BQZ v Challenge Community Services

[2015] NSWCATAD 92

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BQZ v Challenge Community Services [2015] NSWCATAD 92
Hearing dates:	20 March 2015
Decision date:	07 May 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson, Senior Member P Foreman, General Member
Decision:	1) The decision of the relevant decision maker, William Wain, Manager Casework with Challenge Children’s Services, made on or about 13 January 2015 to remove from the applicant the responsibility for the daily care and control of the child the subject of this application is set aside. 2) The Tribunal makes a decision in substitution for the decision set aside, that the daily care and control of the child the subject of this application is granted to the applicant under section 245(1)(c) of the Children and Young Persons (Care and Protection) Act 1998.
Catchwords:	ADMINISTRATIVE LAW-review under section 63 Administrative Decisions Review Act 1997-decision made under section 245 Children and Young Persons (Care and Protection) Act 1998 (NSW) to remove child from the care of his current authorised carer- assessment of strong and secure attachment to carer and extended family- evidence of psychologist about transition of placement placed excessive weight upon inapplicable provisions of section 13 Children and Young Persons (Care and Protection) Act 1998- evidence of Aboriginal elder supporting placement of the child in his ‘country’ and that of his family with support from local Aboriginal community- what the correct and preferable decision is having regard to the material before the Tribunal – child’s best interests enhanced by remaining in his current placement- substituted decision.
Legislation Cited:	Administrative Decisions Review Act 1997(NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) Court Suppression and Non-Publication Orders Act 2010 (NSW) Uniform Civil Procedure Rules 2005, Schedule 7
Cases Cited:	AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028 Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 PR v Department of Community Services [2009] NSWADT 277 Re Kerry (No 2) [2012] NSWCA 127 Roberts v Balancio (1987) 8 NSWLR 436 YG & GG v Minister for Community Services [2002] NSWCA 247
Texts Cited:	Anderson M, (2014) “Protecting the rights of Indigenous and Multicultural children and preserving their cultures in fostering and adoption.” Family Court Review 52:6-27 Barnardos Australia, (2013) Practice Paper on Attachment Boris N, Fueyo M, Zeanah C, (1997) “The Clinical Assessment of Attachment in Children Under Five.” J Am Acad Child Adolesc Psychiatry 36:2. 291-293 Dozier M, Zeanah C, Bernard K (2013) “Infants and Toddlers in Foster Care.” Child Development Perspectives 7: 166-171 Zeanah C, Berlin L, Boris N (2011) “Practitioner Review: Clinical applications of attachment theory and research for infants and young children.” Journal of Child Psychology and Psychiatry 52:8:819-833 Zeanah C, Gunnar M, McCall R, Kreppner J, Fox N (2011) “Sensitive Periods.” Monographs of the Society for Research in Child Development 147-162
Category:	Principal judgment
Parties:	BQZ (Applicant) Challenge Community Services (Respondent)
Representation:	Solicitor: Rice More & Gibson (Applicant) Challenge Community Services (Respondent)
File Number(s):	1510060
Publication restriction:	Section 64 Civil and Administrative Tribunal Act 2013, section 105 Children and Young Persons (Care and Protection) Act 1998, restricting publication of information that will identify the applicant, witnesses, the children, and any evidence given in the proceedings which is likely to identify any of those persons.

Judgment

Introduction

1. The applicant who is known as ‘BQZ’ for the purposes of these proceedings filed her application on 2 February 2015 seeking an administrative review of a decision she was notified about on 13 January 2015. The applicant was told in a meeting at the office of Challenge Community Services that the child who had been in her care since 30 September 2013 was being transitioned to a new family very soon. The applicant has been an authorised carer for approximately 10 years and during this time has cared for approximately 50 children on a long term and short term basis. The placement to which the child was to be transitioned is an Aboriginal authorised care placement situated in a coastal town some hours’ drive from the rural location in which the applicant lives.

2. At the same time as lodging the application for review of the decision the applicant filed an application for a stay of the decision. Principal member Higgins heard these applications on 12 February 2015 and again on 13 February 2015. On the second of those dates the principal member set the matter for hearing on 20 March 2015 at the rural town in which the applicant lives. The stay application was adjourned subject to any urgent application to restore the stay application until the hearing date on 20 March 2015. The Tribunal noted the undertaking of the respondent Challenge Community Services not to remove the child from the applicant’s care prior to the close of business on 20 March 2015.

3. An order was made at the commencement of the hearing of the proceedings under section 64 of the Civil and Administrative Tribunal Act 2013 (NSW), restricting publication of information which will identify the applicant, any children, non-professional witnesses, or evidence received in the Tribunal or in relation to the proceedings which is likely to identify those persons: see also BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126 at [3]; also to similar effect section 105 Children and Young Persons (Care and Protection) Act 1998; cf., section 7 Court Suppression and Non-Publication Orders Act 2010 (NSW).

4. At the hearing on 20 March 2015, after hearing the evidence and submissions of the parties, the Tribunal noted that the respondent continued the undertaking previously given until the publication of this decision. The applicant was informed by the Tribunal that if required, she could relist the stay application urgently in the event of some unforeseen circumstance.

Legislative Context

5. The Tribunal may hear an administrative review of decisions made by a “relevant decision-maker” if it is a decision referred to in section 245 of the Children and Young Persons (Care and Protection) Act for the purposes of section 28 (1) (a) of the Community Services (Complaints, Reviews and monitoring) Act 1993.

6. Jurisdiction arises in the Tribunal as His Honour Justice Campbell observed in a matter before him which required consideration of the legislation which gave jurisdiction to the Administrative Decisions Tribunal, but now exercised by this Tribunal, in AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028 at [20]:

“As I have said, in the exercise of the statutory powers arising from sole parental responsibility, the Director-General decided not to grant daily care and control to the second defendants. The key provision that confers the Tribunal's jurisdiction in the present matter is s245 of the Act. So far as relevant, it provides:

(1) For the purposes of section 28 (1) (a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993, any of the following decisions made under or for the purposes of this Act or the regulations are reviewable by the Administrative Decisions Tribunal:

...

(c) a decision of the relevant decision-maker to grant to, or to remove from, an authorised carer the responsibility for the daily care and control of the child or young person

...

(1B) For the avoidance of doubt, subsection (1) (c) does not extend to any decision in relation to:

(a) the preparation of a permanency plan, or

(b) the enforcement of a permanency plan that has been embodied in, or approved by, an order or orders of the Children's Court.

(2) In this section, relevant decision-maker, in relation to a decision, means the person or body authorised by or under this Act or the regulations to make the decision, not being the Children's Court.”

7. In this matter it is an accepted fact that Challenge Community Services is the relevant decision maker. The decision is one which is described by section 245 (1)(c) of the Children and Young Persons (Care and Protection) Act.

8. In AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028, the Court was asked to decide whether the jurisdiction was curtailed by the provisions of the care plan in that matter where the provisions of the care plan were not obviously embodied in the order made by the Children’s Court but were considered as part of the process of exercising the Court’s jurisdiction to make a care order. His Honour Justice Campbell stated at [54]:

“In every case there must be a permanency plan, and in every case there must be a finding of adequacy and appropriateness in relation to that permanency plan. However, the permanency plan is not enforceable in every case. It is only enforceable in those cases where it has been, I will repeat, embodied or approved in an order of the Children's Court.”

9. Further, His Honour Justice Campbell in AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028, at [60] held:

“In my judgment, a finding for the purpose of s83(7)(a) does not of itself satisfy the statutory language of s83(8). Something more is required. With great respect, I am of the view that PR v Department of Community Services [2009] NSWADT 277 remains correct in its analysis. It is necessary to my mind that a particular proposal, aspect or requirement of the permanency plan is picked up and expressly incorporated in the order of the Children's Court if s 245(1B) is to be brought into play in a given case. That has not occurred here.”

10. The permanency plan prepared in relation to the child the subject of this application referred to section 13 of the Children and Young Persons (Care and Protection) Act 1998. This section embodies what is called the ‘Aboriginal and Torres Strait Islander placement principle’. The permanency plan was not relevantly embodied in the orders made by the Children’s Court. The orders of the Children’s Court simply provide for the allocation of parental responsibility to the Minister until the child attains the age of 18. It was proposed in the care plan that report pursuant to section 82 of the Children and Young Persons (Care and Protection) Act would be provided. There was no order made in relation to section 82 reports. It was proposed in the care plan and permanency plan, no order was made embodying the proposal, that the child would be transitioned into the care of Aboriginal carers who now have the care of the child’s full sibling and several of his half-siblings. This was considered to give effect to the placement principle in section 13 of the Children and Young Persons (Care and Protection) Act by placing the child with his siblings in an Aboriginal family. It is important to have regard to the text of section 13 Children and Young Persons (Care and Protection) Act which is as follows:

“13 Aboriginal and Torres Strait Islander Child and Young Person Placement Principles

(1) The general order for placement

Subject to the objects in section 8 and the principles in section 9, an Aboriginal or Torres Strait Islander child or young person who needs to be placed in statutory out-of-home care is to be placed with:

(a) a member of the child's or young person's extended family or kinship group, as recognised by the Aboriginal or Torres Strait Islander community to which the child or young person belongs, or

(b) if it is not practicable for the child or young person to be placed in accordance with paragraph (a) or it would not be in the best interests of the child or young person to be so placed--a member of the Aboriginal or Torres Strait Islander community to which the child or young person belongs, or

(c) if it is not practicable for the child or young person to be placed in accordance with paragraph (a) or (b) or it would not be in the best interests of the child or young person to be so placed--a member of some other Aboriginal or Torres Strait Islander family residing in the vicinity of the child's or young person's usual place of residence, or

(d) if it is not practicable for the child or young person to be placed in accordance with paragraph (a), (b) or (c) or it would be detrimental to the safety, welfare and well-being of the child or young person to be so placed--a suitable person approved by the Director-General after consultation with:

(i) members of the child's or young person's extended family or kinship group, as recognised by the Aboriginal or Torres Strait Islander community to which the child or young person belongs, and

(ii) such Aboriginal or Torres Strait Islander organisations as are appropriate to the child or young person.

Note: The placement principles set out in this section also apply to the making of guardianship orders in relation to Aboriginal and Torres Strait Islander children and young persons (see section 79A (3) (c)).

(2) Relevance of self-identification and expressed wishes of child or young person

In determining where a child or young person is to be placed, account is to be taken of whether the child or young person identifies as an Aboriginal or Torres Strait Islander and the expressed wishes of the child or young person.

(3) Child or young person with parents from different Aboriginal or Torres Strait Islander communities

If a child or young person has parents from different Aboriginal or Torres Strait Islander communities, the order for placement established by paragraphs (a), (b), (c) and (d) of subsection (1) applies, but the choice of a member or person referred to in those paragraphs is to be made so that the best interests of the child or young person will be served having regard to the principles of this Act.

(4) Child or young person with one Aboriginal or Torres Strait Islander parent and one non-Aboriginal and Torres Strait Islander parent

If a child or young person has one Aboriginal or Torres Strait Islander parent and one non-Aboriginal and Torres Strait Islander parent, the child or young person may be placed with the person with whom the best interests of the child or young person will be served having regard to the principles of this Act.

(5) If a child or young person to whom subsection (4) applies:

(a) is placed with a person who is not within an Aboriginal or Torres Strait Islander family or community, arrangements must be made to ensure that the child or young person has the opportunity for continuing contact with his or her Aboriginal or Torres Strait Islander family, community and culture, or

(b) is placed with a person who is within an Aboriginal or Torres Strait Islander family or community, arrangements must be made to ensure that the child or young person has the opportunity for continuing contact with his or her non-Aboriginal and Torres Strait Islander family, community and culture.

(6) Placement of child or young person in care of person who is not an Aboriginal or Torres Strait Islander The following principles are to determine the choice of a carer if an Aboriginal or Torres Strait Islander child or young person is placed with a carer who is not an Aboriginal or Torres Strait Islander:

(a) Subject to the best interests of the child or young person, a fundamental objective is to be the reunion of the child or young person with his or her family or Aboriginal or Torres Strait Islander community.

(b) Continuing contact must be ensured between the child or young person and his or her Aboriginal or Torres Strait Islander family, community and culture.

These principles are subject to subsection (2).

(7) Exceptions: emergency placements and placements of short duration Subsection (1) does not apply to:

(a) an emergency placement made to protect a child or young person from serious risk of immediate harm, or

(b) a placement for a duration of less than 2 weeks.

(8) Where an emergency placement is made to protect an Aboriginal or Torres Strait Islander child or young person from serious risk of immediate harm, the Director-General must consult with the appropriate Aboriginal or Torres Strait Islander community as soon as practicable after the safety of the child or young person has been secured.

Note: In the course of any consultation under this Part, the Director-General must have regard to the right of Aboriginal or Torres Strait Islander children and young persons and their families to confidentiality.”

11. The provisions of the Children and Young Persons (Care and Protection) Act subsections 13(4), 13(5) and 13(6) are relevant to this child because it is the fact that the child has an Aboriginal father and a non-Aboriginal mother. The effect of those provisions is that the child is not the subject of the general order for placement and subsection 13 (4) of the Children and Young Persons (Care and Protection) Act applies so that: “the child or young person may be placed with the person with whom the best interests of the child or young person will be served having regard to the principles of this Act.”

12. The provisions of the care plan in respect of section 13 of the Children and Young Persons (Care and Protection) Act were not embodied in the order made by the Children’s Court and are therefore not enforceable and do not impinge on the jurisdiction of the Tribunal: AQY & AQZ v Administrative Decisions Tribunal of New South Wales (supra).

The Issues

13. Regrettably, the Tribunal was informed neither the mother nor the father of the child are currently engaged with the child.

14. The child’s father is said in the care plan, which formed part of the evidence provided by the respondent, to belong to the Dainggatti nation and has as his totem the praying mantis. The place of birth of the father means that he is more likely to have his nation as the Anaiwan (Nganyaywana), as became apparent from the oral evidence of the respected Aboriginal elder referred to later in these reasons. The child is also a member of the Anaiwan (Nganyaywana) nation because of his place of birth and the fact that he has lived in this Aboriginal tribe’s ‘country’ since his birth.

15. The members of the Tribunal who heard this matter acknowledge the Traditional Owners of the land on which we met on the hearing date being the people of the Anaiwan or Nganyaywana Nation. The members of the Tribunal pay their respects to the Elders past, present and future and pay their respects to all Aboriginal People, wherever they may come from, and recognise the strength, resilience and capacity of the Aboriginal people in this land.

16. The paramount principle in any action or decision under any provision of the legislation concerning a particular child is the safety, welfare and well-being of the child: section 9 (1) of the Children and Young Persons (Care and Protection) Act.

17. The Tribunal is required to determine what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the Challenge Community Services decision maker: section 63 Administrative Decisions Review Act 1997; YG v GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].

Evidence relied upon

18. The applicant relied upon following documentary evidence:

1. Application for stay and application for administrative review both filed 2 February 2015: Exhibit A1;

2. Letter dated 5 February 2015 from the applicant’s adult daughter annexing references from an Aboriginal Health Education officer and two Child and Family Health nurses: Exhibit A2;

3. Statement by the applicant dated 25 February 2015 and Annexures A-D: Exhibit A3. The Annexures constitute the articles referred to on attachment theory.

19. The applicant also called oral evidence from a respected elder from the Anaiwan (Nganyaywana) nation who shall be referred to as Mr A or ‘the elder’ in these reasons.

20. The respondent relied upon the following documentary evidence:

1. affidavit of the manager casework for the respondent, William Wain, annexing records kept by the respondent including the order made in the Children’s Court on 7 November 2013 and the care plan filed in the Children’s Court dated 4 November 2013; report from Mr Bartik, psychologist dated 18 July 2014; email correspondence on the Burran Dalai Aboriginal Corporation Inc.: Exhibit R1;

2. Update report from Mr Bartik, psychologist dated 9 March 2015 and filed 13 March 2015: Exhibit R2.

21. The psychologist who gave assistance to the Tribunal by way of his two written reports in this matter is Mr Bartik. The psychologist was not called to give oral evidence and was not cross-examined.

22. The respondent advised the Tribunal by facsimile on 16 March 2015 that the psychologist advised the respondent that he was unable to attend the hearing set for Friday, 20 March 2015.

23. Neither the applicant nor the respondent sought an adjournment for the purposes of allowing the psychologist to give oral evidence and to be cross-examined.

24. Submissions were made by the applicant that the psychologist’s report did not comply with the Tribunal’s Procedural Direction 3 (dated 7 February 2014) concerning provision of expert evidence reports. Firstly, it was submitted the referral letter was not part of the evidence, primarily because it appears there was no referral letter, but there may be an email which was not provided to the Tribunal as part of the evidence. The evidence of Mr Wain was to the effect that he had discussions with the psychologist by telephone, the content of which is not precisely known. Secondly, it was submitted that the psychologist does not acknowledge that he is bound by the applicable Expert Code of Conduct, which is based upon Schedule 7 of the Uniform Civil Procedure Rules 2005. Thirdly, he gives evidence outside his area of expertise by purporting to give evidence about the capacity of the proposed carers with whom he has had no contact, and opinion evidence concerning the interpretation of section 13 of the Children and Young Persons (Care and Protection) Act. Procedural Direction 3 clause 16 provides that the expert should set out the assumptions of fact upon which the opinions are based, referring to the letter of instructions if appropriate, the reasons for each opinion expressed, identifying that a particular issue falls outside the expert’s field of expertise, and an acknowledgement that the expert has read the expert’s code of conduct and agrees to be bound by it. The objections are well taken and the failings identified diminish the weight of those opinions which are within that expert’s particular field of expertise.

25. It is apparent from the psychologist’s reports that he believes Section 13 required the child to be placed with his siblings and in an Aboriginal family despite his strong attachment to his current carer (the applicant in these proceedings), her family, his comforters and toys, and the environment in which he lives and as identified by Mr A, the Aboriginal ‘country’ in which he was born. The applicant submits that minimal weight should be placed on the expert opinion about transition of the child to a new placement.

26. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act 2013 or Civil and Administrative Rules 2014 do not otherwise make provision. The rules of evidence do not bind the Tribunal (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal forms: section 38 Civil and Administrative Tribunal Act; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Where the Tribunal has a discretion to act on material which is rationally probative, subject to the rules of procedural fairness and other aspects of natural justice, the Tribunal must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Roberts v Balancio (1987) 8 NSWLR 436.

27. The "guiding principle" under the Civil and Administrative Tribunal Act and the procedural rules, in their application to proceedings in the Tribunal, “is to facilitate the just, quick and cheap resolution of the real issues in the proceedings”, subject to a principle of proportionality to the importance and complexity of those proceedings: subsections 36(1) and 36(4) Civil and Administrative Tribunal Act.

28. Having regard to the guiding principle, the paramount principle of the Children and Young Persons (Care and Protection) Act, and the matters referred to in the previous two paragraphs of this decision, the Tribunal has received the reports of the psychologist and will utilise the evidence contained in those reports in the ways which will be identified clearly in the reasons than might have otherwise been the case if the psychologist had complied with the expert code and was made available to be cross-examined about those matters which he should have been given the opportunity to comment upon as a matter of fairness.

29. Prior to the commencement of the hearing the Tribunal informed the parties that one of the Tribunal Members had written an article published in an international Journal concerning the issues which are raised in this application. The article is “Protecting the rights of Indigenous and Multicultural children and preserving their cultures in fostering and adoption”, Family Court Review, (2014) Volume 52 pages 6-27, authored by Senior Member Anderson. The parties were provided a copy of this publication prior to the commencement of the hearing and granted time to read it. Neither party made any application that the Senior Member not continue to hear the matter because of the content of the publication.

Relevant factual matters

30. The child was placed under the parental responsibility of the Minister until the age of 18 by order dated 7 November 2013 of the Children’s Court. This order was Annexure A to the affidavit Exhibit R1. This was the only order made by the Children’s Court despite a recommendation in the Care Plan for a section 82 report under the Children and Young Persons (Care and Protection) Act.

31. The child was assumed under the care of the Minister when he was 1 day old and remained in the hospital on the maternity Ward until he was 16 days old and well enough to be discharged into the care of the applicant. This placement was originally envisaged as a short-term or emergency placement. It was proposed that the child should be placed on a long-term basis with other authorised carers approved by Burran Dalai Aboriginal Corporation. The proposed carers are the long term carers of the child’s 1-year-old sister. They are also the carers of the child half siblings who have been in their placement since 2009.

32. The authorised carers approved by Burran Dalai Aboriginal Corporation live in an area which is some distance from the child’s current location and relevantly is located close to the Dainggatti nation’s “country”. There is a river separating the carers from the Dainggatti nation which means that they are living, in fact, in the neighbouring to the north Gumbainggir nation’s “country”. Both those nations’ country are neighbours to the eastern side of Anaiwan (Nganyaywana) nation’s country.

33. A map of the respective Nations locations is below.

Map of Indigenous Groups showing Nganyaywana (Anaiwan) with modern Armidale towards the south east border (Source: Horton, 1994. p.1009)

34. It is said in the care plan, and confirmed by the respected elder who gave oral evidence, that the nations which neighbour each other have very similar cultural practices.

35. The evidence given by the manager casework in his affidavit, Exhibit R1, is that he has been employed by Challenge Children’s Services at his current site since 3 February 2014. The case management of the child was transferred to Challenge Children’s Services on 6 December 2013.

36. It was proposed that case management of the child will transfer to Burran Dalai but that they were not able to take over case management when the child was discharged from hospital.

37. The evidence is that the applicant attended hospital when the child was born prior to the child’s discharge so as to build an attachment between them.

38. The parents of the child withdrew from the child protection matter and did not participate in the legal process in the Children’s Court.

39. On 18 March 2014 the manager casework contacted Burran Dalai to ascertain whether they were in a position to accept transfer of the child to their organisation. Neither the organisation nor the proposed long term carers “were in a position to accept the transfer of [the child] at that point in time.” The manager casework made a file note which is annexed to his affidavit.

40. On 8 May 2014 the manager casework again contacted Burran Dalai to ascertain whether they were in a position to accept transfer of the child to their organisation. No information was provided and the manager casework left a message requesting a call back as a matter of priority. The manager casework made a file note which is annexed to his affidavit.

41. On 23 May 2014 the manager casework again contacted Burran Dalai to find out why they had not returned his call and requested a call back as a matter of priority. The manager casework made a file note which is annexed to his affidavit.

42. On 10 July 2014 a Burran Dalai employee contacted manager casework to state that they were unable to take transfer of the child to their organisation at that time. There was no indication when they would be able to take him. The manager casework was informed that checks with the carers would need to be made and that he would be contacted when those checks have been completed. The manager casework made a file note which is annexed to his affidavit.

43. On 18 July 2014 a psychological assessment was completed by the psychologist. That report is annexed to the manager casework’s affidavit at Annexure G.

44. On 6 August 2014 Burran Dalai was again contacted by the manager casework to ascertain whether they were in a position to accept transfer of the child to their organisation. No information was able to be provided so he left a message for a call back as a matter of priority.

45. Some contact between the child and his sister occurred on 23 September 2014 and 16 December 2014. On 7 January 2015 the psychologist recommended that transition to the new carers should happen quickly, in response to a request from the agency as to the timeframes within which a transfer should occur.

46. On 14 January 2015 at a meeting between the applicant and agency caseworkers including the manager casework, the applicant was informed that a timeframe for transition of the child to the new carers would happen quickly. The applicant questioned the psychologist’s credentials and sought a second opinion. The applicant was told that the psychologist was associated with the University of New England “and had a background with the Department, which meant he had overseen a number of transitions.” The applicant was informed that there would be no second opinion because the recommendations provided were clear and concise.

47. Further sibling contacts occurred on 23 January 2015 between the child and his sister. Another child was also present. On 28 January 2015 the applicant informed the agency that the child’s behaviours “were off” following last contact visit.

48. On 29 January 2015 a transition plan was received from the psychologist, proposing transition to the new carers should occur by 9 March 2015.

49. On 25 February 2015 the agency received letters in relation to the proposed new carers and the children who are placed with them. They have four foster children currently in their placement including three siblings to the child the subject of this application. All the children in that placement had been there “since as early as 2010”.

50. There was an overnight contact visit between the child and the proposed carers about which a report was received on 25 February 2015 in response to a request of the manager casework’s colleague at the agency. A further overnight visit occurred from 27 February 2015 until 2 March 2015. That contact visit is said to have gone without issue and that the child ate and slept well (as it was reported to the agency).

51. The manager casework has not observed the child following his contact with those members of his birth family with whom he has had contact.

52. It can therefore be seen from this review of the factual matters that the child has spent nearly the entirety of his life in the care of BQZ with her family.

53. The Aboriginal elder who gave evidence in the applicant’s case is a member of the Anaiwan (Nganyaywana) nation. He knows the father of the child and where he was born. The father was born in the Anaiwan (Nganyaywana) country. The elders stated that the Anaiwan (Nganyaywana) country is where it snows and gets cold, which is descriptive of the town in which the child’s father was born, and also the town in which the child was born. Geographically both birthplaces are also in Anaiwan (Nganyaywana) nation country.

54. The care plan filed in the Children’s Court identifies the father’s Aboriginality, it appears, through his familial connections rather than his place of birth.

55. The elder is a committee member of NAIDOC, which organises activities for NAIDOC week, and he is heavily involved in Indigenous and wider community education concerning the Anaiwan (Nganyaywana) language. The elder is part of a group encouraging the use of Anaiwan (Nganyaywana) language and he speaks this language with other members of the Anaiwan (Nganyaywana) nation. As a respected elder he gave evidence that he can facilitate the child learning about his identity and culture. The elder has numerous links with other members of the community to enable the child to be brought up in the knowledge of his cultural practices and can visit places of cultural significance in the local area. The elder gave evidence that there are many significant sites located in the area around where the child was born. The elder was insistent that the child’s country is Anaiwan (Nganyaywana) and no other. The elder supports the applicant continuing to care for the child. In evidence the elder stated that the applicant has been the ‘mother’ of the child and importantly for the child so far she has done all the hard work. The elder stated that if the child was taken away from the applicant it would be just like the “stolen generation” taking him away to live with complete strangers.

56. The elder gave evidence that he is certain the applicant has a commitment to learning about the culture of the Anaiwan (Nganyaywana) nation and will be able to support the child learning about his cultural heritage: in his words, she would do it “without a doubt”. The elder said that the other elders of the Anaiwan (Nganyaywana) nation he knows support the applicant having care of the child.

57. The applicant gave evidence that she has been an authorised carer for approximately 10 years and has in that time cared for approximately 50 children. Currently, the carer has placed with her since May 2014, two girls in addition to the subject child. Those girls, who are Aboriginal, are likely to be returned shortly to live with their birth family. There are also 2 brothers aged 14 and 13 respectively who will remain in the long-term care of the applicant. The authorised carer’s daughter assists her with the care of children in the applicant’s home. The 2 boys also assist in the home providing support and care for the subject child as part of their family. The carer’s daughter who is aged 25 provided supportive evidence in the Tribunal. The child the subject of this application is now part of the carer’s extended family.

58. The carer identified that she sends the child to an Aboriginal preschool in the local area. The applicant stated that she would agree with and cooperate in implementing a cultural plan for the child when one is devised.

59. The carer is concerned that the child may be traumatised by being removed from her care and that it saddens her that his developmental trajectory may be impeded because of his emotional reaction to the removal from her loving care. The carer sees the child as her son “in [her] heart.”

60. The manager casework gave evidence in the Tribunal hearing. The evidence which he gave identified that he did not know where the issue “sat” which delayed placement of the child with the chosen Aboriginal carers. The agency will continue to fund the placement with the applicant should the child remain with her.

Psychological Evidence

61. The report by Mr Bartik, psychologist, dated 18 July 2014 assessed the bonding between the applicant and the child. The psychologist attended the home on 2 occasions, once in the early evening and the other around midday. The observations of the psychologist led him to report that the child has developed a secure attachment with the applicant. The child has developed multiple secure attachments with the applicant, her daughter and the 2 boys: Report 18 July 2014 at [14], [16]. Furthermore, if the child were removed from his current household and attachments the psychologist states at [18], [19], [20]:

“… He would likely experience attachment disruption. This could lead to oppositional behaviour, crying, and clinging behaviour. Disruption in placement, a loss and lack of permanence, can undermine a child’s attempt to form a secure attachment with a primary caregiver. Multiple disruptions to attachment relationships can lead to reactive attachment disorder in which there are severe disturbances in relationships with caregivers.

…

There is no optimal or best time to remove a child from a key attachment figure…

In a new placement [the child] will initially exhibit some distress. He may also regress with some of his current developmental milestones. This will settle over time assuming an appropriate caregiver response…”

62. The psychologist assessed that the environment in which the child has been living with the applicant and her children has been warm and loving and that the child has caught up with developmental milestones. The quality of care is assessed by the psychologist to be of a high quality which has enabled him to form a secure attachment with the carer and her daughter: ibid., [25].

63. The psychologist has not assessed the family into which the child was proposed to be placed. That placement has not occurred due to reasons which are not in evidence before the Tribunal.

64. The psychologist prepared a further report dated 9 March 2015: Exhibit R2. The psychologist attended the child’s home on 2 March 2015 in the late afternoon. The carer advised that when the child returned from transition visits to the proposed new placement, his behaviour was notably different. It is recorded by the psychologist at [5]:

“She said he would not listen, was often clingy and wanted to be nursed. [The carer] also said that [he] has commenced a behaviour, usually when he is tired or upset, where he throws himself on the floor often banging his head. This sometimes leaves bruising. This behaviour was observed during the home visit.”

65. The psychologist observed, at [9], that there exists a “strong and secure attachment” between the carer and the child on the visit on 2 March 2015. The psychologist stated at [12]:

“… The current care environment is appropriate, nurturing and loving, and [the child] appears to be meeting most of his developmental milestones.”

66. The applicant relies upon literature about attachment theory which is part of Exhibit A3. Not surprisingly, much of that material is consistent with the evidence given by the psychologist. Some of it does however, provide more detail. For example, the period between 9 and 18 months is the time when there is developed by the child a hierarchy of attachment figures: Zeanah C, Berlin L, Boris N (2011) “Practitioner Review: Clinical applications of attachment theory and research for infants and young children.” Journal of Child Psychology and Psychiatry 52:8:819-833, at page 820. Between 18 to 20 months there is the emergence of symbolic representation, including pretend play and language: ibid.

66. These developmental periods are significant times in the life of this child. Disruption to the child’s strong and secure attachment at this point in time would have to be managed very carefully to avoid any deleterious consequences.

67. The Barnardos Practice Paper which is part of Exhibit A3 is a summary of some of the major research surrounding attachment and common misunderstandings about it which lead to poor decisions in child welfare practice. In particular, it is said that a common misunderstanding is that “attachment is transferable and is seen as a skill that can be learned, practised or acquired and can move between one relationship and another.” It is said:

“This misunderstanding may lead to decisions which cut across the child’s need for an enduring, specific and ongoing relationship with a caregiver. However, a true attachment bond is enduring and cannot be substituted or transferred to another relationship; although it may form a cognitive and affective template from which subsequent attachment relationships are built or modified.”

69. There is minimal evidence of the proposed caregivers’ capacities in terms of providing the nurturing and consistent care required if there is to be a change of placement. What can be said with certainty is that the proposed carers have a track record of caring for a number of children and are authorised carers.

Consideration and determination

70. In this matter, placement of the child with an Aboriginal agency and Aboriginal authorised carers, where siblings of the subject child also live, has been delayed beyond the originally anticipated timeframe. The reasons for this delay are not apparent. However, in the meantime the child has developed strong and secure attachments with his current caregiver and her extended family.

71. The agency, Challenge Community Services seeks to implement the provisions of the Care Plan which was filed in the Children’s Court prior to final orders which placed the child in the parental responsibility of the Minister until the age of 18. That order was made on 7 November 2013. There was no order which requires that the child be placed in any particular placement.

72. The provisions of section 13 of the Children and Young Persons (Care and Protection) Act are applicable to placement decisions for Aboriginal children and particularly for a child who has one parent who is Aboriginal and one parent who is not. The applicable provision under section 13(4) is that: “the child or young person may be placed with the person with whom the best interests of the child or young person will be served having regard to the principles of this Act.”

73. The correct and preferable decision having regard to the material before the Tribunal will therefore be one which is in the best interests of the child based upon that material.

74. The other principles of the Children and Young Persons (Care and Protection) Act which are applicable are those in section 9 (1) and section 9 (2). Of these principles the most pertinent are section 9 (2) (c) and section 9 (2) (e) which provide in summary, that the course to be followed is the least intrusive intervention in the life of the child and his family, and that arrangements should be made in a timely manner, and particularly if the child is a young child, that the greater the need for early decisions to be made in relation to permanent placement: see Re Kerry (No 2) [2012] NSWCA 127, at [68]-[80], per Barrett JA with whom Tobias AJA and Schmidt J agreed.

75. The evidence of the Aboriginal elder, Mr A was particularly impressive to the Tribunal. It is his assessment of the applicant that the enhancement of the child’s Aboriginal culture and heritage will be facilitated by the applicant by involvement with the local Aboriginal community who share some common cultural bonds with the neighbouring nations.

76. The uncontradicted evidence is that there is a strong and secure attachment between the child and the applicant and between the child and the applicant’s extended family.

77. To move the child at this particularly important stage of his development is fraught with concern that he will suffer delay in his developmental trajectory and experience distress. Disruption in his placement, causing a loss and lack of permanence, is likely to undermine this child’s attempt to form and maintain a secure attachment with a primary caregiver. Unnecessary disruptions to attachment relationships can lead to disorders in which there become severe disturbances in relationships with caregivers. The evidence of the psychologist is that there is no optimal or best time to remove a child from a key attachment figure, such as the applicant represents to this child. This evidence is consistent with the expert evidence and case law summarised in the article published by Senior Member Anderson referred to earlier in these reasons.

78. The respondent submits that there will be some regression in the child’s development but that he will catch up when he is placed with his new carers. It was submitted that the child will adapt to change, that there will be a plan, and that the carers had been assessed with certain qualities which will be supported by the caseworker. It is accepted that a true attachment bond is enduring and cannot be substituted or transferred to another relationship; although it may form a cognitive and affective template from which subsequent attachment relationships are built or modified. There are significant risks in effecting change to this particular child, who has not apparently adapted well to the changes which he has experienced and have caused some behavioural disturbance including head banging.

79. The respondent submits that the child should be placed with his siblings in an Aboriginal placement as was envisaged in the care plan in the Children’s Court. The placement of the child in accordance with the care plan, at the time of the making of the order in the Children’s Court and for a period of time subsequent to that, may well have been in the child’s best interests at that time. Regrettably, time has passed and the child has formed strong and secure attachments to his current environment, his current caregiver and is at a crucial stage of his development.

80. The Aboriginal placement principle which is applicable to this particular child will enable him to continue to experience important aspects of Aboriginal culture and heritage whilst being placed with the carer who will advance his best interests. By remaining with his current carer the child’s best interests will be better advanced than by placement at this time with someone else.

81. The family which the child has come to know since he was in hospital and discharged into the care of his current carer, is the only family he has known. The least intrusive intervention into his life and the life of his family will be to keep him in his current placement: Re Kerry (No 2) [2012] NSWCA 127, esp. at [54]-[55].

82. The importance of permanent placement for children in out of home care is reflected in the provisions contained in the Children and Young Persons (Care and Protection) Act which stress the importance of long-term security and stability of care: sections 9 (2) (e), 10A, 78A. By remaining with his current carer there will be an opportunity for the child to develop long-term security and stability of care without the risk of distress, trauma and disruption to his currently excellent developmental trajectory and strong and secure attachment.

83. On the balance of probabilities, having regard to all the material before the Tribunal and the applicable law, it is in the best interests and promotes the safety, welfare and wellbeing of the child that the correct and preferable decision under section 63 Administrative Decisions Review Act 1997 is to set aside the decision and substitute the Tribunal’s own decision for that of the relevant decision-maker.

84. The order of the Tribunal is therefore:

1. The decision of the relevant decision maker, William Wain, Manager Casework with Challenge Children’s Services, made on or about 13 January 2015 to remove from the applicant the responsibility for the daily care and control of the child the subject of this application is set aside.

2. The Tribunal makes a decision in substitution for the decision set aside, that the daily care and control of the child the subject of this application is granted to the applicant under section 245(1)(c) of the Children and Young Persons (Care and Protection) Act 1998.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 07 May 2015