DR and YO v Department of Child Safety, Seniors and Disability Services

[2023] QCAT 333

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

DR and YO v Department of Child Safety, Seniors and Disability Services [2023] QCAT 333

PARTIES:

DR AND YO

(applicants)

v

DEPARTMENT OF CHILD SAFETY, SENIORS AND DISABILITY SERVICES

(respondent)

APPLICATION NO/S:

CML166-23

MATTER TYPE:

Childrens matters

DELIVERED ON:

22 August 2023

HEARING DATE:

6 July 2023

HEARD AT:

Brisbane

DECISION OF:

Member Goodman
Member Matthews
Member Pinkerton

ORDERS:

The operation of the decision of the Department of Child Safety, Seniors and Disability Services dated 8 May 2023 to remove the children W, X, Y and Z from the care of the applicants is stayed in so far as it relates to the children X, Y and Z. 

CATCHWORDS:

CHILD PROTECTION – application for a stay – where applicants have cared for the children for eight years – where applicants and children relocated from Queensland – where allegations of harm investigated and finding of substantiated harm made – where Department’s removal decision stayed

Child Protection Act 1999 (Qld), Chapter 1, Part 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 22 (3), s 29, s 46

Human Rights Act 2019 (Qld), s 8, s 13, s 15, s 25, s 26, s 27, s 28, s 31, s 58

APPEARANCES & REPRESENTATION:

Applicant:

The applicants attended via video link. Their legal representative Ms Djordevic attended via video link

Respondent:

Ms Geddes, court services adviser, via video link

Ms Jensen, decision maker, via video link

Ms Zeller, observing, via video link

Separate Representative:   Ms Mustaffa, via video link

Child Advocate:                Mr Walls for child X, in person

  Ms Blanco for children W, Y and Z, via video link

Support for DR:                  Ms Savic via telephone

REASONS FOR DECISION

[1]This application relates to 4 children, all of whom are subject to long term guardianship orders which expire on their 18^th birthdays.

[2]All children have been placed with the applicants DR and YO since 2015. DR and YO are currently approved as foster carers. Their carer approval expired in February 2022 and they are in the carer renewal process. The children and applicants originally lived in the far western area of Queensland. In 2017, they all relocated interstate with the approval of the Department.

[3]All children identify as Aboriginal and Torres Strait Islander. The department indicates that they have extensive family and cultural ties to the western area of Queensland, and identify as Aboriginal from a particular language group in Western Queensland.

[4]The children ’s mother (M) resides close to the coast of Queensland and the children have visited the coastal area to have contact with their family each year. During that time, they stay with their maternal aunt N.

[5]While three of the children were on holidays in Queensland in April 2023, the Department was notified that while in the care of the applicants, the children had been mistreated.

[6]By way of background:

(a)Child W is almost 17 years of age. W has FAS-D, an intellectual disability (FSIQ 55-70), and has been diagnosed with ADHD. When living interstate, W had been regularly attending school and stayed on campus Monday – Friday. A strengths and needs assessment was conducted by the Department on 30 March 2023 which states “W knows that they can go to the carers with any concerns and that they will do everything in their power to help them overcome their struggles.”

(b)Since being in Queensland, W has “self-selected” and has been living with M and her partner and has refused to return to the care of Aunty N (which was approved by the Department). W has consistently indicated that they wish to remain living with M in Queensland. The Department has developed a Safety and Support Plan to address concerns regarding W’s welfare and safety, and to ensure that W maintains contact with other family members.

(c)While living interstate, W had been engaging in occupational therapy, speech therapy and was seeing a psychologist. Since being in Queensland, only occupational therapy has continued, via a video link.

(d)Shortly before the hearing, the separate representative spoke to W who disclosed self harming behaviour while in the care of the applicants, and that they did not wish to return due to being scared of DR when she drinks. W expressed the view that the other children would be “flogged” if they went back as the other children in the house would get them into trouble. W stated that while family in Queensland growled the children, they did not flog them. W was distressed when providing views and wishes.

(e)Child X is 14 years of age. X has FAS-D and an intellectual disability. A strengths and needs assessment was conducted by the Department on 30 March 2023 which states “X feels confident in knowing that they can go to the carers with any concerns and that they will do everything in their power to help them.”

(f)X did not travel to Queensland in April 2023 and has remained in the care of the applicants. During this process, X has consistently advised the Department, the applicants, the Child Advocate and the separate representative of a wish to remain in the care of the applicants. X has raised no worries or complaints about the applicants.

(g)At the outset of the hearing, the Department conceded that the operation of the removal decision should be stayed so far as it related to X. The Department indicated that it was considered that X remained at risk of harm, however an action plan had been implemented for X’s protection.

(h)Child Y is 11 years of age. Y is diagnosed with moderate intellectual or developmental delay and is behind in speech development. A strengths and needs assessment was conducted by the Department on 30 March 2023 which states “Y experiences generally positive interaction and connection with the carer and the family.”

(i)Y initially indicated a wish to remain living in Queensland with M, but subsequently advised the separate representative of a wish to return to live interstate with the applicants. Y stated shortly before the hearing that they had changed their mind and was miserable in Queensland, missed playing footy, and did not wish to have contact with M as had been arranged by the Department. Y was worried about M as she had no money. Y was a bit worried about going back to live with the carers in case DR hit them again.

(j)Child Z is 9 years of age. Z is connected to NDIS, and disability support is in place. Z is waiting for a paediatrician appointment to confirm an ADHD diagnosis (suggested by the school psychologist). A strengths and needs assessment was conducted by the Department on 30 March 2023 which states “Z experiences generally positive interaction and connection with the carer and the family…Z knows they that can go to the carers with any concerns and that they will do everything in their power to help them overcome their struggles.”

(k)Z initially indicated a willingness to return to live with the carers interstate, but said they were scared W would be mad if that happened. Z then advised the separate representative of a wish to live with M in Queensland. At the time of the hearing, Z advised the separate representative of a wish to return to live interstate with the applicants.

(l)Z advised the separate representative shortly before the hearing that it was too hot in Queensland and they missed living interstate. Z was not scared to go back stating “I don’t think they will hurt me anymore”. While it was “good” living with aunty, it was too hot, and seeing mum was “good, but boring”.

[7]On 8 May 2023, the Department wrote to DR and YO advising that a decision had been made to remove all four children from their care. The Department provisionally approved Aunt N as their carer.

[8]On 11 May 2023, DR and YO lodged an application to review the decision dated 8 May 2023. They also lodged an application seeking a decision that the operation of the decision be stayed until the review was finalised.

[9]On 26 May 2023, the Tribunal appointed a separate representative for the children.

[10]On 22 June 2023, the Tribunal vacated the stay hearing and compulsory conference listed for that day, and directed the parties to attend a stay hearing and compulsory conference on 6 July 2023.

[11]On 6 July 2023, the Tribunal stayed the operation of the decision in so far as it related to the three younger children. These are the reasons for the Tribunal’s decision.

PRELIMINARY MATTERS

[12]To maintain confidentiality and protect the privacy of this family, these reasons do not refer to the sex of the children or the specifics of where they or their family are currently located. In making this decision, we have considered the need for the children to maintain a connection to their culture, country and community.

[13]The Department states that it was in the process of applying to have the Queensland child protection orders transferred to the interstate Department when the notified concerns were received. We note that the family has been living interstate for some 5 years, and it is unclear why there has been such a delay.  

[14]During the proceedings, the applicants (through their legal representative) indicated an intention to not proceed with the application for a stay in relation to the children currently in Queensland. This seemed to be on the basis that they would undertake further training as recommended by the Department and would then see if the children could return to their care.  In child protection matters, applications may only be withdrawn with the leave of the Tribunal[1]. Before granting leave, the Tribunal explained the practices and procedures of the Tribunal to the parties, particularly the time it would likely take to resolve the matter if it proceeded to a hearing, and the difficulties in granting a stay later if it could be said that a new status quo had been established[2]. Ultimately, the applicants indicated that they sought to have the operation of the decision stayed so far as it related to the three younger children.

[1] s 46 Queensland Civil and Administrative Tribunal Act 2009 (Qld)

[2] s 29 QCAT Act

[15]Some of the allegations of harm contain reference to the children being “growled”. The Tribunal understands, based on evidence at the Hearing, that “growling” is a slang term for “getting someone into trouble”. While it may that sometimes growling is excessive, unfair or accompanied by violence or threats of violence, the Tribunal proceeded on the basis that growling was in and of itself not violent or harmful. We note that in 2022 the children described being growled at as being told to stop something, and then getting sent to their room. The Department concluded at the time “while Z advised feeling scared when being growled at, this appears to be an age-appropriate reaction to getting into trouble…all children feel safe with the carers”.

THE HARM REPORT INVESTIGATION AND ASSESSMENT

The report is summarised in paragraphs 16 – 39 below. The report indicates that:

[16]All of the subject children are case managed by a Queensland Child Safety Service Centre and “casework tasks” are conducted by the interstate child safety service.

[17]Allegations were raised in April 2023 that the children who were in Queensland did not wish to return to the carers, who were said to be mistreating the children by:

(a)slapping them and, on one occasion, punching W in the face;

(b)swearing at them; and

(c)threatening the children that they would be flogged if they spent their spending money on junk food while in Queensland.

[18]In 2016 concerns had been raised about the applicants failing to meet the requisite standards of care by pulling of hair, removing blankets, starving the children and yelling at them. The allegations resulted in a finding “continue to monitor”. The Department was advised that the family were having issues with managing W and X’s behaviour, which included hitting, kicking, and pulling the other children’s hair.

[19]In 2021, a notifier advised the Department that YO growls the children for no reason, and smacks them on the forehead, and that W lacked friends and was lonely and was self-harming. The outcome recorded by the Department was “continue to monitor the standards of care”. At the time the Department received advice from the interstate Department that the children “appear happy in the placement”. The Department noted that the placement had been stable, and the children’s needs were being met, particularly W’s disability needs.

[20]In February 2022, a notifier advised the Department that:

(a)W goes to a bedroom and cries when the children get smacked;

(b)YO uses a hand or a wooden spoon to hit the children, and hits them on the head, bum and hands. This had resulted on at least one occasion in a lump on a child’s head, and a bruise;

(c)The notifier was not aware when the children were last smacked;

(d)The children were scared to tell anyone because of possible repercussions from the carers; and

(e)The children believe the carers are mean.

[21]In March 2023, a “placement worries meeting” was held and a Harm Report Investigation and Assessment was considered the most appropriate response. The report acknowledged that “there appears to have been inappropriate discipline previously” which was “historical in nature” and described by the children as occurring “in the old house”, “ages ago”, “when we were younger”, and “not anymore”. The carers acknowledged that they used to smack the children when they first came into care but the assessment concluded that there was nothing to suggest that those methods of discipline were happening in the household “at this time”. The outcome was recorded as: unsubstantiated – standards met for all children.

[22]The interstate Department have no notifications of harm recorded.

[23]The interstate health authorities have no information suggesting the children have been harmed.

[24]The schools were contacted and the following information provided:

(i)      X is “absolutely fine” and is “a happy kid”. The school has never had any issues or concerns with X, who is consistently well behaved and respectful. X is a “delight” and “always up for a chat or joke”. X loves sport and has a part-time job. X has exceptionally high school attendance for the area and has positive community engagement.

(ii)      Y has been “pretty settled” and has a good relationship with everyone at school, especially the teacher. No concerns were raised regarding the household.

(iii)     Z has appeared happy and healthy and keen to learn. No concerns have been flagged. Z is always neat and tidy and appears happy at school. Z always has lunch and all required materials for the day. Z participates in excursions, incursions and school requirements (assemblies etc).

(iv)     W lived on campus Monday to Friday and returned to the carers on the weekends due to the distance the school is from the carer’s home. W always brought what was required from home when returning to school. W engaged well at school and received specialist support because of diagnosed disabilities. The school was unaware of any disclosures or concerns that W was being hit or abused in the care of the carers. W became withdrawn prior to the holidays and told a teacher aide that they “weren’t sure” if they wanted to go on family contact to Queensland. The carer had spoken to the school about the benefits of W finishing school interstate with the option to return to Queensland after leaving school. There was no indication of W being in a romantic relationship or drinking.

[25]There was no relevant interstate police information.

[26]The current placement was long term and stable and allowed the siblings to live together. A positive relationship was noted between the carers and the children. There is an established household routine which assists in behavioural management of the children. The children do a lot of sporting and other activities. The carers appear to be meeting the children’s high needs in regard to their individual disabilities and subsequent NDIS involvement. The carers have ensured the children are supported appropriately at school and by community services.

[27]There is a pattern of the children making consistent disclosures of physical and verbal abuse during family contact in Queensland. While unable to articulate a “precise timeline” they advised they occurred since the move interstate. When spoken to separately, the children each made different disclosures about who does the hitting and verbal abuse and how it occurs. It is noted that they carers have conceded past physical discipline. It is noted that during W’s interview in Queensland, the mother M was present, and provided input.

[28]While the children are living interstate, the Department has experienced difficulty maintaining contact with the family, and the interstate Department has indicated they do not have the resources to complete casework tasks. Family contact has become more difficult due to the distance involved. There has been a breakdown in communication between the carers and the Department which has affected contact arrangements, disrupted carer assessments, and left the carers feeling unsupported.

[29]There has not been a plan put in place to ensure the children remain connected to culture, community, kin and country.

[30]Now that Aunt N is provisionally approved, she is the most culturally appropriate placement as the maternal aunt who “resides on country” and is able to teach the children about their culture and family and facilitate meaningful family contact between the children, their mother and other extended family.

[31]There is a “distinct possibility” that the children could be reunified to their mother as there has been a significant change in her behaviour and she is engaging well with the department and services to address child protection concerns. If the children were in Queensland, progression towards reunification would be more streamlined.

[32]W wishes to remain living with M, X wishes to remain living interstate, and the younger children expressed a wish to remain with Aunty N. The children advised that they miss their friends, school and sporting teams interstate “however the Department has made attempts to engage the children in likeminded programs and sports” in Queensland.

[33]Most of the concerns centred on the way in which DR and YO disciplined W. “W is the eldest child in the household and the first to begin testing boundaries in relation to drinking, going out with friends and getting a partner. It is likely that the carers had yet to face these type of behaviour issues with the children in their care and were not afforded the appropriate level of support from Child Safety to help them address the behaviours.”

[34]W, Y and Z have experienced significant emotional harm due to excessive physical discipline and emotional abuse by their carers:

(a)There have been previous reports of inappropriate physical discipline and emotional harm;

(b)The children have made disclosure about being hit and subjected to verbal threats;

(c)The children do not wish to return to the carers; and

(d)The children have advised that being hit made them sad and hurt them.

[35]W and Z have experienced significant physical harm due to excessive discipline by their carers, as disclosed by the children.

[36]There is insufficient evidence to suggest that X has experienced significant harm. X made no disclosures of physical discipline since the family moved interstate, spoke positively of living with the carers, engagement in the community, and feeling safe. X spoke of appropriate discipline such a being grounded or sent to their rooms.

[37]All children are at an unacceptable risk of future emotional and physical harm with the carers:

(a)They have made disclosures of being hit and threatened;

(b)They do not wish to return to the care of the carers;

(c)There is a recurring pattern of disclosures of harm over the last few years; and

(d)The carers have not met the standards of care.

[38]W has reported a significant change in M with the possibility that the children could be reunified to her.

[39]An action plan will be put in place to allow X to remain living interstate with the carers and remain connected to family, community, country and culture. An Aboriginal youth service will be engaged to teach X about culture and help maintain connection. The carers will undertake further training on how to parent adolescents with trauma. Child Safety will ensure that X is being seen monthly in the home. Contact with other family members will be planned and maintained. The carers will complete carer approval requirements both in Queensland and interstate.

CONSIDERATION OF THE HARM REPORT

[40]The Tribunal has some difficulties with the information contained in the report. These are matters which no doubt can be explored at a final hearing of this matter, should the application proceed to a final hearing:

(a)The report is inaccurate in stating that case work has been undertaken by interstate authorities. The Department conceded at the hearing that no case work had been undertaken by anyone interstate. As a model litigant, the Department has an obligation to provide information to the Tribunal which is accurate and reliable, and to alert the Tribunal to instances where documents prepared by others contain incorrect information. 

(b)There is no evidence before the Tribunal as to Aunt N’s engagement with culture or her willingness or ability to teach or share cultural practices.

(c)While there is mention of maintaining a connection to “country”, there is no particular evidence that the children’s country is the coastal area in which their aunt and mother currently reside. The applicants submit that the children’s country is in the western area of Queensland. There is no evidence as to how connection to country will be supported if the children reside in a coastal region of Queensland.

(d)The report assumes that in Queensland the children will be able to maintain close connection to their extended family. There is no evidence before the Tribunal as to Aunt N’s relationship with the extended family or her commitment to fostering those relationships.

(e)The report seems to indicate reliance on W to report a significant change in M and a possibility that the children could be reunified with her. It seems that M was present when W was interviewed. The Tribunal does not have any independent evidence of what changes have been made, how sustainable these changes may be, and whether M has the skills and ability to support four teenagers with high care needs.

(f)At the hearing, the Tribunal was advised that Y and Z have now indicated that they wish to return to live interstate with the applicants.

(g)While in Queensland, no arrangements had been made to connect the children with NDIS supports, or engage them in community sport.

(h)The harm report does not contain a response to the allegations by the carers. At the hearing, they advised that they denied the allegations of abuse and threats, although conceded that they did physically discipline the children when they first came into their care.  

CONSIDERATION OF THE STAY APPLICATION

[41]A stay is a temporary order of the Tribunal which would return arrangements to those in place prior to the decision of 8 May 2023. In this case, that would mean the children would return or remain living interstate in the care of DR and YO.

[42]During the hearing the applicants indicated that they did not wish to pursue the application for a stay in relation to W. W is 17 years of age and is in Queensland, residing with mother M. The Department have developed a plan to protect W from harm in that environment. W is refusing to return to live interstate. 

RELEVANT LEGISLATIVE PROVISIONS

[43]The Tribunal has considered the relevant provisions of the Child Protection Act, in particular, those contained in Chapter 1, Part 2. It is unnecessary to restate them here in full. In summary, we accept that:

(a)The purpose of the Act is to provide for the protection and promote the safety of children and, to the extent that it is appropriate, to support families caring for children;

(b)The main principle for administering this Act is that the safety, wellbeing and best interests of a child, both through childhood and for the rest of the child’s life, are paramount;

(c)Children have the right to be protected from harm or risk of harm;

(d)A child’s family has the primary responsibility for the child’s upbringing, protection and development. The preferred way of ensuring a child’s safety and wellbeing is through supporting the child’s family. We note that, while “parent”, “child”, and “family group” are defined, “family” is not;

(e)If a child does not have a parent able and willing to give the child ongoing protection in the foreseeable future, the State is responsible for protecting the child;

(f)if a child is removed from the child’s family, support should be given to the child and the child’s family for the purpose of allowing the child to return to the child’s family if the return is in the child’s best interests;

(g)if a child does not have a parent able and willing to give the child ongoing protection in the foreseeable future, the child should have long-term alternative care;

(h)if a child is removed from the child’s family, consideration should be given to placing the child, as a first option, in the care of kin;

(i)if a child is removed from the child’s family, the child should be placed with the child’s siblings, to the extent that is possible;

(j)a child should only be placed in the care of a parent or other person who has the capacity and is willing to care for the child (including a parent or other person with capacity to care for the child with assistance or support);

(k)a child should be able to maintain relationships with the child’s parents and kin, if it is appropriate for the child;

(l)a child should be able to know, explore and maintain the child’s identity and values, including their cultural, ethnic and religious identity and values;

(m)a delay in making a decision in relation to a child should be avoided, unless appropriate for the child;

(n)a child has the right to express the child’s views about what is, and is not, in the child’s best interests;

(o)to achieve permanency for a child, and to ensure the wellbeing and best interests of a child, the order that should be preferred, is the order that best ensures the child experiences or has—

(i)      ongoing positive, trusting and nurturing relationships with persons of significance to the child, including the child’s parents, siblings, extended family members and carers; and

(ii)      stable living arrangements, with connections to the child’s community, that meet the child’s developmental, educational, emotional, health, intellectual and physical needs (for example stable and continuous schooling arrangements);

(p)Aboriginal and Torres Strait Islander people have the right to self-determination, and the long-term effect of a decision on the child’s identity and connection with the child’s family and community must be taken into account;

[44]The following principles (together the Aboriginal and Torres Strait Islander child placement principle) also apply in relation to Aboriginal or Torres Strait Islander children—

(a)the principle (the prevention principle) that a child has the right to be brought up within the child’s own family and community;

(b)the principle (the partnership principle) that Aboriginal or Torres Strait Islander persons have the right to participate in—

(i)      significant decisions under this Act about Aboriginal or Torres Strait Islander children; and

(ii) decisions relating to the development and delivery of services, provided by the department, that—

(A) support Aboriginal or Torres Strait Islander families; or

(B) provide for the care or protection of Aboriginal or Torres Strait Islander children;

(c) the principle (the placement principle) that, if a child is to be placed in care, the child has a right to be placed with a member of the child’s family group;

(d) the principle (the participation principle) that a child and the child’s parents and family members have a right to participate, and be enabled to participate, in an administrative or judicial process for making a significant decision about the child;

(e) the principle (the connection principle) that a child has a right to be supported to develop and maintain a connection with the child’s family, community, culture, traditions and language, particularly when the child is in the care of a person who is not an Aboriginal or Torres Strait Islander person.

[45]The object of Chapter 2A is to provide for the tribunal to make decisions in a review that promote the welfare and best interests of the child about whom the reviewable decision was made, and the tribunal must have regard to the principles mentioned in sections 5A to 5C, to the extent the principles are relevant.

[46]We have also considered the charter of rights for a child in care, set out in Schedule 1 of the Act.

[47]The Tribunal may make an order staying the operation of a reviewable decision[3] only if it considers the order is desirable after having regard to the following:

(a)the interests of any person whose interests may be affected by the making of the order or the order not being made;

(b)any submission made to the tribunal by the decision-maker for the reviewable decision; and

(c)the public interest.

[3] s 22(3) QCAT Act

[48]The children have a number of interests that must be considered. They have a long term relationship with the applicants, who they have lived with for the last eight years. In that time, they have formed a family unit. In the placement with the applicants, the siblings were able to live together. The children are indigenous, as are the carers.

[49]The children have an interest in maintaining a relationship with family members if it is safe and in their best interests to do so. Placement in Queensland would provide for easier access to their mother and other family members.

[50]The children must be cared for in a way that promotes their safety and long term interests. The Tribunal notes that further assessments are to be undertaken to assess the suitability of the applicants to be approved to care for the children. If a stay is granted and the children were returned to the applicants, an assessment that the applicants are not suitable to be approved as foster carers would necessitate a further move from the applicants. On the other hand, it is unclear whether any family members in Queensland will be approved as long term carers, and, if approved, will be able to provide stable and suitable long term care to these high care needs siblings.

[51]The applicants’ interests have been considered. They have an established long term relationship with the children. Their prospects of success at the ultimate hearing of this matter may be reduced if the children spend significant time out of their care prior to the hearing.

[52]The department advises that other family members are supportive of the children residing in Queensland. Aunt N has indicated that she is available to care for the children (although we note that W is living with their mother). Aunt N is approximately 26 years of age and lives with her own children. While the youngest two children have been living with her, they have been sharing a room.  The Department indicated that it will help Aunt N to find a bigger home if the children are placed with her.

[53]The department has statutory obligations to protect the children, and to ensure that they are provided with a satisfactory level of care. The Department says that keeping the children in Queensland is the best way to comply with its obligations.

[54]The Department submitted that:

(a)The Tribunal should have regard to sections 5B, 5E, 5F, 89, 99O, 99Q, 99F and 99U of the Child Protection Act. The Department did not expand on the application of these sections:

(i) We accept that s 5B (the “general principles”) must be taken into account.

(ii) We do not accept that s 5E applies (see s 5E (5)).

(iii) We do not accept that s 5F applies (see 5F(1)).

(iv) We accept that s 89, s 99O and s 99U apply.

(v) We note that a separate representative was appointed 26 May 2023. It is unclear how the Department suggests that further regard should be had to s 99Q in this decision.

(vi) It is unclear how s 99F is said to apply.

[55]The Department further submits that:

(a)Staying the operation of the decision would not be in the best interests of the two youngest children as they were settled into the care of their kin in Queensland, where they were “safe and protected”, and the Department is able to conduct home visits. Returning the children to the carers “could result in a real risk of physical and emotional harm”.

(b)Staying the operation of the decision would not be in the best interests of W, who is 17 and has self-placed with mother M.

(c)The children in Queensland are “with their family on country”, the Department has supported the children to engage with their new schools within their cultural community, and will be re-engaging the children with their sporting interest and any health appointments that are necessary.

(d)Moving the children’s placement from family to carers and perhaps back to family (depending on future decisions) would “cause disruption to the movement and stability of the children”.

(e)The children have found to have been harmed and at a substantiated risk of harm. They have made disclosures of being hit, and of preferential treatment of other children in the house. 

(f)In Queensland, the youngest children were living with kin and able to build a relationship with family, including the aunt and cousins they lived with and their mother and W, who they saw almost every day. The children’s aunt and mother have a good relationship and the aunt supports M in caring for W. The aunt was undergoing assessment as a carer and the Department would provide her with foster care training and other training as needed (we note that this same training would also be offered to the applicants).

(g)In Queensland, the Department were able to have “eyes on” the children. Their care needs can be attended to under the NDIS (although no arrangements had yet been put in place).

(h)W is going very well. M is currently not using drugs or in a relationship involving domestic violence. W is assessed as happy and safe.

[56]The applicants submitted that:

(a)The children have been in their care for eight years, and during that time they have provided them with a loving, nurturing and stable environment. They deny the allegations of harm, while conceding that they did physically discipline the children when they were first placed with them. Now, they implement consequences if the children do not meet expectations. For example, they don’t have access to their IPads if they don’t do their chores.

(b)They have formed a family unit with the children. They deny any favouritism of their own biological children. When in their care, the children receive support from the family unit, YO’s extended family who live in the same state, and local friends.

(c)They have structured and routine family arrangements as it is a large family. All children have chores to do so that each member of the family works together to live happily together.

(d)While in Queensland the children were missing out on their established schooling, sporting events, friends and appointments with health professionals. The applicants have comprehensive knowledge of the children’s health and therapeutic needs and can continue to facilitate all appointments  with support and health services.

(e)The allegations of harm may have been influenced by family members in Queensland.

(f)There is greater stability and certainty in returning the children to live with the carers.

(g)The children have high needs and it has been necessary to have structure and routines in the house in the best interests of the children. The Department has provided very little support.

(h)No concerns have been raised by schools, health authorities or the NDIS support agencies involved in the care of the children.

(i)X has been assessed as able to stay with the applicants and has a safety and support plan in place. Similar arrangements could be put in place for the other children if they return to live with them.

(j)W boarded at school during the week and spent some weekends at a respite camp so the risk to her would be very low.

(k)Y and Z have supports set up at school to meet their needs. Further, considerable time has been invested in establishing appropriate NDIS funded supports suitable for both children. These established supports remain immediately available if the children were to return. “Permanency” as described in s 5BA of the Act has been achieved for the children in the applicants’ care.

(l)Keeping the children away from the applicants who have cared for them since 2015 could in itself result in harm to the children.

(m)If a stay is granted, the three youngest children will remain living together.  

(n)Remaining in Queensland would significantly disrupt schooling and educational supports.

(o)If the arrangements in Queensland break down, there will be further disruptions and placement changes.

[57]The separate representative submitted that:

(a)Disputed facts should be determined after a final hearing in this matter, and not at the hearing to determine the application for a stay.

(b)There is no utility in staying the operation of the decision so far as it relates to W who is almost 18 and has expressed a firm wish to remain in Queensland.

(c)The Tribunal should take into account that:

(i)      The children had been in the care of the applicants for a long time. The three younger children have expressed the wish to continue to live with them.

(ii)      Any concerns regarding harm to the children could be ameliorated by the implementation of an action plan, as had been developed for X.

(iii)     There is no corroborating evidence of harm. The findings contained in the harm report should be tested before being adopted by the Tribunal.

(iv)     Growling does not seem to be followed by physical harm.

(v)      The three youngest children have expressed a wish to live with the applicants. If that happened, three of the siblings would be living together.

(vi)     Investigations into allegations of harm can continue while the children live with the applicants.

(vii)   Disclosures of harm seem to be raised when the children are on holidays with family members in Queensland.

(viii)     The children’s high needs are met with the applicants, and they are of an age where they can act self protectively to some extent.

(ix)     The Department’s concerns are general in nature and based on historical allegations.

(x)      X is not fearful for her safety or the safety of her siblings.

THE DECISION OF THE TRIBUNAL

[58]There is a clear public interest (and legislative requirement) to support safety and stability in placement for children, connection with culture for indigenous children, and the placement of indigenous children with family, or with indigenous carers if possible.

[59]There is also a clear public interest in having children cared for in a safe and supportive environment. To this end, the legislation prescribes minimum standards of care which carers must meet.

[60]In addition to these factors, the Tribunal must also consider the usual legal principles which guide whether a stay should be granted. This involves considering whether there is an arguable case on review, and balancing the identified risks. We must consider also whether refusal of the application would render the review proceedings futile - whether the stay is necessary to enable the effective exercise of the Tribunal’s jurisdiction.

[61]We have considered the disputed claims of abuse, X’s denial of such claims, the long standing relationship between the applicants and the children, and the views expressed by the children. Without making a finding on the likely final outcome of the review, the Tribunal is satisfied that the applicants’ case is an arguable one.

[62]We have also balanced the identified risks and the public interest. There is a clear public interest in having children cared for safely. The Act compels us to consider the best interests of the children directly affected by this decision.

[63]There is always some risk of harm to children in any situation. We note in this case that safety plans may be developed. Further, the children are integrated in the community and able to seek help if issues arise. The Department is now committed to having the children visited each month by an independent person. The applicants state that they are aware that physical discipline is not appropriate and will not be using it.

[64]The Department has committed to providing ongoing support and training to the applicants. Further assessments will be conducted and further reports will be prepared.

[65]The Department propose to move the children to a coastal town where they have never lived full time with a provisionally approved carer (their aunt).

[66]We do not consider that the risks to the children in their placement interstate are greater than the risk to them in removing them from the care of the applicants.

[67]We appreciate that if the children live interstate, it will be more difficult for them to have physical contact with family members in Queensland. We note that the children will be able to maintain a level of contact via telephone or video calls.

[68]We have considered that the children have lived interstate for some five years and are well established in that community. They have been staying with family in Queensland for a short period of time only.

[69]The applicants hold a current Certificate of Approval as fosters carers. They have a long term relationship with the children, and have all lived together as a family for some eight years. The children have diagnosed disabilities which require specialist support. They are provided with that support when living with the applicants. All three younger children, at the date of the hearing, indicated that they wished to return to the care of the carers.

[70]The children are integrated into their local community. They go to school, play sport and X has a part time job. No-one from the schools, sporting associations, NDIS and associated support workers, or from the community has raised concerns about the children being at risk.

[71]Some of the children disclosed that they had been threatened and physically disciplined / hit. It is unclear when this is said to have occurred. There is no record of anyone the children associate with interstate being concerned about their welfare, state of mind, or noticing any bruising. It seems that W, who is the eldest, has articulated most of the concerns about what is happening in the home. The Tribunal notes that W spends relatively little time in the household and is usually away at school (Monday to Friday) or on respite at a retreat one or two weekends a month as part of her NDIS package. The Department has acknowledgment that it is able to develop a safety and support plan for each of the children to monitor their care and safety if living interstate.

[72]We have weighed up the rights of the children as articulated in the Charter of Rights contained in Schedule 1 of the Act, and the principles set out in Chapter 1.

[73]On balance, we are satisfied that an order staying the operation of the Department’s decision is desirable as that term is used in s 22 of the QCAT Act. Accordingly, the order will be made in relation to the youngest three children.

HUMAN RIGHTS ACT CONSIDERATIONS

[74]In making this decision, we must give proper consideration to relevant human rights under the Human Rights Act 2019 (Qld). It is unlawful for the Tribunal, conducting the review as a “public entity” and acting in an administrative capacity, to make a decision in a way that is not compatible with human rights, or to fail to give proper consideration to a relevant human right in making a decision.[4]

[4]s 58 HRA.

[75]A decision is compatible with human rights if it does not limit a human right or if it limits a human right in a way provided for by the Act. Human rights may be limited only if permitted under the Act[5], and a human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.

[5]s 8, s 13 HRA.

[76]To give proper consideration to a human right, we must identify the human rights that may be affected by this process and decision, and consider whether our decision would be compatible with human rights.[6]

[6]s 58(5) HRA

[77]We consider the following human rights are potentially impacted through this process and by this decision:

S 15 right to recognition and equality before the law

S 25 privacy and reputation

S 26 protection of families and children

S 27 cultural rights – generally

S 28 cultural rights – Aboriginal peoples and Torres Strait Islander peoples

S 31 fair hearing

[78]We are satisfied that the rights of the parties to a fair hearing have not been limited. The application has been determined by a competent, impartial and independent tribunal after a fair hearing. The proceedings are conducted in private as required by the Child Protection Act. The parties are being advised of the reasons for the decision. Accordingly, the process and decision are compatible with the parties’ human rights.[7]

[7]s 8 HRA.

[79]We are satisfied that there has been no limit to the parties’ right to recognition and equality before the law, or right to privacy and reputation.

[80]We are satisfied that the decision supports the rights of the children to education and health services as it facilitates a timely return to well established and suitable arrangements.

[81]There is no evidence that a decision to return the children to live interstate will interfere with their rights to enjoy their culture or restrict their ability to maintain and strengthen their culture or spiritual relationship with the land which they have a connection with under Aboriginal tradition or Island custom.

[82]We accept that returning to live interstate will restrict their ability to develop their kinship ties with family in Queensland.

[83]We are satisfied that this decision is compatible with human rights as any limitation on human rights is only to the extent that is reasonable and justifiable in a free and democratic society based on human dignity, equality and freedom. Given the matters we have taken into account, discussed earlier in our decision, we consider any limitation reasonable and justifiable. [8]

[8]s 13 (2) HRA

[84]The Tribunal may make a decision not compatible with human rights if we could not reasonably have made a different decision because of a statutory provision.[9] In the event that this decision impacts on human rights, we are satisfied that we are able to lawfully make this decision because the Act compels us to administer the Act on the basis that the safety, wellbeing and best interest of a child … are paramount.  We have made this decision on that basis.

[9]s 58 (2) HRA.

[85]This decision is compatible with human rights.