District Court New South Wales Medium Neutral Citation: LZ and QJ v FACS [2017] NSWDC 414 Hearing dates: 17-24 July 2017; 02 August 2017 and 28 September 2017 Date of orders: 29 September 2017 Decision date: 29 September 2017 Jurisdiction: Civil Before: Knox SC, ADCJ Decision: I dismiss the summons and appeal in relation to the child A The orders of the Children's Court at Bidura made on 7 December 2016 in relation to Y are conformed That except as provided in Order 4, all aspects of parental responsibility for Y, be allocated to the Secretary Catchwords: APPEAL FROM CHILDREN'S COURT - Parents' found guilty of assault occasioning actual bodily harm - AVO Order to protect children - Children's attachment to the carers' - sibling bond - whether to separate siblings - cultural considerations - criticism of carers' by parents' counsel - concern parents will leave Australia - whether the Secretary will renew children's passports - assessment of parents Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Cases Cited: DFaCS re Day [2012] NSW ChC 14 "V V" v District Court of New South Wales [2013] NSWCA 469 Director-General, Department of Community Services v D & Ors [2007] NSWSC 762 Re Kerry (No 2) [2012] NSWCA 127 Re Tracey [2011] NSWCA 43 Donnell v Davey [2010] Fam CAFA 15 Texts Cited: UN Convention of the Rights of the Child 1989 Category: Principal judgment Parties: L Z (First Plaintiff) Q J (Second Plaintiff) The Secretary, Department of Family and Community Services (First Defendant) Y J (Second Defendant) Representation: Counsel: L Goodchild (First and Second Plaintiffs) M Anderson (First Defendant) G Moore (Second Defendant) S Gardiner (Third Defendant) Solicitor: File Number(s): 2016/384724 Publication restriction: None Issue 1. The issue in this case concerns the parenting and care arrangements to be made for: W J (A) (aged 12 ½) Y J (Y) (aged 6 ½) 1. The children are currently under the care of the Secretary, who proposes that the children should remain living with their current carers in a southern Sydney coastal suburb. 2. The parents seek that the child, Y, be restored to their care on the basis that: 1. she will reside with the parents at an inner city suburb 2. she will continue at her present school at a southern Sydney coastal suburb; and 3. she will see A at the carers' house or some other agreed venue on a weekly basis. 1. In the alternative, they seek weekly contact with Y extending to overnight contact on a regular fortnightly basis. The parents do not press for the restoration of A nor do they seek contact orders given the strength and consistency of her wishes. 2. There are no separate or different interests between the two plaintiff parents. 3. The respective lawyers for each of the two children propose that each child remain with the carers with whom they are currently residing. A (aged 12½) is able to give direct instructions to her lawyer whose views, in any event, are identical to those expressed by A. Procedural history 1. This matter comes before the Court by way of an appeal from the decision of the Children's Court pursuant to s 91 of the Children and Young Persons Care and Protection Act 1998 ("the Act"). The appeal was commenced by a summons dated 22 December 2016. An amended summons was filed 13 July 2017. Children's Court Proceedings 1. The decision of the Children's Court was made on 7 December 2016 by Magistrate Hogg allocating parental responsibility for the children to the Minister until they attain the age of 18. His Honour found there was no realistic possibility of restoring the children to the parents. He approved the permanency plan, the care plans and the amended care plans. Leave 1. Leave is not required under s 90 of the Act. Pursuant to s 91 of the Act, these proceedings are considered to be a re-hearing. Evidence 1. I have admitted the transcript of the Children's Court proceedings and an agreed tender bundle (exhibit 1 amounting to about 1750 pages) into evidence pursuant to s 91(3) of the Act. 2. There have been substantial and relevant changes to the lives and situations of the children, as well as the other parties concerned with the children over the intervening period since the Children's Court orders. In those circumstances I have directed that fresh evidence may be led by all parties pursuant to s 92(2). Background 1. A short history of the relevant family circumstances and that of individual members is as follows: 1. The mother, L Z, was born in October 1976 (aged 40) in Northern China. 2. The father, Q J, was born in February 1976 (aged 41) in south China. 3. The parties were married in 2003. 1. The father, mother and both children are Chinese citizens, not Australian citizens. Their visa situation is set out below "Passports". 2. Other significant figures in the children's life are: 1. The maternal grandparents, who are currently in Australia for two months. They are aged in their seventies. They have seen the children on one occasion and had a Skype interview. It is proposed that the grandparents will see Y at least one more time before they leave Australia in conjunction with the mother. 2. The paternal grandparents who are living in China. They have not seen nor Skyped the children. 3. The carers – see "Current situation: carers". 1. From all accounts, the picture presented of the children is that they are both very polite, compliant, intelligent and do not present with any health or physical problems. The caseworker, Ms Nakhle, (see below) thought that both children are more mature and developed than others in their age group. 2. Other evidence suggests that A is strong-minded, articulate young girl on the cusp of adolescence who is clearly capable of expressing her emotions. Schooling 1. A is in Grade 7. She is scoring very high marks in all areas. She says that there is nothing about school that she does not like although she has some reservations about some fellow students. 2. Y is in Grade 2. She is progressing very well particularly in English and Maths. She is more active than A. Both children get on well socially with their respective peers. A is said to be highly competitive. 3. From all accounts, the girls have a close relationship. Both children are in the same placement. It is clear from all the evidence that the children have a good and close relationship with the carers. A caseworker observed that the children called the carers "Mum" and "Dad" a number of times. However, there is no doubt that they are fully aware of the status and identity of their natural parents. Children's wishes 1. A's overwhelming wish (exhibit 1, p 1791) is that she and her sister should stay with the carers where they now are. 2. The parents (affidavit of Q J sworn 14 July 2017) have said that they will not seek restoration of A due to her views, the strength with which they have been expressed and the period of time over which they have been expressed. 3. The determination of Y's views both in the past and currently is a more complicated exercise. Those wishes have varied from time to time and in specific contexts and circumstances – see below "Y's wishes; Y's recollections. Current situation: Carers 1. DoFCS placed the children in foster care with the carers (referred to as J A and N) with whom the children have lived since 8 August 2015. They live in a southern Sydney coastal suburb. 2. J A has Chinese heritage. Her great grandmother came to Australia from China. They are experienced carers for other children who have experienced abuse and trauma. It is submitted that they have sufficient connection with Chinese culture to be supportive of the children's cultural heritage. 3. DoFCS' case (and that of the Direct legal representative for A and the Independent Childs Lawyer for Y) is that the children's current circumstances with the carers are submitted to be both appropriate and beneficial for their current and future situation. 4. The parents' counsel, Ms Goodchild, as well as seeking restoration of Y to the parents, has criticised the carers as being biased in their views about events in the children's past and in terms of their attitudes to contact. Ms Goodchild submits that their views were erroneously and wrongly taken into account by the clinician, Ms O'Neill (see below "Admissibility of Addendum report of Ms O'Neill"). Events precipitating the children's removal 1. A risk of significant harm report was received by Community Services that A (then aged 10) had run away from home. She was found by the police in the city barefoot and bruised on the (winter's) evening of 8 August 2015. She was admitted to hospital. She was exhibiting extensive bruising and some lacerations on her back, arms and face as seen in the photographs in exhibit 1 p 81 ff. The extent of those injuries and markings on her back and shoulders are quite concerning particularly given that the child was wearing 4 layers of clothing at the time. There is evidence that those bruise marks lasted for about two weeks. While there can be different markings for different kinds of skin and age groupings, there is no doubting the severity of the actions which led to A's actions in running away from her parents. 2. A said she was fearful of her parents. She reported at the time that the mother had pinched her cheeks after she and Y had eaten sample food of strawberries, chocolate and banana bread which was on offer at the Eveleigh markets. There were a number of other allegations including that the mother was reported to have left the children in the home unsupervised. 3. A also said that her father had returned home that day, kicked A in the back several times and then went to the laundry to fetch a metal coat hanger with which to hit A. There was obviously substantial premeditation involved in an event where the husband went to go and get a coat hanger, unravel it, bend it and then administer a beating to his child. The mother was said to have heard noises but said that she did not know that he was hitting A. Further investigation by DoFCS indicated that A said that there had been a substantial history of abuse of her by both parents in both China and in Australia. Safety and risk assessment 1. A Safety and Family Risk Assessment was carried out on 12 August 2015. It was determined that the children were at risk of significant harm due to excessive discipline or physical force. Care arrangements 1. Following those investigations and the assessment, the parents agreed to place both children under a temporary care agreement and to work with the Department in relation to the children for up to six months. At that time, it was intended that the children would be restored to their parents. 2. Y was asked at that stage whether she wanted to stay with her sister and she nodded. Both children remain in the same placement. 3. Both the children were taken into long term care on the basis that the Department was unwilling to extend the temporary care agreement and wanted a more permanent care arrangement. The relevant DoFCS officers considered that restoration was unlikely over the following six months due to a serious risk of harm from physical, emotional and psychological abuse. A's fear 1. Thereafter police and DoFCS investigations continued. The incidents set out were confirmed in an interview by the police and caseworkers with A. A also reported that she was hit by her father on occasions when her parents argued. She could "never not remember being hit". A also said that her mother would not talk to her for days when she was "very angry". A was scared to go home as she was afraid she would be hit by her parents for "telling". 2. A was interviewed at school on 3 September 2015. She reported that her parents' discipline included shouting at one end of the scale, and being hit with a coat hanger at the other end of the scale. A stated that the marks from being hit with a coat hanger usually lasted two to three weeks. She also said she was also locked outside of the house before dinner when it was almost dark. The mother admitted to leaving A outside for up to 4 days at a time. On one specific occasion, the mother left A in the front courtyard of the home and left her there for periods of 30 minutes and up to 2 hours. The mother said that, in the past, all the parents' anger was directed at A. DoFCS' actions: children assumed into care 1. A subsequently disclosed to her carer that the punishment she had received from her mother and father in China made her view her mother more "…as a school teacher than a parent" and that her father "is like the weather. Some days are sunny but you often know when the storm is coming." 2. It appears that on one occasion she may have attempted to give a speech at school about the abuse she had experienced until stopped by one of the teachers (see notes exhibit 1, p 89). 3. A's notes for her speech to her fellow classmates (exhibit 1, p 89) are very evocative including that she "…actually wanted to die…" that she was "…getting strapped, hit, kicked, whipped and all kinds of ….. punishments…" that "…life couldn't have been worse…" that she felt as though she couldn't "… take it anymore. I have to do something about it…", and concluding with "I am safe and sound now and I am very very glad about that". Parents' disclosures to police 1. The parents were interviewed at an inner city suburb Police Station. The mother disclosed that she had frequently assaulted and hit A and that she had "big anger management problems". The father admitted to hitting A, saying that it was "…all his fault" and he did "not want to keep hitting her". He admitted the parents become physically violent towards A when she did not meet their expectations and they became very angry. On one occasion he cut A's hair because she was playing with her hair and was not doing her homework. They said that Y was not physically harmed because the father considered her to be "retarded." There may have been translation difficulties with the use of that word. The mother said to Ms O'Neill that what the father meant was that Y was slower than her sister in meeting milestones (exhibit 1 – p 1101). Mother's admissions 1. DoFCS considered and appears to still consider that the mother has either minimised the extent of the abuse or been ignorant of the extent of the abuse suffered by her children. The relevant clinician (Ms O'Neill), assessed the mother as being quite self-focused and intellectualised in her approach to the whole situation and, in particular, the position of A. An essential part of DoFCS case is that there is a real risk that the mother continues to have that tendency. The mother was said not to comprehend that A had lost all trust in her parents. Father's admissions 1. The father was interviewed at Central Sydney CSC. The father admitted that the concept and practice of physical discipline in China was much worse than in Australia. He said that he had been beaten in a much worse manner by his father and that it was hard changing past practices. He also admitted to placing A outside their home but said that there was a wall through which the parents could continue to see her. The father says that the wife learned physical abuse from him. 2. The father admitted that they both became very angry and physically violent towards A when she did not meet their expectations. Further, that that abuse had continued for a long time. 3. The mother attended a separate interview and said that the parents both abused A because they wanted her to do well at school and that they were driving her towards that objective. The mother said that at first she had tried to stop her husband hitting A with a coat hanger but he pushed her away. The father beat the mother before A was born and after she was born, and said that, from the age of 3 months, he had also beaten A. The mother admitted to not speaking to A for days. The mother told caseworkers that she was prepared to work with them. Interviews 1. A was interviewed by caseworkers at hospital. The parents were interviewed at home. 2. The father admitted to losing self-control and the mother admitted to getting angry. He put his head down when he was asked whether he had cut A's hair in the humiliating way A had described. The father also said he had also caned A with a xylophone stick when she made any mistake in writing English words. During the interview the parents discussed the recent incident and said they knew what they did was "wrong". 3. They both said then and in the course of their evidence, that part of their motivation for coming to Australia was to be in a country where there were laws to protect children. Clearly there were other motivations as well but one of the specific reasons they gave for coming to Australia was because it was common for people to hit children in China and that they wanted better for their children. 4. It is clear that there were a number of both incidents and practices which were very destructive of the children and the parents' relationship with the children. It is also clear that the parents were aware of what they were doing. The extent and timing of the injuries and the reports makes it open to a strong inference that the incidents which caused the injuries were deliberate, disproportionate, calculated and repetitive. They do not appear to have arisen from some eruption of temper. Neither parent appears to have suggested that there was any kind of provocation by A. 5. The father's awareness of, and admissions about these matters, have continued in what appears to have been his admissions to at least his therapist, Ms Wood – see below. Letters 1. The father wrote A a letter on 10 August 2015 (the day after the children's removal). In that letter he admitted his conduct and guilt over his conduct (exhibit 1, p 988). Another similar letter from the mother was thought to be more concerned about verbalising her own emotions rather than being an attempt to genuinely communicate with A. 2. The letters from both parents were given to A. She did not read them. A has not communicated by correspondence nor calls to her parents. 3. Y has sent letters to her parents. She apparently gives those to her parents at contact occasions. Convictions 1. Both parents entered a plea of guilty to assault on A occasioning actual bodily harm and received a 12-month good behaviour bond, with no conviction recorded. A 12-month apprehended violence order (AVO) was also made on 17 August 2015 in order to protect the children. Current contact 1. The current contact between the parents and Y has occurred since January 2017 once per week for a period of 1.5 hours and fortnightly since August 2017. That contact is supervised by Wesley Dalmar from the date of removal and placement in out of home care until this date. Contact has taken place obviously with the consent and facilitation of the carers. That has been done in accordance with the Care Plan of 7 April 2016 and the addendum to the Care Plan (exhibit 4). 2. On the occasion of 5 July 2017, Y was heard whispering to her mother, "I just wish that A would come home when I do." That followed a conversation at normal voice level. It is unclear why the conversation referred to above was carried out in a whisper and thereafter, reverted to a normal level after the intervention of the supervisor to the effect that whispered conversations were not permitted. 3. It would be unfortunate if Y felt that she had to avoid having the supervisor hear anything or it was sought to encourage her in that approach. Assessment of children's capacity to express their wishes 1. A appears to have a capacity for strategic assessment of her situation and the likelihood of actions which may be taken towards her. That, and her capacity for determined action, is demonstrated by her actions in leaving home, expressing her views on the reports and processes adopted by the respective clinicians, as well as maintaining her determination not to have anything to do with her parents and grandparents. That is one explanation for the approach she has adopted in changing what she said in the clinical interviews with Ms Crawcour to the account she subsequently gave to the caseworkers and then Ms O'Neill – see below Clinicians reports. 2. Whether that is an indication of hyper-vigilance, often demonstrated by abused children, does not appear to have been explored and is not necessary for me to determine. Suffice it to say that it has not been suggested that A is or was exaggerating any aspect of her fears nor the actions on which that fear and anxiety is said to have been based. 3. Y is regarded as also being quite clever and that she makes friendships easily. Y seems to be more compliant, at least more so than A was at a comparable age and stage. There were occasional incidents of reports of sibling rivalry which do not appear to be in any way unusual or concerning. Y: wishes 1. Y is close to her parents. However, there were other different views expressed from time to time which, in my view, reflect Y's internal division about her feelings. Y was asked whether she wanted to stay with her sister and she nodded. At another stage she appeared to indicate the desire for "…two different Ys" with the implication that each could go in different directions. As I have indicated, the evidence suggests that Y has expressed different views on different occasions and in differing contexts - See below Y's recollections. Evidence 1. What follows is a summary of the evidence of the witnesses. In no case is it exhaustive nor does it include reference to the more than 2,500 pages of tendered material including the care and contact reports as tendered and relied on by different parties. 2. A Care Plan and addendum (exhibit 4 tabs 3,4 and 5) were tendered. After submissions were made an addendum Care Plan was proposed and filed following a psychological consultation with a DoFCS in-house psychologist, Rhonda Marshall on 29 August 2017. Charlene Nakhle, DoFCS caseworker 1. Ms Charlene Nakhle, caseworker of the DoFCS, gave oral evidence in addition to her two affidavits sworn 17 February 2017 and 11 July 2017 respectively (exhibit 1, tab 22 p 662, tab 24 p 1136). 2. Ms Nakhle has had regular involvement with the children since 22 February 2016 and has familiarity with the file and the parties. She has worked with DoFCS since 2007 and has been a caseworker since 2014. Cessation of contact: A 1. A has not had contact with her father since 19 April 2016. A also said that she did not want to go to contact, nor communicate with her parents. She was not curious to know anything about them. 2. The carers informed the caseworkers that A said that her dad was "acting weird" at contact. The father tried to sit really close to her. He rubbed her back. She knew he wasn't going to hurt her then but she was expecting pain. A said she doesn't believe that her parents are being genuine during contact visits. 3. During a home visit on 23 December 2016, A said she was adamant about not wanting to attend contact but she was prepared to receive food and cards from them. 4. DoFCS caseworkers have told A what her parents have done in an attempt to have her restored to their care. A's response was that it did not matter what they did, she was not interested in having anything to do with them. It is clear that her views are deep-seated and at this stage, permanent. It is a matter of strong inference that she would have communicated both those views and the strength and basis for them to both the carers and Y. That also appears to be clear from the evidence of Y. 5. A stated at a home visit that she is amenable to re-commencing counselling. Ms Nakhle said that A is recommencing counselling in July 2017. Following Jason Zou's evidence, DoFCS's counsel said that DoFCS would arrange and find Transcultural Counselling for the children – see below. A: attitude to Y 1. A says that Y told her that she did not wish to be restored to their parents without A. She says that she no longer feels resentment towards her sister (Y) because she was treated differently to A. Nevertheless, she said that she feels responsible for Y. The caseworker stated that A was relieved that Y would remain with her and should be "safe" pending the appeal. 2. This view has been consistently expressed now by A for some months - approaching a year - and in a number of contexts. At the health assessment with a paediatrician and a psychologist, A also made it clear that she did not want to return home and that she would be sad and worried if Y was returned to the parents' home because Y would suffer emotional abuse. Y's recollections 1. Y informed the caseworker that she wanted to spend more time with her parents. Y also said that she liked contact but did not want to see her parents as often because she felt tired. That ambiguity is consistent with other expressions of her wishes. Her wishes as expressed to Ms O'Neill led to the observation that: "…the experience of contact is seemingly positive. However, she noted that her parents are 'different now because they are really nice' but before, she described them as being 'really really cranky'. She opined that they have changed now and that they are really nice. Yet, if she moved back home, Y believes that they will be nice and then start being cranky again". 1. Y also remembered being locked outside for a long time when it was cold and dark. Y was worried that, if A was not at the home, there would be no one there to care for her (Y) and she would be sad if A was not there. 2. Y was observed in a paediatric assessment in May 2016 as having chafing on her knuckles as a result of her biting her hands. This occurred mainly at night following contact with parents. She also has a slight heart murmur that needs following up. 3. The carer, JA, informed Ms Nakhle that Y had not had nightmares recently and that those have diminished over the last twelve months. She was observed to be more settled during a home visit at the carers' home. Y is reported to be waking with nightmares less often. Her nail-biting has ceased. Y was reported by the carers to "adore" A. Contact between the girls if separated 1. In cross-examination, Ms Nakhle said that on the assumption that Y went back to her parents, the DoFCS would manage the contact between the girls. That prospect (of overnight or weekend contact) has been considered by the Department given the strength of the girls' relationship with each other and the parents' proposals. However, it was rejected as an option by DoFCS and has not taken place. 2. Ms Nakhle also rejected the suggestion that the carers' were attempting to "dictate" the situation as to contact: rather, that they felt that it would be very difficult for them to manage the emotional needs of both girls if Y was returned to her parents and then came back to see A at different stages into the future. Attitude of the carers 1. The carers are very much of the view that what Y suffered in the past was "abuse". On the last day of the evidence, the carers indicated through counsel for DoFCS that their view on various aspects of contact was that they would co-operate with orders made notwithstanding their strong views that some forms of contact would be inappropriate. 2. The carers have certainly indicated that they would not want to be a party to an arrangement if Y was to be restored to her parents whereby Y then spent overnight with her carers. The carers' views – and the strength of their views – are clear. They would be prepared to work to make the arrangement provided for in these reasons and orders, come into effect. Obviously their convenience and that of their family, needs to be considered especially in terms of contact arrangements. 3. Notwithstanding the criticisms made by Ms Goodchild for the parents that it is and was inappropriate for the carers to be making such views known nor to appear to dictate the terms of arrangements (see below Criticism of carers by parents, counsel), the carers' attitudes to contact need to be viewed against the background that they have clearly facilitated weekly contact now for many months. I do not accept that they have sabotaged that contact nor any aspect of it. Nor do I accept that they are or have been attempting to dictate any contact regime. 4. Given the strength of the criticisms of the carers mounted by Ms Goodchild on behalf of the parents, set out below, it is appropriate to set out some of the evidence as to the attitude of the carers to the children. In essence that was: "I told JA in her report with Alison O'Neill she and N were quoted saying they would not 'be party to the abuse' and asked what she meant by this. JA stated yes, they viewed the restoration plan proposed by Alison (O'Neill) at the time would be abusive to both children. Y would not cope going back and forth all the time and the separation of the siblings would be very traumatising. A is highly concerned about her sister's safety". 1. The carers also have said that they will cooperate with facilitating contact with the girls at their home if the court so orders. They did not oppose the children having overnight stays with their parents. They did not want a long drawn-out process of restoration of Y – if that was what was proposed. 2. The carers reported to Ms O'Neill that weekly or bi-weekly contact leaves Y "still exhausted", occasionally hyperactive and then tired afterwards. It is for this and other related reasons that Mr Anderson for DoFCS submits that the contact be narrowed to monthly periods plus additional special events and matters of cultural significance. 3. Specific contact occasions include the attendance by the parents at Y's school – for example, at her speech night or during public performances of a choir or any school group and during events such as Chinese New Year as well as Y's birthday, Mother's Day and Father's Day. 4. DoFCS support for further contact would depend on the clinician's recommendations. In my view that should take place at the end of a twelve month programme of contact in accordance with the graduated programme that I will outline at the end of these reasons. Ms Tracey McFarlane 1. Ms McFarlane is the Casework Manager of the two children and has been in that position since 2015. That has involved supervising the relevant caseworkers, including Ms Nakhle. As the delegate for the Secretary, she is essentially the relevant decision-maker for all relevant decisions regarding the children. 2. Ms McFarlane had earlier proposed arrangements as set out in Child Protection Plan dated 24 August 2015. It was the document tendered to the Children's Court. 3. In cross-examination, Ms McFarlane said that counselling has been envisaged for A in that she needs to feel safe because of the trauma she had experienced. That safety needs to be achieved before she could continue other forms of counselling. A currently feels safe physically. She feels safe with her carers. She needs to feel safe after the end of the ongoing court proceedings - including this appeal. DoFCS are satisfied that the carers are providing a safe and supportive environment. Mother's evidence 1. The mother gave evidence in this hearing as well as in the Children's Court in addition to her affidavits sworn 17 April 2017 and 28 June 2017. In cross-examination the mother said that one of the many reasons they left China as a family was to avoid the violence there was between them and their violence, separately, towards A. A had run away on numerous occasions including on one occasion when the father had slapped her in about 2013. 2. The mother says that she and her husband are committed to remaining in Australia to ensure the maintenance of the bond between the children. The mother is not working in Australia. She is both well and highly qualified and is obtaining more training as an artist. She would agree to an order preventing the children from leaving Australia. 3. The mother said she was the primary carer for A although the father helped her. She acknowledged that A also cared for Y while she (the mother) was away. Those were relatively rare occasions. In that regard, she disagreed with Ms O'Neill's opinion that A had a tendency or practice to "mother" Y when they lived with the parents. 4. The mother has read the wishes statement of A (exhibit 1, p 1791), in particular that she (A) wants Y to stay with her – expressed to be an "overwhelming wish" – and to stay with the carers. She accepts those wishes and that they are validly held. She did not appear to dispute much of A's perceptions of her treatment by her parents nor the history she had recounted to the various DoFCS officers and others. The mother accepts that A has held the views she has for a long period of time. She also accepted that the altercation and family issues and disruption also involved Y. 5. The mother admitted saying to A at the time A ran away that "she was the one who had ruined the family". In recounting that evidence, the mother said she was concerned that A might blame herself for the breakup of the family. She wished to overcome that if possible. Mother's attitude to carers 1. The mother did not consider that the carers had manipulated A's views, rather that A had been influenced by the environment in which she lived. She considers that those carers are restricted in their views – and that A has been influenced accordingly. Mother's attitude to DoFCS 1. The mother did not blame the DoFCS for intervening, rather the reverse, seeing the intervention as bringing to an end an untenable situation. She wishes to ensure that A is given such long term counselling assistance as necessary and where available. The mother will participate if requested. Mother's relationship with father 1. The mother is dependent on the father for her financial and visa entitlements. She is not working and has developed a wide range of interests and activities while living in Sydney, including languages, music and painting. 2. Notwithstanding some suggestions in the evidence of Mr Jason Zou (see below) about difficulties in the marriage, the mother considers that her relationship with the father is strong. She considers that she is strong enough to leave her relationship with the father but does not want to. Children's Chinese culture: "Chinese Consult" 1. DoFCS and the carers have organised a contact "N" who is of Chinese background. N can speak Mandarin. She is a long term friend of one of the carers and is a teacher. It is intended that she would be available to the children to accompany them to cultural events and for DoFCS to check events with her to see if those events are appropriate and beneficial to the children. DoFCS has been consulting N over the last seven months to see what events would be culturally appropriate. N has taken the children to one such event in the last seven months. It is clear that she would be an acceptable contact supervisor if required. 2. N attempts to speak to the children in Mandarin. Y takes Mandarin lessons and attends a Youth Group which has Chinese instructors and leaders. A has also said that she does not want to study Chinese (exhibit 1, p 822). 3. Both experts, Ms Crawcour and Ms O'Neill, said that some other person other than N should be involved in this acculturation process. That was because of the perception that N was too much under the carers' influence. There are clear cost considerations in that event given the contents of the Cultural Plan. The totality of the proposals including N's involvement, seem appropriate. Other aspects of Chinese culture 1. The carers said that they prepare and eat Chinese meals every week at home. The children participate in preparing those meals. 2. A told the caseworker that she did not want to see the parents for contact on particular Chinese occasions, for example, during Chinese New Year. Y asked to see the parents more frequently - apparently in this context. 3. The parents bring Chinese meals to Y who shares them with the parents during the current weekly contact occasions. That contact has taken place at a library. 4. Father's evidence 5. Q J ("the father") gave oral evidence in addition to his three affidavits sworn 28 June 2017, 14 July 2017 and 17 April 2017 (exhibit 1, p 1302). 6. The father came to Australia on a student visa. He is currently working in Australia as an IT Cloud Support Engineer with Amazon. He has a 457 working visa issued under the Migration Amendment (Temporary Visas) Act 2013 as amended. There are various categories of the visas he has had which are set out in paragraphs 166-168 of the parents' submissions (exhibit 19) The latest visa will expire in August 2019. He says his employer has indicated that it will sponsor him as a permanent resident. He intends to make an application for permanent residency in Australia. He said that he has no intention of separating from the mother. The father also said that he would consent to an order that the children not be removed from Australia. 7. The father has given evidence in the Children's Court, which he adhered to and maintained. He acknowledged frankly that he had abused A in the manner she described and on the occasions as set out in these reasons; further, that that behaviour has been a long-standing problem. He was also aware that Y had witnessed some of these matters described. He also admitted that he had poor impulse control at the time the children were living with the parents as a family. 8. He respected the validity of A's wishes and accepted that she had remembered events accurately. He wrote a letter to A setting out why he accepted A's wishes and how he had always intended to advance her interests. He said in that letter that one of the many reasons why he came to Australia was that he would be a better parent in the Australian environment. 9. It is clear that the father has gained at least some theoretical insights into how to control his behaviour and the impact of his past behaviour on the children through his extensive counselling sessions with Ms Catherine Wood. Catherine Wood (clinical psychologist) 1. Ms Catherine Wood, clinical psychologist, (report dated 12 April 2017: exhibit 1, p 1386) gave evidence that she was a therapist for the father. She had been in practice for 19 years. She had seen the father approximately 17 times. Her focus was in looking at his past trauma and his capacity to cope with future stresses. 2. Ms Wood's report detailed that the father was aware of the impact of his physical, verbal and emotional abuse of A. He treated Y differently and less severely than A. However, he acknowledged that he was also verbally and emotionally abusive towards Y. He said he had been subject to a lot of pressure from his parents about his own children. Both generations of the family had been extremely focussed on academic achievement as well as what they considered to be the discipline necessary to achieve that. The father acknowledged that he had carried that too far. 3. Ms Wood said that the father is very frustrated by DoFCS and concerned by the carers' influence on his daughters. However, he appears to have accepted those arrangements and does not challenge the validity of DoFCS' actions or the motivations of the DoFCS officers. The father is continuing with ongoing therapy. There have been recommendations made by Ms Crawcour and Ms O'Neill that the father (at least) should engage in trauma counselling (exhibit 1, p1784). Nicole Jones 1. Ms Nicole Jones, clinical psychologist, provided a report (exhibit 8) dated 21 June 2017 relating to the mother. She has been a practising psychologist for 20 years. 2. Ms Jones said that her treatment for the mother included about 14 sessions of therapeutic therapy with a further 16 sessions anticipated. 3. Ms Jones thought there was no violence in the family before the children were born. Ms Jones said that, if there was violence towards the mother before the children were born, then her treatment would take a lot longer. Mr Jason Zou 1. Mr Jason Zou, an accredited mental health nurse attached to the Transcultural Mental Health Centre, gave evidence in addition to his clinical report (exhibit 13: exhibit 1, p1784). He has worked in the area of counselling migrants, especially Chinese migrants, for 18 years. He speaks Mandarin. 2. Mr Zou had met the father on one occasion and the mother on three occasions. He had not read Ms Alison O'Neill's report. His evidence described the kind of counselling that the father and the mother have undergone relating, particularly, to past events. 3. The parties had also recounted to him the incidents of prior domestic violence between each other, the physical and verbal violence they had each carried out towards A as well as the occasional physical discipline the mother had carried out on Y. Mr Zou thought that they both, and each, showed a lack of skills and knowledge and skills in responding to emotions and stress as well as a lack of insight (as at 26 June 2017) in terms of domestic violence and child protection. Summary: expert reports 1. Three expert clinician reports are before the Court in this matter. A brief summary of the effect of each of the reports is as follows: (a) Ms Crawcour dated 24 February 2016 Ms Crawcour's report dated 24 February 2016 (exhibit 1, pp 96-127) recommended that the children be restored to their parents over a three-month period as well as recommendations as to related counselling, including family therapy counselling sessions. That included a specific term of reference to consider A's anxiety and fears about returning home. (b) Ms O'Neill (first report) dated June 2016 In that report, Ms O'Neill ("Ms O'Neill") recommended that A remain in her current placement and that Y be restored to her parents over a graduated 12-month process. (c) Ms O'Neill (second or addendum report) dated 2 August 2016 In that addendum report and after Ms O'Neill's interview of the carers, she recommended that Y remain living with A and the carers in the current placement. Conclave between experts 1. Both Ms Crawcour and Ms O'Neill had given evidence and were cross-examined in the Children's Court. At my suggestion, they met on the morning of the hearing to discuss their respective reports and their differences of opinion. A document setting those matters out was produced (exhibit 11) and typed (exhibit 12). 2. Both experts received and read the relevant subpoenaed and agreed material. Qualifications of the clinicians 1. Ms Crawcour is a social worker whose qualifications are set out in her report. There is no challenge to her qualifications nor, as I understand it, to her experience. She has been a Court Clinician for over four years. She is currently a doctoral student (PhD in Social Work). 2. Ms O'Neill is a psychologist. Her qualifications and experience are set out in her first report. There is no challenge either, as I understand it, to her qualifications and experience. Methodology 1. Given the criticisms there were of the clinicians reports, if is appropriate to set out the methodology adopted. 2. Both Ms Crawcour and Ms O'Neill interviewed the parents and the two children for their reports. The process followed by Ms Crawcour, included one clinical assessment interview with A and Y at the foster carers' home on 30 January 2016, as well as a clinical observation of the parents and children on 2 February 2016. The first report of Ms O'Neill followed additional interviews of the parents and the children as well as interviews with the carers. Ms O'Neill saw A for just over two hours and Y for an hour on 23 June 2013. She then saw the carers for two hours on 26 August 2016 for the preparation of the second report. Other material on which they each relied is set out in the respective reports. Change in reports and recommendations: Ms O'Neill 1. The area of contest in the clinicians' respective assessments came about because of a change between the first and second reports by Ms O'Neill. That essentially came about because of a change of views expressed by A as communicated to others and as reported by the carers'. 2. Ms O'Neill's report dated 2 August 2016 was obtained following a previous home visit by Ms Nakhle as well as what A had said to her legal representative. A was concerned about what she had said to Ms Crawcour. She felt she had been "forced" to make certain admissions (which she admitted were lies) and that essentially she might be forced to return home. After being involved in the process leading up to the report by Ms Crawcour, A said that she had lied to Ms Crawcour because she had been told that her comments would be transmitted to her parents. Further, she (A) said she would be scared if she was going to have to go back to living with her parents. 3. Accounts of what A said are as follows: "…that she had expressed her desire to have her own voice heard in court, and that she had also told her lawyer that she was not 100% ready to say what she wanted to when she spoke to the Children's Court clinician, Ms Crawcour. She added that Ms Crawcour "brought up" the fact that the report was going to be read by A's parents, which reportedly made A feel apprehensive about their feelings being hurt. She said that she now wants her parents to know the truth, which is that she does not want to be with them anymore. Rather, she stated that she wants to live in a place where she feels respected and not overpowered by people just because they are older than her. She added that she wants to feel safe and secure and does not want to think of the "horrible punishments" that may befall her if she does something wrong (such as only getting 99 % in a test) or if she does not do something she ought to." 1. A's memory as recounted by Ms O'Neill was that: "she has felt somewhat better since coming to Australia at the age of nine, because her parent's punishments were worse in China and also because the school punishments were worse in China. However, she claimed that the mistreatment and abuse by her parents continued in Australia. Once the family were in Australia, A's main punishments were apparently connected to her studies. She stated that her parents frequently threatened to take her back to China if she did not study or perform, which they apparently knew would upset her greatly. She described quite a gruelling study regime, which apparently consisted of her being woken up at 05:00 or 05:30am to do additional academic pursuits prior to school and she would reportedly have to do several hours of academic pursuits after school as well and for part of the weekend. She explained that her parents would set her worksheets, which they would later correct, and that if there were any mistakes, she would have to amend the worksheets. She reportedly had to complete the worksheets before going to bed. Accordingly, she would not get to sleep until 9:30 or 10:00pm after her work was deemed to have been completed." 1. That opinion was consistent with what A had said, claiming "that it is 'too late' to work on their relationship". Ms O'Neill's assessment of Y's wishes are set out below. Ms Crawcour's reports 1. Ms Crawcour's report includes a detailed examination of the allegations of abuse. A's account about the events which led to her running away from home are set out at paragraphs 138ff, especially 142-154. 2. If that is true – and Ms O'Neill and the caseworkers clearly accepted what A was saying about her fears – then it strongly suggests an ongoing fear in the mind of an aware young girl. Further, as stated by her, she wanted to protect herself in the event that she was restored to her parents. 3. Y apparently said to Ms Crawcour in conclusion that "she wanted to go home but…I want mum and dad to stop being mean and stop being mean to A. I don't like them screaming". She was clearly still aware of the history of treatment to both children and was also missing her parents. 4. A said (at paragraph 149) that "…she did want to go home to her mother and father (even) if she sees changes in her parents' attitudes towards her". At the second observation, Ms Crawcour reported that "There was no obvious fear or concern from either girl in the parents' presence". That assessment needs to be viewed in the light of the concern and fears A later expressed. 5. Ms Crawcour, noted [173] that there "was an easy and … support evidence in the room" and at [174] that "at the end of the visit the family presented as happy and …They embraced and hugged each other and the children left smiling and waving to their parents with the contact worker". Again, how accurate that assessment was needs to be assessed in light of the subsequent disclosures by A of her views and fears. 6. Ms Crawcour said that she was surprised by A's lying about her wishes given that she, Ms Crawcour, had asked A open questions which were designed to enable A to express her honest emotions. Whatever approach was adopted and accepting Ms Crawcour's expertise, experience, approach and methodology, it is clear that, for whatever reason, the approach did not work in this instance to obtain an accurate indication of those wishes. That failure to ascertain A's true views by Ms Crawcour, if that is what it was, was also made by Ms O'Neill in her interviews with A and her conclusions, as set out in her first report. As I have said, I do not regard that as a matter for criticism of either clinician. 7. This is not a case for defensiveness on the part of either expert nor for criticism of them or either of them. The fact of the matter is, and was, that A lied or did not disclose her true feelings. She did so, it would seem, out of fear of what would happen to her if she was restored to her parents. I regard it as still appropriate to look at the opinions, conclusions and recommendations of both experts against that background. 8. To the extent there is any conflict between the clinicians on the risk of harm to the children on the competing proposals, I accept the evidence of Ms O'Neill. Ms O'Neill: reliance on allegations and descriptions by carers 1. Given the criticisms of Ms O'Neill's reliance on the carers' comments, it is appropriate to set out aspects of that reliance. 2. The material that Ms O'Neill relied on prior to formulating the second report was that the trauma symptoms as reported were greater than she understood them to be. Ms O'Neill thought a longer restoration process was feasible. 3. Those symptoms include the reports of Y's bedwetting, wetting her pants, fist chewing, nail biting and nightmares all indicating that she was highly anxious and apparent reports of masturbation as some form of self-comforting. Ms O'Neill said that she was not aware of the severity of those symptoms. She thought that the anxiety was present before removal and that the pattern of decreasing anxiety occurred since Y had moved to the carers'. 4. In her oral evidence and particularly in response to the matters put to her in cross-examination, Ms O'Neill said that she accepted that the carers may have been biased in their views. But nevertheless, she had taken that into account in the assessment of the carers, what they had reported and what those reports had suggested. 5. Ms O'Neill said that she did not place any great weight on the things the carers said about the parents, essentially only and mainly what they had said about A and what she had said and done. Admissibility of addendum report of Ms O'Neill 1. This admissibility of the addendum report of Ms O'Neill loomed large in the proceedings. Ms Goodchild objected to the report on the basis that the interview of the carers by Ms O'Neill, and the untested reliance by her on their views was inappropriate, contrary to the evidence, and gave too much weight to the carers' views. She said that further, there was material in the recounting of the carers' views which indicates exaggeration or fabrication of the evidence by them. Ms Goodchild also challenged the report on the basis that the carers' views could not be tested and submits that, in any event, the opinions are based on erroneous factual material advanced by the carers. 2. The criticisms made were reiterated and developed further in final submissions. Aspects of those are set out below – see Ms Goodchild's criticism of the carers and Ms O'Neill's report. 3. In response to Ms Goodchild's attack on the addendum report, Mr Anderson, for the Secretary, pointed out that Ms O'Neill's second report was obtained with the parents' consent through their previous counsel and solicitors. No objection was raised to that course in the Children's Court proceedings. Indeed the parents were cross-examined on matters relevant to that report in those proceedings. 4. Mr Anderson also submitted (transcript p 474) that it had been made clear that the carers were available, if required, to come to court to give evidence; further, that the other evidence on which the reports were based was in addition to what the carers have said. That was as set out in the Tender Bundle including the evidence of the Department of Health paediatrician, Dr Tsovolos in conjunction with a psychologist Hannah George in May 2016 (exhibit 1; p 1151). 5. Mr Anderson submits it is not the case that there is no evidence for Ms O'Neill's conclusions in the second report. There are also the carers' observations and notes of A's comments, her notes for the speech at school as well as the evidence of the case workers as well as that of the caseworker, Ms Nakhle - case notes of June 2016 p 845. 6. Ms Goodchild refers to the care reports, numbering over 500 pages and covering a lot of incidents and conversations. She submits that they all demonstrate that Y was able to raise her concerns with her father and that he responded appropriately with an intuitive understanding of her concern. She submits that they also show that Y had an open relationship with her father. 7. It needs to be noted that the care reports relate to incidents and conversations where the contact was supervised and were therefore somewhat artificial. They also relate to a variety of incidents. As an example, the father's affidavit (exhibit 1 pp 1325 ff father's affidavit [24]) refer to Y being distressed and reporting a nightmare about her father hitting her. He details what he did, including questioning her as to what made her say and raise the allegations she did. Ruling: Admissibility of the second report of Ms O'Neill 1. I admitted the addendum report of Ms O'Neill over the objection of Ms Goodchild given the importance of the evidence in the circumstances of this case and, given the relevant authorities on the position of persons such as carers and the evidence which may be given in relation to persons connected with the upbringing of the children. This Court is not bound by the rules of evidence which is a reflection of the legislative policy to ensure all opportunities can be taken to get evidence relevant to the best interests of the children involved. However, the Court needs to be careful and look at the sources of evidence, particularly quasi-opinion and secondary evidence, to determine its strength and the weight to be given to it, and, relevantly here, the sources of knowledge. 2. I considered that it was important and appropriate in the circumstances, to get the best evidence of A's wishes (and related matters concerning Y) from those carers who had lived with the children for the last twelve months and also given that a fundamental basis on which Ms Crawcour's report was based was not correct – namely, A's strong preferences. 3. In coming to the ruling I did on the admissibility of the report, it also appeared the carers' reported views to Ms O'Neill, were consistent with what they and the children had said to others. That included what A had said to her legal representative and the evidence given in the Children's Court. Weight to be given to the second report 1. I have accepted the evidence in the second addendum report, recounting the carers' views as untested reports and non-expert opinions. They are not experts though they have clear and substantial experience as carers for over 25 years and having been the carers for over 30 DOCS based placements. They have had a close and continuing involvement with the children for over twelve months. 2. Mr Anderson also reiterates that the carers for the children have cared for approximately 30 children during their 25 years as authorised carers. They have adopted one child, now aged 18, and they have one biological child who is also now an adult. 3. While, legally, they may not be regarded as expert witnesses, their views, albeit on a hearsay basis, need to be given considerable weight. I do not consider that the attack made on the carers has been made out. Ms O'Neill's report: Y's wishes 1. In the second report Ms O'Neill noted that: "…it seems likely that Y was exposed to more family violence than I was aware of in the initial assessment, and that she has been more traumatised than initially estimated. Furthermore, it seems that A played a greater caring role for Y than I initially understood. Indeed, based on additional information it seems possible that Y's primary attachment figure was her sister not her parents, and that A is the person Y is most emotionally reliant upon. 29. Y's disclosures that her parents constantly screamed, that she was scared when locked outside, and that A's reports that Y was frequently present but did not intervene, all suggest that she was exposed to significantly high conflict and family violence. Further, her development and use of lying, acting "cute" and remaining quiet, suggest that she needed strategies to deflect negative attention, attract positive attention and/or to avoid attention. Such strategised behaviours in a young child suggest that she was exposed to significant threat, that she was highly anxious and had learned ways to minimise her risk of being harmed. 30. Moreover, Y's bed-wetting, wetting her pants, feet chewing, nail biting and nightmares all indicate that she was highly anxious. While I was aware of these in the initial assessment, I was not aware of the frequency/severity of them, and that they had taken six months to abate with some symptoms remaining still." 1. Ms O'Neill also concluded (exhibit 1, p 1133) that Y's strongest attachment was to A, clearly more so than to her parents – see below "Sibling bond". 2. In Ms O'Neill's view, there would be long-term risks to the children posed by exposure to further abuse including serious psychosocial problems such as depression, self-harming, suicide and an inability to establish deep emotional relationships. 3. Ms O'Neill's ultimate and final recommendation was that Y remain in her current placement. Ms O'Neill says, relevantly: "Y's experience of exposure to family violence, her vulnerabilities to anxiety, and the importance of maintaining the sibling bond. My recommendations are now that that Y remain in the placement with A, that she continue to have supervised contact with her parents, albeit less frequently than currently, and that both A and Y engage in trauma focused counselling as and when recommended by the CPCS. The parents should continue to engage in therapy." Experts' assessment: Y and her wishes 1. Both experts thought that, even at her age of six, Y is a highly articulate and strong-minded young person who is and was readily able to communicate. A particular issue in this case is precisely what she was communicating and what weight should be given to it. 2. The dichotomy in Y's wishes was apparent in her direct observations to Ms O'Neill when she said (exhibit 1; p 1099) that "…parents are different now because they are really nice…" but before she described them as being "…really really cranky…" She opined that they have changed now. Yet, if she moved back home, Y believes that they "…will be nice and then start being cranky again." 3. Consistently with her other observations, Ms O'Neill said that "…Y had clearly been exposed to A's views and seems to be somewhat torn between her parents and A" and that (at paragraph 43), that "…she does not want to go home 'yet' but 'maybe next year'". 4. Y also expressed some sadness about leaving her current carers because she said that she loves her aunt and would miss her (p 100). 5. She said that she does not want to return home as A does not. When pressed, she claimed that she would rather stay with her aunt and uncle in their care and go to contact twice a week to see her parents. 6. Ms Crawcour thought the benefits to Y of being restored to her parents would outweigh the benefits to her of remaining with the carers, notwithstanding the associated loss of the relationship with A. Ms O'Neill did not agree with that assessment. 7. Ms O'Neill considered that once a decision is made, Y would feel less torn and conflicted. She clearly expressed two different preferences. One of the reasons why I have stressed throughout that these proceedings should come to an end as expeditiously as possible is to avoid further stress on the children by having to express preferences and being involved in the assessment and litigation process. 8. Ms Crawcour disagreed with the suggestion that the parents did not have empathy with the children. She agreed that if Y was restored to her parents she would be a more independent young girl than she had been prior to the separation and when the children were assumed into care. 9. Both Ms Crawcour and Ms O'Neill thought that there could be a series of negative effects on Y if she was restored to her parents although they differed as to the strength, significance and consequence of those effects. Those could range from depression to withdrawal. The extent of that stress would depend on the impact of assistance from others. Sibling bond 1. In terms of the sibling bond, Ms Crawcour thought that the girls' bond was strong, they were "highly bonded". There was also a positive bond between Y and her parents. 2. At a later stage, Ms O'Neill reviewed all the material, in particular the care afforded to Y by A. She thought Y's strongest attachment was to A (exhibit 1, p 1133). That was a large part of the reason leading to her final conclusion that restoration to the parents' care would not be in Y's best interests. Further, that Y should continue to have supervised contact with her parents less frequently than currently. 3. Ms O'Neill thought that the sibling bond was stronger than before their separation from the parents. Ms O'Neill thought that Y was highly bonded to A. A described it as a sisterly relationship rather than one of mothering or protectiveness. 4. Ms O'Neill thought that, if Y was restored, A would be distressed. That would be ameliorated by frequent contact including social media. However, that could be distressing if too frequent and may lead to the children or either of them being less settled in their respective placements. At the moment – and particularly since February 2017 – Ms O'Neill thought that both children were settled. 5. The principal difference between the experts was that Ms Crawcour believes that Y had at least an equal attachment to her parents as she had with the carers' and that Y was clearly divided (transcript p268). 6. Ms O'Neill put much greater weight on the strength of Y's bond with the carers given the greater weight she put on the last two years of the stable relationships with the carers. Ms O'Neill also considered that the sibling bond would be likely to be stronger now given the children's placement together for the last two years (transcript p 268). 7. Ms O'Neill also made reference to Y's wishing there could be "…two Y's so that one could go home with the parents and one (stay)…" 8. Ms Crawcour thought that it was likely that the sibling relationship would endure as well as change in the event that Y was restored. That relationship would be likely to be supported and buttressed by strong and regular contact. Y would lose the intimacy and closeness of the sibling relationship with A if she was restored to her parents. That loss could be ameliorated if Y and A maintained frequent, if not daily, informal contact – for example, by means of social media. 9. Ms O'Neill stressed the importance of the sibling bond and thought that sibling relationships were most important – for example, the bond may be of particular importance if the parents were to die or separate. A sibling relationship was likely to have the benefit of buffering some of the stresses likely to be experienced as both children grow up, develop and have other experiences, some of them adverse. That relationship would be adversely affected by a physical separation of these two girls in these circumstances. 10. The carers told Ms O'Neill that the children have a close bond to one another. Y had a dream/nightmare that her father tried to drown A in a pond and A told the carer that this was a real event which had been referred to in threats. Y expressed concern that A would be hurt by her parents again. That is consistent with what she told Ms Crawcour on the first interview. Clearly the children have either remembered the incident or have communicated with each other about various incidents in a way which has affected their deep levels of concern. Their respective memories of those incidents appear to be entrenched. Consideration: Y's wishes 1. There is some division between the experts as to the wishes of Y and the expression of those wishes. 2. For the reasons set out below, I find that Y's wishes were expressed both differently and, on occasions, in a contradictory manner consistent with a little girl who is torn between the two scenarios which confront her. Her comments vary in their nature and extent. On occasions they do indicate a preference to be with her parents and that she wants to go with them or to have the contact last longer. On some occasions they do not express a preference, occasionally suggesting an exhaustion on the child's part and on other occasions that she was silent on the subject. That is consistent with the ambivalent nature of the evidence as to her wishes. However, I think that where the comments and conversations set out raise suggestions of violence or fear, those are also consistent with the view that she, Y, continued to have those matters uppermost in her mind and that she was bringing them to the attention of at least her father in the presence of a supervisor. 3. That could be a manifestation of the fact that those wishes were expressed on different days and in different circumstances. Ms O'Neill considered that Y's relationship with her parents was clear and Y had transferred her attachment from her parents to her sister. Y also articulated that she wanted to return to her home. Ms Crawcour thought that Y felt torn and divided. She apparently wished for a divided personality to reflect those divided loyalties. A's distress if Y restored 1. Ms Crawcour agreed that if Y was restored to her parents it would be devastating to A in that she (A) would experience harm in terms of grief and loss. She thought that the stress would be manageable by A hearing positive reports about Y – particularly given that she (A) is a highly resilient girl. Ms O'Neill also thought that there would be likely to be feelings of loss and grief particularly by A in the event that Y was restored to her parents. 2. Ms O'Neill considered that the impact of the children being separated would be very difficult for each and both of them. 3. Ms O'Neill also considered that restoration would cause high levels of distress and anxiety in A, and would increase the risk of her running away again possibly with Y. It was unclear whether that was an implicit threat or an exaggeration. However, it is consistent with A's earlier actions. She ran away on other occasions when she lived in China. For the reasons I have set out earlier she is clearly a determined young girl on the cusp of adolescence who is capable of entering her independence. 4. Ms O'Neill said that A would struggle in the event of a separation from Y notwithstanding her resilience and strength. She thought that A at some stage would not cope with such a separation. There could be an array of symptoms demonstrating that distress. Impact of change: change of environment 1. A change of placement would also mean a change of schools and her structure in that environment and the geographical disruption caused by any move. Ms O'Neill said that the more changes there were, the greater the pressure on the child and the more distress there would be in coping. 2. In that regard, the carers live in a southern suburb of Sydney. The schools the children attend are in the southern Sydney suburbs and the parents currently live in an inner city suburb. During submissions, Ms Goodchild said that the parents were prepared to move to a southern Sydney suburb. Contact reports 1. The contact reports set out the reaction of the parents. Ms Crawcour thought that most of those reactions appeared to be appropriate. 2. Ms Crawcour also thought that there was always a risk of "placement drift" that is, if the placement breaks down due to changes in relationships. However, she saw no indication of the parents attempting to sabotage the current placement. 3. Ms Crawcour thought the parents had done more to maintain the relationship and to comply with suggestions or directions than any other parents with whom she had had experience over the years of her clinical and "out of care" social work experience. Extent and length of contact 1. Ms Crawcour and Ms O'Neill both thought that, if Y was not to be restored, that there should be a diminution of the present weekly contact with the parents to once per month to minimise the disruptions to her. There was no final position between them as to whether such occasions would be in addition to "public" functions such as end of school year speech nights, performances by the choir and on birthdays and cultural events such as Chinese New Year and events such as Mother's Day and Father's Day. Ms Crawcour thought that there would be benefits to Y if her parents were able to see her at her end of year school activities. Ms Crawcour considered that contact on such occasions should be in addition to the once-monthly visits. 2. Ms O'Neill was aware that the parents were seeing Ms Wood and Ms Jones for their own history of trauma. This treatment did not relate to techniques for dealing with their own self-control and anger management. She thought the reports indicated some examples of "gross minimisation" by the mother of the harm suffered by A. The children's attitude to their grandparents 1. The children were asked if they wanted to see their maternal grandparents who were visiting from China. A was upset with the grandparents because she said she had told them of the abuse and they did nothing about it. A was initially undecided about such contact but later became upset during a home visit by the caseworker when this subject was raised. She said that she did not want to see her maternal grandparents in person nor, for example, through the medium of social media. It appears that A's hostility to the parents extends to the grandparents. 2. The children were asked whether they would have communication with the maternal grandparents over Skype using a Mandarin interpreter. Y was excited and wanted to participate. A apparently did not. 3. As late as 28 June 2017 (exhibit 17) it was noted that Y was apprehensive about talking to her grandparents in circumstances where the mother had organised for Y to talk to them in China via Skype. Y appeared to have 'lost her language' when that was organised. That was significant given that there were very few other instances and her having lost her voice. 4. After that contact session, where the unusual circumstances of the grandparents' Skype call was to be organised, it was noted Y appeared to be sad and said "I want A with me." Passports 1. A's passport expired on 17 July 2017. The original visas have been requested from the parents to enable an application for new passports to be completed. 2. Y's passport is due to expire on 7 October 2017. The original visas have been requested from the parents to enable an application for new passports to be completed. 3. The children remain in Australia until at least August 2019 under the auspices of their father's passport and visa. 4. If the current orders are continued, the Secretary will have the appropriate status to apply for passports for the children. 5. DoFCS officers intend that the Secretary will make an application to renew the passports for each child. However, there appears to be no urgency about this aspect of the matter as there is no current proposal for overseas travel. The passports have been in DoFCS' care. 6. There is some doubt about the children's long term status in Australia if both parents are required to leave Australia when the father's 457 working visa expires in two years' time. The father's intention is to attempt to remain living with the mother and to seek permanent residency. He has not obtained advice as to what his visa position would be after the expiry of the two-year period. He is hoping that he would obtain a humanitarian visa on the basis of the children's continued residence in Australia. Parents' departure from Australia 1. There is still a fear on the DoFCS' part that the parents will "flee" or leave Australia given they have current passports and that they are regarded as transient. There is some hearsay evidence that they have threatened to take the children back to China. The parents' denial to that effect is not necessarily accepted by the DoFCS. It is appropriate that the passports be sought and, once obtained, be retained by DoFCS. Submissions Parents' proposals 1. The parents submit that the specific day-to-day care and responsibility orders for Y should be vested in them and that Y should be restored to their care. It is submitted that they were and are her primary parental attachment figures – rather than A. 2. Ms Goodchild submits that there is no evidence warranting a finding of unacceptable risk to Y should she be restored to the parents. She has emphasised that the Act expresses a preference for children to be restored to their parents and that the placement of children with the Secretary should be the last alternative. In that context, she also submits that the priorities expressed in the permanency placement principles in s 10A of the Act should be followed with the result that Y be restored to the care of her parents. 3. Ms Goodchild submits that the symptoms exhibited by the children as described by the carer only occurred after the children went into care, and then in response to the diminution of Y's contact with the parents. She also submits that the evidence shows that A is adversely influencing Y to form a negative view of her parents. 4. Ms Goodchild submits that the parents have done everything that could have been expected of them, in particular, to address matters of concern as identified. She submits that the provisions of s 87 of the Act mandate that, once this is shown to be the case, the Court should recognise the attempts which have been made and give effect to a restoration of the children to their parents. An important aspect of the determination is that they have both pursued the contact arrangements over the last twelve months consistently and appropriately. Where there are courses and steps to be taken, they have been done successfully and appropriately. All their contact with Y has been appropriate and compliant with DoFCS requirements. There has been no contact with A. 5. Further, she submits that it is clear that the parents have pursued all steps notified or suggested to them for their improvement. They have engaged appropriately with all services. The material that the parents have filed demonstrates that they have made real progress in diminishing their expectations of Y and, for that matter, A. It is submitted that is shown in the contact records and the notes from their treating psychologists. Parents' proposals for contact in the alternative 1. In the alternative, the parents submit that, if Y cannot live with them, there should be regular weekly face to face contact and regular and unlimited telephone and Skype contact. Ms Goodchild's criticism of the carers' and Ms O'Neill's report 1. In cross-examination of Ms O'Neill and in submissions, Ms Goodchild made accusations of exaggeration or fabrication (or both) of the evidence by the carers to Ms O'Neill of Y's trauma symptoms – see transcript page number/line references: T346/23; T346/41;T360/7; T420/11; T420/36; T434/15; T434/23; T436/47; T437/15; T439/23; T455/46; T456/37 and that that exaggeration or fabrication was done deliberately and knowingly - see T433/34 and T433/48 in "furtherance of their objectives". While those objectives were not specified, Ms Goodchild submitted that this 'conduct' meant that Y could not be left with the carers. 2. Ms Goodchild also submitted that the carers' views conflicted with what was set out in the care incident reports; further, that there was no evidence to support the contentions advanced by Ms O'Neill based on the carers' accounts. Her criticisms extended to DoFCS in getting the second addendum report from Ms O'Neill on the basis that "…the Department (was) not liking the first report it gets…" (Transcript 438 line 18). Ms Goodchild denied that she had made the suggestion that DoFCS was "…shopping around to get a favourable report…" (transcript 453 line 31), yet she said at paragraph 55 of her own written submissions (exhibit 19) that: "Clearly the Secretary was 'shopping' for the expert opinion it wanted after the opinion received from the Court Clinician and the first report from O'Neill." 1. The gravamen of the attack made by counsel on behalf of the parents on the carers were that they were prepared to fabricate or exaggerate the concerns they reported about Y. One effect of that approach was to raise the real likelihood of harm to what will be an essential and ongoing relationship, not only for Y but also for A, as to what they may say to the carers as well as the parents. Ms Goodchild's assertions of fraud and dishonesty against the carers both personally and in their capacity as long term carers employed by DoFCS, and that the DoFCS was acting in that in appropriate way, are serious allegations. 2. The resulting situation is relevant not only for the children the subject of this application, but also given the ongoing relationships between the carers and the parents. That is the case particularly as ongoing contact is concerned, as well as who will either facilitate or organise that contact and where it should take place 3. In that regard it should be noted that at the end of proceedings the carers indicated that they were not prepared to have the parents exercise contact to Y at the carers' home. That is unsurprising in the circumstances as outlined. 4. The carers have clearly been involved in long term care arrangements for all the children DoFCS places in their care. Evidence was given that these particular carers have fostered or looked after over 30 children over a 25 year period. 5. Counsel for DoFCS had indicated during the hearing that the carers were available to give evidence and to be cross-examined if that was requested. That invitation was not taken up by Ms Goodchild. She said that she didn't want to have the carers called and that it was up to DoFCS to prove its case and the basis for the report to be received. Accordingly, those allegations of fabrication and/or exaggeration, were never put to the carers in the proceedings. 6. It has been submitted on Ms Goodchild's behalf in separate proceedings prior to these reasons being finalised (see transcript of 28 September 2017), that that course was adopted as a legitimate forensic strategy which was appropriate in these circumstances. It was also submitted on Ms Goodchild's behalf that there was evidentiary material available in the proceedings from which it appeared, or could be used to establish, that the information provided by the carers was in fact not true. 7. Mr Bennett AC QC, who appeared for Ms Goodchild in those separate proceedings, also informed the Court in those proceedings that Ms Goodchild was specifically instructed to make those submissions and the associated criticisms. That position was confirmed in Ms Goodchild's affidavit sworn 27 September 2017. Absent contrary evidence, the position as to those instructions should be accepted. 8. Given the totality of the evidence, I do not accept the criticisms made of the carers. I note that the parents' evidence was to the effect that they were glad, if not grateful, for the DoFCS intervention which had brought the situation of (their) abuse of at least A to an end. Further, it was indicated that they were grateful to the carers for what they had done. I have referred elsewhere in these reasons to the other contributions these carers have made to these children see [254]. 9. It should also be noted that DoFCS has sought in the final orders to be made, that there should be prohibitions on the parents from, amongst other things, denigrating the carers. I propose to make those orders, noting that the parents had volunteered to give an undertaking to that effect. 10. As I have said the statement that Ms Goodchild had received appropriate instructions should be accepted and no further issue arises in that regard. However, the comments of Johnston DCJ as President of the Children's Court of New South Wales as to the particular obligations of legal representatives in the sensitive jurisdiction of Care and Protection matters, need to be reiterated – see DoFCS re Day [2012] NSWCh 14 at [61]-[63]. That is particularly the case, where, as here, there will inevitably be ongoing relationships which will need to be maintained for the welfare and best interests of children long after the litigation has ceased. DoFCS' Submissions 1. Mr Anderson reiterates that the parents have conceded that the children are in need of care and protection and in that context they have made frank admissions as to the abuse and neglect perpetrated by them upon their children. The Children's Court determined on the evidence that the children are in need of care and protection. He also submits that the criminal findings against both parents as detailed above make it clear that the events occurred. The extent and nature of the abuse as well as the length of time over which it occurred, make it clear on his submission there there is an unacceptable risk of harm. 2. Mr Anderson further submits that it is sufficient for the Court to find that the particular child, relevantly, Y, is in need of care and protection but for the arrangements made for her care between the commencement of the proceedings and the date of hearing: "V V" v District Court of New South Wales [2013] NSWCA 469. He submits that Y remains in need of care and protection; further, that there is an unacceptable risk of harm to Y if she was returned to her parents when there is no evidence that they have changed. Mr Anderson relies on the report of Ms O'Neill in that respect which he submits is clear when making a realistic assessment of what the parents have actually done. 3. He also submits that the children have settled in their current situation and should not be disturbed. It is not in their interests to be separated from their carers and each other now, and that if that is done, they will suffer trauma and attachment loss: see Director-General, Department of Community Services v D & Ors [2007] NSWSC 762, esp. [118], [120]–[121], [234]-[235], [266], [272]-[273]; Tab 23 Alison O'Neill's second report dated 31 August 2016 pp 1134-1135 at [34], [35] and [36]. 4. Mr Anderson also submits that pursuant to s 71(e) of the Act, the children are suffering or likely to suffer serious psychological harm as a consequence of the domestic environment if they, or either of them, were to be returned to their parents' care. The Department relies on the following provisions on s 70(1) of the Act: 1. section 70(1)(b) that the parents acknowledge that they have serious difficulties in caring for the child or young person and, as a consequence, the child or young person is in need of care and protection; 2. section 70(1)(d) that subject to subs (2), the child's or young person's basic physical, psychological or educational needs are not being met, or are likely not to be met, by her parents or primary care-givers; and 3. section 70(1)(e) the child or young person is suffering or is likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he or she is living. 1. Mr Anderson submits that the appropriate orders for contact should be as set out in exhibit 14. In the event that a contact order is made, he submits that those arrangements should be limited to a 12-month period pursuant to s 86 of the Act. At that stage, it would be appropriate that there be a conference between the interested parties with possibly the specialised input of a psychologist to provide advice about contact given the circumstances over the intervening period and proposals for the future given the ages and stages of the children. 2. Mr Anderson has said that DoFCS will provide and pay for a Transcultural Mental Health Referral for both children given the evidence of Jason Zou. I think that is entirely appropriate and to be welcomed. I would suggest that the representatives for the children take that up with the respective children and DoFCS caseworkers Wishes of the children/submissions of the separate representatives A 1. The direct child representative for A submits that A's care should continue to be vested in the Secretary, that she remain with the carers and that any contact by her with her parents be only in accordance with her wishes. 2. Mr Gardiner submits her wishes are clear and should be accepted and acceded to in all relevant respects. Further, that insofar as A is concerned, her interests extend to ensuring that she is able to maintain a close, permanent relationship with Y. It is a necessary corollary that the children should remain living together. 3. Mr Gardiner reminds the Court of the evidence of the distress which would be experienced by both girls if they were separated and he submits that flows from their clear and strong sibling bond which, if broken, would cause them both distress. Y 1. The ILR for Y submits that Y should stay in the Secretary's care, that she continue to reside with the carers and that she have contact with the parents in accordance with the terms of exhibit 16 which, with some variations, are set out in the orders foreshadowed. 2. Mr Moore submits that it is not practicable nor in the children's best interests for either to be removed from their current placement with their carers and instead placed with the parents. He also submits that the bond between Y and A is much stronger that the bond Y has with her parents. Further, that Y would suffer much more if separated from A than she would if the current separation from her parents continues. 3. Both children's representatives submit that the evidence of both Ms Crawcour and Ms O'Neill, shows that a separation of the siblings will lead to great distress, indeed trauma, to both and each of them. Law 1. These applications need to be considered under the provisions of the Children and Young Persons (Care and Protection) Act 1998. Matters to be considered 1. The object of the Act, which guides decision-making in this area, is provided by s 8. Section 9 sets out the principles to be applied in decisions concerning children, namely, the safety, welfare and wellbeing of the child must be the paramount consideration : s 9(1); Re Kerry (No 2) [2012] NSWCA 127. Here also a relevant question is the need (recognised by paragraph 9(d) of the Act) to determine what order will protect the children from the least intrusive intervention in their lives consistent with the paramount concern to protect them from harm and to promote their development. To the extent that it is relevant, this includes the provisions of the UN Convection of the Rights of the Child 1989 - see also Re Tracey [2011] NSWCA 43 at [78] and [79]. 2. The Court must not make an order allocating parental responsibility unless it has given particular consideration to the permanent placement principles and is satisfied that the order is in the best interests of the child or young person: See ss 9(2)(c), 10A, 78A and 79(3); Re Tracey [2011] NSWCA 43; Re Kerry (No 2) [2012] NSWCA 127. Those principles are to be read subject to the objects in section 8 and the principles in section 9. 3. The relevant "permanent placement principles" in s 10A(3) of the Act are as follows: 1. "if it is practicable and in the best interests of a child or young person, the first preference for permanent placement of the child or young person is for the child or young person to be restored to the care of his or her parent (within the meaning of section 83) or parents so as to preserve the family relationship, 2. if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a), the second preference for permanent placement of the child or young person is guardianship of a relative, kin or other suitable person; 3. if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a) or (b), the next preference is (except in the case of an Aboriginal or Torres Strait Islander child or young person) for the child or young person to be adopted; 4. if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a), (b) or (c), the last preference is for the child or young person to be placed under the parental responsibility of the Minister under this Act or any other law; 5. … 1. The younger the child is, the greater the need for early decisions to be made in relation to permanent placement, if the child is to be placed in out-of-home care: - s 9(2)(e), and 78A of the Act. Unacceptable risk of harm 1. It has been held that an order removing a child from the care of his or her family should be made if there is an "unacceptable risk" of harm to the child: see M v M [1988] HCA 68; 166 CLR 69 at [25]; s 9(1); MXS v Department of Family and Human Services (NSW) [2012] NSWDC 63; Department of Family and Community Services (NSW) and the Bell-Collins Children [2014] NSWChC 5, at [70]; Bell-Collins Children v Secretary, Department of Family and Community Services (No. 2) [2016] NSWSC 853, per Justice Slattery at [26]; see also The Department of Community Services v "Rachel Grant", "Tracy Reid", "Sharon Reid and "Frank Reid" [2010] CLN 1 per Judge Marien at [61]. That is determined on an evaluation of an accumulation of factors as proved on the relevant civil standards, the onus being on the Secretary. Separation of siblings 1. The issue of the separation of siblings has been considered by the Family Court of Australia in the following matters: In the Marriage of M J and K H Bennett (1990) 14 Fam LR 397 and In the Marriage of H and H (1994) 19 Fam LR 165 from which the following principles emerge, namely, that the separation of children, who are close in age, should usually only be "…justified in compelling circumstances" (Bennett per Nicholson CJ, Simpson and Finn JJ at 413) particularly where there is a long established status quo for that relationship. The children there were aged 10 and 9. In H v H, Nicholson CJ also referred to the likely deleterious impact of a separation of siblings on the future relationship with both the parent and the siblings. 2. Ms Goodchild has also referred to the decision of Donnell v Davey [2010] Fam CAFA 15 as to the competing issues of preserving a parent/child relationship and a sibling bond. I do not consider that that case with its particular facts of indigenous customary practices concerning absent parents is of relevance here. Maintenance of sibling relationships 1. The courts in the family law jurisdiction have also emphasised that there is usually a benefit by association between siblings which needs to be considered. It needs to be noted that the Family Court/Federal Circuit Court jurisdiction has different governing legislation compared to the Act relevant here. Those courts frequently address different kinds of children's issues. However, both jurisdictions operate on assessments designed to determine the paramount best interests of children. 2. H v H (op cit) refers to published research on matters such as the impact of split custody orders and the commonality of natural support systems between siblings and the value in stabilising such sibling support relationships. There is clear evidence of such support systems here – indeed, it would be surprising if it was not the case given what these two girls have experienced and the matters on which they have evidently communicated with each other and then expressed to the various experts and other witnesses. 3. That history and evidence in this case sets the context in which the sibling bond, the strength of it and the support it provides now and (most likely) into the future should be assessed. That also informs the assessment of the wishes of Y given particularly her age and developmental capacity as well as factors such as her cultural heritage. See section 9(2)(a) and (b) of the Act. 4. DoFCS and the two representatives of the children submit that there is no compelling reason to separate these children with the possibility that they will then go in very divergent directions. Further, that they will both, and each, experience stress if not real harm, short term and long term, were they to be separated. Consideration 1. There is no doubt both A and Y were subject to substantial and serious instances of abuse over a long period of time. On some of the evidence, that abuse went back to when A was only months old. Further, on the parents' own admissions, the abuse was on-going and deliberate. It was also cruel and persistent in its design and delivery. It was primarily carried out by the father, and, on some occasions, also by the mother, in a way which left lasting psychological and emotional scars on the children, particularly, but not only, to A. 2. The children lived through it together. It is also clear that the children have discussed that abuse and that history between themselves. They have clearly thought and talked about it in their own terms and in terms of the impact on the other sibling. That background remains a focus within the overall prism through which they have seen, and see, their parents. 3. It was a huge step to take for A to leave in the way she did and to take the steps she did as an 11 year old, who at that stage, had only been in Australia for about 18 months. Not unnaturally, she still remembers that – and is likely not to forget it for a long time, if at all. She either did not disclose her feelings or did not open up to give a true description of her views and what had happened to her to Ms Crawcour and also initially to Ms O'Neill. I accept that that non-disclosure arose out of fear of upsetting the parents, if not being the subject of retribution from them if she was to be returned to them. 4. The fact that A from all accounts is a girl of intelligence and independence does not mean that the abuse she suffered, nor her memory of it, will go away. That is likely to be a function of time, as well as her observation and probably scrutiny of what happens to Y on contact occasions with her parents. It may also depend on what appropriate therapy can be provided to her, what she accepts and what she pursues. Y: history and wishes 1. Many of the incidents involving Anthea were clearly known to Y as was the impact of those actions and the overall history of events on A. She and A have clearly discussed those matters. Y's occasionally violent nightmares, including her evident internalising of the duck-pond incident, is indicative of the impact on her as is her stated recollection of the impact of the 'mean-ness" carried out to her sister. 2. There is also evidence that Y was chewing her feet and nails when she arrived at the placement with the carers to the extent that her hands at least, were bleeding. Ms Goodchild submits that that was not noted by DoFCS officers who should have noted it if it was evident. There could be other explanations for that, but it is consistent with the other evidence of manifestations in distress such as her frequently wetting her pants. The evidence, which I accept is that that has diminished while she has been in her current placement. Ms Payne from the CPCS also noted that Y "…holds a level of fear that her parents might treat her in the same way". 3. Y's present wishes, though ambivalent, and her fears have been expressed to the caseworkers, in the Children's Court and to this Court through her representative. They have been properly and fully examined and assessed. There is no evidence that I accept to suggest to me that those expressions of her wishes as submitted by and through her representative are in any way inappropriate. 4. None of that abuse, the extent and consequences of it, nor the memory of it, can be minimised. All that history and those incidents must inform the determination of the inter-connected matters which need to be considered under the Act, particularly the determination of whether there is an unacceptable risk of harm to the children and Y in particular. Current situation: Care arrangements for children 1. The clear impression from all the evidence is that the children have settled very well and are progressing well in their current environment and in their schooling. I do not understand there to be any criticism of the care arrangements the carers provide, rather, the attack is on the carers' interpretation and relaying of the history given to them, by the children. 2. It is also a tribute to the carers that they have accepted and facilitated the parents' contact over what is a long period of time. They have engaged their friend N to be involved with the children to reinforce their own self-evident cultural background. I reject the inference, if that is what was sought to be drawn, that because the carers were 'doing it for reward', that is, being foster parents with the governmental financial assistance, they were in some way not motivated by their desire to provide an appropriate care environment for the children. I also rejected the classification of the carers' expression of concern as being exaggerated, let alone fabricated. Assessment of parents 1. I accept that the parents were both genuine in their evidence that they were, in part, relieved that the DoFCS intervention had bought the prior unsatisfactory and abusive situation the children had suffered, from and by them, to an end. That acknowledgement, while to their credit, does not mean that they are thereby transformed as parents nor that their parenting capacity is re-established. 2. The mother is clearly an intelligent woman who is is capable of being objective and clear in her assessment of herself and the children. She has had a substantial, high level education reflective of both discipline and commitment. She clearly prizes education and appears to have moved in a different less-work and achievement driven direction since she has been in Australia - particularly over the last 12 months. Even if it was the case that the abuse was primarily carried out by the father – and quite apart from the evidence of her own involvement in the abuse which occurred - she was unable or unwilling to stop it. 3. Moreover, the mother remained in the relationship and intends to stay in it. She is dependent on the father for financial support. She is also dependent on him for her spouse visa. 4. The father is also a highly intelligent and educated individual. He has achieved significant academic qualifications and substantial positions in a variety of different geographical and cultural contexts which speaks highly of his work ethic and his capacity to adapt. He also places a very high value on education. 5. However, the evidence suggests he has an explosive anger as manifested in his past acts of abuse to the wife (the mother) and his sister. The situations of family and individual violence which occurred were compounded given his overall control of the family. His letter to A, the day after she left, makes it clear that he knew that what he was doing – and what he had been doing for a long period - was wrong. 6. The description of him being calm appears to relate to him in a counselling or therapeutic setting. That is an artificial environment as is supervised contact. Having observed him in the witness box I consider the description of him being very frustrated by DoFCS' actions to be accurate. He manifested a sense of real determination and flashes of occasional frustration, if not anger, which I do not attribute to any cultural misunderstanding. 7. I have re-read the reports including the contact reports and the clinician reports and cannot be confident that there would not be a repetition of the acts of abuse if Y was returned to him. It cannot be predicted what will happen if there is a stressful situation again. That may well arise where a child's natural tendency to explore boundaries or to pursue an alternative pathway within the Australian context may conflict with his deeply held value system and the equally strongly-held goals that he prizes and to which he has devoted a large part of his life to date in achieving. 8. Both parents were subject themselves to varying degrees of physical discipline (which was occasionally harsh) as well as parental abuse in their own upbringing. Their own upbringing suggests they also each have had excessive expectations placed upon themselves in terms of academic competition and achievement. They have carried that ethos forward and put excessive expectations on their children's performance. Their work-ethic and sense of self-discipline and drive is commendable and understandable. It is a great pity that that apparently rigid focus on attainment, particularly educational attainment, was brought to bear by both parents onto A with what was clearly excessive discipline over a long period of time. Their responses were disproportionate and unacceptable. 9. The parents' disproportionate responses to (primarily) A and, to a lesser extent Y, were clearly punitive and not in the best interests of the children. In so far as that becomes relevant to Y as the remaining subject of these proceedings, it is clear that she has remembered that conduct and behaviour, albeit mainly in the context of the treatment of A. Nevertheless, she has still manifested some feelings of fear for herself. 10. The evidence of Ms Wood, Ms Jones and Mr Zou make it clear that both parents have commenced long term therapeutic counselling. I have no doubt they will be prepared to engage in counselling with the children, particularly A, if that can be organised and if A's opposition to that course can be overcome. However, at her age and stage, that can only be with her consent. It is likely that that will only occur when she watches what happens to Y – which I have no Doubt she will do and with a very close scrutiny. 11. I accept Mr Zou's description and find that the parents have addressed many of the concerns which have been brought to their attention with "…enormous effort, very detailed reflection, determination in to change, ongoing therapy and educational courses…" The trauma counselling described (at least to the stage currently experienced) has been designed to deal with the parents' own background circumstances. 12. On the material before me, the kind and extent of therapy in which they have been engaged to date, may have given some tangential and theoretical insight into the impact of the trauma they caused to the children both directly to A and indirectly, but also significantly, to Y. However, it is not a kind of therapy primarily designed to change the parent's own parenting practices and their separate capacities to deal with stress. It is insufficient to deal with the risk of the re-occurrence of these circumstances. 13. Apart from their attendance at courses and counselling for their own trauma, there is little evidence on which the Court could rely, for the purposes of s 83(7)(b), to show that the parents' parenting habits and, in particular, their capacity to respond to stress and parenting situations confronting their own value system, has changed. I am not satisfied that the issues which led to the removal of the children will be satisfactorily addressed by the evidence of what the parents have done at least to the present point in time. Unacceptable risk 1. The abiding concern remains as to the risk of a repetition of the behaviour the parents both carried out towards A (at least some of which was in the presence of and known to Y) as well as to Y. 2. In terms of the evidence, I accept the evidence of Ms Crawcour and Ms O'Neill as set out above, including the addendum report of Ms O'Neill, in the manner and with the weight I have set out earlier. 3. In my view, on the material before me and having observed all the witnesses as they have given evidence, there is an unacceptable risk of that re-occurring and consequently an unacceptable risk of harm of the nature set out in the evidence to Y should she return to her parents' care. 4. I accept the submissions of both DoFCS and the two children's representatives on the evidence that the parents' capacity to care since the time of the acknowledged abuse is untested. The Court has been reminded by counsel that it is one thing to attend counselling and parenting courses, but that it is another matter altogether to engage in the hard work of parenting in a different and possibly more challenging context. 5. It is clear that not only has Y been exposed in the last 12 months to a very different kind of parenting and caring with her carers, but that has occurred in a situation where she has had the support of her sister and appears to have adopted many of A's views. Although six years older, A has been going through the kind of experiences Y will experience as a child of Asian heritage growing up and being educated in Australia. A's role modelling and support will be of considerable assistance to Y. 6. I have given particular consideration to the permanent place principles and I do not consider that the evidence warrants a finding that Y be restored to her parents. Having considered all the evidence and the matters set out, I am satisfied that the orders proposed are in Y's best interests. Impact of different scenarios of separation 1. Whatever the outcome, Y will suffer a feeling of loss and separation. If she returns to the parents – she will experience a separation from A, who has been a major source of stability to her, and her current stable environment. On the other hand, remaining where she is will mean a continued and permanent separation from her mother, father and the historical and cultural environment of her family. 2. In my view, the loss she experiences will be greater if she is removed from her current safe environment to the relatively unknown environment of her parents' care without the safety and companionship of A. The history and evidence establishes the sibling bond, the strength of it and the support it provides now as well as into the future. 3. Consistently with the finding of the unacceptable risk of harm, I find that at present, there is a need for supervision during contact occasions. Hopefully, that will diminish to the point of being extinguished at the end of the twelve month period contemplated in the contact arrangements to be made in the orders. Contact regime 1. I have stressed during the course of submissions that I see the need to alleviate the stress that the children, the parents and (probably) the carers are, and have been, experiencing by the uncertainty inevitably brought about by the proceedings. Y considered contact both good and bad: good because she sees her parents and bad because she misses them afterwards. 2. I have had regard to the matters set out in the Addendum Care Plan and in particular, the views that extensive and overnight contact is likely to create confusion for Y. That includes the possibility that there may be negative associations should such contact occur in the parents' home. Further that the contact should not occur in the carers' home given the potential for conflict particularly with A 3. To that end, I propose to specify that contact occur on a monthly basis on the first weekend of each month (unless otherwise agreed between the carers, the parents and DoFCS) and on a supervised basis as set out below. 4. Over the next twelve months, it would be my view that the hours of, and venue for, contact be gradually altered. Provided that there are no untoward incidents, I would direct that that timetable be as follows: 1. Once monthly contact over the next three months, such contact to be for four hours per day supervised by the carers or a person nominated by DoFCS at the home of the carers or at a venue nominated by them; 2. For the next three months thereafter for eight hours per day at the home of the carers or at a venue nominated by them; 3. Over the next three months at the parents' home during the day. 4. Over the next three months overnight at the parents' home subject to such supervisory arrangements as DoFCS considers appropriate. Additional contact events 1. On the middle day/evening of full moon of any Chinese New Year celebrations, Y being able to travel to a venue nominated in advance by the parents for such afternoon periods of about two hours nominated by the carers, such contact to be supervised by a cultural contact being the person referred to as "N" or as nominated by DoFCS or the carers; 2. On the afternoon of Christmas Day or a time and place nominated by the carers; 3. At Y's end-of-school year speech night/afternoon; 4. On Mother's Day; and 5. On the afternoon of Y's birthday at a time and place nominated by the carers. 1. I direct that an addendum to the plan be brought forward to reflect these proposed changes to the contact regime. 2. The results of those contact arrangements can then be monitored, and in particular, the impact on Y. That graduated program can then be considered at the conclusion of the 12-month period to determine if regular overnight contact on an unsupervised basis can occur. That evaluation could include whatever was appropriate for telephone contact to occur at that time. 3. It should be a specific part of that monitoring and evaluation that A, or her direct legal representative, as well as the carers and the parents be involved in determining whether A should be involved in any such contact occasions and, if so, on what basis. 4. Leave should be reserved to DoFCS to bring the matter back to court in the event that any untoward incidents occur warranting a change to these arrangements or orders, particularly in relation to the need for supervision. Counselling: children 1. A has had six counselling sessions which were private, trauma therapeutic in nature, and not for the purposes of the court proceedings. Those sessions ceased in 2016. The Child Protection Service has also decided that further counselling intervention will be considered after the children's placement (long term) has been determined. 2. A further therapy was recommended at the conclusion of those proceedings. However, that is recommended to be a trauma specific counselling service and not a family therapy service. It may be at that time there should be consideration of some form of counselling as to how the parents will deal with Y's understanding and comments about the past, as well as any confronting or challenging behaviour in which she may engage. That should include any perceptions she may express about why she is being treated differently from A. Explanation of orders to children 1. These orders are to come into effect as soon as possible after 15 August 2017 after consultation between the parties and the representatives of the parties and, where appropriate, the children. That will need to be handled with care as I think it is also important that the parents are restrained from discussing with the children any proposals to alter these orders. As I have emphasised before, these children need stability, particularly emotional stability and that will not be promoted by questioning or challenging the arrangements. 2. I direct that the direct representative of A, Mr Whelan, explain the terms of these orders to her. I would request that he explain to her specifically that her application to speak to the judge was transmitted to the Court but that the general policy of courts is that children should not have to come to court to experience the stresses associated with court proceedings and to re-live events which have been the subject of evidence. Further, that that is rarely done unless there are particular reasons concerning actions being taken contrary to the wishes of an older child. 3. I would request Mr Whelan make it clear to A that contact with her parents by her is dependent on her wishes and that it is open to her to engage with the psychologist who will be reviewing the contact arrangements at the conclusion of twelve months. Further, that it may be stressful to Y if she (Y) is questioned or pressured in any way about her relationship with her parents. 4. Mr Moore, counsel for Y has indicated that the normal approach will be adopted to explain the terms and effect of the orders to Y given her age and stage. 5. Having regard to the submissions made by or on behalf of the direct representative for A and the independent child's representative for Y, I am satisfied that each child will have the nature and effect of the proceedings explained to them for the purposes of s 95 of the Act in accordance with their respective ages and stages. I authorise either representative to read any section of this judgment or the evidence to either child that they consider is appropriate in the event that either child raises questions about the judgment. Findings on restoration 1. I accept the assessment, and find, that there is no reasonable possibility of restoration of Y to the parents. I find that she is in need of care and protection. 2. I order that Y be placed under the parental responsibility of the Minister pursuant to s 79(1)(b) of the Children and Young Persons (Care and Protection) Act 1998 until she is 18. 3. The proposals for Y meet the criteria which I am required to consider under the Act, in particular that the plan and specified care and contact arrangements will meet her needs for her safety, welfare and well-being. The Cultural plan (exhibit 1; p 927) set out matters which were and are appropriate given the evidence and that it is clearly intended to be a "dynamic document which will need to be reviewed regularly." 4. I find that the arrangements proposed by DoFCS will advance Y's proper and safe development and her health and educational needs. Further, that there are appropriate arrangements in place to advance Y's understanding of her cultural heritage, traditions and values. 5. I also find that the proposals are the least intrusive intervention in Y's life consistent with the protection of her from harm and to promote her development; further, that the proposals, provided they are incorporated in the context of ongoing contact rights to the parents, will protect her identity and the different aspects of her culture. In terms of the permanency placement principles as set out above, I find that it is not practicable or in the best interests of Y to be returned to the parents in accordance with paragraph (a), (b) or (c), and that Y should be placed under the parental responsibility of the Secretary. I do not find that Y's wishes have been consistently nor sufficiently coherently expressed to be determinative of her best interests having regard to her stage of development. 1. I am also satisfied that Y's cultural background and aspects of her identity will be explained to her by the Transcultural Counsellor, by the carers in conjunction with the person referred to as N or such other cultural contact as DoFCS recommends. Restrictions on overseas travel 1. Noting the consent of the parents and the evidence of apprehension about the removal of the children from Australia, as well as the nationality, passports and visa position of the parents and children, it is appropriate that neither A nor Y be removed from Australia without the written consent of the Secretary. 2. The Secretary should have leave to approach the Court for any specific orders necessary to facilitate the making of applications for passports for the children. Orders 1. I dismiss the summons and appeal in relation to the child A; 2. The orders of the Children's Court at Bildura made on 7 December 2016 in relation to Y are confirmed; 3. That, except as provided for in Order 4, all aspects of parental responsibility for Y be allocated to the Secretary; 4. Pursuant to s. 82 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) the Secretary of Department of Family and Community Services is to file a report in 5 and 11 months from the date of these Orders taking into consideration: 1. Progress of Y and A in the placement 2. Progress of contact between Y and her parents and A should she choose to attend contact. 1. Pursuant to s. 90A of the Children and Young Persons (Care and Protection) Act 1998 (NSW), the parents, LZ and QJ, are prohibited from discussing the effect of these orders with the children, A and Y (collectively referred to as "the Children"), other than in the company of a counsellor nominated by the Department of Family and Community Services. 2. Pursuant to s. 90A of the Act, the parents, LZ and QJ, are prohibited from denigrating the Children's carers or A in the presence of Y. 3. Pursuant to s. 90A of the Act, the parents, LZ and QJ, are prohibited from removing the Children from the Commonwealth of Australia without the prior written consent of the Secretary, Department of Family and Community Services. 4. Pursuant to s. 86 of the Act for a period of 12 months the child Y has contact with her mother, LZ and father, QJ as follows: 1. For a period of 3 months from the date of the orders, supervised on the first weekend of each month unless otherwise agreed, for a period of 4 hours on either Saturday or Sunday. 2. Commencing at the conclusion of order 2(a), supervised on the first weekend of each month unless otherwise agreed, for a period of 6 hours on either a Saturday or Sunday 3. On 17 February 2018 for the Chinese New Year celebrations supervised for a period of 6 hours. 4. On 24 December 2017 supervised for a period of 6 hours or alternatively for a period of 3 hours on 25 December 2017. 5. At Y's annual end school event 6. On 13 May 2018 for Mother's day for a period of 3 hours supervised. 7. On 20 November for Y's birthday for a period of 3 hours supervised. Notations: 1. Contact is to occur at a reasonable venue nominated in advance by the parents, other than at the home of the carers', suitable to Y's needs. 2. Community Services will consult with the supervisor, carers and parents as to the time that contact is to occur 3. Contact is to be supervised by Community Services or delegate approved by Community Services. Whenever possible, attempts should be made to engage a Mandarin speaking supervisor to allow opportunity for Y and her parents to converse in Mandarin during their contact visits. 4. The duration and frequency of contact as well as whether telephone contact can occur is to be reviewed in 6 months, noting that a s86 Contact order is a minimum order. 5. Community Services will give consideration to inviting the parents to school/sporting or extra curricular events. 6. A is able to attend contact if she wishes. Explanation of orders to children 1. Note that there has been consultation between the between the direct representative for A and the independent child's representative for Y. 2. Given the ages and developmental capacity of the children, the children may each have explained to them by their respective legal representatives, the terms and effect of these orders, as well as a summary of any relevant finding or aspects of the reasons given as well as evidence referred to in these reasons as may be considered professionally appropriate and in the interests of the particular child by either representative; Undertakings 1. To the extent necessary to ensure the supervision of those orders by the Director-General, I note the consent of the Director-General pursuant to the provisions of s 86(2) of the Act. Exhibits 1. I direct that the exhibits be returned to the parties tendering the material at the expiration of 28 days. 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 March 2018