Dr Cook, "for ongoing management of her ADHD" (Exhibit 26, p 371).
On 26 March 2018, the plaintiff attended Metro Medical Centre, Springfield Lake Metro, Queensland, for treatment of a lacerated wound to her right anterior thigh, which the plaintiff self‑inflicted. The plaintiff's oral evidence confirmed that treatment required 20 stitches.
On 5 April 2018, the original Statement of Claim was filed.
On 11 February 2020, the plaintiff gave birth to her first and only child. On 13 March 2020, the plaintiff married.
At the time of the hearing, the plaintiff was employed full‑time (but on maternity leave) with Dundaloo Support Service, Taree, as a disability support worker providing independent living and accommodation support.
The above chronology of selected events shows: 1. The plaintiff's reported behavioural abnormalities started before her commencing to live with the Kinnear family on 5 March 2009 and are continuing; 2. The plaintiff has no medical history of delusional behaviour and her evidence denying having experienced delusion and differentiating delusion from her episode of hallucination is consistent with the independent, objective evidence; 3. The plaintiff has complained of sexual assault at the hand of the first defendant, firstly to school friends and subsequently to medical practitioners and police between 2009 and the hearing.

DR SKINNER'S REPORT - EXHIBIT 27

The defendants qualified Dr Skinner, Psychiatrist, to provide medico‑legal opinion. Dr Skinner was asked to comment on: "…the strength of any diagnosis of any condition of the plaintiff and, of course, how such an identified condition can or may have related to the actions of Ian Kinnear in circumstance (sic) of his clear and unequivocal denial of any assault upon Isabella, sexual or otherwise." (bold emphasis added) (Exhibit 27; defendants' solicitor's letter at page 135)
The defendants also asked Dr Skinner: "Is it possible to say that her psychiatric condition, illness or limitation has caused her to make up / concoct / invent the alleged assault and / or abuse as particularised in the Statement of Claim at paragraph 9 and paragraph 11?". (bold emphasis added)
At [119], Dr Skinner diagnosed the plaintiff as suffering Borderline Personality Disorder (BPD) and at [122], that she may have had symptoms of Attention Deficit Disorder (ADHD) in the past of mild severity, but displayed no symptoms of it at the time of examination.
At [132] of her report, Dr Skinner responded "It is not possible to say whether Ms Perry has made up / concocted / invented the allegations".
At [133], expanding on her response to the question concerning concoction and invention, Dr Skinner identified abnormalities of autobiographical memory observed to be experienced by persons suffering BPD. She mentioned that they are more likely than another person to misunderstand or misinterpret the words and actions of others, and to present accounts that are different to the accounts of other observers, to misinterpret or misremember social interactions, or to lie manipulatively and convincingly. She reported the general observation that the abnormality of autobiographical memory suffered by persons with BPD includes memory bias. She added that episodes of disassociation, suffered by persons with BPD may result in memory gaps "as the person in the dissociated state is not fully conscious and aware at the time the memory is laid down. It appears that Ms Perry has experienced episodes of disassociation".
At [134], Dr Skinner noted that the plaintiff had experienced psychotic phenomena, hallucinations and paranoid ideation and that psychotic phenomena cause distortions for memory of other events around the time of the psychotic experience, or sometimes distortion of memory of events that have occurred previously.
Dr Skinner, at [135], clearly expressed her reliance on instructed assumptions of the defendants' denials for her assessment toward her expressed opinion and observations of potential unreliability of the plaintiff's claimed recollection of events. In that penultimate, conclusive paragraph, her observation and opinion following that disclosure was: "Sometimes a person may give an account of events that did not actually happen, but with the person genuinely believing that the events did happen. As Ms Perry suffers a severe disturbance of personality and has experienced psychotic phenomena, she would be more likely than the average person to develop a distorted perception of past events".
In fact, Dr Skinner had been briefed with "a history…" set out by the defendants in statements of members of the Kinnear family, which record of history and statements were not in evidence and were not identified or referred to during examination of the defendants or their children; Chantelle, Jake, Amy and Brock.
In her final paragraph [136], Dr Skinner offered: "It is also possible that Ms Perry has invented the allegations. If that were the case, she might gradually come to believe that the invented allegations were true. Because of her underlying personality disturbance, she would be more likely than an average person to come to this position, because of her Borderline Personality Disorder. With her unstable sense of self, her sense of reality is fragile. It is characteristic of persons with Borderline Personality Disorder to have difficulty in coping as changes occur in relationships. They often idolise a person and then become very distressed when there is a change in the nature of the relationship, then devaluing the person, even with respect of memories of past events".
In regard to paragraph [136], some caution must be exercised in recognition that the full instructions upon which Dr Skinner assessed the extent of the plaintiff's unstable sense of self, fragility, sense of reality, changes in relationships she experienced in life, and her idolising of the first and second defendants (they could be the only persons in relation to whom the last sentence could have purpose) were not disclosed.
Dr Skinner's opinion is an evaluative one, partially based on that undisclosed information. Dr Skinner sparsely covered the defendant statements briefed to her at [61]‑[66]. For instance, her understanding that the plaintiff suffered rejection by her adoptive parents, was summarily covered in one sentence in [61]: "According to the Witness Statement, when the two children arrived, Isabella (sic) was pushed aside and was ill‑treated".
The "pushed aside" assumption illustrates that Dr Skinner's formulative process involved consideration of undisclosed history contained in the defendant's statements of the plaintiff living in the defendant's household, but also of her living with her parents. The words "pushed aside" provide a very general description of an assumedly complex home environment, including the plaintiff's parents' own behavioural difficulties.
For instance, at [62], Dr Skinner included the important information relating to that "pushed aside" assumption that "Once the school rang Leisha and informed her that Isabella (sic) could not live with the father anymore and wanted to live with the Kinnears". This version of events was not put to the plaintiff, albeit she did say that when living with her parents she thought the second defendant to be pretty cool (T300.35). The plaintiff's evidence was that, whilst a child in her parents' family, she felt that they favoured their birth twins, her brother and sister, over her; however as an adult and parent at the time of giving evidence, she realised that she may have been wrong in that (T331.30‑T332.35).
At [63], Dr Skinner recorded that the Kinnear family member statements advanced that during the holidays attended by the plaintiff, they were always together and when at Moreton Island, "Leisha and Ian were never alone with" the plaintiff. At [64], Dr Skinner was informed that during the early four months of 2012, when the defendants travelled around Australia, the plaintiff "was in constant contact with them". Each of these facts, reported at [63] and [64] were denied by the plaintiff and otherwise hotly contested in the proceedings. At [66], "Amy's contemporaneous notes"…apparently written as a diary of events recording the trip to Moreton Island were read by Dr Skinner; but they were not in evidence in the hearing.
The plaintiff agreed with Dr Skinner's record at [40] that, when living with the Kinnear family, "She was not allowed to go down the street". She agreed that she informed Dr Skinner of that and, as reported at [40], this was not from the outset when, indeed, she was permitted to spend time with friends, but later on. The period over which that restriction applied to her is neither described in Dr Skinner's report, nor otherwise in the evidence. She agreed that she told Dr Skinner that the trip to New Zealand was a good trip. The plaintiff agreed that she told Dr Skinner and that it was true that some days she felt as if she was looking into someone else's life and as if the abuse had never happened to her. It is fair to say that, the majority of that reported by Dr Skinner as stated by the plaintiff was agreed to be accurate by the plaintiff, of the information obtained from her during the interview. Nevertheless, matters going to Dr Skinner's central evaluative observation of effects of the plaintiff's BPD, including rejection by her adoptive parents and otherwise of her relationship with the defendants and others within the Kinnear household, is partially based on undisclosed information the consistency of which with the evidence in the hearing cannot be known.
The plaintiff freely conceded that she was an attention‑seeking and difficult child. The plaintiff believed her behaviour related to her ADHD, but in any event, she stated her awareness of her childhood poor behaviour. The plaintiff also freely conceded her mother's harsh treatment of her and her argumentative relationship with both parents. Her mother called her "feral" and could not handle her conduct. She had attempted suicide at age 13 and again in Year 9. In that latter suicide attempt, she cut her wrists. Her father said that she was killing them from all the stress she put them under. Conflict with her mother was increasing and her father blamed her. On one occasion, her mother punched her in the mouth. Her mother would become frustrated with the plaintiff's inability to concentrate on tasks around the house. Her mother hit her with a stick and would make her eat her uneaten food, even when it was mouldy.
It is plain from her opinion that Dr Skinner's measure of the plaintiff's "underlying personality disturbance" because of her BPD, was important in her formulation of her expressed opinion of the measure to which the plaintiff would be more likely than another person to misunderstand or misinterpret the words or actions of others, to present accounts that are different to accounts of other observers, to misinterpret or misremember social interactions, or to lie manipulatively and convincingly, as well as Dr Skinner's measure of the plaintiff's abnormality of autobiographical memory and memory bias. Of course, Dr Skinner relied also on her interview with the plaintiff, but her formulation of opinion involved a comparison of the plaintiff's report of life with the undisclosed information briefed to her by the defendants of that story of life.
Dr Skinner's opinion did not identify how long it would take for the laying down of inaccurate memory. Therefore, her report is not of great assistance when considering reliability of the plaintiff's complaints of sexual assault by the first defendant when made to Ms Turner and to Ms Scofield. Those complaints were made during the plaintiff's time of living with the Kinnear family. Dr Skinner was not briefed with Ms Turner's statement, Exhibit B, or with Ms Scofield's statement, Exhibit A. Dr Skinner did not, in her observation at [136] that the plaintiff "might gradually come to believe that the invented allegations were true", offer any comment of the plaintiff's reliability at the time she made allegations of sexual assault by the first defendant, to Ms Turner, Ms Scofield or as was recorded in the treating medical literature.
The persuasion to the reader of Dr Skinner's report is somewhat diminished by the absence of knowledge of the content of the statements of the defendants and their children, briefed to her. As Dr Skinner did not give oral evidence, it cannot be known whether she would have expressed an opinion in the same terms had she been aware of the evidence in the hearing given by the plaintiff and the defendants and their children.
Dr Skinner's report was tendered on day 6 of the hearing. Before the commencement of evidence on day 7, I drew to the parties' attention that, without disclosure of defendant witness statements briefed to Dr Skinner: "I could come to the end of this case and when submissions are put to me on the basis of Dr Skinner's report, I would say to you, "Mr Brezniak, how much weight can I give that when I have not seen the field of information from which she has been asked to commen[t]…" (T399.20)
Ultimately, Dr Skinner's reported response to the plaintiff's solicitor's enquiries, that she found it not possible to say whether or not the plaintiff had made up/concocted/invented the allegations, is an expert conclusion that the plaintiff's allegations in the case are not to be dismissed as unreliable purely on the bases of her mental health issues, in particular her BPD. Dr Skinner's general observations of that diagnosis give cause to consider whether or not the evidence in the hearing exposed the plaintiff's allegations as affected by the laying down of false memories. However, in my opinion, assistance which might be obtained by application of that consideration in the determination of the credibility of the plaintiff's evidence was diminished in the absence of Dr Skinner's evaluative comment on the evidence at the hearing. Dr Skinner's report provides a general expert opinion to be borne in mind in the background of appreciation of the plaintiff as a witness suffering BPD.

MS TROY'S REPORT - EXHIBIT F & 22

Both parties tendered the medico‑legal report of Ms Lynda Troy, Clinical Psychologist and Clinical Neuropsychologist. Ms Troy had been retained by solicitors for the plaintiff. Consistent with evidence given by the plaintiff in the hearing, Ms Troy reported the plaintiff's difficult environment with her parents, that she did a lot of things for attention and got into a lot of trouble, which the plaintiff attributed to her ADHD. Her mother "didn't really handle" that hyperactivity and her father said that the plaintiff was "killing them from all the stress [she] put them under". She was blamed for the conflict at home. At one stage, her mother hit her in the mouth, causing visible swelling. The plaintiff denied, however, that she told Ms Troy, as was recorded in the report at page 4 (p 46 of MFI 5), that she was becoming withdrawn at school.
A feature of the evidence to which these reasons will return is that in the hearing, the plaintiff agreed that she told Ms Troy that, following the 5 March 2009 incident when her father did not pick her up from work at KFC, the second defendant did pick her up and took her to her parents' home to pack her things. This was inconsistent with the plaintiff's early oral evidence. The plaintiff's early oral evidence was that she was never taken home; that she got that wrong when she spoke to Ms Troy and "I must not have remembered that right, but I was never taken home. I was not there": T303.45‑304.21. She also said that she got it wrong when she told Ms Troy: "When at home, Dad said he was done with me and didn't want to see me again, could take all my stuff". When asked why her evidence to the Court in this hearing was different, she answered at T304.20: "I must have been remembering that wrong", meaning when speaking to Ms Troy. The plaintiff conceded that 9 months after her interview with Ms Troy, she also told Dr Skinner that her father had spoken to her in that way: T370.45.
At paragraph [3.3.1.8] of her report, Ms Troy said of the plaintiff's reliability: "Ms Perry appeared to be a reliable historian, and information collected in the clinical review was consistent with collateral background information provided in the brief".
Ms Troy performed the psychometric assessment testing within her speciality. In the trauma symptom inventory - 2, the plaintiff's responses indicated the profile was invalid. Ms Troy reported: "That is, she tended to endorse items that seemingly index post‑traumatic stress, however are highly unlikely to be endorsed by those who do suffer from Post‑Traumatic Stress Disorder (PTSD), either because of the extremity of the response, or because the item reflect (sic) how someone without PTSD would interpret PTSD symptoms. As such, the profile could not be validly interpreted".
Ms Troy also applied the Personality Assessment Index. She observed that the plaintiff's responses displayed consistency, however, the plaintiff showed a tendency toward idiosyncratic responses. She commented: "There was no evidence that [the plaintiff] was motivated to present herself as being relatively free of common or minor faults… however, she consistently endorsed items which portrayed her in an especially negative or pathological way… at a level which rendered the profile uninterpretable, and suggestive of a "cry for help" or extremely negative perception of herself. She described herself as experiencing marked peculiarities in thinking and experience at a level of severity unusual even in clinical samples, a number of problematic personality traits (lability of mood, episodes of poorly controlled anger, lack of direction or purpose in her life and uncertainty about major life issues, a history of volatile or negative relationships, preoccupation with fears of being rejected or abandoned, impulsivity with self‑harming and self‑destructive behaviours), that were consistent with a diagnoses of Borderline Personality Disorder. She reported higher levels of depression, phobic avoidance and traumatic stress, suspiciousness and hostility, and risk taking. She reported poorly established self‑concept, with instability in her self‑esteem, and passivity and discomfort in social situations. She reported mild stress and low support, with recurrent intense suicidal ideation. Her motivation for treatment was consistent with those in treatment settings" (at [3.3.3.2]).
Ms Troy diagnosed the plaintiff to suffer: 1. Attention Deficit Hyperactivity Disorder, combined presentation in partial remission; 2. Post‑Traumatic Stress Disorder; and 3. Borderline Personality Disorder.
Ms Troy's comment at [3.8] is important for assessment of the demeanour of the plaintiff as a witness. The plaintiff's manner of answering questions in Court, included extraordinary long pauses between answers, frequent statements that she did not recall something of significance at the "point of time" of the question and, appearing to freeze in response to questions, or perhaps as she searched for answers. Ms Troy observed that the plaintiff is impaired in her ability to self‑regulate her emotions and to tolerate normal everyday stressors; she overreacts to triggers; when stressed or overwhelmed: "she will not be able to function in her normal roles across settings, including the community, workplace or relationships and her intrusive symptoms make it difficult for her "to rationally think through situations and problem solve. Anticipate consequences and impacts, including to avoid conflict and triggers to reduce stress levels".
The plaintiff underwent several days of frequently intense and sometimes aggressive cross‑examination. My point here is not to criticise the defendants' approach; but rather, to observe that the plaintiff during examination‑in‑chief and more so during cross‑examination was subject to higher stress levels than "everyday" and her demeanour and manner of answering questions are fairly to be assessed on the basis of her personal capacity to do so. This approach has been taken.
Ms Troy's diagnoses of the plaintiff's mental health disorders are to be considered in combination with the opinion of Dr Skinner. Neither expert was called to give oral evidence. The Court did not have the opportunity of hearing Ms Troy's expert responses to questions inviting her expert evaluative opinion of whether or not, and if so, to what extent, her observations of the plaintiff's above described impairments of functional capacity were to be observed in the plaintiff's presentation as a witness and, in regard to the credibility of the evidence she gave. Bearing that in mind, Ms Troy's' report provided a pallet of her expert observations of the plaintiff's functional capacity for background appreciation of the evidence given by the plaintiff and of her presentation in the courtroom when giving evidence.

THE PLAINTIFF'S OWN EVIDENCE OF HER MEMORY CAPACITY

The plaintiff agreed that after the passage of time from when she lived with the Kinnear household, there are a lot of things that she could not recall. At T270.10‑39, her evidence was: Q. There are a lot of things you don't remember, aren't there? A. Yes, I'm now 27 years old. Q. You're now what? A. 27 years old. You are asking me things to remember from when I was 16 years old. Q. Is that unfair? A. No. Q. Is it unfair to ask you questions from when you were a 16‑year‑old? A. No. Q. Because you've come to Court‑‑ A. Yes. Q. ‑‑and said that you were sexually assaulted at that time. A. Yes. They are major events. Yes. Q. Isn't your experience of learning to drive a major event? A. Yes, and there are some things that I can remember and I've recalled them and told you. Q. But what I'm putting to you is that there's a lot of things in your life, to your knowledge, that you can't remember. A. Yes. Q. And some of them are major things. Do you agree with that? A. Yes.
A very significant event in the plaintiff's life was her moving from living with her parents into the Kinnear household. Her life moved from being a member of her parents' household until nearly the age of 16, to living in the Kinnear household between the ages of nearly 16 and nearly 19. Then, from about the age of 21 and to the present, she restored her relationship with her parents after coming to the realisation that they really did love her, albeit mistreated her, up to 5 March 2009. Therefore, those events of about 5 March 2009 carry for her a significance such that one would expect her to remember them.
The plaintiff's evidence in the hearing was that her memory of the events of about 5 March 2009, was different to when, on 9 May 2018, she spoke to Ms Troy and on 5 February 2019 when she was interviewed by Dr Skinner. She agreed that Ms Troy's report recorded what the plaintiff had told her about what happened after her father had driven off leaving her at work at KFC because she was not ready to be picked up: "[The plaintiff] called [the second defendant] who picked her up and took her home to pack her things, to stay with [the defendants] and their 4 children. When at home "Dad said he was done with me and didn't want to see me again. Could take all my stuff". She reported that she was hurt, but felt she would have temporary refuge from the conflict so she could resolve issues with her parents."
During cross‑examination, when taken to Ms Troy's entry, the plaintiff denied being taken to her parent's home and denied hearing her father say those words abandoning her. Her evidence at T303.35‑T304.26 was: Q. I'll ask you, do you have page 46 now? A. Yes, I do. Q. Do you see near the bottom, where it says about, "Her father came to pick her up from work and she was not ready, he drove off, leaving her there." A. Yes. Q. "She called her aunt, who picked her up, and took her home to pack her things to stay with her aunt and her uncle and their four children." The question I'm asking you is do you accept now that that's what you told Linda Troy, namely that when you were picked up by your aunt, you were taken home to pick up your things. A. I was never taken home. I got that wrong. I must not have remembered that right, but I was never taken home. I was not there. HIS HONOUR Q. But the question is, did you tell that to Ms Troy? A. Yes, I did. BREZNIAK Q. And you say you got that wrong. A. Yes, I did. Q. And then when you go on there, it says, "When at home, Dad said he was done with me and didn't want to see me again, could take all my stuff." See that? A. Yes, I did. Q. Did you say that to Linda Troy? A. Yes, I did. Q. But it's not what you told the Court, is it? A. No. Q. Why is that? A. I must have been remembering that wrong.
Several different versions of the event were put to the plaintiff in cross‑examination. At T103‑106, the cross‑examiner put conversation in first person that the questions suggested the plaintiff overheard. It was put that after the second defendant picked the plaintiff up from work at KFC, she was not returned or did not return to her parents' home (T103.25). The plaintiff agreed. That evidence was consistent with the plaintiff's evidence quoted above and inconsistent with what she told Ms Troy. It was then put that the second defendant took the plaintiff to her parents' home the next morning, 6 March 2009, where in a confrontation, her father said the things of abandonment of the plaintiff recorded by Ms Troy (T103.41‑T104.39). Defence counsel's suggestion was inconsistent with what the plaintiff told Ms Troy of being taken to her parents' home on the evening of 5 March 2009. The plaintiff again denied having been taken to her parents' home to pack her things and denied being aware of those things said by her father. The cross‑examination, particularly the statements of abandonment put as said by her father (at T105), was extremely distressing for her.
In subsequent cross‑examination, a third version of the events was put to the plaintiff. Counsel for the defendants shifted the location and circumstances of the plaintiff becoming aware of her father saying words to the effect of abandoning her, from the plaintiff being present at her parents' home, to being at the Kinnear home during a telephone discussion between the second defendant and the plaintiff's mother either on 5 or 6 March 2009. Among the things suggested to have been said by her father was that "she can sleep on the street for all I care". It was also put that the plaintiff's mother told the second defendant that she knew what had happened and that she was happy for the plaintiff to live with the Kinnears. The plaintiff also denied knowledge of that telephone conversation.
The plaintiff denied being aware of things put as suggestions to her, including that the first defendant's mother, Pam, helped pack the plaintiff's belongings the following weekend and moved them into the Kinnear house and that further belongings were removed on the next Tuesday. The plaintiff denied knowing that there were things which she was not allowed to take. She said that she did not recall those things; but most significantly, denied that any person had given her an account of the suggested conversations, including those things having been said by her father.
As inconsistent (they were not wholly supported by other evidence, including the second defendant's evidence) and distressing as those suggestions in cross‑examination were; nevertheless, during that substantial body of oral evidence, the plaintiff maintained her denial on the important point of knowledge of her father saying he was done with her, or otherwise words of the effect of abandoning her.
Therefore, to that point her extensively tested evidence conceded that the recollection she was possessed of when she spoke to Ms Troy on 9 May 2018, was in a very important regard, a different memory to that with which she was possessed during the hearing.
Seven months after Ms Troy's report, it was briefed to Dr Skinner. Dr Skinner (Exhibit 27) refered to the passage from Ms Troy's report at [72]. Dr Skinner interviewed the plaintiff on 5 February 2019. The plaintiff was asked to read the last sentence of paragraph [11] of the report of Dr Skinner, which read: "However, when she told her father, he said that if she left home, she would not be welcome to return."
Whilst it is unclear whether the "she" who told her father was the plaintiff or the second defendant; nevertheless, Dr Skinner there recorded the plaintiff's report that her father had spoken words of abandonment. On day 6 of the hearing, late in the plaintiff's cross‑examination, the plaintiff conceded that she did say to Dr Skinner words to the effect of that sentence in paragraph [11] (T370.40). She then conceded that earlier during the hearing, she just did not remember the fact that she had told Dr Skinner of her father having spoken in that way (T370.45).
Overall, the plaintiff's concessions of the accuracy of what is recorded in the reports of Ms Troy and Dr Skinner of her father's statements of abandonment of her was convincing evidence of her being a truthful witness. The question for careful consideration is whether or not what she believed to be true is reliable and accurate evidence of what really occurred. The evidence shows that the plaintiff's memory of that critical factor of that major event in her life changed between speaking to Ms Troy and Dr Skinner and the hearing.
I am not overlooking that the second defendant, after hearing the whole of the plaintiff's evidence, said that she did take the plaintiff to her parents' home where the plaintiff heard her father say such things. What is significant for present consideration is the plaintiff's own evidence conceding her changing memory of a significant, life changing event when speaking to Ms Troy and Dr Skinner in 2018 and 2019 respectively, during her early oral evidence, and during her latter oral evidence.
On 10 January 2014, after having discussed to some extent, the events of sexual assault with her parents, the plaintiff's father drove her to Tamworth Police station. Exhibit 32 is the COPS event summary report. The plaintiff did not adopt the whole of that police officer's record as being accurate. The COPS entry records that the plaintiff "was very emotional whilst speaking with Police and would only disclose the intimate details of the allegation to a female officer". It records that she wanted to seek counselling and was not ready to proceed with a formal complaint. However, during her evidence, the plaintiff agreed that she informed police that in 2011, on a holiday with the Kinnear family to New Zealand, the first defendant "pulled her underpants to one side and inserted blocks of ice into her vagina" (T98.25-99.12; T116.04-44; Exhibit 32, p 237).
There are glaring disparities between that January 2014 description of that allegation of grave sexual assault on the one hand, as it was described in her 2017 formal Police statement and her oral evidence in the hearing. In each of her formal Police statement and her evidence in the hearing, the plaintiff said that the first defendant pushed ice into her vagina after she and Amy had been playing an ice chasing game during the Kinnear family holiday to Moreton Island, Queensland in April 2010. Her evidence at T115.38‑T116.44 was: Q. …The following paragraph, if you could look at it, discusses, doesn't it that, "In 2011, the victim went on holidays with the person of interest to New Zealand," and yesterday, I put to you that - and you can see it now that what is recorded there is that, "The person of interest has held her down at the resort"‑‑ … Q. Page 237, "Held her down at the resort, pulled her underpants to one side and inserted blocks of ice into her vagina." I think your evidence is, and I stand to be corrected, that you don't remember that event in New Zealand. What's your answer to that? A. My police statement was wrong or - Tamworth. Q. Or what? A. My police statement was wrong for Tamworth at that point in time. I got my timelines mixed up. Q. Beg your pardon? A. I had my timelines mixed up and‑‑ Q. If you go to the next paragraph, it says‑‑ HIS HONOUR Q. You said, "and". Did you want to continue? No, you don't have to go to the next paragraph yet. Have you finished your last answer? A. No. At that point in time in my life, I was still trying to block out what had happened. I wasn't ready to proceed with the police, hence why it was just a report, not a statement. BREZNIAK Q. Was it true? A. The abuse that had happened was true, but I was still processing and I was frightened. There was a lot of mental health things that were happening at that point in time that I was suffering. Q. That was your what? A. That I was suffering. Q. But my question is about what's recorded as occurring in New Zealand. A. I understand. I had my timeline wrong. Q. Do you tell the Court now that you were not held down and blocks of ice inserted into your vagina in New Zealand? A. No, it was not in New Zealand. It was in Moreton Island. I had the wrong holiday. I'm sorry. Q. It was in Moreton Island. A. Yes, which is correct in my statement in 2017, which - after that, I had received a lot of treatment. I had a lot of mental health plans, which is in the medical evidence, but this is only in 2014, which is only two years after the last event that had happened. And at T147.45‑148.05: Q. Next, I ask you to look at, please, the statement that you gave to police commencing at page 26 of the joint court book. Can you tell the Court whether you can find anywhere in that statement, comprising as it does ten pages, any mention of ice being inserted into your vagina in New Zealand in 2011, or in any year? A. No, I already stated that I got it mixed up, the holidays mixed up.
As I listened to that evidence, I was concerned with the plaintiff's answer that she mixed up her timelines. The New Zealand holiday involved entirely different locations, scenery, physical environment and family experience than the Moreton Island holiday. In New Zealand, the family travelled around the country visiting various tourist sites. The family holiday environment at Moreton Island was a single location beach house in an obviously different local and physical environment and involved very different family activities of fishing, sand duning and swimming. Not only are the times of the Moreton Island holiday and the New Zealand holiday separated by more than one year, but the temperature and clothing of the July, Winter New Zealand experience was vastly different to the temperature and clothing of the April, Easter 2010 Moreton Island experience. This last observation was not the subject of oral evidence but, in addition to being common sense, it is made out in the photographs of the clothing and New Zealand holiday experiences, which included visiting snow and ice caves at Exhibit 7, pp 24‑39, and Exhibit 6. The disparity between that depicted New Zealand experience and the Moreton Island beach and water sport experience is so obvious that the plaintiff could only have made such a mistake when speaking to police in Tamworth if she was so very seriously overwhelmed emotionally as to be suffering confusion so significant as to be disconnected from a real recollection of the different environments and experiences of those two holidays when describing her memory of the traumatic life event of the first defendant inserting ice into her vagina.
The plaintiff described her general capacity to remember as suffering the difficulty of "certain things that block out".
The plaintiff conceded her changing recollection from time to time also in relation to another of her most serious allegations of sexual assault. This was in relation to the events of January 2012 when she stayed in a Lismore caravan park with the first defendant. The plaintiff was about to commence university but her accommodation was not ready. In her 5 February 2017 formal Police statement at [60], the plaintiff's complaint was that, when she woke in the morning, the first defendant was lying next to her with no pants on, she was naked and he was masturbating his erect penis whilst looking at her "and touching all over" until he ejaculated on some tissues. During evidence in chief, when asked in what way was the first defendant touching her, the plaintiff answered that the first defendant "was touching my vagina again" (T69.40). In cross‑examination, having been taken to the fact that the description of the event given in her formal Police statement did not mention touching of her vagina, and given the opportunity to explain, the plaintiff gave the following evidence (T88.10‑21): Q. So that takes me to the question of why you told the court today, he touched your vagina again when you didn't tell the police that back in 2017. A. Because I remembered that today. Q. I'm sorry? A. Because I remembered that today. Q. You remembered that today? A. Yes. Q. But not in 2017. Is that right? A. Yes, sir.
The other obvious difference between the plaintiff's description of the event during oral evidence in chief at T69 and her formal police statement at [60] is that, at the hearing when given ample opportunity by her counsel, she did not describe the first defendant masturbating himself or ejaculating into tissues, as was recorded in her statement. Plainly, the plaintiff conceded that her mind retrieved significantly different recollections of that most serious allegation when asked at different times.
The above passages of evidence are consistent with the plaintiff having several times described her memory as a "point in time" ability to recall. She attributed this to having suffered significant trauma in her life: see, for example, T330.04‑10. However, her difficulty was shown not to be confined to recalling of better or further detail. The evidence showed inconsistent memories given at different times.
Whilst being cross‑examined on her recollection of events when speaking with Ms Troy, she gave the following frank description of her experiencing incomplete memory from time to time (T330.04‑39): Q. But what you told her, when you went to see her, was, as best you could deal with it, true and correct? A. As best to my memory at that point in time, yes. Q. And by that you mean that your memory at another point of time might not be the same? A. I have significant trauma in my life, sir. Q. And so, the question I ask you is, by your last answer at that point of time, it means that your account of what you told her might be different if you were asked at another point of time. Is that true? A. May you please repeat your question? Q. When you said just now that you'd had significant trauma, did you make that remark to indicate that your memory might not be accurate? A. There are certain things at certain points in my life that I remember, yes. Q. And certain other things in points of life that you don't remember? A. I've received a lot of mental health support, so yes. Q. And that mental health support has enabled you to go back and try and remember things in the past? A. Not try and remember things in the past. Q. To remember things in the past? Is that right? A. To seek correct medical treatment, yes. Q. Yes, you've taken at various times - and one time in particular - medication for a psychotic illness. Is that right? A. Yes, I have. Q. And during the time you took that medication for psychotic illness, you didn't know, to put it - to use it colloquially, what was true and what was not true? A. That's not correct. I didn't have delusions. There's a difference between hallucinations and delusions.

PLAINTIFF PRESENTATION

The plaintiff was a quiet and still witness. She did not rise to anger during the long and pressing cross‑examination. Her presentation was obviously marked by many times pausing for extended periods before answering. These periods often exceeded 30 seconds. Most often, she had not forgotten the question. She would remain quiescent, as if thinking or searching her thoughts. Sometimes, she did ask for the question to be repeated. Even when there were tears in her eyes and, on occasion, when offered a short break, she chose to continue her evidence. She was never asked what was going on in her mind during these very long pauses.
It is important to observe that the plaintiff's presentation as a witness did not significantly differ between examination‑in‑chief and in cross‑examination. Vast aspects of personal issues, including her relationship with her parents and with members of the Kinnear family, her history of behaviours attributable to her mental illness and the alleged sexual assaults were the subject of cross‑examination. But, for example, during her evidence in chief concerning her allegations of the first defendant groping her breasts, and touching her vagina during games, the plaintiff so struggled that she twice answered, requesting her Counsel not ask her to say it again (T30.01‑11). At that point, the treating medical evidence, expert medical opinion evidence and the plaintiff's formal Police statement, (Exhibit D), were not in evidence but that she had given a formal Police statement had been referred to. The following occurred during her early evidence in chief (T30.14‑33): HIS HONOUR Q. Can I interpose this for your understanding? In a court hearing everything has to be proved by evidence do you understand that? A. Yes, I do, your Honour. Q. So, if things aren't said or documents are not shown to a court, then the evidence doesn't get in. Do you understand that? A. I do understand. HIS HONOUR: Yes, thank you. Go on, Mr Elliot. ELLIOT Q. I am going to have to ask you to explain what it is you meant by the tickling. A. Okay. Q. Could you just please tell us in plain terms what your complaint to Alberta Turner was about Ian and his tickling? A. The tickling of my vagina. I'm sorry. The plaintiff appeared almost frozen against providing those answers. Her difficulty continued such that at T31.45, Counsel for the plaintiff reminded her of what I had said in the following exchange (T31.44‑T32.20): Q. Madame, can you just let me ask the question? Remember what his Honour said to you a moment ago about - A. Yes. I'm trying. Q. -having to explain what actually happened? A. I am trying. Q. Indeed, but I'm just going to remind you of what his Honour said. Could you please tell us what it was that Ian did to you when he resumed tickling? A. He continued with the penetration with the tickling, with - Q. When you say penetration, you mean of your vagina? A. Yes. Q. By his finger. A. Yes. Q. When you were tickled, were you wearing clothing? A. Yes. Usually - Q. How did he tickle your vagina if you were wearing clothing? A. Usually I would wear a nighty, and usually I would be wearing underwear, so it would be moved out of the way. Sometimes I'd be wearing boxers, like I remember wearing… (not transcribable)… boxers at one of the occasions.
As can be seen, twice in that passage the answer the plaintiff managed to provide to her Counsel was "I am trying".
At T55.40 concerning one of the most egregious of the allegations of sexual assault, being that which the plaintiff said occurred at the AZA Hotel, Lismore, during a trip to the Southern Cross University Open Day in November 2011 and about which she had provided a description in her formal Police statement, the plaintiff answered "I can't remember. I'm sorry" when her Counsel asked her what had happened.
Almost immediately thereafter, when asked of another of the most egregious allegations, that of being sexually assaulted whilst in a cabin at Lismore prior to commencement of university in January 2012, the plaintiff again appeared frozen and to be suffering great difficulty responding to her Counsel's questions. Her evidence, which was given late on the first day of the hearing, was (T56.44‑T57.34): Q. Where did you stay overnight in Lismore? A. At a caravan park. Q. Who did you stay with? A. Just Ian and myself again. Q. Did anything happen? A. Yes. Q. Tell us about what happened. A. Ian asked me to sleep in the bed with him. Q. In the caravan park? A. Yes. Q. What happened? A. I woke up. Q. In the morning or in the night? A. In the morning, with him touching me. Q. Madam, it's been quite a long time. Is there something else you want to say in answer to that question or can I move on? Ms Perry, are you ready for another question? A. Yes, please. Q. Pardon me? A. Yes, please. Sorry. Q. When you say he was touching you, can you please describe the touching. A. He was touching my body. Q. Your body, did you say? A. Yes. Q. Madame, with his hands or some other part? A. Yes. He was touching - yes, with his hands. Q. Madame, are you comfortable to continue giving evidence at this point? You appear to be in some distress.
Because of her appearing to be distressed and that there was less than half‑an‑hour of Court time for the day remaining, I adjourned the plaintiff's evidence in chief.
When the plaintiff resumed evidence on day 2, her Counsel immediately asked again of those two allegations and the plaintiff was able to give some evidence of what occurred at the AZA Hotel during the university open day and subsequently in the caravan park immediately prior to commencement of university. Her evidence was (T68.20‑T70.09): Q. Madame, you gave your evidence yesterday up until about 3.30 in the afternoon. Do you recall that? A. Yes. Q. Just not long before we wound up yesterday, I was asking you about the open day trip to the Southern Cross University in about November 2011 with the first defendant, Ian Kinnear. Do you recall us asking you some questions about that? A. Yes. Q. And I took you to the AZA Hotel. That's in the transcript at 55, at line 35. In Lismore. Do you remember that I asked you some questions about that? A. Yes. Q. I did ask you this question, 55, line 40, "What happened to you in the hotel, if anything." "I can't remember. I'm sorry," was your answer. A. Yes. Q. Have you rethought that? A. Yes, I have. Q. Can you tell us what happened to you at the AZA Hotel, if anything, in November 2011, when you were there with the first defendant. A. Yes. Q. Please tell us what occurred. A. I was feeling unwell, and the first defendant asked if I wanted to lie down with him. So I did, and he started to massage my head, and then proceeded to rub my vagina. Q. How many beds were there in the room? A. There were two. Q. Was there any reason why he had to lie down with you? A. No. Q. Did you speak to him about that? A. No. Q. Why was that? A. Because I was scared. Q. Do you recall going back to Lismore with the first defendant a short while afterwards? A. Yes. Q. Would that have been in the new year? A. Yes. Q. And what was the purpose of that trip? A. To move into my share house. Q. Madame, yesterday afternoon, just before we adjourned, I asked you this question, 57, line 9, "What happened?" "I woke up." "In the morning or in the night?" "In the morning with him touching me." HIS HONOUR: This is in the caravan, isn't it? ELLIOTT: This is in the caravan park, your Honour. Yes. WITNESS: It was in a cabin that we were staying in. ELLIOTT Q. Madame, can you tell us anything more about what happened in terms of the touching you? A. (No verbal reply) Q. Can you describe it any more detail? A. He was touching my vagina again. Q. With his hands? A. Yes. Q. Did you touch any part of his body? A. No. Q. How did you feel about that? A. I was scared. Q. Madame, in the time these last two episodes occurred to you in Lismore, you were in fact 18, weren't you? A. Yes, that is correct. Q. Pardon me? A. Yes, that is correct. Q. And what do you say about the proposition that you might have consented to this touching of you by the first defendant? A. I did not consent.
In her formal Police statement at [37], the plaintiff gave the following description of her allegation of a serious sexual assault by the first defendant during a marker pen fight: "[37] …at some point after April 2010 I was 17 now and I was at home alone with Uncle Ian. Uncle Ian and I had a marker pen fight. Uncle Ian pinned me down and told me that he would have sex with me but wouldn't because I was not on the pill. Uncle Ian was on top of me and I was face down on the ground and he had one arm behind my back. He then got my hand and made me touch his penis through his pants, it was hard and erect. [38] Something happened and he got off me. I can't remember if he thought someone had come home or not but I was glad that he got off me as I was scared as to what would have happened.
When asked during evidence in chief about the marker pen fight (T41.29‑37 and T51.11‑15), the plaintiff's evidence was: Q. Do you remember having a marker pen fight with Ian Kinnear? A. Yes. Q. What's a marker pen fight? A. Like, a permanent marker. Q. Right, and what do you do with a permanent marker in a marker pen fight; I'm sorry, if you could just explain that to us? A. He was just drawing. I don't actually really remember this one, sorry.
Then, at T51.11‑15: Q. Madam, the last series of questions I asked you before the adjournment was to do with the marker pen fight. Do you have any recollections about that episode? A. No, sorry.
I have selected the above passages of the plaintiff's evidence‑in‑chief because they provide the opportunity to observe the plaintiff's performance as a witness without having to allow for the greater stress and pressure of answering under cross‑examination. Being so early in her evidence, the selected passages, in my opinion, provide the best examples of her as a witness answering on recollection when least distracted or affected by the environment of the trial.
The plaintiff's presentation during the whole of her evidence giving was consistent with the notation of the quality of her responses during assessment of insight cognition contained in the clinical notes of Redlands Hospital, Queensland, 24 November 2013 (Exhibit G; Exhibit 24) and which I have quoted at [61(9)‑(10)] above, in bold where that entry appears in the chronology earlier in this judgment.
That the plaintiff presented to the clinician at Redlands Hospital on 24 November 2013 in the same way as she presented as a witness in Court during the hearing fortifies the impression I gained that her struggling to answer questions and having to be asked repeatedly in order to elaborate on topics, was not feigned for the purposes of the hearing. The long pauses which often occurred between question and answer and that in the subsequent answers she provided elaboration did not impress me as a deliberate tactic in order to falsely construct a story of events in which she did not believe.
The inevitable observation, is that she was a most unusual witness and very careful observation of her evidence giving, mindful of issues concerning her recollection, was undertaken by me.

THE PLAINTIFF'S EVIDENCE OF THE SPECIFIC SEXUAL ASSAULTS

The plaintiff alleged that the first defendant frequently groped her breasts, tickled her, touched her vagina with his hand and, on occasions, digitally penetrated her vagina and slapped her bottom, which events occurred in the presence of the whole Kinnear family.
In her formal Police statement, the plaintiff timed the commencement of the first defendant's inappropriate touching of her in front of the family at only weeks after her commencing to live in the Kinnear household: "sometime in March 2008" (at [3] and [6]). During oral evidence in chief, she said that it started about a couple of months after she commenced residing in the Kinnear household (T24.01). In all of her evidence, she described these assaults of groping of her breasts and touching of her vagina with occasions of the first defendant's finger penetrating her vagina as occurring frequently and in front of the family in the open plan lounge/dining room area of the Kinnear family home. In her formal Police statement (at [9]‑[10]), she said it went on daily until she complained of it to her Aunty, Ms Turner. Ms Turner confronted the Defendants with the plaintiff's complaint (at [11]), after which there was a respite for a period of weeks before it recommenced (at [16]). The plaintiff timed that recommencement at about September 2008 (at [16]).
In oral evidence, the plaintiff said that a couple of months following her return to the Kinnear family, after Ms Turner informed the second defendant, the "tickling" resumed but "got worse" (T31.19‑T32), including penetration of her vagina with the tickling (T32.04‑23). The plaintiff said that the tickling occurred when she was wearing a dress, nighties and boxer shorts. Her evidence was that the first defendant's hand would reach up under those garments and under her underpants.
During her oral evidence, the plaintiff correctly described the date of her commencing to live in the Kinnear household as 5 March 2009. On the whole of the evidence, the plaintiff complained to Ms Turner during the September/October school holidays in 2010. Obviously, when the plaintiff made her formal Police statement in early 2017, she not only erred as to the year of her commencing to live within the Kinnear household, but also as to the year of her complaint to Ms Turner. It was not 6 months from March to September of the same year, but 18 months from March 2009 to September/October 2010. Over that period, significant events which one might normally expect to be memorable in terms of placing events in time, had occurred, including: 1. Between 2009 and 2010, she changed schools, leaving Manning Valley Anglican School at the end of Year 10 and commencing Year 11 in 2010, at Taree High School; 2. On 21 April 2009, she turned 16 years of age and therefore, over the period before complaining to Ms Turner, she had been learning to drive and her case includes allegations of the first defendant digitally penetrating her during driving lessons, which was not mentioned to Ms Turner; 3. On the plaintiff case, in April 2010, during the plaintiff's holidaying with the Kinnear family at Moreton Island, the first defendant inserted ice into her vagina, which was not mentioned to Ms Turner; 4. On 21 April 2010, the plaintiff turned 17 years of age.
During oral evidence in chief, the plaintiff was not able to recall the year during which she stayed with Ms Turner at Penrith. She was able to recall that it was during school holidays and that the Kinnear family wanted to go on holidays without her. She said that at that time, she had not lived within the Kinnear household for very long, which was wrong. She was unable to recall the school which she attended when she went to stay with Ms Turner during that school holiday: T26.28‑47. Her responses were that she did not recall those details "at this point in time".
In my opinion, that the plaintiff erred in the chronology of events to such a significant extent when making her formal Police statement in early 2017, is evidence of significant error of recollection, at least chronologically, of significant events in her life, including events which are materially connected to the allegations she prosecutes.
The plaintiff did confirm in responses to leading questions at T40.26‑42 that after the return from Moreton Island to the Kinnear family home in April 2010, the first defendant's tickling of her, including the inserting his finger into her vagina, his slapping of her backside and his groping of her breasts continued in the same fashion (where "(no verbal reply)" appears at T40.42, the plaintiff nodded, indicating the affirmative).
The plaintiff's claim against the second defendant is that her actionable breach of duty of care commenced from Ms Turner informing the second defendant that the first defendant touched the plaintiff's vagina during the "slapping game". In opening, the plaintiff clarified that her claim against the second defendant was committed to commencement at that point in events: T12.40‑T13.01. It is difficult to reconcile that position with the plaintiff's formal Police statement and oral evidence, which complained that breast groping, tickling and bottom slapping with touching of her vagina including incidents of digital penetration, had been frequently and regularly witnessed by the second defendant since some time in the vicinity of April-June 2009, approximately 18 months beforehand. The plaintiff agreed that she did not complain of the first defendant's sexual assault upon her to Amy, Brock, Chantelle and Jake because they were present and had seen those things happening: T97.26‑T98.06. But, on her case, so had the second defendant.
During evidence in chief, the plaintiff appeared to be upset after she said that this category of assault commenced with touching of her bottom and groping of her breasts in the lounge room and with the whole family present (T23.35‑T24.15). She then gave the following description of the assaults (T24.35‑T26.20): Q. Would you please tell us what it was? A. Okay. He started with the tickling. It started with just tickling me, and then it began with going up into my clothing. Q. When you say, "he", who was the he who was tickling you? A. My uncle, Ian. Q. The first defendant, Ian Kinnear. A. Yes. Q. When you say, "tickling", could you describe what the tickling consisted of? A. Tickling with his hands. What do you mean? Q. Rubbing on what? A. Inside in my‑‑ Q. Please describe the tickling if you could, please. A. I'm sorry. Q. Where were you tickled? A. My vagina. Q. When you were tickled involving your vagina, can you just describe what you experienced occurring to you in relation to that. A. I froze. Q. You froze at what point? A. Well, at first when you are being tickled, you start to laugh, of course, but then afterwards when it goes too far, I freeze. Q. When you say, "goes too far", what is that you are wishing to describe occurred to you as being too far? A. Fingers are going in too far. Q. That's Ian Kinnear's fingers. A. Yes. Q. On what part of your body were they when they were going in too far? A. My vagina. Q. Do you recall how often this sort of thing occurred to you? A. On a‑‑ BREZNIAK: I object, your Honour, to the question. "This sort of thing"‑‑ HIS HONOUR: I reject it. ELLIOT Q. Do you recall how often you were tickled involving your vagina by the first defendant? A. On a regular basis. Q. When that occurred, were other people present? A. Yes. Q. Who else was present? A. Usually, most of the time, everyone. Q. When you say "everyone" you mean the Kinnear family. A. Yes. Q. The Kinnear family at that time consisted of? A. Alicia, Amy, Jake, Brock, Chantelle. Q. Ian and yourself. A. Yes. … ELLIOT Q. Did you notice anything about Ian Kinnear's fingers when he was tickling you? A. They were usually always dirty. Q. By what means did his finger penetrate your vagina? A. I don't understand the question. Q. How was your vagina tickled? A. I still don't understand. (Note: The second defendant's name Leisha is sometimes spelt Alicia in the transcript).
During evidence in chief, the plaintiff said that she informed Ms Turner that the first defendant was inappropriately touching her, including tickling of her vagina, groping of her breasts and slapping of her bottom (T29.26‑T30.33). In her formal Police statement, the plaintiff said that she informed Ms Turner of tickling and touching of her vagina. Her formal Police statement does not specifically record "bottom smacking". Other than in her evidence describing what she said to Ms Turner, the plaintiff did not give evidence in chief of the occurrences of a bottom smacking game. Ms Turner's written statement dated 18 April 2020 (Exhibit B at [5]) recorded the plaintiff as having said to her: "I would line up and Ian would hit me on the bottom. Sometimes Ian's fingers would slide further and would touch my vagina".
The plaintiff was not specifically cross‑examined on her evidence of the first defendant tickling her, but was challenged on the basis that there was in fact no smacking game and that the physical contact game in which the family engaged in the lounge area was a "kicking game". It was put that the first defendant would participate with the children, except for Chantelle, the competition being to kick each other's bottoms and when one's bottom was kicked, then they were out of the game. The plaintiff did not deny that a kicking game occurred but responded to the question, by answering, that the kicking game would be inappropriate touching and otherwise maintained that she had spoken truthfully to Ms Turner about the smacking game.
The plaintiff did not describe tickling or smacking or the events of digital penetration of her vagina in greater detail than that set out in passages of transcript quoted above. She did not, for instance, describe her physical location such as on a lounge, a chair or the floor when the incidents occurred. She did not describe her body position or that of the first defendant. She did not describe the distance to the members of the family or what they were doing whilst the first defendant was assaulting her in those ways, other than to say it occurred in their presence. She did not describe the duration of the sexual assaults. Other than to say that she recalled the first defendant had dirty fingers, she did not describe any observation made or sensation. I found the sparsity of detail in her evidence describing the assaults made it difficult to assess whether or not the recollection of which she was giving evidence, was real and accurate. I bear in mind the errors in her recollection, when speaking to police in 2017, as to when the significant events of these sexual assaults occurred and when she complained to Ms Turner.
In my opinion, the plaintiff's evidence provided only a superficial description of personal experience. For instance, her evidence is devoid of description of what she physically felt. I also bear in mind that both clinical medical literature and expert medical opinion referred to in these observations described the plaintiff's real difficulty with speaking of her sexual assault allegations, which difficulty was observed throughout her evidence. In this observation, I am mindful that the assaults are said to have occurred when she was 16 and 17 years of age, that she was 20 years of age when she made her formal Police statement and she was 27 years of age at the time of the hearing.
The plaintiff alleged that on one occasion the first defendant sexually assaulted her by rubbing sunscreen onto her breasts when not required by exposure to the sun.
In her formal Police statement at [34]‑[35], the plaintiff timed this event as towards the end of the year during which the Kinnear family had attended the Cooleys car show. That year was 2010. Her formal police statement recorded: "[34] …I went on a school beach day. I remember as I got really sunburned. I got home from the beach day, had a shower and put on a singlet top. Uncle Ian called me into his bedroom. He was sitting on the end of the bed. He asked me to take off my top, I told him I didn't want to however Uncle Ian said that he had seen boobs before. Uncle Ian got up and came over and took off my shirt. I had no bra on as I had just showered. [35] I was standing there and Uncle Ian got the cream and started to put cream on my sunburn which was on my chest and back. He then started rubbing it all over my chest and breasts and was rubbing my breasts in a sexual manner."
In oral evidence in chief, the plaintiff said that she recalled a day when she "got badly sunburnt" (T40.45‑50) at the beach and she had to put aloe vera cream on "and Ian offered to do it for me. So, he told me to take off my top and rubbed cream on". Her evidence continued (T41.01-22): "Q. Yes? A. But I was not sunburnt on my breast area. Q. What happened with the cream and your breasts? A. He rubbed it all over there, the area. Q. And can you tell us anything about the manner in which he rubbed the cream into your breasts? A. Sorry, I don't understand the question. Q. Well, tell us about rubbing the cream into your breasts? Did he say anything when he was doing it? A. I can't remember Q. Did you invite him to do it? A. No, he said that it's okay, he's seen boobs before. So-that it was okay that I took off my top and‑"
An obvious difference between the plaintiff's formal Police statement account and her oral evidence is that whereas she told Police that she declined the first defendant's request to remove her upper clothing, thereafter he approached and removed it; in her oral evidence she said the first defendant instructed that she remove her top. Her oral evidence did not describe the first defendant removing her clothing following her refusal to do so. The plaintiff was not cross‑examined about the difference and so no significance can be fairly attributed to it.
Again, the plaintiff's description of the sexual assault was sparse. It was not given in terms of what she physically sensed in the experience. She was unable to describe to her Counsel the manner in which the first defendant rubbed the cream onto her breasts. In her formal Police statement, she labelled that activity "in a sexual manner", but her evidence did not include a description of what she felt or observed such that she came to that description. She could not remember, if anything, what the first defendant said to her during the rubbing.
The plaintiff alleged that the first defendant digitally penetrated her during driving lessons.
When the plaintiff turned 16 years of age, she obtained her Learner Driver Licence. The first defendant and the second defendant gave her driving lessons at various times. The plaintiff and the second defendant argued when the second defendant was the instructor. The plaintiff found it difficult to learn to drive a manual car and a Hyundai Excel automatic car was purchased. Professional driving lessons were also obtained from a Mr Cork. Funding for these was achieved by the second defendant, she having applied to the Department. The Department's record (Exhibit Q at p 204) of 1 February 2010 was that the second defendant telephoned seeking funding for 10 driving lessons. The second defendant was advised to make application to the Create Foundation.
The plaintiff did not achieve her Provisional Driver's Licence until after she had ceased to reside with the Kinnear family and when she was living in Lismore in 2012. The defendants gave evidence as to when one or other of them was the driving instructor over the years during which the plaintiff lived with them in order to challenge the accuracy of the plaintiff's story and thereby the credibility of her claims. In my view, the first consideration in evaluation of the credibility of the plaintiff's evidence of driving lesson assaults is to focus on her evidence of those assaults.
In her formal Police statement and again with reference to September 2008, the plaintiff said that she "then got my learner licence" and that the first defendant took her for driving lessons in her white Hyundai Excel and sometimes in his Toyota Land Cruiser because she was struggling with the operation of manual gears.
The plaintiff's reference in her formal Police statement to September 2008 is obviously wrong because she did not turn 16 years of age and was not entitled to a Learner Driver Licence until 21 April 2016. Her 16th birthday was a significant event in her life, not only because she could commence to learn to drive a motor vehicle, but also because it followed closely upon her separation from her parents and her commencing to live in the Kinnear household from 5 March 2009. As already observed, her commencing to live with the Kinnear family was a significant life event arising from serious family dysfunction between herself and her parents. In that context, that the plaintiff completed a formal Police statement recording that she commenced to drive in September 2008 and received from that time, driving lessons from the defendants, displays a significant error of recollection, at least chronologically.
The plaintiff's formal Police statement records the following of her allegation of sexual assault at the hand of the first defendant during a driving lesson: "[20] About 20 minutes in to (sic) the lesson we were driving past Forster heading towards where he helped his mate build cars. Uncle Ian started touching my left thigh. He then put his dirty hand up my dress and put a finger inside my vagina. He began pushing his finger in and out of my vagina. He was saying to me while he was doing this that they took me away on holidays, they added extra to the house so I could have my own room and they helped me buy the car, and that they had to go without and had given up things because of me. [21] This happened on about four (4) or five (5) occasions in about September and October 2008 every time he took me for a drive. After that I stopped going for lessons, but only if aunty Leisha was taking me…"
A significant part of cross‑examination of the plaintiff and then of oral evidence of the defendants concerned the words "driving past Forster" at [20] of the plaintiff's formal police statement. I found that challenge by the defendants to be of little assistance. It was premised on the fact that the Forster township is not on the route to Nabiac, when driving from the Kinnear home at Old Bar: see Exhibit 29 (Google Road Map). The plaintiff's oral evidence, which I readily accept, was that she was referring to passing the Forster turn‑off. That is normal Australian road use parlance. As I informed the parties during the hearing, I am familiar with the highway as it was before the freeway and, more recently, with the freeway in that location. The turn‑off to Forster, seen in Exhibit 29, has long been a major intersection and well sign‑posted. Common parlance would be to say "driving past Forster".
The plaintiff's oral evidence describing the sexual assault was not inconsistent with that recorded in her formal police statement at [20]. Her evidence in chief, given at T33.33‑42, was: A. We were driving to his friend's house, who he fixes cars with, and the only thing I remember is - is Ian putting his hand up my dress that I was wearing at the time. Q. Did anything else happen when his hand was up your dress? A. Yes. Q. Could you please tell the Court what that was. A. He was putting his finger inside my vagina." And at T34.15‑39: Q. Did this conduct continue for a period? A. Yes. Q. How long was the period that it continued for? A. I can't remember. Q. Did this happen just once or on several occasions? A. It happened on several occasions. Q. What other occasions did it occur on? A. When we went for driving lessons. Q. Do you know how many occasions it occurred? A. No, not at this point in time. I'm sorry. Q. Do you remember, on any occasion this occurred, how long he had his hand in your vagina? A I remember that one because it was the first time.
At T35.05, the plaintiff's oral evidence, consistent with that recorded in her formal Police statement, was that during the first defendant putting his finger in her vagina, he was reminding her: "about all the things that I - he had done for me…That he had put an extension on, that he had taken me on holidays, how lucky I was, all the things that I had been given".
During cross‑examination, the plaintiff was taken to the above passage quoted from her formal Police statement. She agreed that she described the assault as occurring whilst she was driving and that the car was not pulled over. Counsel for the defendants then asked the following questions, no doubt attempting to elucidate the proposition that the above described assault was inherently and physically unlikely when driving (T256.15‑32): Q. While you were driving the car, you have it in your statement at paragraph 20, that he was doing what you said he was doing with his finger. Is that right? A. Yes. Q. You wouldn't have been able to drive, would you, if he had been doing what you say he was doing. A. I was still able to drive. Q. Beg your pardon? A. I was still able to drive. Q. You weren't? A. I was. Q. You were able to concentrate. A. Yes. Also at T257.20‑40: Q. It has a great or good deal of traffic travelling in both directions. A. That is not true. There was no, or very minimal traffic at that point in time. It was in the afternoon. Q. No, but you had a number of lessons. A. I did. Q. Is it your evidence that this event you speak about in paragraph 20 occurred one time or more than one time. A. It occurred more than one time. Q. And if it occurred more than that one time, I take it, it occurred at different times of the day. A. Usually in the afternoon or at night. Q. When there was either a lot or a fair amount of traffic. A. Not necessarily true. Q. So despite the fact that there are things that you haven't been able to remember, you remember that, do you? A. Yes… Then at T259.44‑T260.14: Q. But you maintain, to this day, that this act or those acts occurred while you were driving the car, is that right? A. It did. Q. The car was a manual car? A. It was. Q. And there was a gear stick in the middle, between you and Ian Kinnear? A. There was. Q. And you were required to change the gear? A. Yes. Q. I want to put to you that what you've told the police about that event or those events in driving lessons is not true. What do you say to that? Is that right? You can - you can change it if you want to. It didn't happen, did it? A. It did happen. Q. Do you think you might have reconstructed it? A. No.
The plaintiff's description of the assault in oral evidence included that she remained able to concentrate on her driving whilst on the highway. She could not describe the length of the period over which the assaults occurred, the number of assaults other than "several" and did not state when asked, the duration of the penetration on those occasions. Her eyes were on the road ahead. Her evidence was between sparse and non-existent in detail of how the first defendant was positioned to achieve the digital penetration; however questions did not require her to give that detail. The plaintiff, again, did not express what the first defendant was doing in terms of description of what she felt of his hand moving in connection with her thigh or genitalia, how his hand moved under or past her underpants whilst her backside and thighs were pressed against the seat; however, and again, questions did not require her to give that detail. She was not asked about and her evidence did not include description of, for instance, pressure or discomfort from this sensation, or of the first defendant's assumedly contorted position during his pushing his finger in and out of her vagina in that situation. She said that she remained able to concentrate on her driving whilst being assaulted.
The sparsity of the plaintiff's evidence describing the alleged assaults makes it difficult to assess whether her memory is real and accurate. Again I bear in mind her chronological error, when speaking to police in 2017, concerning the year in which the sexual assaults occurred.
The plaintiff alleged the first defendant sexually assaulted her by pushing ice into her vagina.
In her formal police statement, the plaintiff described the first defendant inserting ice into her vagina during the Kinnear family, 8 day holiday at Bulwer, Moreton Island in April 2010, in the following terms: "[23] …We were putting it down each other's shirts and having fun. Uncle Ian then joined in and Ami and I put it down his shirt. Ami then went somewhere. I was wearing shorts and a shirt. Uncle Ian was in his room and pulled me on top of him. I was lying face down on his body he had one arm around me and one arm was between our bodies between my legs. Uncle Ian already had ice in his hand from chasing Ami and I. Uncle Ian then got some ice and put his hand up my shorts and put ice inside my vagina and pushed it up my vagina. I got away from him and went to the bathroom to try and get it out. That was all I can remember happening at Moreton Island."
The plaintiff was about 17 years of age when she joined the Kinnear family for their holiday to Moreton Island. In oral evidence, she recalled accurately that the family travelled by car and went on a ferry to the island. She did not recall that the house in which they stayed was named "Beachcomber" but she did remember that the house was near the water. She did not remember the room in which the children slept together, when shown a photograph or even who slept in which rooms of the house. She did not recall the arrangements made for food. It having been brought by the family in the vehicle. She did not recall a refrigerator/freezer in the vehicle, when asked during examination‑in‑chief. She then later recalled the refrigerator in the vehicle when pressed on the topic during cross‑examination. She did, remember that the family vehicle was a white diesel Land Cruiser 4x4. She remembered scuba diving, building sand castles, sand duning, riding a quad bike and going on a helicopter ride. She did not remember going fishing. She did not remember much about the local shop but did remember buying lollies there.
For central consideration is the persuasion of her evidence of the event of the sexual assault in which she alleges the first defendant inserted ice into her vagina. During evidence in chief, she gave the following description of that event (T36.25‑T37.25): Q. When you say he got involved, what do you mean by that? A. He involved himself, and then he grabbed myself and then he put the ice - he put the ice inside my vagina. Q. When he did that, where were you? A. He pulled me on top of himself. Q. On top of himself what? On a couch or a chair or‑‑ A. On the bed. Q. Whose bed? A. His bed. Q. That was in the other room where‑‑ A. Yes. Q. Not the room you were sleeping in. A. No. Q. How did you get into that room? A. I think Amy and I were running. I'm not 100% sure, but we were chasing each other. Q. In any event, Ian Kinnear - what did he do to you to be able to insert ice as you've described? A. Held me down. … Q. Face down or face up? A. Face down. HIS HONOUR Q. Face up or down onto‑‑ A. Face down, sorry. I'm sorry. ELLIOT Q. On the bed? A. On top of him. Q. What did you do when the ice was inserted into your vagina by Ian Kinnear? A. I froze, and then afterwards I immediately got up and I went to the bathroom. Q. Did you expel the ice? A. Yes. It melted, because it's ice and‑‑
Although the plaintiff case was never committed to the fact that the ice was acquired from the refrigerator/freezer in the family car; she was pressed in cross‑examination on the point that there was no ice in the car refrigerator/freezer. Each of the defendants and their children who gave evidence of it, explained that the refrigerator/freezer could be switched to "freezer" or to "refrigerator", but did not perform those functions simultaneously. The family had stacked it with meat for the 8 day holiday. It was not switched to "freezer" and therefore would not make ice. None of the witnesses in the defendants' case gave evidence that there was no ice available at the Bulwer convenience store. When pressed at T295.16 and T295.20‑25, during cross‑examination, the plaintiff agreed that there was no refrigerator in the house, answering that "There was a shop that we got ice from". Accordingly, the source of the availability of ice is not a point persuading me for or against the credibility of the plaintiff's allegation of sexual assault.
The plaintiff's oral evidence describing the alleged sexual assault was sparse in detail. It included even less detail of the event than was recorded in her formal Police statement. She did not describe where Amy was or went when the first defendant grabbed her. In oral evidence, she did not describe what she was wearing, except for the shirt on her back, down which Amy was putting the ice. She could not "100%" recall how the first defendant and herself came to be in a room with a bed within the house and in the absence of Amy, in the course of a game in which Amy and the plaintiff were chasing each other. Neither her formal Police statement nor her oral evidence described in detail how the first defendant manoeuvred the ice up the leg of her shorts, past her underpants or swimmers and into her vagina or what she physically sensed when he did so. She was not asked those questions during oral evidence. Other than her statement that she froze and that the ice melted, she did not describe the duration of the event. She did not say whether or not anything was said between them, and if so, then what was said. Again, she was not asked.
During consideration of the Plaintiff's Own Evidence of Her Memory Capacity earlier in these reasons, I observed "a glaring disparity" between the plaintiff's recollection of sexual assault with ice given in her interview with police on 10 January 2014 and in her 2017 formal Police statement. Without limiting that fuller consideration of the disparity, in my opinion, a version of the assault occurring during a 2011, Winter holiday in New Zealand, whilst experiencing snow and ice activities, is so different from the version contained in the plaintiff's formal Police statement and in oral evidence of a 2010, Easter Holiday involving beach, water sports and sand duning activities on Moreton Island; as to cast some doubt on whether the memory of the sexual assault is real. Her oral evidence of the Moreton Island holiday environment and activities displayed a real recollection of those things. However, the sparsity of her evidence describing her experience of the assault again makes it difficult to assess whether or not she was possessed of a real and accurate memory of it. The aforementioned disparity, combined with the referred to sparsity of description of the sexual assault; leads me to conclude that the plaintiff's proof of the allegation of sexual assault by the first defendant inserting ice into her vagina during the Moreton Island holiday, was composed of indefinite testimony and indeed, evidence of inconsistent recollection, such that I am not persuaded on the balance of probabilities that the sexual assault occurred. I am not persuaded on the balance of probabilities that her recollection of the alleged sexual assault is real and accurate, bearing in mind application of Briginshaw principles and s 140(2) Evidence Act 1995 (NSW).
The plaintiff alleged that the first defendant sexually assaulted her in a caravan during Cooleys by manipulating her hand on his penis until he ejaculated.
During July 2010, the plaintiff accompanied most members of the Kinnear household to attend "Cooleys", a car show at Coolangatta. They stayed in the Kinnear family caravan. The plaintiff remembered aeroplanes flying overhead and therefore located the caravan park as near an airport. The defendants were not challenged on their evidence that they stayed in a caravan park in Tweed Heads, NSW, and there is no evidence that aircraft servicing Coolangatta airport would not be seen flying overhead there.
The plaintiff's formal Police statement recorded the plaintiff's description of sexual assault at the hand of the first defendant as follows: "[27] At some time in the afternoon, aunty Leisha, Ami and Brock went grocery shopping. I stayed at the caravan. Uncle Ian also stayed." [The plaintiff had told police that Jake and Chantelle Kinnear were not present on that trip. This was her oral evidence also] "[28] The caravan was a big one. You walk inside the caravan and to your left there is a bed and to the right is a table and a bench seat that turns into a bed. Across from that was the kitchen and sink and hanging to the left was the television. When you walk in the caravan and turn right, at the end of the caravan is (sic) bed that aunty Leisha and Uncle Ian slept (sic) and next to it was the toilet and shower. [29] Once aunty Leisha left with the kids, Uncle Ian was inside the caravan as was I. He was lying on the bed as you walk into the left watching television. I think he was watching the Grown‑ups movie with Adam Sandler. [30] I walked over to where Uncle Ian was as I wanted to watch the movie and as I braced myself to sit down, my hand went near Uncle Ian's leg and he grabbed my hand and put it on his penis on top of his shorts. [31] My hand was still on his penis as I was too scared to move it and it was erect as I could feel it was hard through his shorts. Uncle Ian then got my hand and put it underneath his pants and made me grab his penis and then he put his hand over the top of mine and made (sic) move my hand until he ejaculated. It didn't take very long. I sat there scared and kept watching the television as I didn't want to look at him or think about what I was doing or what I had just done. [32] Once he had finished I got up and had to wash my hands and I sat on the other side of the room away from him and then long after that aunty Leisha and the kids came back to the caravan."
The evidence of the defendants and of their children was that the caravan was of a folding variety which did not have a television, nor did it have running water in the sink with which the plaintiff would have been able to wash her hands.
During evidence in chief, the plaintiff gave the following description of the alleged assault (T39.08‑39): Q. What happened next? A. I placed my hand on the bed and he moved my hand into his pants. Q. All right. And what did your hand come into contact with when it was placed in his pants by Ian Kinnear? A. His penis. Q. Madam, you answered that question with the words, I think, "his penis"? HIS HONOUR: Yes, that's what she said. ELLIOT: Thank you. Q. Now, Madam, what happened next? A. He moved my hand. Up and down. But I just watched the TV. Q. And did anything happen, involving your hand? A. Just what he made my hand do. Q. All right. And what did he do, if anything? A. No. Sorry, I don't understand the question. Q. Did your touching his - did he - did his touching your - his penis with his hand (as said), lead to anything else occurring? A. Yes. Q. What? What happened next? A. He did - an ejaculation. Q. Thank you. And what happened after that? A. I just got off and washed my hands and moved away. Q. All right. Had anything like that ever happened to you before? A. No. Q. How did you feel about that? A. Scared.
When given the opportunity of describing the internal layout and facilitates of the caravan during cross‑examination, the plaintiff was shown to have little recollection of it. She was not able to describe what "sort of caravan" it was, where the beds were, what the sleeping arrangements for the family were including where the first and second defendants slept. She clearly had no memory of whether or not she slept with Amy or of where Brock slept. She said there was a television in the caravan (T292.38‑T293.21). The plaintiff's inability to recall the physical features of the caravan, when she had been able to do so in early 2017 at the making of her formal Police statement was, in my opinion, significant. It displayed different memory or change in capacity to recall at different times separated by 3 years which was a not insignificant period but not so great as might be expected to cause such degree of memory loss.
At T142.10, the plaintiff said that whilst it was an Adam Sandler movie which the first defendant was watching, it was not the "Grown‑Ups" movie. This displayed another change of recollection between early 2017 and the hearing.
Whereas in her formal Police statement at [28] the plaintiff said that there was a kitchen and sink to the right of where the television was hanging, during cross‑examination, she agreed that she could not remember whether or not there was a kitchen and whether or not there was a sink (T141.25‑T142.02).
During cross‑examination, she gave the following evidence describing the alleged assault (T294.35‑40): Q. Would you be so kind as to tell the Court what you say Ian Kinnear did to you that was the sexual assault about which you complain. A. He made me put his - put my hand on his penis, and he moved it until he ejaculated. Cross‑examination did not expose inconsistency between the description of the sexual assault given in the plaintiff's formal Police statement and her oral evidence at the hearing. Before giving the evidence quoted above from T294.35, the plaintiff paused for probably 40 seconds with her head still and her eyes staring.
Whereas in her formal Police statement she described the first defendant as grabbing her hand and putting it over his penis on top of his shorts before he put her hand underneath his shorts; during oral evidence, she gave the summary version: "I placed my hand on the bed and he moved my hand into is pants".
The plaintiff's description of this sexual assault is not lacking in her describing personal experience in terms of what she physically sensed and felt. However, that her memory of the event at the time of oral evidence changed since making her formal Police statement in relation to identifying the movie which was showing and to such deficiency of the internal physical features of the caravan including in regard to a sink with water to wash her hands; are significant matters in the overall consideration of whether or not her recollection was a real and accurate one.
The plaintiff alleged that at the Southern Cross University Open Day, in November 2011, the first defendant sexually assaulted her when in a room of the AZA Hotel, Lismore, he rubbed her vagina.
The plaintiff's formal Police statement described this event as follows: "[46] At some stage in November 2011 Uncle Ian and I went to the Southern Cross University Open day to check out the University. It took all day to get there. [47] We stayed at the AZA motel in Lismore, 114 Keen Street. We stayed there for one night. It was a one bedroom unit with two double beds. [48] We got to the room after the Open day. I had a migraine, it was really bad. I went to sleep as I was really unwell. I woke up to Uncle Ian touching me. Uncle Ian had his hand down my pants and was rubbing my vagina. He was in the bed with me under the covers. I was freaking out as I was so sick and woke up to this happening. [49] Uncle Ian then started to put his fingers inside my vagina and I jumped up and ran to the bathroom to be sick. [50] When I came back from the bathroom Uncle Ian was still in the bed. I got in as I was so sick and Uncle Ian stayed in the bed with me and slept in the same bed as me. I don't know if anything happened as I was really unwell."
As already observed during consideration of evidence under the sub‑heading "Plaintiff Presentation", on the first day of the plaintiff's evidence, she was unable to recall the sexual assault. At the continuation of the plaintiff's evidence in chief on the second day of the hearing, when asked again what had occurred, having "rethought" overnight, her evidence included the following (which I again quote) at T68.24‑T69.10: Q. Just not long before we wound up yesterday, I was asking you about the open day trip to the Southern Cross University in about November 2011 with the first defendant, Ian Kinnear. Do you recall us asking you some questions about that? A. Yes. Q. And I took you to the AZA Hotel. That's in the transcript at 55, at line 35. In Lismore. Do you remember that I asked you some questions about that? A. Yes. Q. I did ask you this question, 55, line 40, "What happened to you in the hotel, if anything." "I can't remember. I'm sorry," was your answer. A. Yes. Q. Have you rethought that? A. Yes, I have. Q. Can you tell us what happened to you at the AZA Hotel, if anything, in November 2011, when you were there with the first defendant. A. Yes. Q. Please tell us what occurred. A. I was feeling unwell, and the first defendant asked if I wanted to lie down with him. So I did, and he started to massage my head, and then proceeded to rub my vagina. Q. How many beds were there in the room? A. There were two. Q. Was there any reason why he had to lie down with you? A. No. Q. Did you speak to him about that? A. No. Q. Why was that? A. Because I was scared.
There was no dispute that there were two beds in the room shared by the plaintiff and the first defendant.
On day 6 of the hearing, cross‑examination of the plaintiff revisited this allegation. Without her formal Police statement with her in the witness box, the plaintiff again properly described the room as a single bedroom unit with two double beds. She was unshaken in her evidence that the first defendant put his hand down her pants and touched her "private parts" (T328.40). Her evidence that she hopped up and went straight to the bathroom to be sick was again consistent with her formal Police statement and she denied that what she had told the Court and the police was untrue (T329.10‑20).
An obvious difference between the plaintiff's evidence in chief quoted above and that which was recorded in her formal Police statement was that whereas in oral evidence the plaintiff described the physical assault as him rubbing her vagina, in her formal Police statement, she said that the first defendant also started to put his fingers inside her vagina, before she jumped up to go to the bathroom. During day 6, cross‑examination fairly took her to that difference and her evidence confirmed that, at the hearing, she held a different recollection and gave an inconsistent description of the sexual assault to that given to police in early 2017. Her evidence was (T328.39‑T329.28): Q. On that occasion, Mr Ian Kinnear did not touch your private parts. A. Yes, he did. I hopped up and went to the bathroom straight after to be sick. Q. What you've told the Court and what you told the police about that was, I put to you, knowingly untrue. Do you agree with that? A. No. Q. Mr Kinnear did not, I put to you, put his fingers inside your vagina. A. You didn't say that before. You said "touched my vagina" not "put inside". Q. Will you please answer my question. HIS HONOUR: No. Sorry. You will not put that proposition - particularly to a witness with a mental health situation, you understand and with ADHD diagnosed on the case, I understand from both sides - unless it is accurate. So, ask the question again, accurately, please. BREZNIAK: Your Honour, it was accurate. Precisely as I asked it. HIS HONOUR: Ask it again, Mr Brezniak. BREZNIAK Q. Mr Kinnear did not put his fingers inside your vagina in or during the time you were in his company at the AZA Motel in Lismore. A. No. Q. Do you agree with me? A. Yes. Q. That he didn't do that? A. No. Q. So, you say that you went to the bathroom to be sick. A. Yes. Q. I want to put to you that if you did go to the bathroom to be sick, your going to the bathroom to be sick had nothing to do with anything that Mr Kinnear with or to you on that occasion. A. That's not true.
Another obvious inconsistency between her description of the alleged assault in her formal Police statement and her oral evidence at the hearing was that, whereas in the former, she was woken from sleep in her own bed by the first defendant touching her, his hand being down her pants and rubbing her vagina; in her oral evidence at hearing, she said that the first defendant asked her to lie down with him, which she did and he started to massage her head, after which he commenced to rub her vagina.
The plaintiff was 18 years of age in November 2011 and 24 years of age when she made her formal Police statement. There was no suggestion in the case that she consented to sexual relations with the first defendant. Those inconsistencies between the recollections available to her described on those different occasions involve both the very significant matters of how the first defendant came to be in physical contact with the plaintiff and the very nature of his physical assault upon her. The scenario of rubbing the plaintiff's vagina, on the one hand, and the scenario of starting to put his fingers inside her vagina, on the other hand; are distinctly different descriptions of assault and trespass upon her person which would have importance to the victim of a sexual assault. The plaintiff's answer at T328.47, "You didn't say that before. You said "touched my vagina" not "put inside"", was evidence showing that she appreciated the significance of that difference.
When combined with the plaintiff's inability on the first day of her evidence to recall the sexual assault, but even standing alone, in my opinion, the above described changes of recollection and inconsistencies of recollection paint the plaintiff's evidence as indefinite testimony of insufficient persuasion to satisfy her civil burden of proof as required by application of Briginshaw principles and s 140(2) Evidence Act 1995 (NSW). In my opinion, those differences of description of the assault would be unlikely to have been made by the plaintiff if she was possessed of a real recollection.
The plaintiff alleged that in January 2012 whilst sharing a cabin with the first defendant at the Lake Holiday Park, Lismore, she woke up naked and the first defendant was touching her body and masturbating his erect penis, he having entered her bed whilst she slept.
The first defendant had driven the plaintiff from Old Bar to Lismore in order for her to commence University. In her formal Police statement, her account of the alleged assault is recorded as follows: "[55] … [56] … [57] I was unable to move in that day and Uncle Ian and (sic) had to stay at the Lismore Lake Holiday park as he had all my stuff in the car. [58] We got back to the Holiday park and stayed in the cabin. Uncle Ian was in the main bed and I was in one of the other beds. Uncle Ian asked me to come and sleep in his bed with him. I did what I was told as I was scared as to what would happen plus he and Aunty Leisha were still making me feel bad about them going without and everything they had done for me and how they helped me. [59] I went to the bed and we both went to sleep. I woke up the next morning with no clothes on. I had been wearing a nightie and underwear and no bra. [60] I was fully naked. I saw that Uncle Ian was lying next to me with no pants on, he had an erect penis and was using his hand to masturbate himself while looking at me and touching all over. He then ejaculated in to some tissues. Nothing else was said. [61] … [62] …"
When first asked about this allegation, the plaintiff appeared frozen and to be suffering great difficulty responding to questions. Her evidence at T56.44‑T57.34 is quoted above under the heading "Plaintiff Presentation". In that first oral evidence, she said the first defendant asked her to sleep in bed with him and she woke up in the morning with him touching "my body" with his hands. Evidence was then interrupted because she appeared distressed.
Early on the second day of the hearing, the plaintiff gave the evidence (T69.19‑48) quoted in the earlier reasons concerning the Plaintiff's Presentation. In that evidence, the plaintiff said the first defendant was touching her vagina when she woke and that she was scared and did not touch the first defendant.
In January 2012, the plaintiff was 18 years of age and, again, I take into account that she made her formal Police statement in early 2017, when she was about 24 years of age. Again, there was no suggestion of consensual sexual activity.
Two obvious differences between the record of the plaintiff's allegation contained in her formal Police statement and her oral evidence given in Court were: 1. Whereas the formal Police statement recorded that the first defendant was touching her all over; in her oral evidence, he was touching her vagina; and 2. Whereas the formal Police statement recorded that the first defendant masturbated himself to ejaculation into some tissues; in her oral evidence, the plaintiff did not describe the defendant masturbating himself or that he ejaculated into tissues or at all.
The plaintiff appreciated the significance of description of the physical assault, and specifically the importance in her allegation of touching of the vagina as opposed to other parts of the body. One example of her evidence displaying that appreciation is that quoted above in relation to the allegation of assault at the University Open Day, upon which I have commented; and another is in her evidence of this allegation at T69.39, by use of the word "again", in reference to the specific allegation of touching of her vagina. These reasons, when observing the Plaintiff's Own Evidence of Her Memory Capacity, referred to the plaintiff's evidence in cross‑examination at T87.15, that she only remembered that the defendant had touched her vagina "today", that being day two of the hearing.
The COPS event summary of the plaintiff's interview with police on 8 January 2014 recorded: "During the night the victim woke up and the POI was masturbating next to her" (Exhibit 32, p 237). The plaintiff did not adopt that the COPS event summary accurately recorded what she told police (except in regard to she having said the assault involving insertion of ice occurred in New Zealand). There is no suggestion that "POI" is not a reference to the first defendant. The police did not record the plaintiff having described touching of her vagina or that the first defendant ejaculated. She was cross‑examined on the COPS event summary both in relation to the topics of masturbation without mention of ejaculation and the absence in that police record of mention of touching of her vagina: see T98.10; T100.25‑35; T116.40‑45; T117.20‑29; T118.45‑T119.26.
Whilst the plaintiffs answers were that she could not recall and she did not adopt as accurate what Tamworth police recorded in January 2014; nevertheless, the cross‑examination provided a fair opportunity for her by referring to what Police recorded her to have said only two years after the alleged incident.
During cross‑examination, the plaintiff was taken to the inconsistency in her 2017 recollection and her recollection at the hearing concerning masturbation and ejaculation (T88.10‑50). When given the very open question "as best you can remember", the plaintiff became so distressed that the Court took an adjournment. At T92.05‑39, the plaintiff conceded that during oral evidence, she had not mentioned that the first defendant ejaculated and stated: "…Because the police process was very long and it was extremely traumatic. As you can imagine, when you go through trauma, there are certain things that you block out". However, at that time of the formal Police statement, she did include the fact of ejaculation. That fact was not something blocked out then. Her answer did not explain why the facts of masturbation and ejaculation were omitted from her oral evidence in chief.
In my opinion, evidence of the plaintiff's complaints of sexual assault the cabin at Lismore in January 2012 made to police in 2017 and during oral evidence in contain both significant inconsistencies of description of the sexual assault and admitted change of recollection over time. My conclusion, bearing in mind application of the Briginshaw principle and s 140(2) of the Evidence Act 1995 (NSW), is that her testimony was so inexact and indefinite as not to satisfy me on the balance of probabilities that the first defendant sexually assaulted her as alleged. In my opinion, those differences of description of the sexual assault would be unlikely to have been made by the plaintiff if she was possessed of a real recollection.

is THE PLAINTIFF INSPIRED BY GRIEVANCE

As identified in the early part of these reasons, a substantial part of the defendants' submission is that the plaintiff's evidence emanated from delusion, concoction or invention arising from grievance based in her sense of unequal treatment within the Kinnear household and her reunification with her parents after leaving that household.
Evidence of the plaintiff learning of her parents' twins, her brother and sister, leaving Taree High School without her having been informed, is good evidence that there was little contact between her parents and the defendants and virtually no contact between herself and her parents, except for their attendance at her 16th birthday on 21 April 2009, in the period 6 March 2009 to at least September or October 2009. Overall, the plaintiff's engagement with her parents during the time she lived in the Kinnear household was minimal. At T342.34‑T343.11, a substantial passage of evidence during the cross‑examination of the plaintiff included her denial that her father out of hate for the defendants had pressed her to inform police. Her evidence included that he drove her to the 8 January 2014 interview with police at Tamworth and the medical clinical notes include reference (see Chronological Sketch in these reasons) of the plaintiff having informed nurses that her father wanted her to go to police. At that time, she was not living with her parents in NSW, but was living with her partner, Jo, in Queensland.
Throughout her evidence, the plaintiff was unshaken in her denial of motivation of grievance. The evidence of the defendants was not that there was hate between the plaintiff and themselves at any time. The consistent evidence from the plaintiff was that there was no "war" of which she was aware between the families whilst she lived in the Kinnear household. The evidence included the defendant's descriptions of instances of strong words spoken between her parents and the defendants and it is readily acceptable that following being informed of sexual assault by her, the plaintiff's father advised her to go to Police. However, even accepting his animosity from that point, on the whole of the evidence, I accept the plaintiff's denials that her allegations arise from motivations emanating the types of family conflict for which the defendants argued.
I consider evaluation of the plaintiff's relationship with the Kinnear family to be relatively peripheral to other evidence in evaluation of the case.
In my opinion, the central focus for determination of whether or not the plaintiff has satisfied her onus of proof in this hearing, should be upon the reliability of the evidence which she gave in the context of the whole evidence of the hearing. Indeed, the plaintiff's evidence is that she loved the defendants and was, at the time of the hearing, not angry with them. During the hearing, the plaintiff did not display any anger or hatred directed at either of them or any of their children.
The common evidence was that the second defendant organised appointments for the plaintiff and transported her to and from them, including appointments with Ms Blenkin. That Ms Scofield came to the Kinnear home to dress with the plaintiff for both the year 10 and year 12 school formals is against the notion of strong dislike, hate or grievance from the plaintiff toward the defendants.
The best evidence of the relationship between the plaintiff and the defendants as it was at the conclusion of her living within the household, is that contained in her handwritten letters to them and Amy of about that time, in regard to which she said that she considered carefully what she wrote. In my opinion, those letters (Exhibits 9, 10 and 11) are devoid of angst or grievance born against the defendants or the Kinnear family. They are startlingly evidence of opposite effect, in which the plaintiff acknowledged the difficulties of her behaviour, the support which the family had given her and conveyed expressions of love and affection. I prefer those carefully written expressions to the oral evidence given a decade later interpreting what the plaintiff wrote.
Reference to the plaintiff's notification to the Department that when Brock was suffering mental health issues, the second defendant was not supportive, and that Brock suffered abuse from his family has minimal relevance to the plaintiff's case of harshness of the second defendant's mothering of her and thereby to the plaintiff's complaints of the second defendant's failure to protect her.
On the defendant's case, the plaintiff's notification to the Department was consistent with her bearing a grievance against the defendants and the family. The notification was made on 27 May 2013. This was nearly one‑and -a -half years after the plaintiff ceased living in the Kinnear household. Whilst the plaintiff's evidence was that the Department's Contact Record (Exhibit Q, pp 195‑199) was accurate of her provision of information, based on things said by Brock to her; the common evidence is that Brock suffered significant psychological and behavioural issues of his own at the time. The family would have had to manage the difficulties of that scenario. During cross‑examination, Brock agreed that he went through a period when his life was troubled by mental illness which had been developing over years. He could not recall what he had informed the plaintiff, upon the basis of which she alerted the department.
In the absence of evidence to the contrary, the plaintiff responsibly reported to the Department Brock's complaint to her that the second defendant was not supportive and had tried to run him over. In evidence, Brock denied that the second defendant actually did those things. Those are grave allegations against the second defendant and after allowing for his troubled state of mind at the time of the report, in my view, his denial of the fact of the defendant's conduct is to be preferred.
In my opinion, the evidence of Brock's life situation and his personal relationship with the second defendant and his family is not evidence persuasive of the plaintiff's relationship with the second defendant and the Kinnear family in the period during which she lived with them. In my opinion, that the plaintiff notified the Department of what Brock had said to her concerning his welfare, is not evidence of grievance or of revenge or of any other motivation for fabrication or concoction by the plaintiff. Even if the circumstances of Brock at the time were actually as the plaintiff notified, in the environment of his mental health issues, his personal relationship with his family were factors too remote from the issues in this case to be given persuasive weight.
Given the common ground that the plaintiff was prone to poor behaviours, particularly impulsive behaviours and attention seeking behaviours in accordance with her ADHD traits and BPD, it is difficult to accept that her existence with the Kinnear family was smooth and always loving, inclusive and affectionate. On the whole of the evidence, it is easy to accept, as the plaintiff complained, that the second defendant was controlling. During cross‑examination, the second defendant conceded that in 2010 she was finding it hard to live with the plaintiff. Her discipline included confiscation of the plaintiff's mobile phone. One instance of her application of that punishment involved the plaintiff wearing the wrong shoes to school. Some measure of the disharmony in the plaintiff's existence within the Kinnear household is to be observed from her being maintained in relationship counselling with Ms Blenkin, Psychologist, for the term of her life in the household. It is also apparent from the agreed fact that, at the September/October 2010 holidays, the Kinnear family placed the plaintiff with the second defendant's sister‑in‑law, Ms Bea Turner, at Penrith, so that the family could have a break from the plaintiff by taking a holiday away without her. The plaintiff complained to Ms Turner that she was confused by the rules and environment of living within the Kinnear household. The plaintiff also complained to Ms Turner of the first defendant touching her vagina during the slapping game, which evidence is dealt with in substance elsewhere in these reasons.
It is common ground that, at some time in the second half of 2011, although the plaintiff was to do her Higher School Certificate, the defendants asked her to live elsewhere. She went to live with the family of her friend, Meg Scofield. The parties contested whether the plaintiff moved out for about two weeks (the defendants' case) or about two months (the plaintiff's case). The plaintiff's evidence was not that she moved out because of suffering sexual assaults. She said that she suspected the second defendant was reading her diary and so she made the false entry in it that she was pregnant in order to shock the second defendant. On the plaintiff's version, she was "kicked out" for having done so (T52.31), but she could not remember the conversation asking her to leave, nor even whether it was said to her by the first defendant or the second defendant, or them together.
The defendants' version of the separation, about which the first and second defendants and their children gave evidence, described a meeting at the family table, during which the defendants raised with the plaintiff the difficulties of living with her and that she might live elsewhere. The defendants said that the plaintiff accepted to do so.
In my opinion, evaluation of the harmony or discord associated with the plaintiff living with the Kinnear family is peripheral to the central questions of whether or not the sexual assaults occurred. The common evidence is that the defendants cared for the plaintiff, including with the provision of such things as guitar lessons and driving lessons, organising medical care such as braces for her teeth and chiropractic attention and took her on their family holidays with the exception of the occasion of the September/October 2010 school holiday break. The plaintiff's evidence was that she loved and loves the members of the Kinnear family. So far as it is necessary to do so, I determine on the bases of the plaintiff's behavioural difficulties, her need for counselling with Ms Blenkin, her complaints to Ms Turner and the separation of the plaintiff from the Kinnear family in 2011, that her living with them was problematic as the second defendant reluctantly conceded during cross‑examination.
To the extent that the plaintiff's relationship with the defendants over the time of her living with them might provide a tapestry within which the allegations of sexual assault which she brings is to be discerned as credible or otherwise; in my opinion, the plaintiff's letters written to the Kinnear family late in the time during which she lived with them was the most persuasive evidence. The letters are in her own hand and of her own expression. I now turn to consideration of them.
Exhibit 9 is an undated letter in the plaintiff's own handwriting to the defendants. The evidence does not permit more precision than that it was written at around the time of the plaintiff living with Ms Scofield's family, having been asked by the Kinnear family to live elsewhere. This would chronologically place it in the second half of 2011. The plaintiff gave inconsistent evidence of it having been written before she left to live with Ms Scofield (T219.05 & T219.20) and around the time of her return home from living with Ms Scofield (T217.09).
During evidence in chief, she said that she wrote the letter at about November 2011, for the purpose of seeking to be welcomed back into the Kinnear family so that they could support her in her pending move to attend Southern Cross University in Lismore: T54.34‑36. The plaintiff's evidence was not, as submitted, that she wrote the letter because it was a condition of her returning to the Kinnear household from Meg Scofield's home.
Exhibit 10 is the plaintiff's handwritten and undated letter to Amy. On the evidence, it was written at about the same time as Exhibit 9.
Exhibit 11 is another handwritten and undated letter from the plaintiff. She agreed that it was directed to the whole Kinnear family. The plaintiff agreed that she wrote each of the letters sincerely (T221.35).
Before coming to the content of the letters so far as it is necessary to do so, the important observations are: 1. In my opinion, because of their contemporaneity with the relevant events and that they were written freely by the plaintiff in her own hand, they are the best evidence of whether or not the plaintiff bore a grievance toward the defendants; 2. To the lay reader, with the experience of having read the medico‑legal opinions of Dr Skinner and Ms Troy, the letters expressed the mindset of the plaintiff as an 18 year‑old suffering a poor understanding of familial relationships and extremely low self‑esteem as might be characteristic of her suffering BPD; but there is no expert opinion of this observation upon which I can rely; 3. It is difficult to reconcile the expressions of gratitude, love and affection toward the defendants and the family as a whole with the thinking of the plaintiff as a competent 18 year‑old, if she had experienced years of sexual assault at the hand of the first defendant in the presence of the family and sexual assaults at the hand of the first defendant when separate from the family.
The letter Exhibit 9 was addressed to "Aunty Leisha and Uncle Ian". It was in the form of apology for the way "things turned out", where she indicated that: "I (sic) sorry that I pushed you guys away all the time. I wish to god I knew how to change but it turns out my Dad was right leopards can't change their spots." She wrote of having lied to them more times than she could count. She then wrote: "I am also forever thankful for everything that you both have done for me and I understand how you guys could believe that I don't appreciate anything but I just have a really messed up way of showing it." The letter stated that she considered them to have done the right thing when making the decision for her to move out and that she was going to try her: "hardest not to block you guys out and I hope that you can do the same (not that I deserve it)." It finished with "I love you both" and crosses to indicate affection. The expression in the letter was opposite that which one would expect an 18 year old to write to her Foster Carers if one had been sexually assaulting her and the other failing to protect her, as alleged in this case, for two‑and‑a‑half years.
The plaintiff wrote a similar letter (Exhibit 10), at about the same time, to her cousin, Amy (T221.35). The plaintiff agreed this letter was "bursting" with affection but said that this was because her moving out did not involve Amy (T220.50) but was rather between the plaintiff and the defendants (T222.05). In Exhibit 10, she referred to Amy as "beautiful sisin…", which I would interpret to be an amalgamation of the words "sister" and "cousin". It concluded by saying "I see you as a sister and also my best friend and I want you never to forget that I love you". It was signed with a heart and kisses to convey affection. In oral evidence, she agreed that she still loved Amy.
Exhibit 11 is a letter of two pages in the plaintiff's handwriting. It was not addressed to anyone but the plaintiff agreed that she wrote it to the family (T224.40). It contained another written expression of apology. She commenced it with: "I'm really sorry for all the damage I have done for all you were trying to do was show me how to have fun. I was so afraid of getting hurt that I treated you and everyone else like dirt".
It referred to her having been always "selfish and stubborn" and that the family took her "in when the rest of the world chucked me out and you loved me without one single dout (sic)". It referred to her pushing them away and that she regretted it immensely. It finished with: "I know I have destroyed everything but I hope you can find it in your heart to let my (sic) in again. Anyway, I just wanted to say that I love you and tomorrow is a new day".
The plaintiff said that there were passages of Exhibit 11 that she did mean and things in it that she didn't mean (T227.40‑50). She agreed that she meant the passage which read "you have taught me more than a lifetime of things I need to know". She maintained she still wanted to put all that she learnt to good use (T231.25). She said that she didn't mean that she had caused damage because she denied that she ever caused any (T228) and she said that it wasn't true when she wrote that they took her in when the rest of the world had "chucked her out". She said that she wrote that passage "Because they made me believe that my parents abandoned me, and that wasn't true" (T228.20). She said that her birth mother had abandoned her but not her parents, and that when she wrote the letter, the defendants had caused her to think that her parents had abandoned her but that she since had come to realise that was not true (T229.02). She found out that it was not true when she reconnected with her parents (T229.25) because they sorted out what had happened and she understood that her parents had always loved her, albeit loving her was not something "that has been said by them" (T229.35). The plaintiff conceded that the part of the letter where she said that she kept pushing the defendants away and that she regretted it was meant by her (T230.35‑50). At T231.05, the plaintiff gave the following evidence: Q. And you wish you had left in the past. You thought that at the time. A. I wish I never moved in there. Yes. Q. You wish you never moved in there. A. Yes.
The plaintiff said that she always wanted to leave the Kinnear household and always wanted to go home to her family. The plaintiff agreed that her father had said to her it was a terrible mistake to move in with the defendants because he had missed her. She agreed that she had missed him (T231).
Exhibit 16 is a birthday card for the second defendant made by Amy in 2010. It was put to the plaintiff that her signing it with "xxxooo" and a heart image, and that she wrote "Hope you have a great day and enjoy your presents", was inconsistent with the her claims that by 2010 it was hard for her living with the second defendant. Exhibit 17 is a Mother's Day card made by the plaintiff but the evidence does not attribute a year to it. The card is simple in expression and signed "lots of love xxx" by the plaintiff.
In my opinion, the birthday card and Mother's Day card add little because they are not more than an acceptable level of participation in those events by the plaintiff when living in the household. To have done less might have been interpreted as unkind or offensive. They were perfunctory.
Plainly, the plaintiff's evidence described her sense of loss of the opportunity to have lived with her parents between 2009 and 2012 and her blaming the defendants for causing her to believe that her parents did not love her or want her. That is evidence of resentment of some degree. But she was unshaken in her testimony of her love for the members of the Kinnear family. In my opinion, the difficulties and stressors experienced by herself and members of the Kinnear family during her living with them are not circumstances which, on a proper consideration, would override the persuasion of her regard and affection for the defendants, Chantelle, Jake, Amy and Brock expressed in her letters to them, written at a time when she was aware that she would be moving on from the family to university.
On the whole of the evidence, I am unpersuaded by the defendants' submission that the plaintiff has invented or concocted the allegations of sexual assault motivated by "other grievances" (Defendant Closing Written Submissions - MFI 2 at [69]) persisting from: her experience of the environment when living with the Kinnear family, or her blaming the defendants for causing her to believe that her parents did not love her and her sense of loss of those years away from her parents.

COMPLAINT TO MS TURNER

Ms Turner also referred to in the evidence regularly as "Aunty Bea", being the name by which she was known amongst the family. She had known the plaintiff since she came into the care of the defendants.
The significance in these reasons of her testimony is her evidence of the plaintiff's complaint made to her during the September/October school holidays 2010. This evidence was the subject of voir dire 5, in regard to which I have delivered a separate judgment. In the chronology (which appears earlier in these reasons). I included my acceptance that Ms Turner received the plaintiff's complaint and that Ms Turner informed the second defendant of a "smacking game" during which the first defendant touched the plaintiff's vagina. These are my reasons for these findings.
The plaintiff's evidence of description of sexual assault about which she complained to Ms Turner is not entirely consistent with Ms Turner's evidence of the plaintiff's complaint. The plaintiff's evidence in chief was that she informed Ms Turner that she was being inappropriately touched during tickling and slapping by the first defendant in the course of which his finger would touch her vagina. Her evidence was (T29.23‑T30.12): Q. What did you say, I withdraw that. What did you tell Alberta Turner concerning what Ian Kinnear was doing to you? A. I told her that he was inappropriately touching me and the tickling was happening. Q. You say inappropriately touching. What did you say to her? A. The groping and the slapping. Q. There is the groping of your breast? A. Yes, and the bottom slapping and‑ Q. Of your bottom. A. Yes. Q. And? A. The tickling. HIS HONOUR: So the groping of the breast, what was the second one on the bottom? ELLIOT: Slapping on the bottom. HIS HONOUR: Slapping of the bottom. ELLIOT Q. And? A. The tickling. Q. What was it about the tickling that you complained of? A. Please don't make me say it. Q. Sorry? A. I said please don't make me say it again. The tickling. Q. As you have described previously? A. Yes. Q. Are you having difficulty saying it again, is that right? A. Yes. Then, at T39.27‑42, the plaintiff gave the following evidence: Q. How were things back home, when you got home? Had anything changed? A. No. Q. In terms of the tickling, what happened? A. He was still the same. Q. And in terms of the inserting the finger into your vagina whilst tickling, did that continue? A. Yes. Q. And the slapping your on the backside, that continued? A. Yes. Q. And the groping of your breast, did that continue? A. (No verbal reply)
Whilst the plaintiff's evidence in chief was that the first defendant tickled and smacked her bottom and touched her vagina in front of the family, she did not describe a smacking game. She denied talking to Ms Turner about "a smacking game". She said that she was sure of that. The plaintiff had the opportunity of giving evidence consistent with the statement of Ms Turner available to her from the combined Court Book MFI 5 which she had read (T306.50), but did not take that opportunity. In that way, she gave answers, to her credit, which were against the opportunity to give evidence in self‑interest. Her evidence was (T295.38‑296.02): "Q. You talked to Turner about Ian playing a smacking game. Is that right? A. No, I discussed with Bea about what was happening. Q. Did you talk to her about a smacking game? A. No. Q. Are you sure of that? A. Yes. Q. Never did? A. No. Q. And Ian never played a smacking game, did he? A. Not sure you would call it a smacking game, but he did slap or grope my bottom."
It was put to the plaintiff, and she denied, that she knew that Ms Turner never told the second defendant "of any inappropriate sexual touching": T306.45‑307.50). The plaintiff said that Ms Turner told her that she had informed the second defendant: T308.10. The plaintiff said that Ms Turner told her that the defendants responded that the plaintiff was "making it up" (T306.40).
The plaintiff was unshaken in her evidence that the second defendant said words to the effect that if the plaintiff were to ever tell anyone again of what happened in their family, she would kill herself.
Ms Turner made a written statement at home following, firstly, an interview with the defendants' solicitors and subsequently a telephone interview with the plaintiff's solicitors. Paragraphs 5 & 8 of the statement written by her, without the attendance of lawyers, on 18 April 2020, are Exhibit B.
Paragraphs [5] and [8] of Ms Turner's statement read: "[5] Issy also opened up to me about the "smacking game" that Ian would play. She explained to me that during the game "I would line up and Ian would hit me on the bottom. Sometimes Ian's fingers would slide further and would touch my vagina. .. [8] When Leisha came to pick up Issy after their holiday I approached her in relation to the "smacking game". We had a conversation to the following effect: "I said: "What is going on in your household? I have been told that there is a smacking game where the girls line up and Ian smacks then (sic) on the bottoms."
The statement made by Ms Turner, eight‑and‑a‑half years after the plaintiff during the plaintiff's stay with her during school holidays is, in my opinion, corroborative of the plaintiff's evidence of her complaint. Reference to tickling does not appear, but after that passage of time differences are to be expected. This is more so when discussions have been reduced into such brief recount. I accept that Ms Turner accurately recalled the plaintiff discussing with her the first defendant's inappropriate touching.
Ms Turner was unshaken in her evidence that the plaintiff complained to her of a "smacking game", in which the plaintiff would line up with the two female Kinnear children and the first defendant would smack them on their bottoms. Specifically, she was strong in her evidence of: 1. The plaintiff's complaint to her that sometimes the first defendant's finger would touch her vagina. 2. That, in her face‑to‑face discussion with the second defendant, when the second defendant came to retrieve the plaintiff from Ms Turner's home, she, in forceful terms, told the second defendant of the plaintiff's complaint of the "smacking game" and that the first defendant's finger touched her vagina, to which the second defendant responded "It's harmless fun". Ms Turner said that she told the second defendant that she should stop the game and that it was her duty to ensure that the girls were safe. 3. That she discussed a "smacking game", not a "kicking game" with the second defendant.
Of course, a "smacking game" involves hands, whereas a "kicking game" would involve feet. Ms Turner denied the suggestion in cross‑examination that, in a telephone discussion, she told the second defendant that the "kicking game" was teaching boys to kick girls.
Ms Turner was willing to make an appropriate concession that a long telephone conversation with the second defendant in October 2010 put to her in cross‑examination and which she did not recall, could have occurred given the imperfection of memory over 10 years. She recalled a telephone conversation with the plaintiff, which she thought was about one week after she left, in which the plaintiff informed her that the "smacking game" had stopped. At the conclusion of cross‑examination, she gave the following evidence which was consistent with her presentation as an impartial and credible witness of fact (T419.15‑21): "Q. Did it occur to you when you were told by Isabell that she'd been inappropriately touched that that claim was or may not be true? A. Well, I'm only a witness. I don't know. I wasn't there. Q. No. But did that occur to you? A. I don't know."
Ms Turner recalled that when the plaintiff stayed with her during the school holidays in September/October 2010, that the plaintiff told her that she was not happy because she found it hard to fit in and was confused with the way things ran at times in the Kinnear household, meaning everyday events. That, on occasion she was punished for things that she did inadvertently because she was, confused. Ms Turner interpreted the plaintiff's complaints to mean that she did not understand the ways of the Kinnear family. I note the compatibility of this lay observation with the reported expert opinions of Ms Troy and Dr Skinner and with the observations by various medical treaters in the clinical notes, which recognised the plaintiff's difficulty with interpreting relationship interactions.
I am satisfied that, when the second defendant attended Ms Turner's home at the time of the September/October school holidays in 2010, Ms Turner informed the second defendant of the plaintiff's allegation of the "smacking game", including of the first defendant's finger touching the plaintiff's vagina and protested to the second defendant that she should stop the first defendant playing that game and protect the plaintiff. Whilst her descriptive "smacking game" may be an impressionistic or incomplete recall of something said by the plaintiff; I accept that she well remembered saying "smacking game" to her sister‑in‑law, the second defendant.
In cross‑examination, it was put to Ms Turner that in 2018, she had told the first defendant, on his enquiry, that she had first heard the allegation of his inappropriately touching the plaintiff after she moved to Lismore and started at university. That would be 2012. Ms Turner gave convincing evidence of her recalling the defendant making that enquiry of her on the occasion of her visit at the defendant's home in 2018 and that she then informed him that she heard it in 2010.
Where the evidence of Ms Turner conflicts with the evidence of the first and second defendants, and of Amy (in relation to a telephone call between Ms Turner and the second defendant) I prefer the evidence of Ms Turner.
Whilst I find that Ms Turner's evidence of complaining to the second defendant of the "smacking game" and not of having discussed with her a "kicking game" is to be preferred; that does not establish as a fact that there was not a "kicking game". There can have been a "smacking game" and a "kicking game".

EVIDENCE OF MS SCOFIELD

Ms Scofield gave evidence by Audio Visual Link (AVL). Exhibit A is a statement written by her on 21 April 2020, when she was unattended by lawyers due to the COVID‑19 environment.
She became friends with the plaintiff during 2008. At that time, the plaintiff was living with her parents, not with the defendants in the Kinnear household. They met when attending Manning Valley Anglican College. The plaintiff was and assumedly Ms Scofield was, 15 years of age at the time. They would hang out on weekends together. She said that when the plaintiff was living in the Kinnear household, she would usually go to that home "due to the strictness of" the defendants (statement [2]). In oral evidence, she estimated those attendances to be perhaps, on average, every other weekend. She confirmed that the Kinnear family were at home when she attended.
When asked which of the plaintiff's friends attended the house, the defendants named the following: 1. First defendant - Noted that the plaintiff visited the house of Meg Scofield and Amber Thomson, but did not state whether they attended the Kinnear household (see T606.39‑43). 2. Second defendant - said Meg Scofield only attended "a dozen times, not very often at all" and also named a "Paige", "Shelley", Erin Frost, Amber Thomson and Caitlin Sawyer (T469.20‑26).
Ms Scofield's statement had been included in the Joint Court Book (MFI 5) prepared in April 2020. The defendants were on notice of the evidence which Ms Scofield would give.
Ms Scofield impressed me as giving evidence in an unaffected and independent way. She was the only witness who was not a party or a child of the defendants who gave direct evidence of her observation of the plaintiff's life in the Kinnear household. She gave evidence of her observation of what she called the first defendant's "inappropriate" conduct, from the perspective of a 15 or 16 year‑old girl. The conduct of the first defendant described by her to be inappropriate was both physical and spoken. She gave the very believable and appropriate responses that she based her then knowledge of what was appropriate and inappropriate for relatives, on her experience that nothing of the sort had ever been said to her by her father or uncles, or the fathers or uncles of any of her other friends (T440.01‑12).
Ms Scofield maintained, in a forthright way, her evidence describing having observed the first defendant putting his arm around the waist of the plaintiff and down towards her bottom, and of the plaintiff wriggling away and being visibly uncomfortable with his act. In chief, her evidence was (T431.40‑T432.05): Q. Could you please describe what it was that you saw between Ian Kinnear and Ms Perry? A. He would quite often put his arm around her waist very suggestively down towards her bottom and move her quick close to him and she would try and get away, wiggle away from him. That did not happen just once. Q. Did you see Ian Kinnear's hand touch any part of Ms Perry's anatomy? A. Yes, her waist and her bottom. Q. Did you hear Ian Kinnear say anything at or about this time? A. Yes. Q. Do you recall what it was that he said? A. I do not recall specific things. I just recall them being inappropriate for girls of our age, specifically a girl of her age whom he was related to.
Ms Scofield said that she saw the first defendant grope the plaintiff's bottom. She was challenged that in her statement she did not include the description of his arm around the plaintiff, moving to the groping. It was put to her that she was lying and made up the allegation (T437.45). Ms Scofield responded that she had "an accurate memory" (T438.07).
I accept Ms Scofield's evidence of what she observed of the first defendant's arm around the plaintiff, his touching of the plaintiff's bottom and that he spoke in a manner which she considered to be inappropriate by comparison to how other adults in her life at the time spoke to adolescent girls.
Ms Scofield gave clear evidence of her recollection of a disclosure made to her by the plaintiff at an 18th birthday party attended by her and the plaintiff at Cundletown, in Taree. The plaintiff broke down into tears and was so upset that Ms Scofield called her mother to pick them up and take her home. Scofield timed that occasion as being in about mid‑year sometime in 2011 "I think" (T432.50). She said that the plaintiff then told her that the first defendant "Had made her let him or made her, he had inserted ice into her vagina" (T433.05). In cross‑examination, Ms Scofield was unshaken in her evidence of that fact. She said that after the plaintiff stopped crying, she suggested the plaintiff go to the police, but the plaintiff declined, saying she was scared to do so.
I note that in the plaintiff case, the incident of the first defendant inserting ice in her vagina is alleged to have occurred in about April 2010 at Moreton Island. That would place the event at about a year -and‑a‑half before the plaintiff broke down and spoke of it to Ms Scofield. They had not attended the same school during 2010‑2011, because the plaintiff had been moved from Manning Valley Anglican College to Taree High School, but they had remained friends. The plaintiff was not asked why she would have delayed reporting that complaint to Ms Scofield.
The timing of the plaintiff's complaint to her of the insertion of the ice is indicated by Ms Scofield's recollection that it was soon afterward that the plaintiff came to live at her home at about the time of their HSC (T433.45). In cross‑examination, she agreed that the plaintiff came to live at her home before the year 12 formal in 2011, but she could not recall how long the plaintiff stayed. She recalled that the plaintiff continued to live at her home for some time after the school formal. She said she was quite sure that the plaintiff continued to live at her home during the Higher School Certificate (T444.15‑20).
The defence case is that the plaintiff only lived with Ms Scofield's family for about two weeks. The evidence of Ms Scofield, that the stay preceded the year 12 formal and continued through the Higher School Certificate exam, strongly indicates a longer period of at least several weeks. It is more consistent with the plaintiff's evidence of two months.
Ms Scofield gave evidence of having seen a burn on the plaintiff's arm, which the plaintiff said had been inflicted by the second defendant with a hair straightening device. Given my assessment of Ms Scofield, I accept that evidence. I note that each of the defendants and each of their children denied that the plaintiff had a burn.
Ms Scofield drove the plaintiff to a bank for the purpose of the plaintiff changing passwords on her accounts. The plaintiff had explained to her that it was so that the defendants could not have access to her money. In her statement at [5], she timed that as being approximately when they were 17 years of age. In cross‑examination, she further described the activity as changing the bank account into which Centrelink payments were deposited from the second defendant's account to the plaintiff's account (T438.50). Ms Scofield readily accepted that her understanding of what occurred at the bank based on what the plaintiff told her. Ms Scofield, in cross‑examination, thought that they had attended the bank on a weekend, but when challenged that the bank would have been closed on a weekend, conceded that it might have been during school holidays.
To the extent that the evidence of Ms Scofield is inconsistent with the evidence of the parties and of Chantelle, Jake, Amy and Brock, I prefer the evidence of Ms Scofield because she impressed as an unaffected, independent witness with a real recollection of events. I accept her evidence of seeing the first defendant put his arm around the plaintiff's waist, pull her close and that she saw his hand on the plaintiff's bottom, which the plaintiff said was a manner she considered inappropriate. I accept Ms Scofield's evidence of a burn inflicted by the second defendant and her evidence of the plaintiff's other complaints to her.

EVIDENCE OF THE SECOND DEFENDANT

The second defendant was the first witness for the defence. Her husband, the first defendant, remained in the Court room throughout her evidence.
The impression which I gained of the second defendant throughout her evidence was that she was hesitant to concede the accuracy of virtually anything said by the plaintiff in her evidence and that she was protective against making any concession which she perceived might not be in the interests of the first defendant and of herself. This was so even when the subject matter, such as her management of the plaintiff within the household, went to only background information. A party witness' duty to give evidence was described in Kuhl v Zurich Financial Services Australia Ltd & Anor (2011) 243 CLR 361; [2011] HCA 11 by the plurality at [62]: The duty of a witness is to tell the truth, the whole truth, and nothing but the truth so far as the questions asked seek it. The duty of a witness to answer questions responsively involves not only a negative duty (not to volunteer material for which the question does not call), but also a positive duty (to proffer all material within the witness's knowledge for which the question does call). To conclude that a party-witness is reluctant to say what happened is to conclude that the party-witness is deliberately failing to comply with the duty to tell the whole truth."
The second defendant was plainly aware of the allegations in the plaintiff's case, the content of the Joint Court Book (MFI 5) and the Defendant Court Book (MFI 9) and had listened to the plaintiff's evidence. Of course, even if the second defendant was sure that the first defendant never sexually assaulted the plaintiff, as his wife and facing an allegation of failure to protect the plaintiff, she would naturally feel great pressure to defend her spouse, herself and her family. I treat the second defendant's evidence with caution where it was not supported by other persuasive evidence in the hearing.
The second defendant denied any inappropriate sexual touching by the first defendant of the plaintiff occurred. That denial was also made by the first defendant and of each of their children. They all gave evidence.
The second defendant was not employed during the period in which the plaintiff lived in the Kinnear household. She described the household environment as a loving one, inclusive of the plaintiff. She said that except for when the first defendant was at work and the children at school, it was a household of seven in close participation, including during family holidays. In fact, Chantelle performed shift work away from the house. Jake was substantially away from the house, attending university after 2010.
The fundamental basis for the second defendant denying that any of the allegations of sexual assault occurred was that she would have seen it. Obviously, she did not claim to have been in Lismore for the Southern Cross University Open Day in November 2011, nor in January 2012, when only the plaintiff and the first defendant attended.
It will be remembered that the plaintiff was challenged in cross‑examination on the bases that, had she been experiencing sexual assault, she would have made complaint to her treating clinical psychologist, Ms Blenkin. That course of counselling occupied 22 consultations between 9 September 2009 and 15 December 2010 (Exhibit 18). The plaintiff responded that she did not trust the confidentiality of consultation because the second defendant was too closely involved with Ms Blenkin. The evidence does show that the plaintiff highly distrustful of and was generally reluctant to discuss her complaints of sexual assault with clinicians. The objective clinical evidence and a fact which the plaintiff conceded in cross‑examination was that she ceased seeing one psychologist in the course of her treatment because he had touched her arm. During the period of the consultations with Ms Blenkin, the plaintiff did make disclosures to Ms Scofield and to Ms Turner.
During examination‑in‑chief (T498.25), the second defendant was asked to comment on the plaintiff's evidence of her closeness to those consultations. The first part of her answer was that the plaintiff "enjoyed" talking to Ms Blenkin. Then, the second defendant volunteered: "…she could actually discuss things that she probably couldn't talk with us. She felt more comfortable to be discussing with someone that was neutral and not part of the family."
The second defendant said that 98% of the time, she drove the plaintiff to her appointments with Ms Blenkin (T472.05). The evidence of the second defendant driving her to and from the consultations between Old Bar and Taree was consistent with the second defendant, as a responsible carer, having a close connection to the consultations. That inferentially supported the plaintiff's concern that the second defendant's association with the Blenkin consultations was perceived by her as too close for her as a teenager experiencing her mental health issues to trust the confidentiality of consultations.
The Blenkin notes gave further reason for caution against accepting the second defendant's evidence of apparent independence of the counselling: 1. Ms Blenkin's letter dated 16 September 2009 to the Department recorded that both the plaintiff and the second defendant were present during a consultation session to discuss the deterioration in her psychological state and an increase in her disruptive/unhelpful behaviour. Whereas the second defendant's evidence was that the plaintiff sought Ms Blenkin's assistance in applying to the Department for funding of her braces; this letter several times mentioned the second defendant's reports to Ms Blenkin pressing for her assistance in that application for funding (Exhibit 20). 2. Ms Blenkin's handwritten clinical record of a consultation on 19 October 2009 recorded that the second defendant was present throughout the session (Exhibit L, p 450); 3. Ms Blenkin's letter to the Victim's Compensation Tribunal dated 24 March 2010 (Exhibit 21) reported that although the plaintiff was settled in the Kinnear home, she: "…feels very different and isolated. She is aware of being an outsider who has to learn a whole range of well established rules. She also feels excluded because of her differences". 1. Ms Blenkin's handwritten clinical note of 23 June 2010 (Exhibit L, p 446) recorded the plaintiff's complaint that the second defendant had confiscated her phone because she had worn different shoes to school. The note reads: "Aunt said you love to say "sneaky bitch"" 1. Ms Blenkin's handwritten note of 1 September 2010 (closely timed to the September/October school holidays, when the family took a break from the plaintiff) recorded: "Problematic at home - Aunt has said breaking family up - can't cope with her anymore - "on probation for living here""
Ms Blenkin's description of the plaintiff situation in the family resonates consistency with Ms Turner's evidence that the plaintiff was confused about the rules and punishments within the Kinnear household. Common evidence is that the Kinnear family left the plaintiff with Ms Turner during the September/October school holidays so that they could have a break from her behaviours.
When in cross‑examination, shortly after the second defendant said that the plaintiff enjoyed being part of the Kinnear family but missed her original family, that the Kinnear family were loving and welcoming and helpful to her and that the second defendant "really did love her like my daughter" (T530.20‑35); she was shown Ms Blenkin's clinical note of her consultation with the plaintiff on 1 September 2010, quoted from above, the second defendant responded that she did not know if she had told the plaintiff that she was "breaking [the] family up". Then, on being referred to that record of the second defendant no longer being able to cope with her and that her living with the family was "on probation", the second defendant begrudgingly conceded (T540.44‑47): Q. It's the sort of thing you would have said at about that time, isn't it? A. I would have probably said I couldn't cope with Isabell, yes, because once you got close to Isabell, she pushed you away, and then she would lie and misbehave.
The common evidence is that the plaintiff was separated, at the family's expression that she should leave, sometime probably after the middle of 2011 and when she was approaching her Higher School Certificate examinations. She went to live with Ms Scofield for some weeks or months. The second defendant's version of that event is that the family told the plaintiff at a family meeting, with the defendants speaking the family's position, that she could not live with them anymore and the plaintiff agreed: T541.10‑31. The other members of the Kinnear family all each gave varying versions of that meeting.
The significance of those entries in Ms Blenkin's notes, the second defendant's struggle to cope with the plaintiff, the family's taking a break from the plaintiff and the family determined separation from the plaintiff, is that it is evidence contrary to the second defendant's claim that the plaintiff's existence in the household was wholly supported, loving and inclusive. As stated above in relation to the defendants' grievance based submissions, generally, I do not find much assistance in evidence of the family environment in the determination of the ultimate questions of this case, the first of which is whether or not the sexual assaults, alleged by the plaintiff, occurred. However, it added to my impression that much of the second defendant's evidence deserved a cautious consideration.
The second defendant refused to concede that the first defendant engaged in any game in which the plaintiff might have been involved, except a "kicking game". This was her evidence in chief (T458.43‑50): Q. Did they play games? A. They played a kicking game. Q. Yeah. A. But otherwise nothing. Q. Any other games? A. No.
She described the "kicking game" as participated in by the children except for Chantelle in the course of which they would run around the lounge room and then put their bottoms out and kick each other. If one was kicked, they went down and they got up and ran around again (T468.40‑45). She denied that the first defendant ever tickled the plaintiff (T483.30).
She specifically denied that the family played a bottom‑slapping game (T470.20‑47; T517.10‑23) and insisted that not only did Ms Turner not raise with her a smacking game, but that Ms Turner had complained of a kicking game (T470.28‑47; T509.22‑31). Because I prefer Ms Turner's evidence, on the basis of her very credible presentation as a witness compared to the second defendant, in addition to her independence in the proceedings; I was concerned that the second defendant's evidence limiting game activity between the first defendant and the children to kicking only and no other form of physical contact, was an attempt to deny a game involving use of hand, including to slap bottoms, in which fingers might be anatomical in proximity to the plaintiff's vagina.
Ms Scofield's evidence was that she was a frequent visitor, being the plaintiff's school friend. Having heard the evidence of Ms Scofield, the second defendant's response was to say that Ms Scofield "only came over a handful of times": T469.25. Ms Scofield's evidence is to be preferred, not just because she was an impressive witness and an independent witness, but also because the closeness of her friendship with the plaintiff, is inferred by the photographic evidence of her attendance at the Kinnear home to get dressed with the plaintiff before attending the school formals, that she was the plaintiff's best friend to whom, in 2011, at an 18th birthday party, the plaintiff complained that the first defendant had inserted ice into her vagina, and because when the plaintiff left the Kinnear household at the family's persuasion at some time before the 2011 Higher School Certificate, it was to Ms Scofield's home that the plaintiff went to stay.
Indeed, the second defendant's denial of physical contact between the first defendant and the plaintiff went so far as to deny ever having seen him put his arm around the plaintiff's waist. Ms Scofield had said that she had seen this occur. The second defendant was reminded by a photograph of the first defendant quite innocently doing exactly that on the occasion of a school formal. The evidence was (T551.45‑T552.19): Q. You have seen your husband put his arm around the plaintiff, haven't you? A. Just around her shoulders, yes. Q. You've seen him put his arm around her waist, haven't you? A. No. Q. There was that photo yesterday of the school formal where he had his arm around her waist, did he not? A. Okay, for the photo, yes. So did I. Q. That was not the only occasion that he's done it, is it? A. You're telling me. Q. Madam, you know. A. I wouldn't of even remembered that if you hadn't pointed out about the arm around the waist and I had my arm around her waist too, so am I in trouble? Q. I'm suggesting to you, madam, that there were occasions when Mr Kinnear did put his arm around the plaintiff. A. There may have been. Q. He put his arm around her waist. A. There may have been.
The second defendant's combative approach during cross‑examination and caution to avoid concessions is shown in this passage of evidence with the answers "You're telling me" and "…so am I in trouble?". Obviously, the first defendant having his hand around the waist of the plaintiff on occasion could be an innocent activity and something which the second defendant, as an appropriately responsive witness, ought to have conceded. In the immediately following passage of evidence, the second defendant's responses that it was impossible that the first defendant had groped the plaintiff's breast or touched her bottom when the second defendant was not present, whilst acceptable as evidence of her belief, was characteristic of her embellishing as she did in her evidence, that it was in fact impossible because she had not seen it. I do not take the interjection by counsel for the defendants at T552.40, as an admission made by the defendants and note that the second defendant gave evidence of opposite effect at T553.04.
The second defendant's evidence was to the effect that the first defendant was never alone with the plaintiff. She persisted with this evidence throughout her evidence. She described the first defendant's life as working in his self‑employed contracting business through the day and, when not at work, then in a separate building from the house referred to in the evidence as "the shed", where he tinkered with cars. She said that on weekdays he would leave at 7:00am and return after work at different times, but would join the family at dinner. He went to the shed in between return from work and dinner. On weekends, he would have breakfast, lunch and dinner with the family, but spend most of the time in the shed, often with his friend Ken, tinkering with cars. A striking feature of this evidence was the implausibility of the proposition that the first defendant was never alone with the plaintiff, even for a short time. A portion of this most unlikely evidence, was given in chief as follows (T466.49‑T468.22): Q. During the days in 2009/2010/2011, just those years, was the daily life of the household similar or different or disrupted during that time? A. It was similar. They all went to school. Ian went to work. Different activities in the afternoons, dinner at night at the table together and they all went to bed - went to their rooms around 8.30. Q. During the week would have been different to the weekend, generally. A. Yes. Q. Just dealing with the weekend first, generally speaking, was Ian at home during the weekends? A. Most weekends, yes. He'd be in the shed. Q. When you say the shed, what shed was that? A. We have a machinery shed on the side of a property. Q. Why would he be in the shed? A. Cause he is a car enthusiast and he loves to tinker with cars. Q. Was he in the shed a lot of the time? A. Lots of time. Q. All of the time? A. Most of the time, yes. Q. That was on the weekend. A. Yes. Q. Did he come in from the shed on weekends? A. Mainly to have lunch and then he'd head back outside until late afternoon, then he'd come inside. Q. What about the evening? A. The evening, we'd have dinner. We'd watch a little bit of telly as a family and then he'd go to bed early. Q. What about the weekdays? Could you just tell the Court in those years, unless it was disrupted or changed, what the pattern of family life was? A. Ian would be first to leave. He'd be gone by seven. The kids would get up, get ready for school. They'd catch school buses. Jake - if - in the first year, 2009, he would drive himself to school at times. Chantelle worked and she'd leave depending on what her shift was, if it was early or late. Q. Just make sure, if you can, that you take your time with the answer. You heard what his Honour said. We want to take it‑‑ A. Yeah. Q. ‑‑so that it can be followed, so take your time. A. Yeah. So, Chantelle would go to work and then in the afternoon if Isabell finished early, I would pick her up early and take her to the orthodontist or psychologist or work. Q. During those years, the children we spoke of yesterday, were they living at home? A. Yes. Jake went to uni in 2010 but he'd come home every second weekend and all the school holidays. Q. He wasn't in the household all day every day from 2010. A. No. Q. Just as you've described. A. Yes. Q. But everyone was there during the week. A. Yes. Q. What about Ian? A. Yes. Q. I thought you said he worked. A. Only when he went to work, he wasn't there. He'd go to work and then he'd come home after his job and then he'd head to the shed. Q. What time would he come home in those years? A. It all depends on what jobs he had on.
It is to be remembered that this evidence is given in relation to the plaintiff having lived within the Kinnear household for about two years and nine months. The second defendant's evidence in chief (at T467) and in cross‑examination was that the plaintiff was never at home alone with the first defendant, even on an occasional basis such as when the second defendant went shopping. Her evidence during cross‑examination was (T531.05‑T532.20): Q. I suggest to you, madam, that there are many occasions when you leave the home and the children in the care - sorry, I withdraw that. I suggest to you that, madam, in 2009 to 2011, there were many occasions when you left the plaintiff at home with your husband. A. No. Q. For example, when you went to go shopping. A. Isabell would come shopping if she wasn't at work. Q. I suggest to you that there were occasions when she would stay at home. A. Not by herself with my husband, no. Q. Why were you so keen to make sure that your husband wasn't at home alone with the plaintiff? OBJECTION BREZNIAK: The witness never said she was so keen. HIS HONOUR: I reject the question. ELLIOTT Q. Why are you so affirmative that you never left the plaintiff at home alone with your husband? A. Cause we had a friend who had children through DOCS and said whatever you do, don't leave Ian and Isabell alone. Q. You'd nonetheless allowed your husband to take Isabell to Lismore and spend the night with her on two occasions. A. Yes, because that could not be the case where I couldn't go. I had to be at home with the other children for reasons. Q. A more accurate statement of your evidence would be that you didn't - unless it was inconvenient - leave the plaintiff alone with your husband. A. I was home with Isabell most of the time. I took Isabell to work most of the time and I took Isabell to all her appointments, not Ian. Q. It would be accurate to say that your evidence is that‑‑ A. On two occasions and when they were driving, yes, Ian was alone. Q. I suggest to you, madam, that the truer statement of your evidence would be that unless it was extremely inconvenient, you wouldn't leave the plaintiff alone with your husband. A. He actually drove to Lismore. It was not that it was just five minutes down the road. Q. I suggest to you that unless it was inconvenient, you wouldn't leave‑‑ A. I disagree with the inconvenient, no. Q. I suggest to you that there were occasions when the plaintiff was left alone with your husband. A. Yes, when they went driving and then when they went to Lismore. Q. Numerous other occasions too, madam‑‑ A. No, there wasn't. Q. ‑‑just in the give and take of family life. A. No. Q. It must have happened, madam. A. Not by herself with my husband, no. Q. Just never ever. A. No, there was always some children there if I wasn't there.
In relation to the 8 day holiday at Moreton Island in April 2010, the second defendant's evidence was not only that the first defendant was never alone with the plaintiff during the whole period. She also said the weather was not sufficiently hot for children to be playing a game of putting ice down each other's back. She denied the children played any games with ice and she insisted that no ice was available. She claimed to have "an exceptional memory" (T530) but, even though she had holidayed at Bulwer, Moreton Island, on several occasions, she said that she did not know if the convenience store sold ice or even whether or not Bulwer was a fishing village (T525). The second defendant had heard from the plaintiff's evidence that her case was not premised on ice from the refrigerator/freezer in the family vehicle, but that it may have been acquired at the convenience store.
In relation to the plaintiff's allegation of sexual assault in the caravan at a Tweed Heads caravan park during Cooleys, which was a three or four day event, the second defendant's evidence was again that the first defendant was never alone with the plaintiff, not even if the family went shopping. She described the caravan in which they stayed as having no running water and no bathroom. This evidence was consistent with the evidence of other members of the family and I accept it in preference to the plaintiff's evidence, which was exposed as based on only a vague recollection of the caravan. The second defendant said that the members of the family used the amenities block for their ablutions, which I accept; however, the very proposition is an example of why there were times when it was possible for the plaintiff and the first defendant to have been alone in the caravan. This was practical evidence illustrative of the unreal umbrella proposition advanced by the second defendant denying that the first defendant was ever alone with the plaintiff, when at home or on holidays. Her evidence was (T478.35‑43): Q. You are aware that Isabell says that Ian indecently touched her in that caravan? A. That's not true. Q. How do you know it's not true? A. Because we were always together. She didn't have - Ian did have time to be by herself with him. We were either at the caravan or we were in Coolangatta together.
The second defendant also gave the following evidence (T550.37-T551.10): Q. When you were at Coolangatta, there would have been occasions when the plaintiff was left alone with the first defendant, wouldn't there? A. No. Q. For example, when you went shopping. A. No, we all went shopping cause Ian would drive. Q. The whole family went shopping, all seven of you. A. There wasn't all seven of us there. There was only three children and Ian and I, so there was five. Q. All five of you would go shopping. A. Yes. Q. What if somebody didn't want to go shopping? A. They came‑‑ Q. Would you drag a complaining teenager along with you? A. Yes. That way, they were safe, they were with us. Q. I suggest to you, madam, that there was an occasion when the plaintiff was left alone with Ian Kinnear in the caravan at Coolangatta. A. No, there was not.
On the whole, I assess the second defendant's blanket denial that the plaintiff and the first defendant were ever alone except for driving lessons, and the two trips to Lismore, even a short period of time, to be unreal. This is not just in regard to the two years and nine months that the family were at home, but also for the eight days of the Moreton Island holiday, where with the variety of activities and the amenity of the beach, the possibility of the plaintiff having been alone with the first defendant is real. To a lesser extent, her proposition was unreal in relation to the Cooleys trip.
The final two matters to which I turn to in my assessment that the second defendant gave evidence deserving cautious consideration are: 1. That when shown the photograph of the first defendant plainly pointing with his left index finger to the breast and nipple area of a statue (Exhibit 7, p 23) during a family holiday to Geelong in 2011, she gave the implausible answers that "you can't see what he's pointing at" and denying that he was pointing at the nipple area of the breast (T513.11‑25). When the second defendant gave this evidence, it was strikingly obvious that she was refusing to concede the fact in order to avoid conceding that the first defendant was photographed performing an act which might be interpreted as of inappropriate sexual connotation toward the female breast. Again, her denial was unnecessary because, given the ages of the family who were then present (the other photographs on the page are of the plaintiff and of Amy with the statue, plus a member of the family took the photograph), the photograph displays nothing more than a larrikin act. In the minds of some, it would be seen as humorous and in the minds of other members of the community, as morally inappropriate. 2. Her unlikely evidence, given in chief, that Ms Turner refused a request for the plaintiff to live with her when the family suggested the plaintiff separate from them in 2011 and in so refusing, said "send her to a women's refuge". That evidence (in which Ms Turner was referred to as "Bee") was (T486.45‑T487.03): Q. Do you remember how long she's lived with Scofield? A. She only lived there for a few weeks. Q. Do you remember the circumstances of her living with Scofield? A. Yes, we had that meeting at the table, and we'd asked Bee if she would take Isabell on, and Bee said no, she wouldn't, send her to a women's refuge. And then we discussed with Isabell if there was a friend that she could go and stay with. And - and she rang Meg, and Meg and her mother said she could go and stay there.
Her allegation of Ms Turner saying that, was volunteered in that it is not responsive to the question asked. When pressed in cross‑examination at T548.20, the second defendant conceded that conversation had not been instructed to her Counsel before the evidence of Turner. It was never put in cross‑examination to Ms Turner that she spoke those words to either defendant. It was never put to the plaintiff that Ms Turner had informed the defendants in that way. It is not the evidence of the first defendant or any other member of the Kinnear family, all of whom were at the table. It was never put in cross‑examination of Ms Turner that she was asked to accommodate the plaintiff when it was suggested the plaintiff cease living with the Kinnear family in 2011. I was concerned that this part of the second defendant's evidence was untruthful and designed to taint the plaintiff's then conduct, and on this occasion, Ms Turner's evidence. Nothing in the evidence suggested that there was any difficulty between Ms Turner and the plaintiff arising during the plaintiff's September/October 2010 school holidays stay or otherwise. Indeed, the first defendant's evidence was that Ms Turner and the plaintiff remained in communication.
The defendants strongly submit that, had the sexual assaults occurred; then, the plaintiff would have most probably spoken of it in consultation with Ms Blenkin. In my view, the second defendant's evidence of her close participation with the plaintiff attending those consultations, such as by driving her to and from 98% of them and the objective and independent evidence of Ms Blenkin's clinical notes, to which I have referred; causes me to accept the plaintiff's evidence that she did not trust, as by her psychology she was prone not to do, the confidentiality of the counselling sessions sufficiently for her to complain to Ms Blenkin.
As discussed, the objective evidence of Ms Blenkin's notes, when put to the second defendant in cross‑examination, brought her concession that she had difficulty managing the plaintiff's behaviours and living with her. That evidence was inconsistent with the defendants' case proposed to the plaintiff in cross‑examination and described by the second defendant in chief of a loving and inclusive family environment within the Kinnear household for the plaintiff.
In the context of the second defendant responding to the grave allegations made by the plaintiff and having heard the evidence of the plaintiff, Ms Turner and Ms Scofield; I found her unwillingness to make appropriate concessions and her combative approach to cross‑examination to be driven by her sense of nervousness that the Court might be persuaded by that evidence. I assessed her as feeling that she needed to fight the defence of her family.
I do not, however, conclude that overall he second defendant deliberately failed to tell the truth. For the reasons given, my impression was that she gave evidence driven by her belief that the first defendant did not sexually assault the plaintiff, to the point that it coloured her evidence. On the whole, her evidence was not shown to be so lacking as to support an inference that, had she made more appropriate concessions and given less coloured evidence, her answers would have assisted the plaintiff's case by being positively adverse to the first defendant's denial of sexual assaulting the plaintiff and her own denial of having witnessed that: Kuhl's case supra at [62]‑[73].
I repeat my preference for the evidence of Ms Turner over that of the second defendant and my finding that Ms Turner did, at the time of the 2010 school holidays, inform the second defendant that the first defendant had touched the plaintiff's vagina during a game in which he smacked bottoms. The second defendant's denial of that notification does not of itself positively infer that in fact the first defendant did, during tickling and bottom slapping, touch the plaintiff's vagina and, in play activities, grope her breasts.
That the plaintiff informed Ms Turner of the vagina touching is a separate fact from the alleged assaults. The evidence of the first defendant and each of the children, who also denied witnessing the first defendant sexually assault the plaintiff, requires consideration.

EVIDENCE OF THE FIRST DEFENDANT

The first defendant gave evidence after having remained in Court throughout evidence in the plaintiff's case and the evidence of his wife, the second defendant.
He gave forceful answers of denial to questions in chief inviting him to comment on each of the plaintiff's allegations and the evidence which she had given of his sexual assaults upon her. He used expressions like "bullshit", "disgusting" and "never happened". At T607.45, the first defendant denied ever assaulting or sexually approaching the plaintiff on any of the family holidays. His evidence was that he treated the plaintiff like a daughter. Twice I felt required to direct him to cease aggressive activity directed at the plaintiff, who was sitting about 4 metres from him in the courtroom. He was a large man. I did not consider his displays of aggression, or his uncouth language and force of expression to weigh for or against in the assessment of the credibility of his evidence. This was because the plaintiff's allegations were of grave conduct to which either an innocent person or a person guilty of those acts might respond as the first defendant did.
I was, however, concerned with the accuracy of some parts of his evidence. In the early part of examination in chief, he said that he first heard of the allegations of his inappropriate conduct with the plaintiff when he saw the Statement of Claim, which would have been around April 2018. He denied that the second defendant had told him that Ms Turner had communicated with her regarding the plaintiff's complaint of the smacking game and his touching her vagina, in September/October 2010. He corroborated the second defendant's evidence that Ms Turner called about a kicking game. It occurred to me that the second defendant might not have relayed Ms Turner's charge onto him. It is possible that she may not have done, on account of her being so fearful of the consequences that she had informed the plaintiff that further complaint would cause the second defendant to harm herself; but neither party raised this. At T577.30, the first defendant volunteered that Ms Turner telephoned to talk to the plaintiff quite often but had never made a complaint about his relationship with the plaintiff. It was not put to Ms Turner that she telephoned and spoke to the first defendant directly. He then answered that Ms Turner had not ever said anything about his conducting himself inappropriately with the plaintiff. He gave evidence of having dropped in on Ms Turner after September/October 2010: T578.05. He gave evidence that Ms Turner came to the Kinnear home in 2018 and on that occasion, he asked her if she had heard "any information that Isabell said that I assaulted her, sexually…", when Ms Turner responded that the plaintiff had spoken to her "when she went to university, so that would've been 2012, 13 as well": T578.20. It will be recalled that her evidence was that she answered the first defendant's inquiry by telling him that the plaintiff complained in 2010. I prefer the evidence of Ms Turner for the reasons already given.
Of the family discussion in 2011 causing the plaintiff to live with the Scofield family for some weeks, the first defendant said that he called the meeting of the whole family at the dinner table because he was concerned that the plaintiff "kept pushing us away all the time and causing stress between the family". He said that on him enquiring "don't you like our family? Don't you want to live with us anymore?", the plaintiff answered that she did not. The first defendant denied that the plaintiff was ever told that she was not welcome: T645.45. He said he found that upsetting. He characterised the discussion as the plaintiff being the one "who said she didn't want to live with us no more": T580.16‑40. In cross‑examination, he conceded that they had a discussion "about the problems" they were experiencing with the plaintiff. For the reasons given, I have found that by the date of that separation, the second defendant in particular and the whole Kinnear family had struggled to live with the plaintiff since at least September/October 2010. Whilst my impression was that the first defendant's evidence omitted conceding the defendants' contribution to the separation, I have also determined that the event is not of significant weight in the determination of the real issues of whether or not the sexual assaults occurred.
The first defendant said that he was surprised to receive the plaintiff's letter (Exhibit 9) but that he was not as surprised with its content. He said "I felt upset that I had let her down. So that's when we went and had a meeting in the park to discuss the letter, and I felt like I was - we felt like we was abandoning her, like her parents did. And we asked her if she wanted to come back, she was quite welcome to come home, and that's when she came back, at the end of the month": T581.35.
In cross‑examination, it was put to the first defendant that the letters written by the plaintiff to the defendants and to Amy‑Lee, were at the first defendant's requirement that she write a letter acknowledging some guilt and responsibility before the first defendant would let her back into the house. The first defendant denied this, as the second defendant had done. As already observed, the plaintiff did not give evidence that she wrote the letters at the demand or even at the request of the defendants or of Amy. In my opinion, the plaintiff proposition is difficult to reconcile with letters having also been written to Amy (Exhibit 10) and to the family (Exhibit 11).
The first defendant said that, if anything of the kind alleged by the plaintiff had occurred, the other members of the family would have known about it because "they were at the - at the - there all the time and they would've said something to their mother as well". During evidence in chief, he put it as follows: (T600.50‑601.05): Q. Why would they have seen it if they were there? A. Cause I just said they were there. Q. It's a house. Could they not have been in other places in the house? A. There was people in and out the house all the time and around the area. They would of - someone would of seen it.
Like the second defendant, the first defendant said that a friend who they met at hot‑rod events and who had experience with children through DOCS, advised that he should never be alone with the plaintiff and to take notes and jot things down: T658.10. Nevertheless, the first defendant answered "There was no need to" and he did not take notes of events at Lismore, where he was alone with the plaintiff. He took down a note about Amanda, who was one of the plaintiff's girl friends who came to visit, he said, because it was an appointment for when they came back from having been on holidays. He denied that he did not take notes of what happened at Lismore because, had he done so, he would be in trouble: T658.40.
In cross‑examination, in regard to the plaintiff's evidence of smacking and Ms Turner's evidence of complaints of a smacking game; the first defendant agreed only that he, the plaintiff, Amy and Brock played a "kicking game" "until my back got hurt". He said that he was keeping an eye on the children so they were not getting carried away too much (T638.45). He denied that the game progressed to a slapping game (T639.02) and specifically denied that he would slap the girls on their backsides (T639.05). He denied that he would "opportunistically" touch the plaintiff's vagina, answering "No, never" (T639.10).
He denied ever playing a game of chasings with ice at Moreton Island: T586.30. He denied putting his hand in the plaintiff's shorts at Moreton Island. Specifically, in regard to the allegation of his inserting ice into her vagina, he answered "I would never do that, and I find it disgusting thinking that I'd do it, as well. So, no, I wouldn't have done it": T586.30‑40.
In cross‑examination, he denied ever placing his arm around the plaintiff's waist and sliding his hand down her backside, as had been described by Ms Scofield (T639.35‑42), adding that Ms Scofield "was hardly ever around our place". Again, the denial of Ms Scofield having been at the house often is contrary to the evidence of the plaintiff and Ms Scofield and, for the reasons stated, I prefer Ms Scofield's evidence of the frequency of her attendance.
At T639.45, the first defendant denied using inappropriate language in front of teenage girls, as Ms Scofield had said. His answer was "I do not say rough or inappropriate things to teenage girls". Again, I prefer the evidence of Ms Scofield, that he did.
In relation to the plaintiff's allegation of sexual assault at the AZA hotel, Lismore, in November 2011, the first defendant denied the whole of the plaintiff's allegation, that she suffered a migraine and went to sleep unwell. He denied touching her and specifically denied that he touched her vagina (T642.45‑T643.05). The extent of his denial was "As I said, no, I'd never touch Isabell inappropriately or any other way". He was taken to paragraph [48] of the plaintiff's formal Police statement. He denied that account, saying (T643.15): "I'd never, ever do that to Isabell. She was like a daughter to me. I treat all my girls with the respect they deserve and I would never do that to her".
In regard to the January 2012 sexual assault allegation, the first defendant said that he drove the plaintiff to Lismore, towing her car on his car trailer. When asked to comment on the plaintiff's allegation that he invited her to sleep in is bed and that she was too scared to decline, he said that did not occur. He added that the plaintiff "is never scared of me" (T600.10). When asked to respond to the allegation as recorded in the plaintiff's formal Police statement which included that the plaintiff woke up without clothes on and with him beside her, touching her and masturbating to ejaculation, he answered (T600.20): "No, I never did, and I find it disgusting to think that I would think of doing something like that".
The first defendant denied the plaintiff's allegation of sexual assault in the caravan at Tweed Heads, during Cooleys. He said that the family had stayed together during the whole trip. His evidence was (T644.41‑47): Q. Now, sir, I suggest to you that at Coolangatta, there was a time when you were left alone with the plaintiff in the caravan whilst your wife and the other children went shopping. A. No. As I said to you before, on the Friday we went to the cruise, the Saturday we spent all day and all afternoon out and about and around the Wintersun rock n roll festival, on the Sunday we also went around there as well, and on the Monday morning went home. So we all done things together.
In cross‑examination, at T644.50, he denied that whilst in the caravan during Cooleys and whilst the plaintiff was sitting beside him, he took her hand and placed it on his penis. As the second defendant had done, he denied that the caravan had a TV or video player as the plaintiff had included in her description of the scene of the assault: T644.50‑T645.05.
In cross‑examination, the first defendant's credibility was challenged when he was taken to the photograph of himself with a statue of a female form captured during the family's April 2011 Geelong holiday (part of Exhibit 7, page numbered 23), which plainly showed the first defendant smiling to the photographer with his left hand plainly pointing to the nipple or central area of a breast of the statue. The first defendant denied that his hand was pointed to the nipple or central breast area. In my opinion, his denial was implausible and more so because he made the point that he was looking away from the statue, which I took to be an attempt to disarm the proposition put to him. He demonstrated in Court by pointing with his left hand across his right shoulder, between neck and shoulder, to something completely behind him and with his face turned away to the left. It was a physical display which could not reasonably be matched to what could be seen in the photograph where his hand was not extended over or even near to his shoulder, but plainly at an angle across and forward of his chest to deliberately point at the nipple or breast of the statue. In the photograph, the statue is not behind him. I considered the first defendant's evidence a failure to make an obviously appropriate concession and an exhibition which illustrated his willingness to exaggerate his evidence, in his interests. Next, he volunteered that it was not a statue of a woman and contested that it was a "male inside a female" figure. This impressed me as an attempt to dissociate the subject of his pointing from a female breast. The passage of his evidence in cross‑examination was as follows (T634.43‑T636.34): Q. Thank you. If you would turn that open to that page that I had open for you before, the three photographs of the female statue. That's right. A. They are not female, they're a male inside a female. They - they're designed to be one as coming in between two in my interpretation of those sculptures. … Q. You, sir, are putting your index finger on its nipple, are you not? A. I went like that. Surprised I can get hand over like that and we took photos, yes, but my index finger is not actually on the nipple cause I'm taking the photo like this, so for me to do that, I'd have to turn around and physically see where I'm doing it. HIS HONOUR: The witness as he answered holding his left hand over his right shoulder pointing behind him. Is that fair, Mr Brezniak, Mr Elliot? ELLIOT: Yes, your Honour. HIS HONOUR: Yes, thank you. ELLIOT Q. I suggest to you, sir, that the point of that photograph is to point at the statute's nipple. A. I'm not looking at the nipple and it is just a bit of cheeky humour, and it is a male inside a female's body. It's what my interpretation of those statutes are, and looking at this, I remember Geelong now as a family holiday with all the kids. Q. Sir, you nonetheless chose to intrude into that family holiday a suggestive photograph of yourself putting your hand near the nipple of a female statute, didn't you? A. That's your interpretation of it. Q. I'm putting that to you. That's what the photo shows, isn't it? A. It's not my interpretation of it. It's my interpretation it was just a cheeky photo where I've taken a photo with my arms crossed over like that and they took a photo so I'm not actually looking at where I'm take - put my arms. Q. I suggest this to you, sir, and I'm not going to take it any further, but the expression on your face and the position of your finger, there's absolutely no doubt that you're having a bit of cheeky fun by pointing at the nipple on this statute, aren't you? A. I had my arm across like this and I've taken a photo with my head to the left, taking the photo and I don't find it offensive. It was just a bit of cheeky humour, and we all take photos with Amy-Lee in there, Isabell standing there and it's a memorable moment and this is our personal album for our home.
Had the first defendant conceded what he was shown to be doing in the photograph, he would only have been conceding larrikin humour on a family holiday. His evidence showed that he was purposefully denying his action in order to avoid conceding his having performed a joke of some sexual content.
There were many photographs taken on family holidays within Exhibit 7 including the photograph of the plaintiff, Jake and the second defendant on a couch (Exhibit 15), which I considered to have recorded family good times, fun and larrikin humour.
When tested in cross‑examination, the first defendant maintained his denial of the plaintiff's allegation that he rubbed sun cream on the plaintiff's breasts.
The first defendant was an unsophisticated man who, as a witness, was easily aroused to emotional and angry responses. It is only fair to view his evidence in the context of the serious gravity of the allegations of sexual assault he faced. As I have explained, the emotion of his responses was not a show of demeanour which, in my opinion, should weigh against the veracity of his denials of the sexual assaults. However, that his denials extended to the point of his comical display of pointing behind himself and looking away, when before him in the witness box, the photograph showed him pointing across and toward the statue's nipple area of breast; in my opinion, exposed the unreliability of his evidence. I have not accepted his evidence of conversations with Ms Turner. His denial of being alone with the plaintiff, but for the attendance at the university open day in November 2011 and at the plaintiff's commencement at university in January 2012, was so complete as to be unreal and against common sense. Again, the plaintiff lived in the Kinnear home for about two years and nine months and it seems unreal that, at times, the movement of people of the household would not have left the first defendant and the plaintiff alone together.
Bearing in mind that, for reason of the above observations concerning his evidence, caution is to be exercised in relation to it; nevertheless, I do not consider the defendants' denials of the allegations of sexual assault to be of no persuasive weight. Not unexpectedly, he presented as a witness who was fearful of the consequences of the allegations. This might be so for a person who was innocent of or guilty of those allegations. In his unsophisticated way and perhaps being so fearful he felt a need to embellish the harmony of the home environment and the family's inclusion of the plaintiff. Also, to diminish his own larrikin behaviours involving any matter of sexuality and to refuse to concede the opportunity of his being alone with the plaintiff and of playing the smacking game. Generally, my observations of him as a witness significantly discount the worth of his evidence of peripheral facts and circumstances; but, in my opinion, it would be unfair to paint his denials of the sexual assault allegations as observably false.

EVIDENCE OF CHANTELLE KINNEAR

Chantelle is 6 years older than the plaintiff, the daughter by birth of the second defendant and step‑daughter of the first defendant. At the time of giving evidence, she was a director of a day care centre in Wingham, NSW. She now lives in the same small community at Old Bar with a partner, but not at the home of the defendants.
Chantelle said that she and the plaintiff were friends "most of the time" when living in the Kinnear household (T681.09) and that the plaintiff did not complain to her of sexual advances by the first defendant: T681.15. The plaintiff did not say that she had.
Her evidence was that the family had owned one caravan and that it did not have a television (T681.35).
Chantelle was not present at the family trips to Moreton Island or Cooleys.
Chantelle's denials that the first defendant inappropriately touched the plaintiff were based on five things: 1. His absence from the house and therefore from the plaintiff; 2. Because she lived at home, she would have seen it had it occurred; 3. Her experience with noticing such behaviour gained from her work as a child day‑care centre worker; and 4. Generally, her belief that her step father (the first defendant) would not do that.
As to the first defendant's absence from the house; in chief Chantelle said that most days he worked in his shed when he was not at work or at car shows or car swaps (T680).
In cross‑examination, it was properly exposed that Chantelle was 21 years of age in March 2009, when the plaintiff moved into the Kinnear home and she was already working outside of the home. Chantelle worked varying shifts. She said that she was home every other weekend but, during the day, it depended on which work shifts she was rostered to. Her shifts were "anywhere between 6.15am‑3pm, or from 9am‑6pm: T682.30.
Chantelle maintained that, as a person obliged in her work to mandatorily report sex offending, she had the experience to know that sexual predators do not normally offend in a home where people are around (T684.40). Reluctantly in cross‑examination she conceded with "I guess" that a sexual predator can act without persons around them knowing because the persons around them would think their doing so was unthinkable or just because they are very clever or very lucky (T685.25).
A significant feature of Chantelle's evidence was that she was never asked during examination‑in‑chief about a kicking game, or a slapping game. In cross‑examination, her evidence contradicted that of the defendants because she answered that she could not remember a game of "kicking the butt" (T682.31‑36). She denied that the first defendant ever tickled her or tickled any other member of the family (T682.38‑T683.06).
When it was put to her that she could not have been at home and present every time the first defendant was with the plaintiff, she answered argumentatively and refused to concede that she could not say that there was never inappropriate conduct by the defendant (T683.15‑50): Q. And were you there every time that he was there with the plaintiff? You weren't, were you‑ A. She's not home all the time. Q. Yes, you weren't there all the time, were you? A. Neither was she. Q. So the best you can say is that you did not observe any impropriety between your stepfather and the plaintiff. That's all you can say, isn't it? A. No. Q. You can't say it never happened because you were not there all the time keeping an eagle eye on the plaintiff and your stepfather, were you? A. No-one is at home all the time. Q. Would you agree with the proposition I just put to you or not? A. No. Q. So you insist to the Court that you were able to keep an eye on the plaintiff and your stepfather all the time? A. Yes, yes. Q. It is just simply impossible that any impropriety to have happened between your stepfather and the plaintiff? A. Mm-hmm. Q. You are agreeing with that proposition? A. I disagree with you. Q. So you say it is utterly impossible that such a thing could have occurred? A. Yes. Q. Because your reason for saying that is because you were there all the time and if it had happened you would have seen it? A. Yes.
Chantelle's credit was further exposed to warrant caution when she volunteered in an answer during cross‑examination that she was aware that the plaintiff claimed that the first defendant's inappropriate conduct occurred in front of the whole family. This had not been put to her in any question during examination in chief or cross‑examination to that point: T684.01‑04. At T684.35, she repeated "No but she's claiming that someone was there all the time". Again, this had not been put to Chantelle. I considered that Chantelle gave evidence consciously to deny the plaintiff's case, of which she was aware.
Whereas in her early evidence Chantelle said that the first defendant did not play any games, including a game like the "kicking game", in cross‑examination this was exposed as inaccurate (at T686.01‑T687.16): Q. Did he kick their butts? A. When they played the - yes. Q. Sorry? A. Yes. Q. Now, maybe they told me there was no butt kicking game, cause you're unaware of any butt kicking game, and yet you just agreed that Mr Kinnear kicked butt? A. I didn't participate. Q. Now, when you gave that agreement to me you looked over my shoulder towards the back of the Court. Was that because you were getting some indication from someone at the back of the Court-- A. No. Q. --as to what the answer might be? A. I'm actually looking at Alex who's standing - sitting behind you. Q. You're looking at whom? A. Alex. Q. And who's Alex? It's a solicitor at the back of the Court, pardon me, pardon me. A. Yes. Q. Now, Madam, do you understand there's some inconsistency between your evidence about the butt kicking a moment ago and the evidence just gave then? A. Yeah, well I didn't participate. Q. Yeah, but you - I asked you-- A. You're trying to claim that I played and I did not. Q. Madam, I didn't ask you about whether you played, I asked you whether you're aware of it and you denied it, didn't you? A. Yes. Q. But the reality is you were aware of it, weren't you? A. Yes. Q. You told a fib to the Court, didn't you? A. Yeah - no. Q. And you thought - yes or no? HIS HONOUR: No, give her a time to answer that question. ELLIOT: Indeed, your Honour. Q. Madam, you said yes, then you said no, do you want to choose or do you want to say both? A. I'm going to say I don't know. Q. You're going to say - pardon me? A. I don't know. Q. Now, I suggest to you that in fact your mother did give you a prompt to the answer about butt kicking. A. No, she didn't.
Chantelle was unshaken in her denials of having observed or of believing the first defendant sexually assaulted the plaintiff. The caution which her evidence deserves does not justify discounting entirely those denials.

EVIDENCE OF AMY‑LEE KINNEAR

I considered Amy to be a witness who was, despite her denials, likely to have discussed her evidence with the defendants, with whom, at the time of the hearing, she continued to reside. That she had discussed evidence in the case with them was patently clear from her unacceptable answers that she already knew of the plaintiff's allegations only from the Statement of Claim, when the allegations the subject of the questions answered was not mentioned in that document. Yet, she refused to concede having done so.
Having had the opportunity to read the Statement of Claim in the witness box, it was put to her that there was nowhere in it that it said that the sexual assault occurred in front of the family. She answered that "she said whilst on holidays at Moreton Island. I was at Moreton Island. We shared the same house. We did everything together so you think that I would've seen it?" (T720.30).
This answer gave me concern because the earlier questioning was not about Moreton Island. I was concerned that she selected paragraph [9(e)] of the Statement of Claim to obfuscate. The cross‑examiner then fairly put it to her and she gave the following unsatisfactory evidence (T720.35‑41): Q. Thank you, madam, but a short while ago I asked you a question about how you knew that there was an allegation that all the abuse that had occurred in the presence of you all at the home and you said it was in the documents that were served on your parents and I have shown you the document that were served on your parents and you can't find that reference anywhere in there, can you? A. Well, not that it says about being at home but on the holidays.
Amy then gave the following answers denying what would be an unexceptional proposition that somebody had told her about the plaintiff's allegation of sexual assault occurring in front of the family, since receipt of the Statement of Claim (T720.43‑49): Q. It is likely, is it not, that therefore that somebody has told you about that allegation since. A. No. Q. Somebody has discussed with you what was said in court or in the preparation of the case for court. A. No.
Finally, Amy conceded the obvious, that the Statement of Claim did not state that sexual assault occurred in front of the whole family. But she still gave the unsatisfactory answer: "Well, it doesn't actually say it there but it's - it could be anywhere" (T723.30). Then, she again denied that she had discussed her evidence with members of the family (T723.40). The next answer she gave, in my opinion, presented her as a witness bent on denial and argumentative defence of her parents, rather than answering accurately the question (T723.43‑48): Q. Because that allegation is something that has been put repeatedly by your parent's counsel to the plaintiff and doesn't appear in any of the documents that were filed in this court to commence this claim. A. Well, I don't know anything about it. Like I said, it's saying in there that - and like I said, we're a close family. We went on all the holidays together. We all lived in the house so you think I would of seen something but I didn't.
That Amy was oppositional during cross‑examination, was displayed by comparison with her different approach to evidence in chief. During examination‑in‑chief at T691.35, she stated that she had "been made aware" of claims by the plaintiff in the case against the first defendant and that she had read the papers served in the proceedings, which she discussed with her parents.
Amy is four‑and‑a‑half years younger than the plaintiff. On all of the evidence, Amy was closest to the plaintiff when the plaintiff resided with the Kinnear household. When the plaintiff moved into the home, she shared a bedroom with Amy.
Amy presented as a witness ready to protest the defence of her parents. To an extent, this was to be normally expected. Her evidence warranted caution, not just on that basis, however. In addition, she was oppositional and argumentative during cross‑examination.
Amy answered that she based her opinion that the first defendant would not have sexually assaulted the plaintiff, upon her expertise as an employed "child protection case worker". At the time of giving evidence, she was 22 years of age. The period over which she had been in that employment was not disclosed, but assumedly it was, at most, some few years. She named the organisation for which she worked as Biripi Children's Services. She obtained her undergraduate degree of Social Science / Psychology and was, at the time of hearing, studying toward obtaining a Masters in Social Work.
During cross‑examination (commencing at T704), Amy related the plaintiff's behaviour at the time of separation from the family in 2011 to her trauma "from her adoptive parents" and on the basis of "I'm a child protection case worker", said that the plaintiff's trauma caused behaviour "wasn't trauma from [Amy's] father" (T704.35).
It was put to her in cross‑examination that she would find it professionally embarrassing for there to be a sexual assault of the plaintiff "under your nose", to which she answered at T716.45‑50: "Do you think I'd be able to be a child protection case worker and deal with children who have been sexually assaulted if that was occurring in my home? I don't think so".
Amy gave evidence which, in the experience of the Court, a well experienced investigator of child abuse might not give, including that generally child abusers are detected and that generally they abuse other people as well (T711). She gave the answer that she didn't see the sexual assaults happen, so they didn't happen, "because [the Plaintiff] is trying to say that we seen it. We didn't" (T711.25).
She adamantly denied the presence of ice during the Moreton Island holiday: T695.41‑44. Amy refused to concede the possibility that the first defendant was ever alone with the plaintiff over the entire 8 day holiday: T696.25‑30; T696.30.
Amy stated that the plaintiff "was never left alone. We were all together" for the whole of the Cooleys holiday: T696.45. She said that "We all went shopping together": T697.02.
At T698.35, Amy remembered that the plaintiff's best friend was Erin Frost when she was at Taree High School and that she was also friends with Meg Scofield and Brett. Amy talked to those girls. She gave evidence that none of them spoke to her about the first defendant being inappropriate.
Amy also said that the first defendant spent most of his time in the shed when he was at home, that he was not home during the day because he was at work and that he was home on the weekends only "sometimes": T699.15‑29.
She described her observation of the defendants with the plaintiff as "just like a normal relationship, a normal family relationship" (T700.26). She repeated this in cross‑examination (T702.35). As I have observed already, on the whole of the evidence, it was not a normal inclusive relationship for the plaintiff in the family. Amy said that, in 2011, the plaintiff's relationship in the family was "still normal and happy": T702.40. Plainly, that evidence cannot be accurate on the whole of the evidence, including Ms Blenkin's notes of the second defendant's difficulties with the plaintiff and that the plaintiff separated from the family later that year.
Amy said of the separation that the first defendant called the meeting and that the first and second defendants spoke at length about problems presented by the plaintiff in the household, but Amy answered "well, it wasn't exactly why they didn't want her there, yeah" (T702.50‑T703.05). Amy said that "it wasn't exactly that" when it was put to her that the defendants told the plaintiff that she should leave and the plaintiff answered "I don't want to live here anymore" in response (T703). When pressed, she gave the following evidence which, to my understanding, characterised the conversation as a pressuring of the plaintiff to leave (T703.29‑33): Q. She was told by your parents in no uncertain terms that they would be happier if she was out of the house? That's right, isn't it? A. They said they weren't - her behaviour wasn't - she was manipulating, lying and yeah, she was causing trouble between us all because she was lying to everyone in the whole household.
Those allegations of lying and manipulating and causing trouble, weigh heavily against Amy's earlier evidence that things were normal in 2011 and that it was just a happy household environment. Amy's description of what the defendants told the plaintiff of disharmony or conflict between her and the family, was plainly more serious and harsh than either defendant was willing to concede.
Then, Amy agreed that she, Brock, Chantelle and Jake all "piled on", which had been denied by both of the defendants. Her evidence was (T703.35‑50): Q. Now, on that, you and Brock, Chantelle and Jake piled on, didn't you? You all agreed that she should be out, didn't you? A. Well, I guess so. Q. Well, it's a plain fact, isn't it? It's a plain fact, isn't it? A. Yes. Q. Simple fact. A. Yeah. Q. You all agree that she should go, that's right, isn't it? A. Yep. Q. And she said, "Well, if that's the way you feel, I don't want to be here anymore." A. Well, she actually chose to move out on her own will.
This evidence was given when Amy was answering in an assertive and angry manner. I assessed her giving that evidence as her having let down the guard, held up during her earlier evidence, and that what she said was accurate.
Amy‑Lee denied that one of the lies the plaintiff was accused of at the meeting was having written falsely in her diary that she was pregnant: T704.05‑10. When pressed on this denial, Amy appeared to drop her guard again. At T704, she said that the plaintiff lied "about taking things", about "going in the car with people" and "she would lie to her friends just to get attention" (T704.25).
In evidence in chief, Amy was not asked about a slapping, smacking or kicking play. In cross‑examination, she said that she did remember a game of "kicking the butt" or "butt kicking" and that she did not think it was inappropriate from the point of view of her being a child protection officer (T705.40). Responding to the proposition of an adult male member of a family kicking the backside of a female child of the family; Amy said it would depend on the context as to whether it was inappropriate (T705.40). She said it was a game and not of "another nature". She said it was "no different to playing a game of Uno" (T706.20). She said that if she saw in one of her child protection work files a transcript of such a butt kicking game, it would depend on the context whether or not she would even investigate it (T706.35).
Amy denied there were occasions when the first defendant tickled the plaintiff. She said, "there was no tickling" (T707.35), tickling never happened (T707.40). The proposition that tickling and touching progressed to intimate touching of the plaintiff's vagina was put and denied (T708).
Amy was properly cross‑examined as to how she could say the first defendant touching of the plaintiff's vagina "never happened" when she can't have been present all of the time. Amy answered, "Well, like you just said, I never seen any tickling. I never seen any - him touching the vagina or whatever you are going on about. None of that ever happened" and that "I lived in the house, so I would have seen it, I then I never seen anything" (T708). Amy gave the following evidence (T710.15‑24): Q. Now, madam, you just don't know that it never happened. All you can say is that you did not observe it happening. That's right, isn't it? A. Well, how can you say that when you weren't there? So what would you know? Q. Madam, I suggest to you, logically, just because you didn't see something happen doesn't mean it didn't happen. A. I know it didn't happen.
Amy gave evidence of Ms Turner having telephoned the second defendant whilst they were on holidays in Surfers Paradise in September 2010. This evidence corroborated the second defendant's version of her discussion with Ms Turner. Having denied that the holiday was so that the family could have a break from the plaintiff (at T714) - a fact that each of the plaintiff, the defendants and Ms Turner agreed on - she said that she was sitting beside the second defendant during her telephone conversation with Ms Turner (T715). Her answer then became that she was sitting in the room with her brothers and father (T715.39). She said that she was listening because the second defendant was upset. She did not in her evidence say why the second defendant was "upset". She said the conversation was about the plaintiff wanting to get her ear pierced and then it moved "into the kicking butt game" (T716). Yet, she denied that the plaintiff was upset about the "butt kicking" game because she didn't ever mention it and "it barely even happened".
For the reasons stated, I have accepted that Ms Turner notified the second defendant of what she understood to be a bottom smacking game, from the plaintiff's complaint to her when she picked the plaintiff up from her stay with Ms Turner during the September/October 2010 school holidays. The complaint was not about a "kicking game" and Ms Turner's notification to the second defendant was not by telephone to Surfers Paradise. I do not accept Amy's evidence of what she says she overheard of a telephone call concerning "butt kicking". These events occurred 10 years prior to the hearing and, as already observed, Amy's denial of discussing evidence in the case with the family and the defendants prior to the hearing was unlikely to be accurate. The evidence of that telephone conversation, in my opinion, was another matter discrediting the reliability of her evidence and exposing her as a witness ready to protest the defence of her parents.
Albeit the evidence given by Amy is to be treated with caution; nevertheless, there was no evidence before the Court upon which to dismiss as untruthful or unreliable her testimony of her belief that the plaintiff's allegations were false.

EVIDENCE OF JAKE KINNEAR

Jake is approximately 1 year older than the plaintiff.
He said he did not believe that his father sexually assaulted the plaintiff as alleged because he would have seen it and his father is "Not that way inclined, so I don't believe it to be true" (T745.45).
His claim of being present in the home to see the first defendant's conduct toward the plaintiff was appropriately qualified during cross‑examination by clarifying measure of his time in the house. That said, Jake appeared reluctant to concede his time out of the house. He was a car enthusiast who in 2009 had purchased his first car. The family lived in the small community of Old Bar and his school and soccer friends were located across the Taree region. Listening to his evidence during cross‑examination, I was concerned that he was out of the house socialising and engaging in sporting activities more than he was willing to describe unless forced to do by the particular question.
At the time of giving his evidence, he was a secondary school teacher at a school in Bulahdelah, NSW.
Of his relationship with the plaintiff when she moved in, he said they "Got along fairly well". He then gave the following evidence in chief (at T728.23‑26): A. …When she first moved in, I was 16 and then shortly after, I did turn 17, so I mainly hung out with my friends. But our relationship was good, because I'm not a fan of conflict, so I try to keep the peace with everyone. (emphasis added)
When I heard that evidence, I considered it to reveal two things which are very believable on the whole of the evidence: 1. As a 17 year‑old, he was not at home all the time, so he was not present all of the time when the plaintiff and the first defendant were in the house; and 2. There was some element of conflict and tension, in which the plaintiff was involved in the household, even in 2009.
That there was disharmony fitted with Ms Blenkin's notes from 16 September 2009, discussed above, the evidence of Ms Scofield and the evidence of Ms Turner. It fitted precisely with the circumstances of separation in 2011, particularly as they were exposed by Amy when she became agitated and dropped her guard during cross‑examination.
The above quoted evidence was immediately followed in chief with the following question and answer (T728.28‑31): Q. Was there conflict at home? A. I wouldn't say there is, we're a difficult family, you couldn't say it's been perfect, there's going to be a little bit of conflict every now and then between siblings, I guess.
There was inconsistency between Jake's above evidence about him hanging out with his friends and being out of the house, and his insistence as to how much he was at home. The evidence permits some analysis of how much he was out. Until he left school at the end of year 12, he played soccer up and down the coast and drove to games. The games were usually within half‑an‑hour of the home; nevertheless, on a weekend, that would have amounted to at least two or three hours away from the home. He did not play soccer at university. In cross‑examination, he agreed that he was a car enthusiast and "pretty handy on the tools" (T744.45‑T755.01); but denied the suggestion that, at 17 years of age, with his own first car, he was out of the house driving around when he could (T755.05). This did not sit well with his above quoted evidence that he mainly hung out with his mates. In cross‑examination, he said that his mates all lived in the district, within 5‑10km (T741.20). When it was suggested to him that he "did not spend much time in the company of the plaintiff through 2009 to 2011; his answer was "I would have, yes" (T741.30). Then, he agreed that 1 day a week he would not have been at home (T741.35). During 2009 and 2010 (his school years 11 and 12), Jake worked one shift per week, after school at McDonalds (T738.30).
Ultimately, in cross‑examination, his time at home was shown to be not as expansive as it sounded from his evidence in chief. In 2011, when the plaintiff was in year 12 and living in the Kinnear household, Jake was attending Avondale College studying education. That College was in Morrisset. During 2011, he stayed at his grandparents' home 3 days per week and commuted to and from home to university for the balance of the week. His evidence in cross‑examination was (T740.46): A. Three days a week for about less than 20 weeks a year. His semesters were between March‑June and September‑November. He said that at other times he was at home. They were 10‑12 week semesters. His school teaching placement was for 3 weeks in June 2011 at St Clare's High School in Taree.
Jake said that after the plaintiff left for university, he saw her at his 21st birthday party, where she was happy, talked to his friends and talked to the family. He said that he had "…no idea. No" that the plaintiff claimed to have been sexually penetrated by his father (T740.03) prior to the proceedings. The plaintiff did not say that she complained to Jake or his siblings.
Albeit, he said the family went fishing at Moreton Island; Jake's evidence was that at no time did the family access ice. When challenged during cross‑examination on the need for ice to preserve the fish caught, his evidence was (T742.25): A. If we did catch a fish so I would suggest that we probably gut it there and then and then cook it at lunch or night.
He immediately afterward answered that he did not recall whether or not ice was available at the shop at Moreton Island (T742.27). He said that he was not sure whether or not there was a refrigerator in the house. He gave the most unlikely evidence (as a 27 year‑old at the Hearing), that when he rents accommodation, a fridge was not something that he looks for (T743.14). When asked if he liked a cold drink, he answered: "Not really, no" (T743.15).
Jake was not asked about either a "Kicking" or a "Smacking" game during evidence in chief. In cross‑examination, his evidence was that he did recall playing a game with his father, in which his backside was kicked (T745.10). He denied a game in which the first defendant tickled and slapped the girls in front of the family (T745.15). He denied the first defendant touched the plaintiff's vagina with his fingers during such a game (T745.25). This was because he "didn't see anything" (T745.35). He volunteered that if he had not been there, someone else would've been there to see it and therefore it didn't happen. When the proposition was put that the first defendant and the plaintiff might have been home alone, he answered (T745.43): A. My mum was a stay‑at‑home mum, so she was there quite often; and my brother and sister are there quite often, too.
Whilst I consider that Jake attempted to exaggerate his time within the house and that he was conscious to bear the interests of his parents' defences in the answers that he gave; nevertheless, I accept his stated belief that his father did not sexually assault the plaintiff.

evidence of BROCK KINNEAR

Brock is the twin of Amy, was born on 4 December 1997 and was about 4‑and‑a‑half years younger than the plaintiff. At the time of giving evidence, he was 22 years of age and employed at McDonalds, Taree. He had been in that employment for about a month.
He gave evidence of never having seen the first defendant touch the plaintiff's vagina or cuddle her inappropriately. He said that the plaintiff never complained to him that she was touched inappropriately. It was not the plaintiff's evidence that she had.
Like the other members of the family, he said that the first defendant spent most of his time in the shed tinkering on cars. That he came in for lunch and then he would go back to the shed. Brock said that he was also a car enthusiast and worked on his car in the shed. He said that if the first defendant was not at work, "…he'd spend most of his time in the shed" and "…he'd come in for dinner or lunch, and - or to go to bed".
My concern for the accuracy and completeness of his recollection was raised from his not being able to recall anything but Jake's Torana in the shed, despite him having said he spent substantial time there because of his "passion for cars" (T759) and that he worked on his own car in the shed (T760). The evidence was that the first defendant worked on cars, including hot-rods.
In chief, like the other members of the Kinnear family, he said that during the Moreton Island holiday, the family did everything together during the day and had dinner together at night. He said that the first defendant was never alone with the plaintiff because they were always together as a family.
He said that he did not see the plaintiff alone with the first defendant during the Cooleys trip and that the family did everything together.
Brock's evidence in chief of the plaintiff's separation from the family in 2011 was minimal. He said that all he could recall was that the plaintiff moved out "of her own will" because she wanted to go to university and that she had stayed with Meg Scofield briefly": T760.50‑T761.05.
Brock was shown Exhibit O, which contained his three Facebook posts of 9 September 2014. With reference to young women, he had posted the term "Jailbait". He conceded with "I suppose" that he was referring to underage girls, but he said that he could not recall posting the message.
Brock was taken to Exhibit P, which contained his Facebook posts of 17 August 2014, and included messages such as "Brock Kinnear is… feeling naughty"…"just want to fuck you", with am emoji of a winking sun face. Also, "Mate, that's sicker than a Taiwanese cunt"; "You go through more boyfriends than the slut does sexually transmitted diseases"; and other such posts. He said that he could not now recall what his thoughts were at the time that he posted those messages. He said that he assumed that he had a bad mental health state. He has been treated for mental illness.
In his adolescence and after the plaintiff had left the Kinnear household, Brock went through a troubled period in his life, consequent of his experiencing mental illness. He said that he realised that it developed over years, when he looked back at his behaviour. Whilst Brock said that he did not consider his mental illness to distort or disturb his recollection, he conceded that he does not recall things. At the height of the effect of his mental illness upon his life and after the plaintiff had left the Kinnear household, there was a time, the duration of which he could not recall, when he was couch surfing with no job and no money. He was being fed by friends. At that time, he telephoned the plaintiff and what he told her caused her to report to Family & Community Services that Brock was living on the street, was scared to go home and that the second defendant had tried to run him over with a car. During evidence, Brock denied the things reported, actually occurred in his life but agreed that the plaintiff telephoning the Department showed genuine concern for him. He could not recall what he might have said to her on the telephone.
Brock appeared to be a vulnerable adult with substantial need for the care, protection and support of his family. He did not impress as a witness possessed of an accurate and complete recollection of the time in his life the subject of the proceedings, although he retained a general recollection. Despite those shortcomings of his ability to recall, I accepted him as a witness of truth of his belief that he did not witness the first defendant sexually assaulting the plaintiff as is alleged in these proceedings.

PLAINTIFF SAYS FIRST DEFENDANT WATCHED HER SHOWER

A factual issue which the parties hotly contested and which occupied a substantial part of the hearing was the plaintiff's allegation that the first defendant watched her shower. In her formal Police statement, it is recorded that the first defendant did this from the area of the lounge room window of the Kinnear home. In oral evidence, the plaintiff said that on occasion the defendant did this also from the master bedroom of that home. The house was "L" shaped, the allegation being that the first defendant looked across the angle from those areas to the bathroom.
The Amended Statement of Claim does not particularise the first defendant having watched the plaintiff shower as a sexual assault. It is not an allegation upon which the plaintiff bases her claim for damages. The plaintiff did not serve notice of or otherwise rely on the evidence to establish a tendency of the first defendant: s 97 Evidence Act 1995 (NSW). The plaintiff did introduce evidence of behaviour of the first defendant and of the Kinnear family members and cross‑examined the defendants and members of the Kinnear family, suggesting that there was a tolerance of "ribald" behaviour within the household. Albeit, most of that evidence was of little assistance and indeed the witnesses were directed to photographs of holidays in which they were depicted just having somewhat larrikin‑type, family fun; in my opinion, a finding that the first defendant did watch the plaintiff showering would be a finding of contextual inappropriate behaviour. There was also Ms Scofield's evidence of his holding the plaintiff so that she had to wriggle away and of his groping her bottom. Those things could have been done in a larrikin and humorous fashion in another context; however, Ms Scofield was convincing in her description of having found it inappropriate, in terms of her then teenage life experience in the conduct of other adults towards and in the presence of teenage females.
In my view, this contextual evidence is confined to use as background information of the relationship between the plaintiff and the first defendant. In this way, it avoids considering the sexual assault allegations in a vacuum. The evidence is of little or no value in determining whether the actual sexual assaults are proven and is not alone evidence of a propensity to engage in inappropriate sexual behaviour by the first defendant. It is not evidence upon which the Court can infer that the first defendant had a propensity to commit the alleged acts of sexual assault against the plaintiff or young females: HML v The Queen (2008) 235 CLR 334; [2008] HCA 16.
The plaintiff's formal Police statement recorded: "[53] Also during my time of living at Aunty Leisha's and Uncle Ian's, Uncle Ian told me that I had to shower with the bathroom window open. This was because apparently I would forget to open it after the shower and the roof would go mouldy. On more than one occasion, I caught Uncle Ian looking from the lounge room in to (sic) the bathroom as he could see me naked in the shower. [54] I then started sitting in the shower after I caught him and when I would stand up Uncle Ian would still be looking from the lounge room."
In a report by the Queensland Police Solicitors' Office (Exhibit 33), purporting to summarise the plaintiff's complaints to South Ipswich Region Police Command, it was recorded that the plaintiff said that the first defendant watched her from the master bedroom and from the dining room windows. The plaintiff denied that the solicitor accurately recorded her complaint. That she was correct in that denial is confirmed by that not being what was recorded in her formal Police statement. It was when pressed on that error during cross‑examination, that the plaintiff said in addition to having seen the first defendant looking from the lounge room, she had "seen it from the bedroom" also (T133.40‑T134.01).
Exhibit K was a photograph of the house, showing its "L" shaped layout. The glass with mesh sliding door of the master bedroom appears at the viewer's left of the photograph. The lounge room glass doors are the next glass doors after the master bedroom, moving from the viewer's left to right. The bathroom window appears partly obstructed by the tree fern and just to the right of the two palms along from the corner of the "L" in the shape of the house. It is the second window from the viewer's right of the photograph. The first window can only be partially seen because it is obstructed by the tree fern. Exhibits M, Exhibit 1 (Photograph 5) and Exhibit 12 (Photograph 2) show the inside of the bathroom. The shower head was seen affixed to the wall. There was a shower hose. A person showering would do so within the substantially sized spa bath which extended to below the open window of the bathroom. The common evidence was and it is best seen in Exhibit 1, that the right side window panel was opened when persons showered. The common evidence is that the plaintiff was required to shower with that window open and in order to avoid mould in the bathroom.
Exhibit M was introduced late in the hearing and only after the plaintiff had completed her evidence. It was introduced by counsel for the plaintiff during his cross‑examination of the second defendant.
There was no evidence confining the position of the plaintiff whilst she showered. In my opinion, it is reasonable on the evidence to accept that a person would, when completing all of the functions of showering, washing and drying themselves, occupy the whole of the vessel of the spa bath; that is, assuming they did not restrict themselves to standing behind the opaque closed glass panel and immediately under the wall‑fixed shower head. I alerted counsel to the position of bottles and shower products on the window sill in Exhibit 1 (Photograph 5) and Exhibit 12 (Photograph 2), which infer that position.
The second defendant was adamant that one could not see a person showering from a position of standing in the lounge room, immediately at the lounge room glass doors and that the person would have to step outside those doors. She was tested on this evidence, and in my view, unconvincingly insisted that a person's feet would have to be inside the lounge room and their head just outside the door threshold in order for them to see into the bathroom. Her evidence did concede that one could see into the bathroom from outside of the lounge room, but from there one could still not see to the "shower area" (T474.06‑27 chief; T545.10‑48 cross‑examination).
The first defendant denied both that he had ever looked into the bathroom whilst the plaintiff was showering and that a person could see from either inside the master bedroom or the lounge room, to a person showering (T588.25‑50). When the first defendant was shown Exhibits J and 28 and asked to comment on the accuracy of the second defendant's evidence of a cupboard across the window not shown in Exhibit J and the line drawn by her and the position of it on Exhibit 28, he agreed that the line was approximately correct but, inconsistent with her evidence, said that the extra cupboards when the plaintiff moved in were on the left‑hand side (T590.23).
In summary, the first and second defendants denied that the first defendant did or even could see into the bathroom where the plaintiff was showering from either the lounge room or the master bedroom within the house. Chantelle denied that a person could see into the bathroom "where the shower was from anywhere on the terrace outside (T681.40‑T682.01).
I refer to a fact identified by the plaintiff in evidence, which I consider to be objective evidence of some assistance in determination of the dispute as to line of sight. That was, in the Exhibit 1 (Photograph 5) looking from within the bathroom through the bottom right‑hand corner of the open window, a VB beer can style refrigerator can be seen on the outside terrace. At Exhibit 12 (Photograph 4), which is a photograph taken in the direction of the bathroom from within the master bedroom, that same refrigerator can be seen at the left of the photograph. That distinctive refrigerator was positioned between the master bedroom glass doors and the lounge room glass doors. The Exhibit 1 (Photograph 5) line of sight was taken from a position back from the spa bath vessel at the extremity of the spa bath distant from the shower head. Geometry demands that, had the photographer stood within the spa bath vessel but some measure closer to the shower head, the line of sight would be at a deeper angle toward the glass lounge room doors, providing more of a view of those doors than does appear from the position of the camera in Exhibit 1 (Photograph 5). For illustration, see Exhibit 12 (Photograph 2). In that photograph, the photographer was standing well within the spa bath vessel and must be close to the shower head. From that position, the line of sight is deeply into the house through glass windows or doors, which are to the viewer's right of the lounge room glass doors in Exhibit K. This provided objective evidence of line of sight from the lounge room glass doors into the bathroom, through the open window. The field of view would be between the positions of the photographer in Exhibit 1 (Photograph 5) and Exhibit 12 (Photograph 2).
After closing submissions, the parties were invited to but were unable to agree on the aetiology of Exhibit M.
In my opinion, the credibility and persuasion of the oral evidence of the witnesses is to be viewed from the perspective that the objective photographic evidence. That objective evidence is to be preferred. I accept that there were lines of sight from the glass lounge room doors and from the glass master bedroom doors through the open bathroom window permitting at least a partial view of a person standing within the spa bath vessel.
During cross‑examination, the plaintiff exposed that the photographs put to her by the defendants did not accurately represent the views available from the master bedroom and from the lounge room glass doors to the bathroom. It was put to the plaintiff that Exhibit 12 (Photograph 4) showed the view from the master bedroom and that the bathroom window could not be seen. The plaintiff's evidence was that a person standing within the master bedroom could move to the right of the position of the photographer in Exhibit 12 (Photograph 4), where there was a second panel of the glass doors and see the bathroom from there (T133.35‑T134.05). Exhibit K plainly shows that second glass panel (the first glass doors, most to the left of the photograph and closest to the fence). It shows that the plaintiff's evidence was accurate.
I was concerned, without intending any criticism of counsel, that the defendants provided a photograph for the purposes of cross‑examination of the plaintiff which did not proffer what was known to them as the full glass door and therefore the full opportunity of line of sight from the master bedroom to the bathroom window.
I noticed during cross‑examination of the plaintiff that whilst the defendants put a sketch of the house and the Exhibit 12 (Photograph 4) photograph from the master bedroom window, there was no photograph put to her of the view from the lounge room. After I made enquiry of counsel for the defendants, Exhibit 28 was introduced. It was the subject of cross‑examination of the plaintiff and tendered in the defendant's case. Exhibit 28 is a photograph of the view of the lounge room toward the bathroom windows. The photograph plainly shows double glass doors. The plaintiff's evidence was again that the glass extended further to the right of the photograph. Again, her point was that someone standing to the right and near the glass had line of sight toward the bathroom window, which cannot be seen in Exhibit 28. When Exhibit 28 was shown to the second defendant, she indicated by a dotted line down the curtain on the right of the photograph where the window was covered by a wardrobe. However, in re‑examination, the plaintiff said that the lounge room window was three panels of glass wide and that Exhibit 28 showed only two panels of glass.
Exhibit J is a photograph which was not available during the plaintiff's evidence, but was introduced by counsel for the plaintiff during cross‑examination of the second defendant on day 8 of the hearing. In about the middle of the photograph, to the viewer's left is the sunken lounge room. The glass lounge room doors can be seen. There is a cupboard, but it is not in the position about which the second defendant gave evidence of a cupboard during the period of the plaintiff living at the premises. As Exhibit J was not shown to the plaintiff, she did not give evidence on that topic.
What can be seen in Exhibits J & K is consistent with the plaintiff's evidence of a three glass panel lounge room door.
The expression "in the shower" in paragraph [53] of the plaintiff's formal Police statement is not, in my view, fairly to be read as restricted to the position of a person immediately below the shower head which was affixed to the wall (see Exhibit M). In my view, "in the shower" is an expression which would commonly be used to include the area used by a person showering. In this instance, that would include the spa bath vessel. At no point in the hearing did the evidence restrict the plaintiff's description of her being "in the shower" to her stating that she was immediately below the shower head and near the wall: T122.45‑T123.26; T126.10‑T127.30; T128.11‑20; T129.15‑24; T155.15).
At no point in the evidence did the plaintiff describe how much of a person showering could be seen from the lounge room or the bedroom. In Exhibit K, the bathroom window (again, the window partially obscured by the left hand side of the tree fern and between the tree fern and the palms) is seen as being a relatively high window in the wall of the building.
The plaintiff's evidence at T122.45‑T123.26 included that she had seen persons in the bathroom when she looked from the lounge room and master bedroom. Her belief that she was being watched by the first defendant whilst naked when showering was fortified by that experience. The plaintiff did not give evidence of the first defendant's conduct by actions or words which added to her interpretation of what he was doing when she saw him looking in the direction of the bathroom window from the lounge room and the master bedroom whilst she was showering. In my view, her evidence was interpretative of his motive. She did not, for instance, describe how much of the body of a person showering could be seen. She did not describe the first defendant's action in a way which portrayed more than that at times she saw him behind those windows looking in the direction of the bathroom window whilst she was showering and, if she sat low to avoid being seen by the window, when she stood back up, he was still in that position.
Given the contest between the plaintiff's evidence and that of each of the defendants, I have preferred to rely on the objective photographic evidence to the extent that I consider the oral evidence to be inconsistent with it. I do accept that, more probably than not, a person standing close to the glass at the right hand side of the lounge room window and on the right side of the master bedroom window, was able to see at a shallow, oblique angle, into the bathroom, some portion of a person in the course of their showering activity. There is nothing in Exhibits 1, 12, J, K and M which is against the plaintiff's evidence of line of sight between those positions. The objective photographic evidence supports her oral evidence. I do not accept the evidence of the defendants and of Chantelle that a person in or about those positions did not have that view.
In my opinion, the plaintiff's allegation would, if found, have established only contextual or background evidence. It would have been evidence insufficiently connected to and indirect of the sexual assaults for any inference to have arisen from it in favour of the plaintiff's case of sexual assaults. However, the height of the bathroom window and the angle of the views was objective evidence against the proposition that a person observing someone showering from either of those positions of the house, would have seen much of the body of the person showering. Even if I am wrong in my interpretation of the photographic evidence of that affect, the plaintiff did not give evidence of which parts of her body could be seen. Having considered the plaintiff's evidence carefully, I remain unpersuaded on the balance of probabilities that, on the occasions on which she saw the first defendant looking in the direction of the bathroom window whilst she was showering, that he was looking at her in a voyeuristic way. The plaintiff's interpretation of having seen the first defendant looking in the direction of the window, when considered on the whole of the evidence, was too indefinite and imprecise for it to be reasonably found that he was watching her for purposes of sexual interest or gratification whilst she showered. The evidence on this topic is not of assistance in the determination of the issues in this case.

TRIAL MANAGEMENT - JUDICIAL DETACHMENT

The Defence Closing Written Submissions (MFI 21) make several criticisms of judicial conduct of the trial, most significantly: 1. With reference to my speaking directly to the first defendant in regard to his display of hostility to the plaintiff in the courtroom, on the ninth day of hearing, Thursday, 17 September 2020, that: 1. "At that point in the trial, it was hard to conceive of an event that would more adversely have affected the calm, the equilibrium, and the balance of that witness" at [114]; 2. "The intervention of the Court with Ian Kinnear gave rise to a perception that the Court may have engaged in pre-judgment of the witness and inhibited the ability of the court to properly assess the demeanour of a witness [case law and principles concerning "pejorative comments" and "unduly intimidatory, interventionist, or directionist" judicial intervention referred to] at [115]‑[116]; 3. "It is most respectfully submitted that the tone, nature and ferocity of the Court's comments to the Ian Kinnear was not (nor could be) justified" at [117]; and 4. "…there were days when the Court opened in a tone hostile to counsel for Ian Kinnear and Leisha Kinnear and counsel responded defending his conduct and his clients with the consequence that the Court took the view that counsel was "most aggressive" and other similar comments as to which see: for example page 423 transcript lines 423 and following" at [118].
It is important that these criticisms be provided a response and with the benefit of counsel for the defendants' subsequent closing oral submissions. At the close of the case, counsel for the defendants addressed those Defence Closing Written Submissions, with the following (T790.13‑30): …Now, the rye post to that submission is obviously that one could have made an application for recusal or something of that nature. I didn't apprehend that your Honour was unfair throughout the trial and I didn't make that submission. There were particular events in the trial in which - to be frank - the defence were shocked. It was - in my submission - properly addressed. In my submission, I expanded upon it a little about seeking to justify my position in the Court because I submit that I was careful and punctilious and respectful to the Court. The court - in the interests of all of the community - must be respected, certainly is respected by me and there was one place in the submission where I did humbly apologise when the Court apprehended something from me which I did not intend. That was at p 154 of the transcript, but there's no submission that this was a recusal case. It was simply an event in the course of the trial which the representative for the defendants points to, and it's not beyond that. I don't wish to expand on that at all. We've said what we want to say in that respect.
At [108], Defendants' Closing Written Submissions (MFI 21) address the Court's first warning given to the first defendant, that whilst he was in the witness box, he was not again to direct any comment to the plaintiff in the courtroom, as he had just done. He apologised. His words aggressively directed to the plaintiff (T576.25‑30) were spoken with obvious anger, as she sat only a few metres away from him. The plaintiff was sitting quietly, taking notes and looking down. That was her presentation throughout most of her time in the courtroom, when not giving evidence. She was a person of serious psychological vulnerability who reportedly had attempted suicide on 8 prior occasions. In the emotion‑charged environment of the hearing, it was important to direct the first defendant that he stop his directly and aggressively confronting of the plaintiff.
At [109], the defendants' submission is directed to the second warning to the first defendant which occurred only 17 transcript pages after the first warning to him. The luncheon adjournment had intervened. Nevertheless, when the first defendant spoke his answer (T593.20): "This never happened. I loved that girl like a daughter, and I'd never touch her", he did so with a physical and vocal display of aggression. When his counsel commenced his next question, the first defendant was jutting his head forward whilst staring at the plaintiff and then shaking his head at her. This physical and spoken action erupted suddenly and was alarming. This was particularly so because of his body movement. Being in a civil courtroom meant there was nothing between the very large first defendant and the plaintiff sitting in the first row of the gallery, but for a few metres of clear passage after stepping from the witness box. I say that not because the first defendant actually appeared to be rising from his seat in the witness box, but only to describe the measure of the risk.
As the Court, my immediate response was to demand that he stop. He falsely denied his action. The direction I then gave to him was to restore the security and civility of the proceeding. The transcript at T593.18‑45, contains the whole of that event: Q. She claims that it happened really all that year, and all through 2009 it happened. Do you deny that? A. This never happened. I loved that girl like a daughter, and I'd never touch her. Q. She said - that is, the plaintiff Isabell‑‑ HIS HONOUR: Stop for a second, will you. Sir, if you look at the plaintiff again, with that aggressive stare‑‑ WITNESS: I didn't look at - stare..(not transcribable).. HIS HONOUR: Excuse me. You looked directly at the plaintiff - I have not finished describing the action‑‑ WITNESS: I apologise. HIS HONOUR: ‑‑in an aggressive fashion, and shook your head at her. And she is looking down at her lap, minding her own business, with a pen in her hand, and a piece of paper. Do not deny to me that you did it, because I observed it. WITNESS: I apologise. HIS HONOUR: And you will not do it again. That's your second warning. The third warning, I will consider contempt. WITNESS: I apologise.
As the transcript shows, when I commenced to direct him to stop, his emotional aggression was so heightened such that he spoke over me to falsely deny that which he had done. As spoken by counsel for the plaintiff in closing submissions (T799.35), the first defendant "immediately - without a moment's hesitation - denied what we all saw occur".
Speaking that direction strongly was, on reflection, appropriate in that it was spontaneous to the shock of his immediate physical and vocal expression of aggression toward the plaintiff. The defendant's submission that the Court admonished the first defendant "in terms so vehement…" is unfair. He was admonished without emotion but with alarm and in a spontaneous warning, given to police the situation. The same response is made to the defendants' submission at [117].
At [111]‑[113] and [118]‑[120], the defendants submit that the Court was critical of and hostile toward counsel for the defendants.
In the above quoted passage from oral closing submissions at T790, counsel for the defendants addressed the whole of the defence submissions between [108]‑[121], submitting that he did not form the view during the hearing that there was a basis for an application "for recusal or something of that nature" and that he "didn't apprehend that [the Court] was unfair throughout the trial". He described a purpose of his written submissions as "…seeking to justify [his] position in the Court…" as a respectful and punctilious one.
It is appropriate to make the following observations: 1. Immediately following the Court's admonition of the first defendant, in front of all parties except for the first defendant, who had stepped outside, counsel for the defendants' described the Court's direction to the first defendant as: "If not calculated, have the effect of intimidation the witness…undermine my questions…give the witness a view of the way in which the Court views him, and give the appearance, no‑doubt misleadingly, of impartiality". Then, after referring to the grievous allegations in the litigation against the first defendant, counsel for the defendants offered justification for the first defendant's direct physical and aggressive confrontation of the plaintiff as him acting: "not without some reason, in the vehemence with which he deals with the accusations…the Court is not to be regarded as a trap, where the person who is a defendant, reacting as a defendant…". He suggested that the Court was not treating the defendant with the same level of understanding as it had done the plaintiff when she gave evidence. He then said that he was unable to continue with his witness in the circumstances. At T594.35, he said that defendants: "…don't come to Court, your Honour, to be put in a position which is entirely unequal with that of the plaintiff. There is, your Honour, in our community, a sympathy extended to litigants in sexual assault matters, but it does not follow, with respect, that persons who are accused are guilty of matters asserted against them". After a 15 minutes adjournment, examination‑in‑chief of the first defendant recommenced. 1. That although those most serious allegations of unequal conduct were made in open Court, but in closing oral submissions, counsel denied having suggested an apprehension of unfairness during the trial and that he "didn't make that submission" (closing oral submissions at T790.16 - included in the quote above); is but one illustration of counsel making serious criticism of conduct of the hearing, but subsequently conceding that he had been inaccurate or unfair or inaccurately denying that he had made the criticism. 2. The Court's response on Day 9 to counsel for the defendants appears at T595, including reference to stopping any direct action between the parties in the courtroom (T595.09). At T596, the Court addressed the first defendant, encouraging him to put the event from his mind as he continued in his evidence. It was my view, as the Court then, and remains my view that the aggression of his reaction did not weigh in the assessment of the credibility of his evidence. This was because, in my opinion, a person innocent of the grievous allegations made in this civil trial or a person guilty of them might react in that way. The first defendant's outburst was a short‑lived loss of emotional control, in that context. 3. I was concerned that the parties might perceive unfairness within the trial. I attempted to address defence counsel's criticisms by explaining my rulings. Those instances included the following:

Misdescription of Tender of Court Book 1. Near the commencement of cross‑examination of the plaintiff, counsel for the defendants indicated that he sought to tender all or nearly all of the Combined Court Book (MFI 5) and the Defendants' Supplementary Court Book (MFI 9) (T89.11; T90.05). The Court books totalled approximately 651 pages, of which only approximately 330 pages were ultimately tendered. At that early stage, when Counsel for the defendants referred to 500 pages, he must have been referring to the 583 page combined Court book (MFI 5). The defendant's additional Court Book (MFI 9) was introduced later at T130.25. 2. At the commencement of the hearing, in relation to the then available Combined Court Book I had ruled that the parties: "will be required to take the Court to documents upon which they rely by tender and admission as Exhibits in the normal way. Only documents which become Exhibits will be read by the Court". 1. I did not criticise counsel for the defendants, but responded that it would require a persuasive application for tender of the whole content of the Court Book to occur at that early stage. I offered that it may be that I was going to hear from him that there was "a good reason to have to read the whole of the Court book": T89.15‑20. In Counsel for the defendants' reply submission, he inferred that he was having to press against the Court's resistance of his opportunity. He stated (T90.01‑06): Having prepared carefully for it, I would be grateful for the opportunity, your Honour, to proceed with it and to have any contention or difficulty the Court has with my presentation of the case dealt with as I progress. All I've indicated is that I would seek to tender the court books at some stage, to which I apprehend the Court is not well-disposed, and I withdraw that proposition in those circumstances. 1. At T90.15, counsel withdrew his position by voicing that ultimately, he would seek to tender documents as determined, after having taken the witness to them: T90.14 and T90.26‑34. To that position, I responded that he had voiced "that which I suggested to the parties at the commencement of the hearing": T90.36. 2. At commencement of the following day, I clarified that I was making no criticism of counsel for the defence (T109.31‑T110.45). Unfortunately, that did not end the matter. Counsel for the defendants responded that his use of the Court Book was "neither careless, nor disregarded" (T111.33), being criticisms which I had not made.

Misdescription of Assisting Reminder to Counsel 1. On day 3, immediately following the revisiting of the Court Book issue, counsel for the defendants sought to remind the Court that it had not determined the plaintiff's application for the evidence of Ms Turner (aka "Bea") to be taken remotely: T111.44‑T112.05. In fact, that determination had been made at the close of day 1 (T58.40) and what appears on day 3 at T112.06‑09 is my reading of that determination from the day 1 transcript to remind counsel. 2. Counsel for the defendants responded stating "A rejoinder that I am inefficient by not having checked the transcript before raising the matter this morning" (T112.20) and thereafter described for the Court his preparation for hearing (T112.21‑29). 3. As the transcript shows, he had not been criticised for not checking the transcript, or indeed for not recalling the Court's earlier determination of the plaintiff's application that Ms Turner's evidence be taken remotely.

Wrong Claim of Ruling Causing Forensic Disadvantage 1. On day 3 (T129.30‑T130.25), the Court was first informed that MFI 5 was not a complete Joint Court Book and the defendants introduced the Defendants' Supplementary Court Book (MFI 9), which was thereafter referred to as "the Defendant Court Book" (T130.45). The Defendant Court Book had been delivered to the plaintiff by the defendant prior to the hearing. Commencing at T130.49, counsel for the defendants claimed that when the matter had been before the Court on Monday, 27 April 2020, I had directed the defendants to deliver to the plaintiff documents which the defendants had wished to withhold for the purpose of forensic opportunity, until cross‑examination of the plaintiff. It was claimed that the defendants had reluctantly produced the documents to the plaintiff ahead of the hearing, in compliance with the Court's order (T130.50‑T131.05). Counsel for the defendants then criticised the Court for having put the defendants at a forensic disadvantage by forcing them to produce to the plaintiff before cross‑examination, a selection of documents (T131.30). 1. Counsel for the defendants' criticism of the Court was without foundation because he misstated what occurred on 27 April 2020. Indeed, the transcript from Monday, 27 April 2020, page 6, line 41, shows the Court had expressly stated each parties' right to forensically determine not to include documents in the Court Book for the purposes of producing those documents to the witness during cross‑examination: T6.21 (transcript of Monday, 27 April 2020). 2. At the commencement of day 4, I informed the forum of what actually occurred on Monday, 27 April 2020 and corrected counsel for the defendants' error. These were highly emotionally charged proceedings. I did so, as the Court, explaining my purpose to be (T199.11‑T202.10, particularly at T199.24‑30): "...that the parties have the opportunity to hear a correct description of the record of the hearing. To proceed otherwise would be to proceed without respect for the parties' rights to know both not just that they received justice but that they apprehend they have received a fair process, and also, so that they have an understanding of the proceeding were they for instance to want to appeal some point." See also: T201.46‑T202.10. On the defendants' request that I do so, the transcript of Monday, 27 April 2020 became Exhibit 8. 1. It was not until after close of evidence and outside of the court room, that by the Defendants' Closing Written Submissions dated 15 October 2020 (MFI 21) at [102]‑[106],counsel for the defendants conceded his error.

Claim of Denial of Line of Cross‑Examination 1. On day 3, counsel for the defendants criticised the Court's rejection of a question, under s 41 of the Evidence Act 1995 (NSW). He stated that the Court was denying him embarking on a line of cross‑examination of the plaintiff as to prior accounts given by her of the events. The exchange occurs between T152.06‑T155.16. It occurred in the absence of the plaintiff but the defendants were in the courtroom. 2. Counsel's criticism was inaccurate. I had rejected a single question on the basis of its form. The question was (T152.06): Q. You've admitted, haven't you, at various times that you are given to blanking things out that you don't like to remember? The plaintiff had conceded her understanding that trauma had caused her to block out memories (see evidence in‑chief at T92.35); but she had not admitted exercising a deliberate choice to do so. I specifically ruled "there are other ways of having asked it, the same topic…" (T152.16). 1. Counsel for the defendant's response spanned 3 transcript pages of exchange and included the criticism that the Court was being hostile to him. 2. At T155.16‑19, Counsel for the defendants asked the same subject matter of question properly in regard to past statements by the plaintiff to persons, including medical practitioners. 3. On day 4, at T202.10‑19, I included in my assurance to the parties of procedural fairness, that counsel's criticism of my rejecting a line of cross‑examination enquiry was inaccurate and that it was important that the parties appreciated that the Court understood the significance of the civil litigation to them.

Wrong Claim of Rejection 1. On day 5, counsel for the defendants at T297.45, commenced cross‑examining the plaintiff on the basis of the medico‑legal expert witness report by Ms Troy, Psychologist, retained by the plaintiff. Between T297 and T319, questions made reference to what was recorded in Ms Troy's report and questions were also asked of other factual matters, not referred to by Ms Troy. These included questions referring to the Department's records and other subjects such as whether or not the plaintiff attended her grandmother's funeral. At T319, counsel for the defendants put to the plaintiff that she had neglected her dog, which she denied, and then that she had neglected her budgerigar. The plaintiff's counsel objected to this latter question on the basis of relevance (T319.23). I enquired of the relevance of the question, whilst conditioning my inquiry by stating: "I must say, it's difficult to imagine how it I going to be relevant unless you're going to some matters which are basic factual assumptions in reports that differentiates between them." (emphasis added) This occurred before the tender of the expert medico‑legal reports from Ms Troy and Dr Skinner. The practice, announced from the commencement of the trial, was that the Court would not read documents in the Court Books until they were tendered. I was unaware of the content of those expert reports. 1. Commencing at T320.30, counsel for the defendants confirmed that he was putting factual matters recorded by Ms Troy as having been stated by the plaintiff, in order to show the plaintiff's different evidence given orally in Court as to those matters. At T320.41, counsel for the defendants' criticism of the Court was: "Now, if your Honour says your Honour has come to some findings so far and it's unnecessary, I'm happy not to pursue it at all. I understand they go to credit. But if your Honour hasn't come to some view of it, then I comprehend, your Honour, I need to not only raise questions about credit, but to take the opportunity to show how wide the questions of credit really do drift in this case, your Honour. That's my submission." 1. At this point, I reminded counsel for the defendants that I had not read the reports and was therefore not aware that his cross examination concerning neglect of a budgerigar arose from the report. At T321.14, I reminded Counsel that (as quoted above), I had specifically conditioned my inquiry of relevance of the question to whether or not it went to factual assumptions that appeared in the expert report. Counsel for the defendants assured me that he had heard that. 2. The next day of hearing was Monday, 14 September 2020. I was concerned that counsel for the defendants' objection suggested to the forum that I had formed a view (as he stated, "come to some findings") on the question of the plaintiff's credit, before the completion of the plaintiff's evidence and before receiving other evidence in the hearing. In order to preserve the integrity of the hearing, I asked counsel for the defendants to provide a list of the findings about which he had spoken. 3. In an exchange during which counsel for the defendants spoke over me several times and refused to sit to let me complete an explanation of that request (see T323), he retreated to the position that he had been speaking only as to the admissibility of the single question and to nothing else (T324.04‑43). 4. Of course, I had never ruled to reject the question, but had only enquired as to its relevance. The broader proposition of the plaintiff's credit was a matter introduced by counsel for the defendants.

In closing oral submissions (T799.45‑T800.24), I repeated the assurance that none of the exchanges between counsel and the Court, nor the first defendants' spontaneous, aggressive action, would weigh with any persuasion in my determination of the hearing. The case has been determined on the evidence in the usual way.

Limitation of Actions

On 30 March 2021 the defendants were granted leave to file Further Amended Defences to plead in answer to the whole of the Statement of Claim, that the plaintiff's causes of actions for sexual assaults alleged to have occurred in November 2011 and January 2012 were statute barred. Those defences were filed on 31 March 2021. They plead the limitation period under s 14(1)(b) of the Limitation Act 1969 (NSW). That period is 6 years. Defence written submissions on 12 April 2021 correctly rely on the limitation period of 3 years under section 50C of the Act. Pursuant to leave granted on 30 March 2021, on 1 April 2021 the plaintiff filed her Reply to the Amended Defences. By her Reply the plaintiff relies on sections 50C and 50D of the Limitation Act 1969 (NSW).
The proceedings were commenced on 5 April 2018.

Principles

The applicable provision of the Limitation Act 1969 (NSW) for the causes of action upon which the plaintiff proceeds is section 50C(1)(a). Pursuant to that provision, the limitation period is 3 years running from and including the date on which the cause of action is discoverable by the plaintiff. Pursuant to section 50D a cause of action is "discoverable" by a person on the first date that the person knows or ought to know of each of the following facts: 1. The fact that the injury or death has occurred, 2. The fact that the injury or death has been caused by the fault of the defendant 3. In the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of an action
In the proceedings, the plaintiff sued for "breach of duty" which term is defined in the Act to extend to trespass to person; section 11.
The parties contest when the plaintiff's cause of action was "discoverable" within the meaning of section 50D. Immediately, there can be no issue that the plaintiff would have had actual knowledge of each sexual assault when it occurred.
Whilst for discoverability under s 50D the plaintiff need not be able to articulate a cause of action in terms of negligence, nuisance, breach of duty or trespass, it is the key factors necessary to establish liability which must be known or which would have been ascertained by the plaintiff had she taken all reasonable steps. Taking all reasonable steps must, in appropriate circumstances, include obtaining medical and legal advice because of the key facts identified in section 50D(1)(b) - "fault of the defendant" and (c) - "that the injury was sufficiently serious to bring an action on the cause of action". It is implicit that knowledge of the fact of "fault" and that the injury was "sufficiently serious" within the terms of those sub-sections requires an evaluative judgment exercising both legal and medical expertise. This is the nature of the knowledge which the plaintiff is required to have had or to ought to have had, for the limitation period to commence to run. Nevertheless, reference to specific facts in section 50D does not mean an assessment of the prospects of success in the prospective proceedings. In this context, section 50D connotes a culpable omission by the plaintiff. In most circumstances, the step of instructing a solicitor will be sufficient for a prospective plaintiff to satisfy the element of taking "all reasonable steps" :Baker-Morrison v State of NSW (2009) 74 NSWLR 454; [2009] NSWCA 35 at [37] to [45], [57]-[61], State of NSW v Gillet [2012] NSWCA 83 per Beazley JA (as Her Honour then was) at [66]-[73] and [94], [98], [104].
At [104] of the Gillet Case supra Beazley JA (as Her Honour then was) said of the "objective test": "… for the purposes of section 50D(2), the Court had to determine whether a fact within the meaning of section 50D(1) would have been ascertained if a person had taken all reasonable steps to ascertain it before the relevant date. This would involve an inquiry of the steps actually taken by the plaintiff, if any, and whether the steps satisfied the Court's determination of what were reasonable steps to take in the particular circumstances of the given case." All members of the Court of five agreed.
More recently the Court of Appeal in Pomare v White [2019] NSWCA 317 (Basten, McFarlane JJA agreeing; Emmett AJA dissenting) at [81] explained; "…there must be a perception that the relevant conduct of the prospective defendant give rise to legal responsibility that is actionable, such that the injured person is entitled to be compensated for the injury caused by that 'fault'. That is to say, since accountability is one of the factors necessary to establish liability, actionability must be known before section 50D(1)(b) is satisfied."
The question of whether or not the plaintiff has been "culpable" (see :Baker-Morrison v State of NSW per Basten JA at [59]) given her mental illness, draws attention to the suspension of time running pursuant to section 50F, the definition provision section 11(3)(b) and section 52 of the Act. Neither party addressed these provisions of the Act in written submissions but at [16] of the written submission in relation to section 50D(1)(c) the plaintiffs argued that the legal and medical evaluative judgement involved in this case "a mentally ill Plaintiff, with serious psychiatric diagnoses, abused in an extended but domestic family context and an interstate move, partly due to the abuse."
In Walker v Howard (2009) 78 NSWLR 161; [2009] NSWCA 408, the Court of Appeal considered application of the provision for extension of time to commencement of proceedings under the Motor Accidents Compensation Act 1999 (NSW) section 109 (which statutory provision is not equivalent of section 50F). Allsop P (as His Honour then was) of whom Spigelman CJ, Campbell, Macfarlane and Young JJA agreed, reasoned: "the positing of a "reasonable person in the position of the claimant" clearly expresses a degree of objective analysis. This is in the statutory context which includes a mentally incapable person providing (at or about the time seeking to commence proceedings) an explanation for the delay. It can be expected as Lord Hoffmann said in Adams v Bracknell Forest Borough Council [2004] UKHL 29; [2005] 1 AC 76 at 86 [33] that the word "reasonable" imports an objective standard, but the degree of objectivity may vary according to the assumptions made about the person in question and that the breadth of those assumptions and the extent that the assumptions reflect the actual characteristics of the person in question will depend on the reasons why the law imports an objective standard."
Pursuant to section 50F, of the Act, if a person has a cause of action for which a limitation period has commenced to run and the person is under a disability, the running of the limitation period is suspended for the duration of the disability, which is the duration of the period while the person is incapacitated, for a continuous period of 28 days or more: section 50F(1) and (2)(b). Section 50F is informed by the definition provision of section 11(3)(b)(i) that a person is under a disability while the person is for not less than 28 days, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of (among other things) any mental condition. Further pursuant to section 52 of the Act where a person has a cause of action for which the limitation period fixed by the Act has commenced to run and the person is under a disability, the running of the limitation period is suspended for the duration of the disability and if but for the application of section 52(1), the limitation period would expire before the lapse of three years after, the date on which the person last ceased to be under a disability, the limitation period is so extended to after that date.
In Kotulski v Attard (1981) 1 NSWLR 115, Slattery J held that in section 11(3)(b) "substantially impeded" mean to obstruct in progress or action; hinder or stand in the way of; to an extent which is more than trivial but not total; page 117G. In NSW v Harlum [2007] NSWCA 120, whilst approving Slattery J's interpretation of section 11(3)(b) Beazley JA (as Her Honour then was) with whom's judgment Tobias JA agreed, said: [90] Finally, it was submitted that his Honour adopted the wrong approach in determining whether the respondent had established that he had a disability. It was submitted that his Honour should have undertaken an analysis of what would be necessary to run a case. It was submitted that his Honour should have analysed the matter on the basis of determining whether the respondent: (1) appreciated that something had occurred which might give rise to a claim; (2) could make a decision to instruct a lawyer; (3) could recite the facts or point to where the facts could be ascertained; (4) could understand advice and provide instructions; and (5) see an expert doctor to provide evidence. It was submitted that the evidence demonstrated that if each of these questions had been asked in respect of the respondent, an affirmative answer would have been given to each question. This submission was partnered with a submission that his Honour's reasoning at [69] was wrong as a matter of principle and his factual findings at [70] were erroneous: [69] and [70] of his Honour's judgment are set out at [57] above. [91] The difficulty with the State's submission is that it effectively constructs a template against which the respondent's claim is to be adjudged and which appears to require serial satisfaction. A 'test' constructed in that way is seriously misleading. If each question is asked in isolation, the answer to each may well be in the affirmative, as the State submitted. For example, if the first question was posed in this case: "did the respondent appreciate that something had occurred which might give rise to a claim" the answer, probably, would be "yes". Likewise, if the second question was posed, "could the respondent make a decision to instruct a lawyer", the answer may be "yes", although I would have to say that would be more problematic than the first. However, an answer to the third question, on the evidence in this case, would almost undoubtedly be "yes", and so on. [92] On this approach, the State would contend that when the 'template' was complete, it would be full of affirmative answers, or mostly affirmative answers and that would provide the answer to the question that the court had to determine. However, seeking the answers to a series of questions in this way fails to grapple with the statutory requirements of s 11(3)(b). As Slattery J pointed out in Kotulski at 118, the enquiry under the section is directed to determining whether the person claiming to be under the relevant disability is able to "reason normally about the matters relevant to a potential cause of action, to understand and consider advice, and to give instructions about any action" (emphasis added). [93] In my opinion, the State's serialisation of questions provides a false simplicity to the determination of the question of whether the person is "substantially impeded in the management of his or her affairs in relation to the cause of action" within the meaning of s 11(3)(b) and omits the fundamental aspect of being able to "reason normally" about the various aspects that are involved in bringing a claim. [94] The State's approach also fails to deal with another of the other fundamental aspects of bringing a claim, namely that it requires the exercise of willpower to initiate the claim: see Kotulski at 118. In this regard, I consider that it is important to understand that it is not only a question of having the willpower to engage in the task of commencing proceedings. Such an approach takes a far too simplistic view of what is involved in the commencement of an action. In making a decision to commence an action, the person is also making a decision to continue with the claim. [95] Even if a person is able to fulfil each of the requirements contained in the State's approach, including the making of a decision to instruct a lawyer and to provide instructions, the person may not have the willpower to engage in all that is required to commence an action because of that person's mental condition.
Basten JA dissented because he found that the plaintiff had failed to establish that their failure to bring proceedings was caused by reason of his depressive illness. Finally, on this point, in Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369, at [140], Campbell JA determined that "the management of his or her affairs" in section 11(3)(b) to mean in the context of the Act: "…the relevant affairs" or ones in relation to a particular cause of action. In a general sense, managing one's affairs in relation to a particularly cause of action includes doing the various things that would need to be done if that cause of action were to be dealt with. Thus, it includes seeking advice whether a civil remedy exists for some perceived wrong, seeking advice about the risks, costs, efforts involved in pursuing any such remedy, and the likely returns, comprehending, and evaluating, that advice, and if the decision to commence proceedings is taken, thereafter engaging in the continued process of cooperation, interaction and decision-making that exists between lawyer and client in running any civil action."
At [141] His Honour continued: "The purpose of section 11(3) and section 52 is to identify circumstances of where it would always be just to allow the plaintiff a longer time of which to commence an action" pursuant to the purposes of the provision that empower a Judge to grant a discretionary extension to the limitation period.
As the plaintiff was an adult for the subject period, the suspension provided by section 50F(1) would continue whilst she remained an incapacitated person, so long as the period of the incapacity was 28 days or more.

Facts

On 30 March 2021, the parties indicated that they wished to proceed with this Limitation Act point by affidavit evidence and written submissions. The plaintiff subsequently filed the limited affidavit evidence of the plaintiff's solicitor, Ms Richele Nelsen, dated 6 April 2021 and her own affidavit of 7 April 2021. The defendants chose not to file any affidavit evidence. In the defendant's written submissions dated 12 April 2021, no objection was made to the affidavits and they are read.
The appropriate starting point is the factual history set out earlier in these reasons, under the sub-heading Chronological Sketch. In addition to the events therein described, the plaintiff's affidavit of 7 April 2021 deposed that in about 2013, Dr Tony Cook at the Oasis Medical Centre encouraged the plaintiff to report the allegations of sexual abuse to police. That she was diagnosed to suffer ADHD, for which she received treatment from Dr Cook over a substantial period between the alleged assaults and commencement of the proceedings, and that in late November 2013 she was referred by Acute Care Team Bayside Mental Service to dialectical Behaviour Therapy for access to which treatment she had to wait.
Significantly, for the purposes of determination of the present question, on 30 January 2017, the plaintiff contacted Gerard Malouf and Partners for assistance with dealing with police. The plaintiff's oral evidence in the hearing, repeated in paragraph 8 of her affidavit, was that she dealt with police from 17 December 2016 when she attended the Ipswich police station, Queensland for the purpose of making her formal Police statement, and that she suffered, what she considered to be, difficulty with dealing with the police in the making of that statement. In paragraph 9, the plaintiff deposed that she initially contacted her solicitors on 30 January 2017. The plaintiff said she spoke with Ms Richele Nelsen, of that firm. Ms Nelsen informed the plaintiff that she could make a claim for compensation. The plaintiff deposed that was the first time she became aware that she could bring a civil claim for compensation against the defendants for the sexual assaults. At paragraph 10, the plaintiff deposed that prior to that conversation she was not aware that she could make the claim that is the subject of these proceedings. By her affidavit, Ms Nelsen, corroborated the plaintiff's evidence, stating that she received a call from the plaintiff on 30 January 2017 during which the plaintiff sought legal advice in relation to abuse she had suffered, "inflicted by the first and second defendant" and she advised "the plaintiff of her potential rights to compensation in relation to the abuse." She then received instructions and a file was open on 8 February 2017.

Argument

In their written submission dated 12 April 2021 at [1]-[4] the defendants point to a history covered in the Chronological Sketch portion of these reasons and the plaintiff's complaints to medical clinicians and Miss Scofield and Miss Turner. They submit that she was aware in 2013 and 2014 that she was suffering mental illness, that she then knew or ought to have known of her personal injury, and the availability to her of a cause of action for a legal claim in damages against the defendants. The plaintiff submits that the evidence does not establish that she knew or ought to have known of her actionable claim for damages in these proceedings until receiving Ms Nelsen's advice on 30 January 2017.
In my opinion, for the requirements of s 50D(1)(b) the evidence does not support the defendants' argument for the following fundamental reasons; 1. The evidence does not establish that the plaintiff contemplated, or ought to have known, that she was possessed of an actionable cause of action for damages against the defendants prior to receiving Ms Nelsen's advice. Whilst reporting her complaints of the sexual assaults to police is mentioned several times in the well documented history of her speaking to medical clinicians and, by entries in clinical notes, having spoken to her parents, there is no entry of her contemplating or having discussed with anybody the bringing of a civil action for damages. 2. The defendants' submission at [1, first dot point] that the plaintiff made a Victims Compensation claim in 2009 in relation to abuse and the hands of her parents, is not supported on the evidence. On 14 September 2009 (exhibit 19) and 24 March 2010 (exhibit 21) Ms Blenkin, psychologist, wrote to the Victims Compensation Tribunal referring to physical violence, punching, hitting and the plaintiff being held by the throat as well as emotional neglect at the hands of her parents. In these reasons I have found the second defendant to have participated in Ms Blenkin's role including in relation to obtaining reports from Ms Blenkin from time to time, whilst the plaintiff as a teenager lived in the Kinnear household. At transcript 289, line 10, the plaintiff's evidence was that she first became aware of the making of that claim to the Tribunal when reading Ms Blenkin's reports in the Court Book during her preparation for this hearing. She denied participation in the making of that claim. Further, a claim to the Tribunal was of a different character to the subject cause of action. The claim to the Tribunal did not involve consideration of the actionability of the subject claim at common law for damages consequent of breach of loco parentis and trespass upon a person by sexual assault. 3. The actionability of suit for breach for duty of care owed by each of the defendants to her as Foster Carers in a relationship of loco parentis is not so obvious as, for instance, injury negligently caused by a stranger. Indeed, at the commencement of the proceedings the defendants submitted that the Statement of Claim did not describe and extant duty of care known to law.
In relation to Section 50D(1)(c) Dr Skinner, psychiatrist, (exhibit 27) at [131] reported that, given the plaintiff's pre-existing complex mental health issues and her pre-existing difficulty within households of her adoptive parents where she displayed features of Borderline Personality Disorder, her pre-existing history of self-harm and attempts of suicide and personal rejection she had previously experienced in her life before the alleged sexual assaults; "It is not possible to identify any particular features of Ms Perry's psychiatric disorder as likely or unlikely to be as a result of the alleged sexual assault or abuse. This is because her condition is complex and is the consequence of multiple factors acting on her as a young person with genetic vulnerability." Further, Miss Troy, clinical psychologist in her report dated 18 May 2018, at [3.6] did not dissect the plaintiff's mental health issues as discretely identifiable with the alleged sexual assaults other than to say, that the alleged assaults exacerbated and likely increased the severity and further development of the plaintiff's pre-existing traits into a personality disorder as a young adult and post-traumatic features are directly related to sexual abuse.
In my opinion, those expert comments are opposite the proposition that the plaintiff knew or ought to have known that injury caused by the alleged sexual assaults was sufficiently serious within the terms of the common law and legislative regimes for causes of actions for damages within NSW for her to have known or ought to have known without an evaluative judgment exercising both legal and medical expertise, that she had a viable cause of action.
Further, the approach submitted by the defendants, particular at [3] of their written submission amounts to arguing that the plaintiff appreciated that something had occurred that might give rise to a claim, could make a decision to instruct a lawyer and could recite the facts or point to where the facts could be ascertained such that she could provide instructions and understand advice and see an expert doctor to provide evidence. Even had I found those circumstances extant in 2013 or 2014 the evidence is that the plaintiff only appreciated the availability to her of complaining to police. That is against finding that she appreciated that something had occurred that would give rise to this civil claim.
In addition, the evidence is against finding that the plaintiff could have made a decision to instruct a lawyer. The evidence shows that she was both unable to reason normally and without the fortitude to initiate and continue even a complaint to police. This is because of her state of mental health. In my opinion, the defendants' submission adapts the template approach rejected in NSW v Harlum, supra, in the paragraphs above quoted.
The evidence in this case is supportive of the plaintiff being unable to manage her affairs in relation to the prosecution of this civil cause of action because her mental health issues impeded her ability to seek a civil remedy at least prior to 17 December 2016. This factual conclusion is strongly inferred by the COPS Event Summary (exhibit 32) proving that on 10 January 2014 and for some weeks afterwards, the plaintiff was unable to give Tamworth police a factual statement for the purposes of a criminal prosecution because she was of a mental state that she required counselling before making a decision whether or not to provide a formal statement of complaint. Her continuing displayed inability to speak of the sexual assaults is reported in the medical clinical literature during the intervening period. Throughout 2013, she was receiving treatment under a Mental Health Plan relating to her complaints of sexual abuse. On 24 January 2013, Redlands Hospital Queensland, clinical notes record that she was self-harming, that her father was encouraging her to go to police but she did not do so and, as extracted at [61] above. Her mind concerning the complaints was racing with intrusive and negative thoughts, fleeting suicidal ideations and general increased acopia (a medically assessed inability to cope). Clinicians had to seek information from the plaintiff's partner because of the difficulty in obtaining information from her. That mental health treatment continued throughout 2014 and 2015.
In my opinion, the plaintiff until about 17 December 2016 was under a disability within the meaning of section 11(3)(b)(i) displayed by her incapacity to do that which she had contemplated doing since 10 January 2014, which was to make a complaint to the police, because she was incapable of making a statement. If she was incapable of making a statement, she was incapable of providing instructions to a lawyer for the bringing of this civil proceedings. Pursuant to section 50F the running of the limitation period was suspended for the duration of that disability, which incapacity ended in about December 2016.
The limitation period of 3 years pursuant to section 50C had not expired prior to the plaintiff's commencement of proceedings by Statement of Claim on 5 April 2018.

DISCERNMENT

As the plaintiff was the only witness who gave direct evidence that each of the alleged assaults occurred, her evidence, when considered with the whole of the evidence, must satisfy proof on the balance of probabilities, taking into account the gravity of her allegations, if she is to succeed in her action: s140 (2) Evidence Act. Her allegations were denied by the first and second defendants which denials were supported by the evidence of each of their children, Chantelle, Jake, Amy and Brock. It is significant in the consideration of the evidence that not just the second defendant but also each of the defendants' children denied ever seeing the first defendant sexually touch or assault the plaintiff as she claimed.
The Kinnear family spent a great deal of time together at home and on holiday during the period over which the plaintiff claimed the sexual assaults occurred. I have found, on my acceptance of the fact of the plaintiff's complaint to Ms Turner; that the plaintiff complained of bottom slapping and touching of her vagina during family play in the living area of the home and in front of the Kinnear family. My acceptance of that fact of complaint made, over the denials of the defendants and of their children that games involving the first defendant were played, except for a kicking game, assists in my acceptance of the plaintiff's evidence of the defendant also tickling her during play when amongst the family.
Nevertheless, I consider it a matter of particular significance, that each of the defendants' children denied the plaintiffs allegations that the first defendant sexually inappropriately touched her and with his fingers or hand touched her vagina in the course of tickling and bottom slapping play.
Dr Skinner observed (report, [135]) that a person might give an account of events which did not actually happen, but whilst genuinely believing that the events did happen and suggested that the plaintiff, because of her mental health issues, would be more prone than the average person to developing distorted perceptions of past events. Dr Skinner offered the possibility that because of underlying personality disturbance the plaintiff may come to believe a story which was never true. It is not necessary for there to be expert psychiatric or psychological analysis of the plaintiff's evidence in the hearing, in order to recognise that fallibility of human recollection. I respectfully agree with Justice Garling's observation in Gersbach v Gersbach [2018] NSWSC 1685 at [386]-[388] that the law has long recognised that recollection of events, particularly those which occurred in childhood, is susceptible to error and is also subject to the possibility that it may not even be genuine. As quoted by his Honour from the judgement of McHugh J in Longman v The Queen (1989) 168 CLR 79 at p107; [1989] HCA 60 at [18]: "Experience derived from forensic contests, experimental psychology and autobiography demonstrates only too clearly how utterly false the recollections of honest witnesses can be…" Experience requires differentiation between the giving of evidence honestly although mistakenly on the one hand, and the giving of false evidence dishonestly on the other. It is essential to assess both the honesty of the witness and the reliability of their evidence and not to assume the latter because of belief in the former.
These reasons examined the evidence of the plaintiff's capacity to recall events and the reliability of her evidence of events. I have also assessed the honesty and accuracy of the evidence given by the defendants and by each of their children.
At no point during my observation of the plaintiff as she gave evidence, nor when hearing the evidence of the witnesses for the defence, was I of the view that the plaintiff was a consciously untruthful witness. In my assessment, she held a belief that she was sexually assaulted by the first defendant. Judgement of whether or not the alleged sexual assaults occurred does not turn simply on the question of the plaintiff's honesty. Indeed, the history of her complaints, to Ms Scofield, Ms Turner, medical clinicians, New South Wales and Queensland police as set out in the chronology, weighs against finding invention for the purposes of personal gain in this civil suit. These complaints might have been based on falsely laid down memories, because of her instability of personality and mental health disorders as theoretically proffered by Dr Skinner, but in the absence of the expert comment from Dr Skinner and Ms Troy, based upon the evidence received in hearing, that is not a determination I am prepared to make.
Dr Skinner's response to the defence attorney's enquiry was that she found it not possible to say whether or not the plaintiff had made up/concocted/invented the allegations. There is no expert medical opinion evidence upon which the plaintiff's evidence in the hearing would be dismissed as so unreliable, purely on the base is of her mental health issues.
For the reasons given, I am not persuaded by the defence argument that the plaintiff's allegations are motivated by grievance, even in circumstances of my accepting that she bears resentment for, as she sees it, having been convinced by the defendants, when she lived with them, that her parents did not love or want her. If the defence ultimately maintained that the plaintiff was motivated by her father to prosecute this civil suit and in her complaints to the police, I do not accept that his involvement caused her to so proceed absent her honestly held belief in the allegations which she has prosecuted.
The necessary step toward answering the question of whether or not the plaintiff was sexually assaulted by the first defendant (and consequently whether or not the second defendant breached her duty to protect the plaintiff) is to carefully consider the reliability of her evidence of the sexual assaults. These reasons have approached answering this question by carefully examining the plaintiff's own evidence of her compromised capacity for accurate recollection, her presentation as a witness whilst recounting the events according to her memory, and by observing the inconsistencies and changes in her memories of the alleged sexual assaults from time to time. Consideration has been given to records of her memories when speaking to New South Wales police at Tamworth in January 2014, and whilst making her formal Police statement in early 2017 as well as her oral evidence in the hearing.
After allowing for what I have described as my caution before accepting the accuracy of the evidence of the second defendant and the defendants' children; I nevertheless accept the truthfulness of their denials of having observed the first defendant sexually assault the plaintiff and this includes during the tickling and slapping play (although they generally denied such play occurred). Particularly in regard to the allegation of digital penetration during the tickling and slapping games, that acceptance weighs heavily in my assessment of the persuasion of the plaintiff's evidence of those sexual assaults. It is to be recalled that the plaintiff said that sexual assaults of that nature, seen by the family, occurred frequently during the two years and nine months of her living in the Kinnear household.
The Exhibit 7 photographs of the Kinnear family holidays during 2011 showed the family sharing vacation activities as a family unit. On the whole of the evidence, including that there were 6 members of the Kinnear family living in the home during 2009 and from Jake commencing University in 2010, 5 living in the home and Jake there approximately half of the time; the picture of a physically close family unit is made by the evidence. Ms Scofield said that when she visited the home, family members were usually at home but not every second of every day and this was again consistent with the background portrayal of a well occupied family home.
I have accepted the first defendant was heard by Ms Scofield to speak to the plaintiff using language which Ms Scofield considered to be generally inappropriate in the presence of teenagers, given her then age experience of adults. The photograph (Exhibit 7, photograph 23) in evidence showed the first defendant performing the larrikin, salacious act of pointing at the female form of a statue during the 2011, Geelong holiday. But that evidence is not persuasive in determination of whether or not he committed the grave sexual assaults alleged by the plaintiff. That evidence provides background of his character and context evidence of larrikinism. Ms Scofield's evidence of seeing the first defendant's hand going to the plaintiff's bottom, was evidence of more significantly inappropriate behaviour. That evidence provided a realistic context of inappropriate sexualising behaviour of the first defendant toward the plaintiff which would make grave sexual assault of her by him somewhat less "out of the blue".
Ultimately, the primary question for determination in this case is whether or not the plaintiff's evidence when considered with the whole of the evidence, proved that she was possessed of a real recollection of the alleged sexual assaults.
The plaintiff acknowledged her problems with her memory of the events the subject of her allegations of sexual assault. She described her memory as changing, including as to the critical allegations of sexual assault such that her recall of an assault might be different from one time to another. She attributed her difficulties with memory to trauma, as well as to the passage of time. She was frank and honest in regard to her defective memory.
In these reasons, I identified the life changing event on 5 March 2009 when she ceased living with her parents and commenced to live with the Kinnear family. The significance of that event to her can only have been heightened by her recently restored relations with her parents and her resentment of having believed that they did not love and want her during the period in which she lived with the Kinnear family. Of precise importance to her was whether or not her father spoke harsh words of abandonment of her at that time. When interviewed by Ms Troy, medico‑legal psychologist retained by her solicitors and subsequently by Dr Skinner, medico‑legal psychiatrist retained by the defendants, the plaintiff informed them that she heard her father speak words abandoning her, when she was at her parents' home, during that separation event. In oral evidence, she denied knowledge of her father speaking words of abandonment and denied having been in her parents' home during the separation event. She said "I must have remembered that wrong", when speaking to Ms Troy and Dr Skinner. The plaintiff's evidence of her reports of 5 March 2009 displayed significant change of memory from time to time.
These reasons have examined the plaintiff's changing recollection of when and where the egregious sexual assault of ice being inserted into her vagina, alleged by her against the first defendant, occurred. In January 2014, she informed police at Tamworth, NSW, that the assault occurred during the Kinnear family holiday to New Zealand in 2011; but, in her formal Police statement made in early 2017 and during oral evidence, she said that it occurred when holidaying on Moreton Island in Queensland, at about Easter 2010. The magnitude of the difference between the two recollections is obvious from the Exhibit 7 Kinnear family 2011 holiday photographs, which featured the plaintiff and the family in New Zealand wearing winter clothing and that they shared ice and snow experiences; when by comparison, the 2016 Moreton Island holiday involved sand and beach activities in the warm Easter climate of the southern Queensland. In oral evidence, the plaintiff said that when speaking to police at Tamworth, she had mixed up her timelines. In my opinion, during those holidays, the plaintiff experienced virtually opposite environments. In my opinion, it is difficult to reconcile such a change with mixing up of timelines and holidays. Indeed, her allegation run at the hearing was that the assault occurred when playing the summer activity of putting ice down each other's backs and chasing. Even after allowing for the plaintiff's mental health difficulties and even if it were accepted that she had suffered severe psychological trauma as a result of sexual assaults at the hand of the first defendant between 2 and 5 years before the plaintiff's attendance upon police at Tamworth and had by 2017 a better state of mind through psychological counselling; that error, with consideration of her evidence of the assault, weighed against accepting that she was possessed of a real memory and a reliable recall of that alleged assault.
When making her formal Police statement, between 16 December 2016 and 5 April 2017, the plaintiff's memory was that she was sexually assaulted by the first defendant in January 2012 in a caravan park cabin at Lismore, prior to her attending Southern Cross University, which sexual assault involved him masturbating his erect penis whilst touching her all over until he ejaculated into tissues. When giving oral evidence at the hearing, her memory was critically different in that she specifically remembered the first defendant touching her vagina and mentioned nothing of him masturbating himself or of him ejaculating into tissues. With her typically frank honesty regarding her changing recollection; when challenged during cross‑examination as to that difference, she said that she only remembered when in Court, that the first defendant touched her vagina on that occasion. Effectively her memory of the alleged January 2012 sexual assault when making her formal Police statement, described to her a physically different assault to that which it described to her at the hearing.
In her oral evidence, the plaintiff was entirely unable to recall an event of the first defendant having pinned her face down to the ground and putting her hand on his erect penis through his pants whilst telling her that he would have sex with her but for the fact that she was not on "the pill". Her formal Police statement contained that allegation. She had told Queensland Police that the assault occurred during a marker pen fight in April 2010, when she was 17 years of age. That the plaintiff had no recollection of such an experience when she was being patiently asked about it by her counsel, was an alerting example of her believing in her recollection of the major event of a sexual assault on one occasion and having no recollection of it on another. An inescapable observation is that accepting that the recollection she held when making her formal Police statement was then real to her; the absence of any recall of such an assault when giving evidence at the hearing, gave further reason against accepting that her memories of sexual assault were real and accurate.
There can be no standard anticipated style of giving evidence for complainants in sexual assault cases. The law recognises that victims of sexual assault may not remember all of the details of a sexual assault or may not describe a sexual assault in the same way each time, that trauma may affect people differently, including affecting how they recall events and that it is common for there to be differences in accounts of a sexual assault in both truthful and reliable accounts, as well as untruthful and unreliable accounts: see, for instance, s 293A Criminal Procedure Act 1986 (NSW). The question which remains for factual determination after allowing for that understanding is; whether or not the plaintiff's evidence of the sexual assaults, when considered in the whole of the evidence of the hearing, is persuasive so as to satisfy me, on the balance of probabilities, that the first defendant committed those heinous acts.
Entries in clinical notes contained within Exhibit G/24, from which I have extracted passages in the Chronology Sketch section of these reasons and Ms Troy's report observations, have been found by me to meet with the plaintiff's presentation in the courtroom. I have described extraordinarily long pauses between some of her answers, frequent statements that she did not recall something of significance at the "point of time" of the question and her appearing to freeze in response to questions. During my assessment of the plaintiff as a witness, I have been mindful of Ms Troy's observation that she is impaired in her ability to self‑regulate her emotions and to tolerate normal, everyday stressors, such that she is vulnerable to becoming overwhelmed. However, I repeat, her difficulty was shown not to be confined to recalling better or further detail. Her evidence showed that she was possessed of inconsistent memories when required to give her recollection at different times.
In my opinion, it is significant that I observed her ability to recall significant events, including the sexual assaults, to be not obviously different between her examination‑in‑chief and during cross‑examination. This showed that her ability to answer questions on the basis of her recollection when she was least distracted or affected by the environment of the trial (i.e. during examination‑in‑chief) was not better than during cross‑examination. That the plaintiff presented to the clinician at Redlands Hospital on 24 November 2013 (Exhibit G/24) in the same way as she presented as a witness in Court, caused me to determine that her struggling to answer questions of the alleged sexual assaults was not feigned for the purposes of the hearing. I am satisfied that her evidence was a true and fair test of her ability to describe the sexual assaults which she believed occurred.
Weighing in my consideration of each of the plaintiff's allegations is the first defendant's denial that they occurred and the belief possessed by his wife and each of his children, Chantelle, Jake, Amy and Brock, derived from their experience of living and holidaying in the close Kinnear family, that they did not occur because they had not seen the first defendant sexually assault the plaintiff. But, in addition, I have observed that the letters written by the plaintiff (Exhibits 9, 10 & 11) near the end of her time of living within the Kinnear family contained expressions of gratitude, love and affection toward the defendants and the Kinnear family as a whole, which are difficult to reconcile with what one would expect her to have written had the sexual assaults or any of them in fact occurred. This remains my opinion even though the plaintiff did complain to others both before and after those letters. By the time of those letters, the plaintiff had complained to Ms Scofield and to Ms Turner of sexual assault. Subsequent to those letters, the plaintiff complained to police and to medical treating clinicians of sexual assault. But even in relation to the complaint to Ms Turner, made at about September/October 2010, the plaintiff did not include complaints of digital penetration whilst driving, insertion of ice into her vagina at Moreton Island or the sexual assault in the caravan during the Cooleys trip, all of which, on her case, preceded that time.
Analysis of the plaintiff's evidence of the specific sexual assault allegations caused me to observe that in relation to the tickling and bottom slapping game, the plaintiff's description of the sexual assault she alleged to have occurred struck me as sparse. In that way, her evidence was not readily convincing of a real and accurate recollection of experiences. To that observation, is to be added, my acceptance that each of the second defendant and the defendants' children were not untruthful when stating that they did not believe those assaults occurred because they would have seen it and they did not. In relation to her evidence of the allegation of the first defendant rubbing sun cream onto her breasts, again her evidence struck me as sparse and not readily impressing as spoken by a person who had suffered that assault occurring. I observed her limited description of the first defendant's manner of rubbing as he assaulted her. I considered the plaintiff's description of the assaults of digital penetration whilst driving to be also sparse of details invoking the same lack of persuasion. I also found the plaintiff's allegation that the first defendant inserted ice into her vagina during the Moreton Island holiday was made with sparsity of description of the event carrying the same lack of persuasion, and also inflicted with the extraordinary change of recollection from when described in 2014, to when described in 2017 and in oral evidence. I was not persuaded to the standard on the balance of probabilities on application of Briginshaw principles and s 140(2). I observed that the evidence of the alleged sexual assault in the family caravan during the Cooleys car show displayed such a change of recollection between 2017 and giving oral evidence, of the internal layout of the caravan as to give me an overall concern as to whether or not she was possessed of a real recollection of the alleged event. In relation to both the November 2011 university open day alleged assault and the January 2012 Lismore alleged assault, I found that the plaintiff's description of her recollection from time to time was so inconsistent of the assaults as to be not in keeping with that of a person possessed of a real recollection of those events and concluded on the balance of probabilities that I was not satisfied on application of Briginshaw principles and s 140(2) that the first defendant had committed those grave acts.
Returning to my acceptance that the plaintiff was a truthful witness who did her best to give evidence according to recollection of the events the subject of the allegations, in which she truly believed; ultimately, her evidence of the alleged sexual assaults displayed such inconsistency of memory from time to time and such sparsity of description that her evidence was not reliable evidence of the sexual assaults occurring. My conclusions that the plaintiff's evidence of the alleged sexual assaults at Moreton Island, in the AZA Hotel in November 2011 and in the Lismore caravan park cabin in January 2012, was not persuasive on the balance of probabilities that the plaintiff was possessed of a real recollection of those events are properly to be taken into account regarding her evidence generally of recollection of the other assaults.
Ultimately, on the whole of the evidence, the plaintiff has failed to prove on the balance of probabilities, the occurrence of any sexual assault at the hand of the first defendant for which she sued in these proceedings. It follows that the second defendant did not breach her duty of care owed to the plaintiff to take reasonable steps for her protection. There will be judgment for the defendants.

DAMAGES

Although there will be judgment for the defendants, I am required to assess, on an entirely hypothetical basis, the amount of damages the plaintiff would have been entitled to if her claim had been successful.
In regard to the first defendant's liability, section 3B(1)(a) of the Civil Liability Act 2002 (NSW) excludes the operation of that Act except for the provisions of section 15B and section 18(1)(c). Section 15B regulates an award of damages with respect to a claimant's capacity to provide gratuitous domestic services to the claimant's dependents and section 18(1)(c) precludes an award of interest on damages permitted under section 15B. The plaintiff does not claim damages to which section 15B would apply. The plaintiff's ability to care for her child was totally unexplored in the evidence. The plaintiff gave no evidence of impairment of her ability to care for her child, present or future. Accordingly the damages claimed by her are, as against the first defendant, to be assessed under the common law.
In regard to the second defendant's liability, I have determined that section 3B(1)(a) does not apply because her civil liability is not in response of an intentional act done by her with intent to cause injury or death or that is a sexual assault or other sexual misconducted committed by her, within the meaning of that provision. Had I found that the sexual assaults on the plaintiff at the hands of the first defendant occurred, on the evidence, the second defendant was only present at the events of breast groping, touching of the plaintiff's vagina and on occasion digital penetration of her vagina during tickling and bottom slapping play within the home (see [9(1)] above). These assaults are alleged to have occurred from about mid-2009 and to have frequently re-occurred thereafter. The second defendant was not alone on those occasions. The play including the sexual assaults occurred when the family was present. There is no evidence that she was present at any other sexual assault. The case as prosecuted by the plaintiff was that the second defendant came on notice of sexual assaults of the nature described [9(1)] only in about October 2010 when she was informed by Ms Turner.
The defendants having denied the sexual assaults, there is no evidence of interaction between the first and second defendants such as the second defendant promoting or encouraging sexual assault of the plaintiff by the first defendant.
There is no evidence of a positive participation by her. As pleaded at ASOC paragraphs 13B and 13C, the plaintiff's case against the second defendant was for omission in the form of failure to counsel and procure the first defendant to cease the sexual assaults, failure to supervise the first defendant's contact with the plaintiff and failure to report allegations of abuse by the first defendant to relevant Authorities.
Albeit the second defendant would likely be compellable to give evidence in criminal proceedings against the first defendant (section 279 Criminal Procedure Act 1986 (NSW)) her evidence would only be that Ms Turner reported that the first defendants hand had contacted to the plaintiff's vagina in the course of play within the home.
Putting aside complexities which might be associated in regard to the particular of breach concerning notifying appropriate Authorities and (I repeat) noting that Ms Turner who impressed as a careful and responsible person whilst a witness, did not do so; it is a complex question whether for the purposes of section 5B(2) a reasonable person would have taken that precaution to the description of risk of harm notified. The consequences to the second defendant in terms of her marriage and relationship to the first defendant as well as with her children would no doubt come into consideration. None of these matters were investigated in the evidence, nor were they the subject of any consideration in the submissions of the parties.
For the purposes of this hypothetical assessment I assume that a reasonable person would have taken the precautions of the counselling and supervision and that would have effectively prevented the thereafter assaults from occurring, including preventing the first defendant from being alone with the plaintiff in the AZA hotel in November 2011 and in the caravan park cabin in January 2012, in Lismore.
Pursuant to section 5B(2) in the hypothetical assumed facts, the probability of serious harm from sexual assault would occur if the precaution of supervision was not taken was significant and the burden of taking the precautions and social utility in taking the precautions to avoid the risk of harm was not great save to the personal cost to the second defendant of damage to her marital relationship and relationship to her children. Indeed the defendants gave evidence that a friend warned them of such risk, based on the friend's own experience with Foster placement by the Department. On that hypothetical basis the assumed finding is that the second defendant's negligence by omission to act, caused those sexual assaults after October 2010. This is because her failure to adequately supervise the first defendants contact with the plaintiff was a necessary condition of the occurrence of that harm within the meaning of section 5D(1) and that it is appropriate for the scope of the second defendant's liability to extend to the harm so cause within the meaning of section 5D(1)(b) CLA.
If I am wrong, and the sexual assaults are, in another place, found to have occurred; then in further regard to the question of application of section 3B(1)(a) I add that, in my opinion, the evidence supports only that the second defendant omitted taking action toward protecting the plaintiff from further sexual assaults in circumstances of the assaults not being apparent to other family members within the lounge room and of Ms Turner's notification of vagina touching and digital penetration which was unseen by the second defendant and the other family members. On the evidence I am not persuaded that the nature of the second defendants conduct of failing to act, after applying Briginshaw principles and section 140(2), was of the character of conduct falling within section 3B(1)(a). The evidence does not persuade me that the second defendant was grossly reckless; State of NSW v Gibbet (2005) 65 NSWLR 168; [2005] NSWCA 445 per Basten JA at [200]-[210]; Croucher supra per Lemming JA at [117].
Returning to a hypothetical assessment of damages; by application of section 21 CLA, the Court cannot award exemplary or punitive damages or damages in the nature of aggravated damages. All other compensation under the heads of damages claimed is also governed by the CLA, as is provision for interest.
For the purposes of this hypothetical assessment, as against the second defendant, it is assumed that the liability provisions of section 5B, 5C, 5D and 5E of the CLA are satisfied. That said the plaintiff's evidence that the sexual assaults during play within the home [9(1)] continued after a period of some weeks reprieve, infers that the second defendants counselling and procuring of the first defendant to cease the sexual assaults might have been of little effect and in that regard the second defendant's negligence not to be a necessary condition of the occurrence of harm within the meaning of section 5D(1)(a). There was no evidence in regard to the second defendant's reporting of allegation to " relevant Authorities" (ASOC 13B(c)) nor what the content of the report would have contained other than, on the plaintiff's case, Ms Turner had informed during a bottom slapping game, on occasion, the first defendant touched the plaintiffs touched the plaintiff's vagina. Ms Turner did not report the plaintiff's complaint to police. In my opinion, only the failure to supervise the first defendant's contact with the plaintiff would have been causative within the meaning of s 5D(1)(a).
In accordance with the approach taken by the parties and by the expert witnesses Ms Troy and Dr Skinner I assess damages not separately for each event of abuse but on the basis of a total course of conduct materially contributing to the plaintiff's complex psychological health between the ages of 16 and 18 years: Varmedja v Varmedja [2008] NSWCA 177; Gersbach supra at [504].
By her opening and closing Schedules of Damages (MFI 3 and MFI 20) the plaintiff claims under the following heads of damages;

Past general damages $200,000
Interest on past general damages at 2% times 10 years $40,000
Future general damages $100,000
Aggravated damages $50,000
Exemplary damages $50,000
Past out-of-pocket expenses $5,000
Future out-of-pocket expenses "say $50 p/w ($1006)" $50,000
Total $495,000

A document dated 27 April 2020 (MFI 4) handed up by the defendants at the commencement of the hearing stated that each of them was "…not liable for damages of any kind whether for past or future or for aggravated or exemplary". The defendants did not hand up a schedule of damages or otherwise provide a schedule proposing quantum under heads of damages or in total.
Neither party provided a schedule of past or future out-of-pocket expenses. No evidence was presented of actual treatment costs, except for Ms Troy stating the cost of Clinical Psychologist consultation. The plaintiff's UCPR 15.12 Statement of Particulars promised particulars to be provided but that did not happen. The Statement spoke generally of past and future, GP, psychiatrist and psychologist attendance and pharmacology.
The report of Ms Troy, clinical psychologist, dated 18 May 2018 was tendered by both parties (exhibit F/22). The report of Dr Skinner, consultant psychiatrist, dated 20 December 2018, was tendered by the defendants (exhibit 27). Neither expert was required for oral evidence and there was no Joint Report in which they addressed areas of opinion which might be agreed and those in regard to which they disagreed, so far as there areas of specialist knowledge overlapped. Dr Skinner had been briefed with the report of Ms Troy for the purposes of providing her report. Dr Skinner was briefed with the plaintiff's school reports and some clinical notes not briefed to Ms Troy. I am mindful of my earlier observations that Dr Skinner's opinion is based upon factual material including statements by members of the Kinnear family, which are not in evidence.
Both experts observed the plaintiff to suffer complex mental health issues. Ms Troy commented that during her 4 hour clinical review and psychological assessment of the plaintiff, the plaintiff showed some distractibility but that she was generally able to bring herself back to task and the plaintiff completed lengthy questionnaires with minimal assistance (at 3.3.1.6). Ms Troy reported the plaintiff's self-report of current symptoms (at 3.3.2) including anxiety, feelings of guilt, the stress of the litigation being "Absolute hell", continuing self-harm triggered by conflict in relationships "stuck in own head on things, like not good enough, and don't deserve everything I have". Further, that the plaintiff tries to manage her distress by use of meditation and distracting herself, that the plaintiff is grateful for having ADHD because that condition improves the efficacy of her self-distraction. The plaintiff reported binge eating, anxiety of going into shops by fear of being touched by other people which fear had become worse in May 2018, agitation and upset when seeing older males touch young girls, sleeping only 5 hours per night with nightmares which had worsened since commencement of these proceedings and that the plaintiff doesn't like being alone or stuck at work and is always using the telephone to her partner for reassurance. Ms Troy interviewed the plaintiff only about 6 weeks after commencement of these proceedings.

The level of atypical responding Trauma Symptoms Inventory-2 was so elevated so as to indicate that the profile was invalid. Ms Troy reported that the plaintiff tended to endorse items that seemingly index post traumatic stress, however are highly unlikely to be endorsed by those who suffer from Post Traumatic Stress Disorder.
"On the Personality Assessment Inventory, she consistently endorsed items which portrayed her in an especially negative or pathological way (PIM=99), at a level which rendered the profile uninterpretable and suggestive of a 'cry for help' or extremely negative perception of herself."
"She described herself as experiencing marked peculiarities in thinking and experience at a level of severity unusual even in clinical samples, a number of problematic personality traits (lability of mood, episodes of poorly controlled anger, lack of direction or purpose in her life and uncertainty about major life issues, a history of volatile or negative relationships, preoccupation with fears of being rejected or abandoned, impulsivity with self-harming and self-destructive behaviours, that were consistent with a diagnosis of Borderline Personality Disorder.
She reported high level of depression phobic avoidance and traumatic stress, suspiciousness and hostility, and risk-taking. She reported poorly established self-concept with instability in her self-esteem and passivity and discomfort in social situations. She reported mild stress and low support, with recurrent intense suicidal ideation"

Ms Troy considered the plaintiff met the diagnostic criteria for the following conditions (DSM5);

Attention Deficit Hyperactivity Disorder, combined presentation, impartial remission;
Post-Traumatic Stress Disorder
Borderline Personality Disorder.

From an interview conducted 7 months after that with Ms Troy, Dr Skinner assessed the plaintiff to be of at least average intelligence, of appropriate effect, displaying no evidence of psychotic phenomena or cognitive dysfunction (at [56]). Dr Skinner diagnosed the plaintiff to suffer;

Borderline Personality Disorder
But not to satisfy the diagnostic criteria for a formal diagnosis of Post Traumatic Stress Disorder, noting the invalid Trauma Symptom Inventory-2 profile obtained by Ms Troy and because the plaintiff did not show the avoidance behaviour characteristic of PTSD (at [122]).
Not to suffer Attention Deficit Hyperactivity Disorder because she displayed no symptoms during examination. She may have suffered ADHD in the past but on the basis of good school results, if suffered the disorder was mild in severity (at [122]).

Despite their differences in regard to whether or not the plaintiff's behavioural traits satisfied the criteria for diagnoses of Post Traumatic Stress Disorder and Attention Deficit Hyperactivity Disorder, Ms Troy and Dr Skinner reported significant common ground of problematic behaviours associated with the diagnosis to which they both arrived of Cognitive Personality Disorder. In this regard, Dr Skinner's paragraphs [119] and [120] under the sub-heading "Diagnosis" can be seen to share observations of behavioural traits with those mentioned in the above quoted passage and elsewhere from Ms Troy's report. Dr Skinner reported; "[119] Ms Perry has a diagnosis of borderline personality disorder. This disorder is characterised by severe functional impairments, a high risk of suicide, and a negative effect on the course of anxiety and depressive disorders. Genetic factors and adverse life events interact to lead to the disorder. It is generally considered that there is a genetic component, and most persons with the disorder have a background history of early childhood rejection with feelings of abandonment, and their dependency needs are not met. Persons with borderline personality disorder may experience occasional psychotic symptoms or brief episodes of psychosis. [120] Borderline personality disorder is characterised by a pervasive pattern of instability in interpersonal relationships, identity, impulsivity and affect. Suicidal tendency and self-injury are the most useful indications for diagnosis. The essential feature of borderline personality disorder is a pervasive pattern of instability of interpersonal relationships, self-image and affect, with noticeable impulsivity that begins by early adulthood. Characteristics include: Frantic efforts to avoid real or imagined abandonment. Unstable and intense interpersonal relationships characterised by alternating between extremes of idealisation and devaluation. Identity disturbance; notably and persistently unstable self-image or sense of self. Impulsivity in at least two areas that are potentially self-damaging (e.g. spending, sex, substance abuse, binge eating) Recurrent suicidal gestures of threats or self-mutilating behaviour. Affective instability caused by a distinct reactivity of mood. Chronic feelings of emptiness. Inappropriate intense anger or difficulty in controlling anger. Transient stress-paranoid ideation or severe disassociate symptoms." At [122] Dr Skinner said that whilst the plaintiff described symptoms of binge eating, she had maintained weight and body mass index in the normal range.
In my opinion, in accordance with their overlapping but separate specialist fields of knowledge, the reports of Ms Troy and Dr Skinner are to be read in a complementary fashion so as to gain the composite picture of psychiatric and psychological comment.
Because of her enjoying the benefit of the plaintiff's school reports not briefed to Ms Troy and clinical records including but exceeding those briefed to Ms Troy; I prefer Dr Skinner's assessment of the evolution of the plaintiff's mental health issues prior to the alleged assaults. I do not mean by this to suggest that from an expert point of view, Dr Skinner reported significantly differently to Ms Troy on these matters.

Per Dr Skinner (at [130] and [131]): "It is not possible to identify any particular features of the plaintiff's psychiatric disorder as likely or unlikely to be the result of the alleged sexual assaults or abuse because her condition is complex and is the consequence of multiple factors acting on her as a young person with genetic vulnerability."
Per Ms Troy (at 3.6): that the sexual abuse would have likely increased the severity and further development of the plaintiff's maladaptive personality underlying her borderline personality and that while her history suggests that she was at high risk of developing borderline personality features prior to the alleged assaults, "it is possible" that without the stress of the abuse, "with appropriate guidance and support, she may have been able to form a more stable sense of self and more adaptive patterns of thinking and behaving". The symptoms of PTSD and borderline personality intertwined, "certainly, the plaintiff's post traumatic features, which are directly related to the sexual abuse, have exacerbated the expression of borderline acting out and self-harming behaviours. The borderline personality features make it more difficult for the plaintiff to regulate her emotional response to triggers and traumas.

Doing the best that I can, without the benefit of a Joint Report or oral evidence of those expert witnesses, I accept, on the basis that had the alleged sexual abuse occurred; the plaintiff's current psychological state, her maladaptive borderline personality traits and poor coping skills as well as her problems with self-image and development of sexual identity, tendency to impulsivity and self-harming are worse than they would have been had the sexual assaults not occurred. This is the overall affect of the expert opinion evidence.
It is not possible, from the evidence, to provide a precise measure of that worsening. Doing the best that I can with the evidence I find that the plaintiff would most likely presently suffer personality traits satisfying the DM-5 criteria for formal diagnosis of Borderline Personality Disorder, even had the sexual assaults not occurred. I accept the intertwining of post traumatic behavioural features with her Borderline Personality Disorder would likely have been worsened by the trauma of the sexual assaults and would likely have exacerbated the expression of her borderline acting out and self-harming behaviours as well as difficulties she suffers regulating her emotional response to triggers and trauma associated with the abuse, lability of mood, tendency to impulsivity and maintenance of interpersonal relationships.
In this hypothetical exercise, I accept as true and accurate the plaintiff's case that the sexual assaults to which she was subjected materially contributed to the development of that worsened psychological state. In this hypothetical assessment of damages, I accept the medical history, largely referred to in the Chronological Sketch, and proceed on the basis that those records evidence in part affects on the plaintiff of the material contribution of the sexual assaults to her pre-existing complex psychological health issues.
On 26 March 2018, the plaintiff lacerated her right interior thigh. She told Dr Skinner that she did not intend the injury to be so severe as to require 20 stitches but the knife was sharper than she realised. That self-harm occurred between the plaintiff withdrawing her formal police complaint and the pending commencement of these proceedings, she having been advised on 30 January 2018 of her civil rights of action.
On 11 February 2020 the plaintiff gave birth to her first and only child. On 13 March 2020 the plaintiff married.
At the time of the hearing the plaintiff was employed full time (but on maternity leave) with Dundaloo Support Services Taree as a disability support worker providing independent living and accommodation support.
The plaintiff said that it is not true that at every work she has had problems with colleagues and managers. She said that she loves her present employment and that she loved the employment before this one. She said that she had excellent references from both.
During evidence in chief, when asked how she now feels about the abuse she suffered, the plaintiff answered that she did not think she would ever get over it but "I have come a long way in my life since. Just a whole lot of fear. Still hold a lot of shame that is not mine to hold": T84.35-40. The plaintiff agreed that she is often distracted because of ADHD. After a pause in her evidence, she said that she also has Borderline Personality Disorder. She referred to "stigmatising" and she said that BPD can be cured. She agreed that it was hard to live with at times without the right treatment. She was then asked of the appropriate treatments and she listed, Cognitive Dialectic Therapy, medications, holistic group therapies, support, Cognitive Behavioural Therapy and Dialectic Behavioural Therapy.

General Damages - $200,000 x 90% = $180,000
Interest on General Damages - $34,500 x 90% = $31,000
Aggravated Damages - $30,000
Exemplary Damages - $50,000
Past Out-of-Pocket Expenses - $30,000 x 90% = $27,000
Future Out-of-Pocket Expenses - $50,000 x 90% = $45,000
Total - $363,000 Accordingly if damages were awarded against the second defendant, the would constitute the following;
Pursuant to section 16 CLA - Non-Economic loss at 30% of a most extreme case - $158,000 x 10% = $15,800
Past Out-of-Pocket Expenses - $30,000 times 10% = $3,000
Future Out-of-Pocket Expenses - $50,000 times 10% = $5,000
Total - $23,800

ORDERS

I made orders as follows: 1. Judgment for the Defendants 2. Plaintiff to pay the Defendants' costs

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 May 2021

Civil Liability Act 2002(NSW)ss 3B(1)(a), 5B, 5C, 5D, 5E, 21

Evidence Act 1995(NSW)ss 41, 97, 140(1), 140(2)

Limitation Act 1969(NSW)ss 11, ss

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