Children's Court New South Wales Medium Neutral Citation: Department of Communities and Justice (DCJ) and Dimitri and Nicholas and Sofia and Julia [2024] NSWChC 11 Hearing dates: 24 April, 26 April, 6 June, 7 June, 8 June, 9 June, 31 August, 1 September, 5 September 2023 Date of orders: 26 July 2024 Decision date: 26 July 2024 Jurisdiction: Care and protection Before: Judge Skinner, President of the Children's Court of NSW Decision: Application for contact with Sofia and Julia refused. Application for contact with Dimitri granted up to 18 years old to be organised as per his wishes. Catchwords: CHILDREN – Care and Protection – Application for Contact Orders – Procedural Fairness – Views of Children Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) Category: Principal judgment Parties: Secretary (Department of Communities and Justice) The Father The Mother Dimitri (Young person) Nicholas (Young person) Sofia (Young person) Julia (Young person) Representation: Counsel: Mr Anderson (The Secretary) Mr Zmood (Father) Solicitors: Ms Mihell (The Secretary) Ms Taheri (Father) Ms Willoughby (Mother) Ms Canning (The Direct Legal Representative for Dimitri) Ms Wimalaratne (The Direct Legal Representative for Nicholas) Ms Smith (The Direct Legal Representative for Sofia) Ms Ng (The Independent Legal Representative for Julia) File Number(s): 2018/00181898 2018/00032501 Publication restriction: Pseudonyms have been used for the children, family members, carers and medical professionals. JUDGMENT 1. The Court must determine whether to make contact orders as sought by the biological father of Dimitri and the adopted father of Sofia and Julia ("the father"). 2. The father's application is opposed by all other parties. 3. I would like to make a contact order that the father has unsupervised contact with Dimitri in accordance with Dimitri's wishes until Dimitri turns 18. At the conclusion of the judgment, I will hear from the parties about the power to make an order in these terms and, if not satisfied, the application for a contact order will be refused. 4. The application for contact with Sofia and Julia is refused. Background 1. Dimitri's mother and father met in Russia in 2001 and they married in 2004. They emigrated to Australia in 2006. Nicholas was born on [] and Dimitri was born on []. Nicholas is now 16 and Dimitri is now 12. The mother and father are educated, intelligent professionals. 2. Dimitri's parents separated in [] 2014 but shared premises until their divorce in [] 2015. Family Law Consent Orders were filed on [] 2015 providing for the children to live with their mother but to spend four nights per fortnight with their father. The mother noted the separation was founded in differences in values and commented that the father was preoccupied by his desire to have a daughter. 3. In [] 2015 the father returned to Russia. While in Russia he engaged in an adoption process and formally adopted Sofia (born []) and Julia (born []) from an orphanage. The children had been placed in government care in Russia in [] 2015 at the request of their mother. There is evidence that they experienced significant trauma in their early life, including violence, neglect, physical abuse, likely sexual abuse, and in utero exposure to substances. Upon their entry into Russian care, the girls were placed together. The pair were later separated when Julia was placed in a home for small children, before being placed with her maternal grandmother. The girls were reunited from [] 2015 and moved to a regional hospital in [] 2016. They were then placed under the guardianship of the father, prior to formalisation of the adoption in [] 2016. 4. In [] 2017 the father returned to Australia with the girls. The contact orders with the boys were reinstated. 5. On [] 2018 the father hit Julia with a belt, causing abrasions. On [] 2018 the girls were assumed into care and the Secretary initiated proceedings in the Children's Court. Final orders were made on [] 2018 allocating parental responsibility to the Minister until each child turns 18. In [] 2019 the girls were placed with their current carer. 6. On [] 2018 the father was charged with assault occasioning actual bodily harm for hitting Julia with the belt. Bail conditions prevented him from spending time with any children aged under 16. The father entered a plea of guilty and received a sentence of imprisonment (in [] 2018) which was reduced on appeal (in [] 2018) to an intensive corrections order with 150 hours of community service. During the proceedings the Local Court made an Apprehended Violence Order for five years, from [] 2018 (expiring [] 2023), preventing contact between the father and the girls unless in accordance with a Children's Court order or as authorised in writing by a Departmental officer. 7. On [] 2018 a caseworker recorded that Sofia had made disclosures of sexual abuse by the father. The boys were interviewed. On [] 2018, the Secretary initiated care proceedings involving Nicholas and Dimitri due to concerns about the safety of the boys while in the care of their father. On [] 2018 the Court allocated interim parental responsibility for the boys to their mother but for contact which was allocated to the Minister. Final orders were made on [] 2020 allocating parental responsibility for contact to the Minister for 48 months and all other aspects of parental responsibility to the mother, to the exclusion of the father. A contact order was made for 12 months providing for supervised fortnightly contact for two hours between the father and Dimitri. Although the contact order expired the contact continued to be supervised until 2023, when the Court extended contact time and removed the supervision requirement. The existing orders allocate parental responsibility for the boys to their mother, to the exclusion of the father. 8. In [] 2018 the father was charged with offences related to Sofia's disclosures of sexual abuse. In [] 2020 the jury delivered a verdict of 'not guilty'. Each of the children were witnesses in the trial. These proceedings 1. The applications before this Court were filed on [] 2021, shortly after the criminal charges were dismissed. On [] 2022 the Court granted leave for contact applications relating to Dimitri, Sofia and Julia, 'firstly for the purpose of exploring the issue of contact and secondly for the purpose of considering the need for undertakings to support any contact order'. Nicholas refused to see his father and an application for contact orders regarding him was dismissed. The father's applications (as served on [] 2024) 1. The father seeks unsupervised contact with Dimitri, including overnight time and school holiday time. 2. The father seeks an order under s.74 for Dr Elizabeth Hart to provide therapeutic support to stage a reintroduction between the father and the girls, leading to a s.86 contact order enabling fortnightly supervised contact, funded by the father. The context of the applications 1. The Children's Court previously made a finding that there is no realistic possibility of the restoration of Dimitri or the girls to the father. This finding was made after the father had entered a plea of guilty to the assault of Julia and while he was facing charges for the sexual assault of Sofia. The charges were founded on allegations made by Sofia which were substantiated by JIRS, but the matter was dismissed after a jury was not satisfied of proof beyond reasonable doubt. 2. The standard of proof in care proceedings is on the balance of probabilities. Due to the nature of the father's contact applications, it has not been necessary to relitigate the allegations of sexual abuse when assessing the future risk of sexual harm. Dimitri 1. Those circumstances occurred because the father left his sons with their mother to adopt daughters from Russia. Between 2015 and 2017 the father was based in Russia while the mother raised the boys in Sydney. There is little evidence about contact between the father and sons during this period, but that the father initiated contact upon his return to Sydney in [] 2017, when he introduced the boys to their 'sisters'. 2. In [] 2018 the girls were removed from the father due to allegations of abuse. In [] 2018, the boys were first interviewed about the behaviour of their father. In [] 2018, the father was charged with the assault on Julia and subject to bail conditions that prevented contact with children aged under 16. From [] 2018, Dimitri had supervised contact with his father for two hours each fortnight. Dimitri now has unsupervised contact with his father, as arranged between his parents. 3. Dimitri lives with his mother, her partner, and his brother. This is a safe, nurturing, stable and secure environment. Dimitri is a bright, articulate, confident and capable young man who has been involved in litigation for the past six years. He has maintained a candid and trusted relationship with his lawyer throughout the proceedings who has shared his considered and consistent opposition to increased contact with his father. Dimitri rejects any suggestion of overnight contact as he does not feel safe and has advised his lawyer that he will not spend overnight time with his father. He wants court to be finished. 4. There is no prospect of Dimitri being restored to the care of his father. The purpose of contact is to maintain a relationship which has positive features for Dimitri, and to maintain his sense of identity regarding kinship and culture. Sofia and Julia 1. The girls were placed in an orphanage when Sofia was three and Julia was two. They were in Russian care for 16 months before they were placed in the care of their adopted father in [] 2016. They remained with the father until [] 2018, after which they were assumed into care. 2. The girls were originally placed with a female Russian carer. Sofia made disclosures of sexual assault against the father during this placement, having made prior disclosures that had not been actioned. In April 2019, the girls were moved from their carer due to concerns about their well-being. They were placed with their current carer, Kelly, and have remained in her care for five years. Kelly is a single woman who has good family support and is committed to caring for the girls long-term. The girls were case-managed by First Case Manager but are now case-managed by Second Case Manager. 3. The girls refer to their carer as 'mum' and refer to Kelly's parents as their grandparents. When interviewed by Dr Maria Gonzalez in December 2023 and February 2024 the girls reported feeling safe and happy with their carer, who they regard as their family. Sofia has stated that she does not want contact with the father. Julia does not have the capacity to engage effectively with a conversation about contact with the father. 4. The First Case Manager case manager and the girls' carer appeared to have a close relationship and they shared a negative view of the father. This has influenced Sofia's attitude towards contact with the father. 5. There is no prospect of the girls being restored to the care of the father. The purpose of contact would be to develop and maintain a relationship that could offer a source of emotional or financial support outside the care system. The father provides a connection with the children's language and culture, but it is not a kinship connection. Position of other parties 1. The views of the children have already been outlined. 2. The Secretary does not support the father's applications. The Secretary asks the Court to limit the weight given to Dr Hart's opinions as she has relied on facts that have not been proven and has a partisan perspective in support of the father. The Secretary disputes any suggestion that Dr Hart supervise contact between the girls and the father or provides services to the girls, stating that the Court would be improperly delegating legislative power to a member of the public. 3. The Secretary raises consideration of 'unacceptable risk of harm' with respect to the proven assault against Julia and the unproven allegations of sexual abuse against Sofia, noting the Court appropriately determined the issue of unacceptable risk in the original proceedings without making a contact order. The risk has not dissipated with time as the girls remain vulnerable due to their previous trauma and will be extremely vulnerable in their adolescence. The mother's position 1. The mother does not believe orders are necessary to support Dimitri's ongoing contact with his father. She recently agreed to increased time and the removal of supervision and has indicated she will accept changes in contact as determined by Dimitri. If the Court makes a contact order, she proposes a 12-month order for a minimum of fortnightly unsupervised contact, supported by undertakings by both parents. 2. The mother's concern has been to protect Dimitri from psychological harm flowing from the father's adoption of the girls, the criminal and care proceedings, and ongoing litigation. The mother has been required to participate in multiple applications, responding to allegations and demands made by the father. During this time, she has facilitated Dimitri's relationship with this father within the parameters set by the Department and the Court. The mother has not been as obstructive as suggested by the father – she supported the father's application for contact orders with Dimitri and agreed to extending the duration of contact while removing the supervision requirement. 3. During the proceedings the parties were asked whether the contact arrangements for Dimitri would be better addressed in the Family Law jurisdiction. The Care jurisdiction addresses issues of risk and the parties accepted there were few remaining risk issues between the father and Dimitri, beyond the impact of the father's strong will on a twelve-year-old boy. 4. The mother's lawyer provided helpful submissions about distinctions between contact orders under the NSW care legislation and the Australian family law legislation in response to questions asked about the impact of the different schemes on the type of orders and enforcement of orders. In both jurisdictions the primary consideration is the needs of the child. This Court has the power to draft orders in terms that meet Dimitri's needs, including his desire for the resolution of proceedings. A transfer would result in additional cost, delay and stress to Dimitri and his family. The independent legal representative for Julia 1. The ILR notes that there is no existing relationship between the father and the girls, and the development of a relationship could cause significant distress to the children, with the potential to destabilise the placement. She refers to Dr Gonzalez's reflection on stability, security and consistency being critical to the emotional well-being of children who have experienced trauma. 2. The children's cultural needs are not adequately met in their current care arrangements. The ILR does not believe contact with the father is critical in addressing these needs, noting the Department can gather information about the biological family from the father without a contact order. 3. The ILR asks the Court to prioritise Julia's mental health and cognitive development over contact with the father. The focus should be on maintaining the stability of the placement which supports her continued access to therapies and services. Julia's carer attends some sessions to support Julia's progress and the development of their attachment. The additional therapy that would be required to support contact has the potential to disrupt this process, through time and behavioural dysregulation. 4. The ILR notes Dr Hart's opinion that Sofia be reintroduced to the father first, with Julia reintroduced once Sofia is comfortable, whereas Dr Gonzalez believes any introduction should involve both girls in order to minimise the risk of fracturing the girls' relationship over their different contact arrangements. 5. The ILR is opposed to the girls participating in any sessions with Dr Hart, noting it would require ongoing interviews, therapy and then contact, stating it is a form of systems abuse. Legal requirements 1. The safety, welfare and well-being of Dimitri, Sofia and Julia is the paramount consideration (s.9(1)). The following principles are relevant to determinations about this application: 1. the views of the children and the weight to be given to those views; 2. the culture, disability, language and religion of the children; 3. the least intrusive intervention that is consistent with protecting them from harm and promoting their development; and 4. the retention of significant relationships for children who are in out-of-home care. 1. The discretion to make orders pursuant to s.74 and s.86 is informed by the principles of the Act. The Court does not need to be satisfied of any additional consideration under s.74 or s.86 unless the court is denying contact with a person. Before denying contact the Court must be satisfied that contact with that person is not in the best interests of the child. 2. The benefits of contact need to be weighed against any unacceptable risk of harm that may arise through contact. To assist this determination, the Court has received evidence from Professor Martha Wilson, Children's Court clinician, Dr Elizabeth Hart, the father's expert, and Dr Maria Gonzalez, a joint expert commissioned to review the expert evidence and provide an updated opinion about contact between the girls and the father. Procedural fairness 1. Before reviewing the evidence, I will address the father's concern about not being afforded procedural fairness when seeking to access, file, and test evidence. 2. The Court has received documentary evidence from parties since the applications were filed, including throughout the hearing and since the allocated hearing dates. The Court heard oral evidence on in April, June, August, and September 2023. The father last filed evidence on [] June 2024 and Sofia's direct legal representative filed evidence (in submissions) on [] July 2024. Recent evidence has been received and accorded less weight as it has not been tested. 3. The father has made a number of requests for parties to produce documents or for leave to issue subpoenas for witness attendance or the production of documents. 4. In the Care jurisdiction, the Children's Court assesses evidence to make decisions about whether to vary legal rights and responsibilities in order to support the safety, welfare and well-being of a child. The child, or subject, of the litigation is constantly changing. The Children's Court must balance the imperative to determine proceedings expeditiously, to minimise the effect of proceedings on parties, and to support the stability of children by finalising proceedings. This is alongside a requirement that decisions be made on relevant evidence about an evolving subject in dynamic circumstances. 5. Case management directions assist the parties to progress litigation to ensure the Court receives all evidence that is relevant to a final determination. Compliance with directions enables the parties to assess the evidence and determine their position in the litigation. A party may require a witness to submit to examination to assist the Court in determining a disputed fact, but witnesses should not be required unless their evidence may assist in resolving that fact. After a matter is listed for hearing or after a hearing has commenced, parties may seek leave to issue subpoenas or file additional material where the party is concerned the Court lacks evidence that may be relevant to the final determination. 6. With an evolving subject there will often be fresh evidence that impacts the final determination. When asked to receive additional evidence, the Court must assess the real issues in dispute and limit any additional evidence or witness examination to proving facts that impact the final determination. 7. Section 93 provides for Children's Court proceedings to be non-adversarial and conducted with as little formality and legal technicality and form as the circumstances of the case permit. This enables the Court to manage the way evidence is filed and tested to ensure current, relevant evidence is considered and given appropriate weight without unduly extending proceedings or increasing the cost of proceedings. Decisions not to grant leave to issue subpoenas have been necessary to reduce the evidence in these proceedings to material that relates to key facts underpinning the final determination on the application. 8. The father's applications have been determined in context of the applications that are before the Court, noting the circumstances of the subject children. The focus of the Court is on the safety, welfare and well-being of the children. In these proceedings the court must assess whether a relationship with the father would support their safety, welfare and well-being, and if so, how that relationship can be facilitated without exposing the children to an unacceptable risk of harm. The father's focus in these proceedings has been to control the terms of his relationship with the children while correcting the perceived injustice that disrupted his relationship with the children. 9. Where evidence relates to the benefits and risks of re-establishing a relationship or changing the contact in an existing relationship between the father and children, leave has been granted. The Court has imposed limits on access to particular documents or the examination of particular witnesses to ensure relevant evidence is before the Court without unnecessary expense, undue delay or damage to relationships that are important to the children. I am satisfied the father has been afforded procedural fairness and note that the concept of procedural fairness in the care jurisdiction necessarily gives way to the paramount concern of the safety, welfare and well-being of the child. Expert evidence 1. Professor Martha Wilson is a psychiatrist and Children's Court clinician who provided a report dated [] September 2022. 2. Dr Elizabeth Hart is a retired professor of psychology, consultant psychologist and family therapist who provided expert evidence in the father's criminal trial prior to giving evidence in these proceedings. She has not had the opportunity to assess any of the children so has formed her opinions on interviews with the father and documents, including Russian documents translated by the father. 3. Dr Maria Gonzalez is a psychologist who was an agreed single expert commissioned to advise the court about whether the father should be reintroduced to the girls. The father was denied the opportunity to cross-examine Dr Gonzalez because of the need to finalise proceedings, the circumstances of her appointment as an agreed single expert addressing a discrete issue, the significant amount of similar evidence in the proceedings and the weight that would be given to her opinion, noting the age, capacity and views of the children. Dimitri's contact 1. Professor Wilson and Dr Hart do not agree about contact arrangements for Dimitri. Professor Martha Wilson 1. Professor Wilson provided a report dated [] September 2022 and gave evidence on [] April 2023, [] June 2023 and [] June 2023. 2. In her report, Professor Wilson recommended against changes to Dimitri's contact, concerned that he enjoyed the contact, as it then was, and any change may have adverse effects. She noted that Dimitri is intelligent, can express his own wishes and should lead contact arrangements. 3. Professor Wilson expressed concern about the father pressuring Dimitri to reach out to Nicholas. She suggested the parents ought to be responsive to Dimitri's needs around contact and should not respond punitively to his feelings around contact. She recommended the parents set rules around the conversations they had with Dimitri about contact, including that neither parent questioned Dimitri about what was said or done at contact, and both parents made general enquiries and limited negative comments. 4. Under cross-examination, Professor Wilson confirmed there were no risk issues for unsupervised contact between Dimitri and the father and indicated that contact could extend to overnight time. She acknowledged that Dimitri may not be well-placed to determine his own best interests and that his attitude to additional time may be influenced by his 'dual loyalties' recognising the mother did not support Dimitri spending overnight time with the father. Dr Elizabeth Hart 1. Dr Hart has provided several reports in the criminal and the care proceedings. 2. Dr Hart believes the mother has used the care proceedings to control the terms of Dimitri's relationship with the father, with a plan to minimise his role while substituting her current partner into the father role. She noted that Dimitri is acutely attuned to the needs of the residential parent. 3. Dr Hart refutes any suggestion of the father presenting as a danger to Dimitri and supports an increase in contact to mirror parenting arrangements made in family law proceedings, including overnight contact, school holiday contact, access to information, and attendance at school or sporting events. 4. In Dr Hart's most recent report she stated that 'children are often greatly relieved when the Court makes orders allowing them to spend time with a valued parent as this is often the only way in which additional time can be accessed by a child who is acting as a mouthpiece for his mother and who is progressing her agenda rather than his own.' Sofia's and Julia's contact 1. Professor Wilson and Dr Hart do not agree about whether to progress contact between the father and the girls, and if so, how to progress contact. After hearing evidence from Professor Wilson and Dr Hart, Dr Gonzalez was commissioned to interview the girls and provide her opinion as to whether to progress contact between the father and the girls. 2. The Court indicated that it was not in a position to review the evidence of the father's alleged sexual abuse of Sofia, and it was not required to make a finding of prior abuse to assess the future risk posed by a supervised contact order. Evidence of the alleged sexual abuse was limited to assessing Sofia's perception of the father and the likelihood of psychological harm from a reintroduction to the father if she believed the father had perpetrated sexual abuse against her (regardless of whether he did, in fact, sexually abuse her). 3. During cross-examination of Professor Wilson, it became apparent that Professor Wilson had received limited information about the capacity of the girls and the nature of the girls' previous therapy. The Secretary's representative provided the Court with information about assessments of the girls and their prior therapeutic interventions. The evidence reveals that both girls have exhibited developmental and behavioural issues throughout their time in care. The girls' treating therapists attended Court to confirm their observations of the capacity of the girls and to explain their therapeutic objectives. 4. In [] 2019, Sofia was assessed by Dr Henry Cohen who concluded she had severe neurodevelopmental functional impairment, mild to moderate impairment in memory, attention, executive function, adaptive behaviour, language and motor skills. In [] 2020, she was assessed by Dr Mei Park with previous physical and sexual abuse, foetal alcohol syndrome and inattentive type attention deficit hyperactivity disorder. In [] 2021, her therapist identified her as having significant scores for dissociation and post-traumatic stress avoidance. 5. Sofia's counsellor confirmed that Sofia believes she was sexually abused by the father and his treatment has focused on addressing that narrative. He has not attempted to change that narrative and may have embedded it. The efficacy of the treatment is unknown. 6. In [] 2019, Dr Henry Cohen confirmed Julia was suffering from foetal alcohol syndrome disorder, developmental trauma and neurodevelopmental impairment namely microcephaly, fine and gross motor skills, adaptive behaviour and severe language disorder. IQ testing in [] 2020 revealed an intellectual disability of mild severity. 7. Julia's psychologist revealed that the purpose of Julia's therapy is solely to build her attachment with her carer. Julia is observed to have dysregulated behaviour and a short attention span such that any therapy is adjusted to meet her capacity on the day. 8. The experts agree that contact with the father could benefit the girls as he could be another positive carer figure, he connects the girls to their Russian culture and language, and his commitment to the girls will extend beyond their departure from care. Professor Martha Wilson 1. Professor Wilson expressed concern about the father's personality profile and limited reflective capacity which impedes his ability to see alternate perspectives. 2. In evidence Professor Wilson maintained her concern that potential contact could be detrimental to the girls, noting they had formed relationships with their carer and clinicians and were showing progress, and that the risk posed by a reintroduction was unacceptable. She indicated the risk was of emotional or psychological harm to extremely vulnerable girls, and regardless of whether or not sexual abuse had occurred the girls may be traumatised if they have attributed that harm to the father or if contact with the father triggers other memories. 3. Professor Wilson recommended clinical intervention to address the girls' trauma prior to reintroducing the father. During that clinical process their questions about the father and their response to conversation about the father would inform whether to progress contact. If trauma symptoms were triggered, observable through changes in their behaviour, contact should not progress. 4. In examination Professor Wilson maintained that the level of risk to the girls (of reintroducing the father), given their complex needs, is unacceptable. Dr Elizabeth Hart 1. Dr Hart recommended a slow and careful reintroduction to the father to support the girls to establish a connection prior to adulthood when they leave care. She noted the previous positive association between the father and the girls, while accepting the father caused harm to Julia, and commented that children can recover positive attachments to abusive parents if there are positive mitigating factors. 2. Dr Hart suggested the girls be reintroduced to the father through a photo book to gauge whether they each recognised the father, and if so, whether they responded positively, neutrally or negatively. 3. After reviewing evidence as to the capacity of the girls, their previous therapeutic intervention and their interviews with Dr Gonzalez, Dr Hart recommends an initial contact between the father and Sofia, with a plan to reintroduce Julia once Sofia is comfortable. Dr Hart has offered to provide staged therapy to facilitate the re-introduction, which informs the father's s.74 application. Commissioning a single expert 1. After hearing evidence from Professor Wilson and Dr Hart it was clear that a reintroduction through photos, supported by a skilled therapist, was a low-risk method of assessing whether a contact order might be in the girls' best interests. The parties agreed to refer the intervention to Dr Gonzalez and the Court made orders supporting the assessment. Dr Gonzalez's findings are summarised below. Dr Maria Gonzalez 1. Dr Gonzalez interviewed the girls on two occasions. She apparently communicated well with Sofia, who was responsive to her questions and looked at photos of the father. Sofia responded with a mild curiosity on the first occasion but did not want to look at them again. Dr Gonzalez found it harder to engage Julia who showed little interest in discussing the father other than to refuse to look at photos and a card. 2. Dr Gonzalez outlined the limitations of the expert assessments, noting each had formed their opinions on filed material or on assessments of one party without the opportunity to observe the parties together. Professor Wilson and Dr Hart had the opportunity to meet the father. Professor Wilson met Dimitri. Dr Gonzalez met the girls. 3. Dr Gonzalez advised against the reintroduction of the father. She acknowledged the benefits to establishing contingencies for children in care so they could access support if their current placement breaks down. She was concerned that previous actions and interventions had marginalised the father and that pressuring the girls to see the father could traumatise them or put them in conflict with their carer, with potential impacts on the stability of the placement. 4. Dr Gonzalez states at 62: 'The Court needs to balance these benefits alongside the risks for the children and their assessed limitations. The profile of each of the children is that they have significant cognitive, social and intellectual impairments along with a history of trauma. Professor Wilson refers to the complexities for children such as Sofia and Julia. By virtue of their trauma history in environments that have been neglectful and abusive along with a history of broken attachment relationships, the children experience a range of mental health complications including a high level of anxiety and a low threshold tolerance for arousal.' At 65: 'It is difficult to argue a case for reintroduction or, if it was ordered, to crystal ball how it might proceed.' (At 66) 'The children have already been exposed to significant therapeutic intervention as outlined above. It is now six years since they have had contact with Mr A. Reintroduction would require engagement with yet another therapist. It could take some time for a relationship to be established with such a therapist. That therapy would involve rewriting the narrative to which the children have been exposed about Mr A.' At 71: 'Another important consideration in matters particularly as children approach adolescence is the views of the children. In this matter, it is difficult for the children to articulate clear views because of their developmental delays and maturity as well as their need to be aligned with significant carers. It is likely that Sofia, in particular, tells people what she believes they want to hear and that she will change her views to appease others. It is therefore problematic to use children's views or repeatedly elicit them even if they are reaching an age where their views should be given considerable weight.' At 72: 'There is a sense from the presentation of the children that they are exhausted with their involvement in proceedings that have been ongoing since they were removed from Mr A's care. In the interviews that were conducted for this report Sofia was able to articulate a desire for the interviews to stop. Julia who is less articulate became quite dysregulated in her play.' At 75: 'As previously mentioned there are a number of risks for the children if Mr A was reintroduced into their lives. They may experience some intrapersonal tension in the knowledge that there are competing views of them having a relationship with Mr A. This might heighten their anxiety and sense of safety and security in their placement. They may display some regression in their behaviour.' At 77: 'As previously mentioned, weighing up the benefits and risks of the children it is difficult to make a strong argument for the reintroduction of the children. If the Court was to take the view that the children are reintroduced to Mr A, that would require a significant level of therapeutic intervention for him and the children.' At 78: 'That would be in addition to the therapeutic work the children are already undertaking. The Court would have to be mindful of the ongoing stress that places on the children especially if they feel the need to resist. There would be considerable benefit to the children to be relieved of such a weight and pressure considering the trajectory they have travelled.' At 79: 'in the case that reintroduction was to occur, Mr A would need considerable input into understanding the needs of pre-pubescent girls. In addition, he would need to equip himself with the skills to understand the specific needs of children with significant challenges. Ideally, the children's workers would provide that input as they are working firsthand with Sofia and Julia. The capacity for that to occur in light of the positions they have taken is questionable.' Consideration of expert evidence 1. Professor Wilson and Dr Hart provided evidence about increasing contact between Dimitri and the father and reintroducing the father to the girls. Dr Gonzalez's evidence solely related to the girls. As previously stated, the father's application to cross-examine Dr Gonzalez was refused. 2. Each expert gave frank and considered evidence about the potential benefits and risks of changing the current arrangements for the children. Professor Wilson and Dr Gonzalez each formed the opinion that the risks outweigh the benefits. Dr Hart believes that the benefits outweigh the risks. 3. I accept concerns about the limitations of Dr Hart's assessment given she was restricted to interviewing the father and reviewing documents provided by the father. Her opinion has been influenced by his perception of proceedings. 4. I recognise the father's perception of unfairness in the refusal to cross-examine Dr Gonzalez. I have considered the evidence upon which Dr Gonzalez found facts and the conclusions she made, compared them with the facts and conclusions upon which Professor Wilson and Dr Hart formed their opinions. I determined the experts agree on the potential benefits and the potential risk, and it falls to the Court to apply the Act in assessing whether the orders support the safety, welfare and well-being of the children. Weight to be given to the views of the children 1. Dimitri and Sofia are both aged twelve and are directly represented. Dimitri does not want additional contact with the father. Sofia does not want any contact with the father. 2. Julia is 11 and does not appear to remember the father nor have an interest in a relationship with the father. 3. One of the key principles to be applied in the administration of the Care Act is: 9(2) (a) Wherever a child or young person is able to form his or her own views on a matter concerning his or her safety, welfare and well-being, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child or young person and the circumstances. 1. Professor Wilson met Dimitri and interviewed him both with the father and by himself. She indicated that Dimitri had the capacity to make decisions about contact and should be entitled to make those decisions. 2. Dr Hart did not meet Dimitri and formed the view that his opinion towards contact is heavily influenced by his mother's attitude to the father, such that it should be disregarded through the Court making an order that gradually increases to overnight contact. 3. Dr Gonzalez was only tasked with reviewing the application regarding the girls but noted that the views of a child who is approaching adolescence may be impacted by their ability to articulate clear views, because of their developmental delays and maturity as well as their need to be aligned with significant carers. She stated it was likely that Sofia tells people what she believes they want to hear and will change her views to appease others. She comments that it is therefore problematic to use the children's views or repeatedly elicit them even if they are reaching an age where their views should be given considerable weight. Determination 1. Dimitri is intellectually and developmentally capable of forming and expressing a clear and considered view about future contact with his father. This was assessed by Professor Wilson and supported by the observations of the legal representative who has capably represented Dimitri as an independent representative and now a direct representative. 2. Dimitri was three when his father moved out of his home and went to Russia. He was five when his father returned with the girls. Within three months of his father's return to Australia there was an allegation of an assault which caused Departmental caseworkers to interview Dimitri. Two months later Dimitri was interviewed by caseworkers and Police in relation to Sofia's allegations of sexual assault against the father. Since then, Dimitri has been a witness in criminal litigation and the subject of care litigation that will hopefully end at the conclusion of these proceedings. Despite the litigation involving stress to him, his mother, his father, referrals to therapists, and interviews with lawyers, he is a high achiever academically, in sport and has good social connections. 3. Dimitri has maintained a relationship with his father in circumstances where there is conflict between his mother and father, and where his older brother refuses contact with his father. His capacity should be acknowledged and respected, and the orders should provide sufficient formality to contact to ensure the father's role is recognised such that litigation ceases. Recognising Dimitri's agency gives paramountcy to his safety, welfare and well-being and is the least intrusive intervention that protects him from harm and promotes his development. 4. Sofia and Julia have no biological connection to the father. He is a connection to their culture and a key part of the story of who they are and how they came to be Australian. They were in his care from [] 2016 until [] 2018 and have not had contact with him since. They are significant to him, noting the promise he made to them and to the Russian government about his commitment to caring for them, but he is far less significant for them. 5. Every child in care would benefit from a relationship with a positive adult role model and alternate carer who has the capacity to support them through care and into their adult life. Where possible, relationships with family, kin and significant people should be maintained and developed to provide children with that support. Despite that principle, it is not possible to reintroduce the father to the girls without exposing them to an unacceptable risk of harm. 6. Julia has a limited memory of the father but was the victim of an assault that caused injuries. Sofia alleged the father had sexually abused her and still believes he has perpetrated sexual harm against her. 7. There is no doubt the children have been exposed to sexual acts or sexual abuse, either during their time with their family, in Russian care, or in the care of the father. The father gave evidence that they presented with sexualised behaviour shortly after entering his care, and he sought assistance from Russian psychologists to address that behaviour. He noted his regret for the assault on Julia, commenting on attempts to discipline her for adverse behaviour. He denies sexual misconduct with any child and disputes Sofia's allegations. 8. The father's application cannot be determined based on what he wants, it must be determined on the capacity of the girls and what they need. Their relationship with their carer is the most stable and secure relationship of their lives. Although there are vulnerabilities for children in the care of single carers, their carer has strong family support, and the girls are part of that family. The carer capably manages the behaviour of the girls and supports them to access therapeutic assistance. 9. Dr Gonzalez noted that the physical, cognitive and many of the emotional needs of the girls are being met. She commented that where their placement has limitations is that their carer holds negative views of the father, including being reintroduced to him. 10. Dr Gonzalez was commissioned to trial Dr Hart's suggestion of introducing photos in a therapeutic safe setting. The girls' response to Dr Gonzalez indicated it may not be in their interests to progress contact with the father. 11. The developmental and emotional capacity of the girls impacts their ability to adjust to change. It would take a substantial amount of time and therapeutic support to prepare the girls for a reintroduction to the father, and it carries the risk of severe regression in behaviour due to heightened anxiety and a threat to their sense of safety and security in their placement. Any change would be intrusive and may cause harm and impair development. The risk of unacceptable harm significantly outweighs the perceived benefits of a reintroduction, and the application is refused. 12. During these proceedings, it became apparent that girls have not been adequately supported in maintaining their connection to culture and the Russian language. It is imperative that the Department prioritise these connections to assist the girls in understanding their identity and develop a capacity to establish a future connection with their biological family. The power to make a contact order that does not specify a minimum period of contact 1. Section 86 provides that an order may be made by the Children's Court doing any one or more of the following – (a) stipulating minimum requirements concerning the frequency and duration of contact between a child or young person and his or her parents, relatives or others of significance to the child or young person, (b) requiring contact with a specified person to be supervised, (c) denying contact with a specified person if contact with that person is not in the best interests of the child or young person. 1. Contact orders either mandate contact or permit contact. The Care Act mandates contact through enabling the Court to make orders that set a minimum frequency and duration of contact. The Care Act does not expressly provide for orders that permit contact. The suggested order would be a permissive order to confirm the father and Dimitri are able to have contact and supervision is not required. 2. The final orders were made in [] 2020, when Dimitri was eight years old. The Court allocated parental responsibility for contact to the Minister with a contact order that provided for fortnightly supervised contact between Dimitri and his father for twelve months. That order has expired. 3. A contact order will be made until Dimitri attains the age of 18 years. There will be contact with the father. The contact will not be supervised. The contact will be at a frequency and duration as determined by Dimitri. ********** Amendments 19 August 2024 - Amended party names for anonymisation. 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: 19 August 2024