FWY v Biripi Aboriginal Corporation Medical Centre

[2024] NSWCATAD 70

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

FWY v Biripi Aboriginal Corporation Medical Centre [2024] NSWCATAD 70

Hearing dates:

25 and 26 October 2023
Submissions closed 5 December 2023

Date of orders:

13 March 2024

Decision date:

13 March 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member
S Davison, General Member

Decision:

1. The decision of the first respondent made on 11 July 2023 to remove two children from the care of the applicant is set aside.

2. The Applicant shall file and serve any submissions and evidence on the question of costs no later than seven days after publication of these reasons.

3. The Respondents shall file and serve any submissions and evidence on the question of costs no later than fourteen days after publication of these reasons.

4. The Applicant shall file and serve any submissions and evidence in reply on the question of costs no later than twenty-one days after publication of these reasons.

5. The submissions should address whether a hearing on the question of costs can be dispensed with pursuant to s 50(2) of the NCAT Act and whether the special circumstances provisions of s 60 of the NCAT Act apply.

Catchwords:

ADMINISTRATIVE LAW – child protection – out of home care – application for review of decision to remove children from care of authorised carer – reliability of comparative assessment report – cultural assessment – kinship placement – Aboriginal children in out of home care – restoration of children

Legislation Cited:

Administrative Decisions Review Act 1997

Children and Young Persons (Care and Protection) Act 1998

Civil and Administrative Tribunal Act 2013

Community Services (Complaints, Reviews and Monitoring) Act 1993

Cases Cited:

Briginshaw v Briginshaw [1938] HCA 34

Department of Community and Services v “Rachel Grant”, “Tracy Reid”, “Sharon Reid” and “Frank Reid” [2010] CLN 1

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

Isles & Neilssen [2022] FedCFamC1A 97

Langarde & Coubert [2022] FedCFamC1F 596

M v M [1988] HCA 68

NS & NT v Director-General, Department of Community Services [2009] NSWADT 149

Re Lucinda Porter (No 2) [2023] NSWChC 2

YG and GG v Minister for Community Services [2002] NSWCA 247

Category:

Principal judgment

Parties:

FWY (Applicant)
Biripi Aboriginal Corporation Medical Centre (First Respondent)
Secretary, Department of Communities and Justice (Second Respondent)

Representation:

Solicitors:
Care Legal (Applicant)
McAuley Lawyers (First Respondent)
Crown Solicitor (Second Respondent)
Ms C Bennett (Separate Representative)

File Number(s):

2023/00224406

Publication restriction:

(1) Section 65 of the Civil and Administrative Tribunal Act 2013 (NSW) applies to these proceedings.

(2) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the disclosure, publication or broadcast of the names of the applicant and the children is prohibited.

REASONS FOR DECISION

1. This is an application for administrative review of a decision dated 12 July 2023 of the first respondent, Biripi Aboriginal Corporation Medical Centre (Biripi), a designated agency under the Children and Young Persons (Care and Protection) Act 1998 (Care Act), to remove two children from the care of the applicant (FWY) (the removal decision).

2. The removal decision is supported by the second respondent, the Secretary, Department of Communities and Justice (DCJ). DCJ had the ministerial responsibility for the care of the two children.

3. FWY did not agree with the removal decision. She asked the Tribunal to set aside that decision. This would mean that the daily care and control of the children would remain with her.

4. We have decided to set aside the removal decision. Our reasons follow.

Background

5. On 11 May 2021, Sarah [a pseudonym], then two years of age, and Jane [a pseudonym], one years of age, both of whom are Aboriginal on their paternal side and Māori on their maternal side, were removed from their birth parents, and placed into the care of FWY. At the date of this hearing, Sarah was five years old and Jane four years.

6. Final orders were made in the Children’s Court of NSW on 2 August 2022 allocating parental responsibility for Sarah and Jane to the Minister until each child reaches 18 years of age.

7. FWY is an authorised carer under the Care Act with Biripi. Biripi has primary case management responsibility for Sarah and Jane. FWY is the paternal second cousin of Sarah and Jane. DCJ retains secondary case management responsibility and the functions/powers of exercising the Minister's parental responsibility.

8. On or about 7 July 2023, Biripi provided DCJ with a draft report to the Children's Court pursuant to section 82 of the Care Act which referred to a plan to move Sarah and Jane interstate.

9. On or about 11 July 2023, Biripi advised DCJ it had made the decision to remove from FWY the responsibility for the daily care and control of Sarah and Jane. Biripi planned to move Sarah and Jane interstate to a placement with their maternal great uncle Peter [a pseudonym] and great aunt Louise [a pseudonym] in five days’ time based on the outcome of a Best Interests Comparative Assessment dated 1 July 2023 (Comparative Assessment).

10. On 12 July 2023, Biripi informed FWY by letter that it had made the decision, based on recommendations from the Comparative Assessment, to change the long-term placement of Sarah and Jane. The decision was effective from 12
    July 2023. Biripi informed FWY of her right of internal and external review of the decision pursuant to section 245 of the Care Act.

11. On 14 July 2023, FWY filed with this Tribunal an application for Administrative Review of the removal decision and an application for an interim order to stay the removal decision.

12. On 1 September 2023, pursuant to section 58 of the Administrative Decisions Review Act 1997 (ADR Act), Biripi served some relevant documents. Biripi conceded that it undertook a purported internal review decision, however, that decision was not done in response to a request by FWY and was not an internal review decision for the purposes of the ADR Act. It is not in dispute that the relevant reviewable decision is the removal decision dated 12 July 2023.

13. On 14 July 2023, the Tribunal dispensed with the need for an internal review of the decision pursuant to s 55(4) of the ADR Act. It was not in dispute that the Tribunal had jurisdiction to conduct the request for administrative review of the removal decision.

Stay order

14. On 14 July 2023, the Tribunal made an order staying the removal decision until further order. As at the date of this hearing both Sarah and Jane remain in the daily care and control of FWY.

Appointment of Separate Representative

15. On 20 July 2023, the Tribunal made an order that a separate representative be appointed for Sarah and Jane pursuant to s 45(4A)(b) of the Civil and Administrative Tribunal Act 2013 (NCAT Act). Ms C Bennett is appointed in this role.

Prohibition order

16. The Tribunal made an order under s 65 of the NCAT Act in relation to these proceedings, being proceedings for a decision for the purposes of the community welfare legislation within the meaning of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) (CS Complaints Act). Pursuant to that order, it is an offence to publish or broadcast, without the consent of the Tribunal, the name of any person:

1.    who appears as a witness before the Tribunal in these proceedings; or

2.    to whom these proceedings in the Tribunal relate, or

3.    who is mentioned or otherwise involved in these proceedings in the Tribunal,

whether before or after the proceedings are disposed of.

17. For the purposes of s 65 of the NCAT Act, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

18. Accordingly, to give application to the above order, the name of the applicant has been anonymised to FWY. The children who are the subject of these proceedings with respect to the removal decision are referred to as Sarah and Jane. Their great aunt and uncle are referred to as Louise and Peter, respectively. The children’s mother is referred to as Meredith and their father is referred to as Paul. As an added precaution, we have omitted information that might inadvertently identify FWY or the children. The names of witnesses who gave evidence in these proceedings and the names of various treating practitioners have also been de-identified. Where appropriate, for contextual meaning, we refer to various treating practitioners by reference to their area of practice or specialty, or administrative position within Biripi, DCJ or any other government agency.

The task for the Tribunal

19. Under s 63(1) of the ADR Act, the Tribunal’s task is to determine whether the removal decision is the “correct and preferable decision”, having regard to the material before it and any applicable written or unwritten law. In determining these matters, the Tribunal may exercise all of the functions that are conferred or imposed by the relevant legislation on the administrator who made the decision: s 63(2) of the ADR Act. The time at which the determination is to be made as to the correct and preferable decision is the date and time that the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].

20. In considering an application for review, the Tribunal is not constrained to have regard only to the material that was before the respondents but may have regard to any relevant material before the Tribunal at the time of its review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. In this regard, in undertaking this review, the Tribunal had before it the submissions and evidence from each party as well as the evidence and submissions of the Separate Representative on behalf of the children.

21. In determining the application, the Tribunal may, affirm the decision, vary the decision, set aside the decision and make another decision in substitution for the decision set aside, or set aside the decision and remit the matter for reconsideration by Biripi in accordance with any directions or recommendations of the Tribunal: s 63(3) of the ADR Act.

22. The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38 of the NCAT Act.

23. The standard of proof is on the balance of probabilities. The High Court of Australia decision in Briginshaw v Briginshaw [1938] HCA 34 is relevant in determining whether the burden of proof, on the balance or probabilities, has been achieved.

Administratively reviewable decision

24. It is not in dispute that the removal decision is an administratively reviewable decision under the Care Act:

245 Decisions that are administratively reviewable by Civil and Administrative Tribunal

(1) Each of the following decisions made under or for the purposes of this Act or the regulations is an administratively reviewable decision for the purposes of section 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 --

…

(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

25. Section 45 of the CS Complaints Act sets out that the decision maker (Biripi) must record the reasons for a reviewable decision and give a written copy of the reasons to each person considered by the decision maker to have been directly affected by the decision.

26. Section 48(1) of the ADR Act requires the decision maker (Biripi) to take such steps as are reasonable in the circumstances to give written reasons for the decision and right of review of the decision.

27. Section 55 of the ADR Act enables administrative review of a reviewable decision by the Tribunal.

28. Section 28(1)(a) of the CS Complaints Act enables administrative review of a reviewable decision under section 245 of the Care Act by the Tribunal:

28 Applications to Tribunal for administrative reviews of decisions

(1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions—

(a) a decision that is an administratively reviewable decision under section 193 of the Adoption Act 2000, section 36 of the Adoption Information Act 1990, section 154 of the Children's Guardian Act 2019, or section 245 of the Children and Young Persons (Care and Protection) Act 1998,

Relevant principles under the Care Act to be considered

29. The objects of the Care Act at section 8 provide the following:

(a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and

(a1) recognition that the primary means of providing for the safety, welfare and wellbeing of children and young persons is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles, and

(b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and

(c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.

30. The paramountcy principle at section 9(1) of the Care Act provides that in any action or decision concerning a particular child or young person, the safety, welfare and wellbeing of the child or young person is paramount.

31. Section 9(2) provides other principles to be applied:

(2) Subject to subsection (1), the other principles to be applied in the administration of this Act are as follows—

(a) Wherever a child or young person is able to form his or her own views on a matter concerning his or her safety, welfare and well-being, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child or young person and the circumstances.

(b) In all actions and decisions made under this Act (whether by legal or administrative process) that significantly affect a child or young person, account must be taken of the culture, disability, language, religion and sexuality of the child or young person and, if relevant, those with parental responsibility for the child or young person.

(c) In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child's or young person's development.

(d) If a child or young person is temporarily or permanently deprived of his or her family environment, or cannot be allowed to remain in that environment in his or her own best interests, the child or young person is entitled to special protection and assistance from the State, and his or her name, identity, language, cultural and religious ties should, as far as possible, be preserved.

(e) If a child or young person is placed in out-of-home care, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the child's or young person's circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement.

(f) If a child or young person is placed in out-of-home care, the child or young person is entitled to a safe, nurturing, stable and secure environment. Unless it is contrary to his or her best interests, and taking into account the wishes of the child or young person, this will include the retention by the child or young person of relationships with people significant to the child or young person, including birth or adoptive parents, siblings, extended family, peers, family friends and community.

(g) If a child or young person is placed in out-of-home care, the permanent placement principles are to guide all actions and decisions made under this Act (whether by legal or administrative process) regarding permanent placement of the child or young person.

Placement principles

32. Section 10A of the Care Act defines a permanent placement as a long placement following the removal of a child or young person from the care of their parents that provides a safe, nurturing, stable and secure environment for the child or young person. Section 10A provides a preference for placements to be observed subject to sections 8 and 9 of the Care Act:

(3) The permanent placement principles are as follows-

(a) if it is practicable and in the best interests of a child or young person, the first preference for permanent placement of the child or young person is for the child or young person to be restored to the care of his or her parent (within the meaning of section 83) or parents so as to preserve the family relationship,

(b) if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a), the second preference for permanent placement of the child or young person is with a relative, kin or other suitable person in accordance with a guardianship order,

(b1) if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a) or (b), the next preference is placement with a suitable person or persons jointly in accordance with an order made under section 79(1)(f), with the support of the Secretary under section 153(1) or financial assistance of the Secretary under section 161(1),

(c) if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a), (b) or (b1), the next preference is (except in the case of an Aboriginal or Torres Strait Islander child or young person for the child or young person to be adopted,

(d) if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a), (b), (b1) or (c), the last preference is for the child or young person to be placed under the parental responsibility of the Minister under this Act or any other law,

(e) if it is not practicable or in the best interests of an Aboriginal or Torres Strait Islander child or young person to be placed in accordance with paragraph (a), (b), (b1) or (d), the last preference is for the child or young person to be adopted.

Aboriginal and Torres Strait Islander principles

33. Section 11 of the Care Act provides that a principle in the administration of the Act is that Aboriginal people are to participate in the care and protection of their children and young persons with as much self-determination as possible.

34. Section 12 of the Care Act provides that Aboriginal families, kinship groups, representative organisations and communities are to be given the opportunity to participate in decisions made concerning the placement and other significant concerns relating to their children and young persons.

35. Section 12A of the Care Act sets out the Aboriginal and Torres Strait Islander Children and Young Persons Principle. In making a decision in relation to an Aboriginal child or young person, a decision maker must apply each of the following five elements that are relevant to the decision being made:

(a) prevention - recognising that a child or young person has a right to be brought up within the child's or young person's own family, community and culture,

(b) partnership - recognising that Aboriginal and Torres Strait Islander community representatives should participate in the design and delivery of services for children and young persons and in individual decisions about children and young persons,

(c) placement - recognising that, if a child is to be placed in out-of-home care, the child's placement is to be in accordance with the placement principles for Aboriginal and Torres Strait Islander children and young persons in section 13,

(d) participation - recognising that a child or young person, and the child's or young person's parents and family members, should participate in decisions about the care and protection of the child or young person,

(e) connection - recognising that a child or young person has a right to be supported to maintain connections to family, community, culture and country.

36. Section 13 of the Care Act sets out a general order for placement to be applied for Aboriginal children and young persons, subject to sections 8 and 9 (with an exception for emergency or short term placements). Section 13(1) - (2) provides the following:

(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 Secretary 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.

37. The following sections of the Care Act applies to children or young persons who have one Aboriginal parent, and one non-Aboriginal parent:

(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.

(c) These principles are subject to subsection (2).

Disposition of an application for administrative review concerning the removal and restoration of a child under the Care Act

38. When determining issues of removal and restoration of a child, in all decisions under the Care Act involving the paramount concern of safety, welfare and well-being of a child the test to be applied is that of "unacceptable risk to the child" (see the Department of Community and Services v “Rachel Grant”, “Tracy Reid”, “Sharon Reid” and “Frank Reid” [2010] CLN 1 at [61]). The appropriate test is whether there is an unacceptable risk of harm to the child (see – M v M [1988] HCA 68 at [25]). An assessment of unacceptable risk is a predictive exercise that includes mere possibilities (see - Isles & Neilssen [2022] FedCFamC1A 97 (“Isles & Neilssen”)). The assessment of risk is an evidence-based conclusion and is not discretionary (see - Isles & Neilssen at [85]). While findings of fact on the balance of probabilities is not required on each piece of relevant evidence, caution is required in concluding that a risk is unacceptable if no such findings are made (see - Langarde & Coubert [2022] FedCFamC1F 596 at [47]).

Evidence before the Tribunal

39. The hearing took place over two days. The parties were ordered to file any additional material and written closing submissions.

40. FWY relied upon the following material:

1. affidavit of FWY 20 September 2023 (Exhibit A);

2. bundle of documents (Exhibit B);

3. bundle of summons material (Exhibit C);

4. further bundle filed after the hearing (Exhibit C)

41. FWY also relied upon written and supplementary submissions.

42. Documents relied upon by Biripi include:

1. s 58 material filed 26 June 2021 – R1.

43. Biripi also filed written submissions and supplementary submissions.

44. DCJ relied upon the following evidence:

1. affidavit of Acting Manager Casework dated 6 September 2023 (Exhibit 2R1)

45. DCJ filed written submissions and supplementary submissions.

46. We also note the written submissions filed on behalf of the separate representative.

FWY’s evidence

47. Prior to Sarah and Jane entering into care, they and their older brother were in the full-time care of their mother, Meredith. The children’s father, Paul, spent time in the home and had been in and out of custody. FWY believes the children were removed from Meredith due to concerns regarding exposure to ongoing domestic violence, inadequate supervision, risk of psychological harm, medical neglect and drug misuse.

48. FWY refers to the care plan with a start date of 2 August 2022, which was approved by the Children’s Court. The plan acknowledges that FWY is caring for the children, and that Biripi staff had identified strengths with the children being placed with her including that she was meeting all of the children’s social, emotional and physical needs and was supporting the children’s identity. The report also referred to Meredith indicating that she could see that FWY loved and cared for the children, and believed she would do what is best for them. Over the period of the care arrangement Sarah and Jane have had regular visits with their older brother, fortnightly visits with their paternal grandfather and paternal sister who is an adult. The two children have a younger brother who they recently met at a birthday party.

49. FWY describes the children as being happy and content when in her care. They ‘love’ attending preschool and refer to FWY as their ‘Nan’. Generally, the children are very well behaved. Annexed to FWY’s Affidavit are a number of reports by a paediatrician dated 11 August 2021, 16 September 2022 and 24 March 2023, each indicating that Jane was in good health. Despite her being a fussy eater and having a variable appetite, he did not appear to be overly concerned about her weight.

50. In respect of Sarah, the paediatrician in a report dated 14 April 2023 noted that she is a healthy girl. She has recently had gromets inserted to assist with hearing and language development. The paediatrician has no concern with respect to her general health apart from that she is a slow eater and has been referred to a dietician. Mid-year and six-month summaries concerning both girls from the preschool they attend do not raise any concerns.

51. As set out above, FWY affirmed an Affidavit on 20 September 2023. The bundle of documents in Annexure B to the Affidavit include the following:

1. Biripi’s Behavioural Support Plan for Sarah dated 19 September 2021;

2. Biripi’s Behavioural Support Plan for Jane dated 20 September 2021;

3. Biripi’s Cultural Plan for Sarah dated 15 October 2021;

4. Biripi’s Cultural Plan for Jane dated 15 October 2021;

5. Biripi’s Case Plan for Jane dated 20 September 2022;

6. Biripi’s Case Plan for Jane dated 4 October 2022;

7. email from Senior Clinical Dietician dated 18 October 2023;

8. Aboriginal Corporation Health Assessment for Sarah, dated 23 October 2023;

9. Aboriginal Corporation Health Assessment for Jane, dated 23 October 2023.

52. One of the main issues in contention are the following concerns raised in the Comparative Assessment in relation to FWY. Those can be summarised as follows:

1. negative view of the children’s mother, Meredith, and lack of support for their visitation;

2. inability to meet the children’s cultural needs;

3. FWY’s declining health and age;

4. previous adverse child protection involvement; and

5. confinement of the children to the house on weekends.

53. In respect of each of these concerns, FWY gave evidence as follows.

(a)   negative view of the children’s mother, Meredith, and lack of support for their visitation

54. FWY says that she has no animosity towards Meredith and is supportive of the children’s access to her. She makes telephone access available between Meredith and the children, which includes Facetime whenever they both are available. She denies preventing the children from seeing Meredith. The only concern FWY raises with respect to Meredith is the ‘large amounts of travel the children have to do to see her, which is clearly not an attack on her character, but [in] my opinion on the circumstances surrounding family time and the impact it is having on the children. If the children remain in my care, I will continue to support the children’s relationship with their mother, Meredith.’

(b)   inability to meet the children’s cultural needs

55. The assessor who undertook the best interests Comparative Assessment noted that in discussion on 3 June 2023, Louise told the assessor that she believed FWY did not have any involvement in the Aboriginal community. Louise alleges that FWY did not arrange for the children to be involved in any cultural events that Biripi had organised. She also expressed a view that FWY is unable to meet the children’s Māori cultural needs, and that FWY was against the children residing with Peter and Louise because Peter is of Māori descent.

56. FWY states that she is committed to the children’s cultural needs and is a strong advocate for them both with respect to their Aboriginal and Māori cultures. FWY recognises that she does not have a complete knowledge of her culture, but says that does not mean she fails to aid the children on their own cultural journey.

57. FWY says that she and the children attended the Saltwater Freshwater Festival in Port Macquarie in 2023. She describes the children as being excited and enthusiastic about their experience. FWY says that the children read indigenous stories, and have attended and participated in activities in NAIDOC Week at preschool. The children are surrounded by indigenous artifacts that she collects and are present at their preschool. FWY says the children are aware of their indigenous heritage and refer to themselves as being Aboriginal. FWY has explained their indigenous history, telling them that their grandmother was Aboriginal, and FWY herself is Aboriginal.

58. In relation to Biripi promoting Aboriginal culture, FWY says she has not been made aware of any specific events in this regard. However, if more events are hosted by Biripi she would be certain to attend them with the children.

59. FWY admits that she is not personally experienced with the Māori culture. However, she has no objection to the children residing with Peter and Louise because of their Māori background. She says that she would be happy to accompany the children to Māori events that are hosted in the local community and other areas. FWY attests that she will continue to ensure that both children participate and experience cultural events in both the Aboriginal and Māori cultures.

(c)   declining health and age concerns of FWY

60. FWY does not deny the fact that she has some complex health conditions. Despite this, she says they are being managed by different medications under the treatment of her medical specialist. She describes her general health as being well controlled and she has no untreated medical conditions. In this regard, FWY annexed a medical report from her treating doctor which notes she is medically well-controlled. In particular, her treating practitioner states that she does not have any physical or psychological health conditions which would adversely impact her ability to care for the children until they turn 18 years. We give this report significant weight. FWY goes on to state that she is able to manage her health and intends to so into the future. She is aware of the need to continue to improve both her general and mental health by eating well, exercising frequently and taking prescribed medications.

61. By way of reflection, in respect of Peter and Louise, FWY states that she is aware they both have significant health issues which may impact their own care of the children. We infer from her evidence that she believes that there is no significant difference between her being a carer and Peter and Louise being carers, at least in relation to their respective health and age concerns, noting that Peter and Louise are a couple of years younger than FWY.

(d)   previous adverse child protection involvement

62. Allegations are made with respect to children FWY has previously fostered, including that she struggled to effectively respond to their poor behaviours and emotional needs. This allegedly resulted in physical punishment such as smacking, punching, pulling hair and tapping with two fingers. FWY denies that she ever smacked, punched or pulled the hair of either of these two children. She does, however, admit to tapping them with two fingers if they behaved poorly. FWY recognises that physical punishment of children is not an effective way to deal with their poor behaviour. She stated that tapping them with two fingers has not recurred and will not occur again in the future. FWY believes that she has managed behavioural issues with Sarah and Jane well. She implements strategies when they fight such as separating them and asking the initiator of the fight to come and speak with her for a few minutes. This reminds them of the values in the home and that they should use gentle hands and be kind to each other and say sorry and give cuddles.

63. FWY says that if their behaviour becomes difficult or challenging as they get older, she will be open to external support around behavioural management and will seek advice and training when required.

(e)   confinement of the children to the house on weekends

64. Allegations are made that FWY keeps the children inside the house on weekends when they are in her care and they rarely leave the home.

65. In response, FWY notes that in summertime the temperature can exceed 30 degrees Celsius where they live. She says that activities with the children revolve around the weather, when it is too hot outside and the children are at risk of overheating and sunburn, she will encourage them to relax and engage in activities within the home. When it cools down the children are encouraged to play outside.

66. FWY does not agree that the children are denied access to the outside of the home even when the weather is suitable. She says that she takes the children out for lunch, they go shopping and visit their grandfather and other siblings. FWY says that this will continue to occur if the children remain in her care so that they engage with family and explore the local neighbourhood and community.

67. In relation to Peter and Louise caring for the children, FWY raises the following concerns.

68. Peter and Louise live in Queensland. Removing the children from New South Wales will mean that they will lose their strong connection to their family, which includes their siblings and their grandfather who have been with them since birth in New South Wales. The children see their sister and their grandfather every fortnight and on most weekends they have extra visits with their grandfather. The children see their father every second week. Their grandfather is unable to travel and, if they move outside the State, this vital connection will be lost. FWY also notes that Meredith resides in New South Wales. FWY says that while the children do not get to see their mother as frequently as they see other family members, they have been able to see her every month while they have been in her care. It is likely that if the children move to Queensland their time with their mother will be significantly reduced to possibly 6 visits a year as opposed to 12 that they get while in FWY’s care.

69. FWY also asserts that removing the children from their country will have detrimental effects on their emotional state and their behaviour. She says that placing the children with non-indigenous families is a last preference if there are no other culturally appropriate placements available, and this is to preserve their unique culture. A move to Queensland would sever the children’s ties to their local Aboriginal culture.

70. Finally, FWY says that the children do not really know Peter and Louise. Over two and a half years, the children have only visited Peter and Louise on 3 occasions. FWY has witnessed Sarah becoming anxious when it was time to visit Peter and Louise and said she did not want to go. FWY also believes that Peter and Louise have a negative view with respect to Meredith and they may restrict family time with her and the children. This is because Peter communicated with FWY that she should be wary of Meredith ‘as she would stab me in the back’.

71. FWY believes she provides a loving and caring home for the children, which Biripi has attested to in the past. FWY believes that in making the decision which is the subject of this review, Biripi has not focused on what is in the children’s best interests, or the importance of the children being placed with family and on country.

64. In cross-examination FWY agreed that the children are in daycare 5 days a week. FWY said that they were there for 3 days but 2 extra days came up and the case worker agreed that the children could go to daycare while FWY also cared for her mother. The children start daycare at varied times between 8.00 a.m. and 10.00 a.m. The time they finish also varies, depending on what FWY is doing with her mother. A typical pick-up time is from 3.00 p.m. onwards and can sometimes be after 5.00 p.m.

65. FWY was cross-examined in relation to her health. She agreed that she has type 2 diabetes, high cholesterol, asthma and anxiety, and that she was receiving treatment for each of these conditions. The cross-examination did not persuade the Tribunal to find that FWY is unable to provide care to the two children because of her age or her health.

66. FWY said her mother is 80 years of age and lives close to her home. She said her mother may move in to live with her in the future but, at this stage, she is able to look after herself. FWY denied that she has any difficulty looking after the girls because she cares for her mother and could not see that as being a problem arising in the future.

67. An allegation was put to FWY about an incident on 20 April 2023 when FWY had an assessment in the home. The incident involved Sarah saying to the assessor that she was ‘upset’ because nanny had pointed at her and was ‘angry’. FWY did not deny that Sarah said this but did not agree that she was angry with Sarah. The cross-examination explored allegations that Sarah and Jane were not allowed to touch toys set aside for FWY’s biological grandchildren. FWY said that there are certain rules in the home. There are some toys that all the children can play with, some reserved for her biological grandchildren, and some that belong to Sarah and Jane. The rules apply equally with respect to her biological grandchildren not playing with Sarah and Jane’s toys. When the children play together they can share their toys if they wish to.

68. FWY was asked questions in relation to her care of the two boys to whom she was alleged to have dealt out physical discipline. She said that the two boys would fight and there was ‘sometimes’ tension in the relationship between her and the boys. FWY agreed that she had tapped one of the boys on the bottom and on the hand with two fingers. She denied smacking the boys with a thong, punching one of the boys in the nose causing it to bleed, or encouraging one boy to hit the other. FWY denied that she would yell at the boys but did speak in a loud stern voice at times when they were fighting.

69. FWY denied that she does not like to go out of the house and that the children rarely leave the home. She said that in summertime they like to stay at home due to the weather. She also denied putting overly strict boundaries on the girls around mealtimes. This was answered in relation to a suggestion that FWY did not allow dessert to be served if the girls did not eat their main meal. She denied that this caused any tension or tantrums with the two girls.

70. When asked questions around the children’s cultural involvement, FWY said that they had visited their country once in 2023 and were not able to participate in NAIDOC activities at preschool because they had appointments on that day.

71. FWY agreed that tapping with two fingers on a child’s bottom ‘could be’ a breach of the code of conduct for authorised carers.

Findings with respect to the evidence of FWY

80. Overall, we accept FWY as an honest and reliable witness. She admitted to having tapped one of the children who was in her care on the bottom and on the hand. There are allegations she tapped the other child also on the bottom which was sustained in a reportable conduct investigation and outcome report dated 11 March 2019. Other allegations were also sustained in that report. It is difficult without having the benefit of being able to cross-examine the author of that report to make findings either way with respect to the allegations which were sustained. We accept and have placed due weight on the concessions made by FWY in these proceedings. We find that FWY tapped at least one of the boys on the bottom and hand with two fingers and that FWY’s evidence was not precise in this regard. However, we do not go as far as finding that we prefer the findings in the reportable conduct investigation over FWY’s evidence. We note that FWY was assessed by Biripi as being a suitable carer even after the reportable incident conduct report had been completed. Further the same assessor spoke favourably of FWY as a carer after the findings were made in the reportable conduct investigation relating to events in 2019. Thus, we place significant weight in terms of finding that FWY does not pose an unacceptable risk to Sarah and Jane.

81. We have also taken into consideration that FWY has been an authorised carer since 1999 and has not had that authorisation cancelled. As set out below, DCJ has not had any report of inappropriate conduct by FWY, or concern about risk to Sarah and Jane, while FWY has been their carer. We give this information significant weight.

82. We find that FWY has provided consistent evidence about how she has met the needs of the two children, who have been in her care since 11 May 2021. There is no evidence of any risk of significant harm report being made during the period in which the children have been within her care. Similarly, there was no evidence that reportable allegations have been made against FWY in this period.

83. We have also placed weight on personal references annexed to FWY’s Affidavit, particularly from the Centre Manager of the childcare centre where the two children attend. The referee has known FWY for over two years. From observations made by the Centre Manager, FWY has provided the children with a stable and nurturing routine, the family unit is close, and the relationships are warm and loving.

84. We find that FWY has provided a loving and caring home for the two children. This has been attested to by Biripi prior to these proceedings. We also accept, and have taken into consideration, that FWY is willing to address any concerns raised by Biripi in providing ongoing care for the two children. We find that FWY has demonstrated she is able to maintain care responsibility for the children. She was able to describe what she sees as being in the best interests of the children for their long-term future and their permanency needs, and we accept her statement that she is committed to supporting those interests.

Evidence of Acting Manager Casework for DCJ

85. An Affidavit was affirmed by the Acting Manager Casework in the relevant area for DCJ. The Acting Manager deposes ‘there have been no substantiated risk of significant harm (‘ROSH’) concerns for [Sarah] or [Jane] in the placement with FWY, or reports received meeting the threshold of ROSH. This is significant and something to which we attach due weight.

86. The Acting Manager Casework states that on about 7 July 2023, a case worker for Biripi provided a first draft of a s 82 report for the Children’s Court which referred to the children being moved interstate. This was the first occasion the Secretary was put on notice about the planned decision to move the children from FWY’s care.

87. The Acting Manager Casework states ‘I do not have any immediate safety concerns for [Sarah] or [Jane] in the care of FWY’. However, the Acting Manager Casework supports the decision to move the children to the care of Peter and Louise as a long term placement option, noting that approval for that decision rests with the Director of Community Services within DCJ. The Acting Manager Casework provides the following reasons for that view:

1. FWY had toys for her grandchildren that Sarah and Jane were not allowed to play with, and spoke to them sternly. In the view of the Acting Manager Casework, this indicates that FWY had unrealistic expectations for the children based on their age and maturity, and strict rules;

2. the assessor in the Comparative Assessment observed Sarah and Jane approach the assessor for comfort rather than FWY, and Sarah said ‘don’t smack my sister’;

3. there are concerns that Sarah and Jane are not being connected to their Māori culture in FWY’s care;

4. information provided to the Comparative Assessment assessor indicates that maternal family are seen informally in the street;

5. FWY has a series of health concerns and the Acting Manager is ‘curious’ as to how these will progress as FWY ages.

88. The Acting Manager Casework notes that there is a relative carer assessment for Peter and Louise but not an assessment with observations of Sarah and Jane in their care. In our view this is particularly concerning as the decision by Biripi to transfer the long-term placement of the children to Peter and Louise was made without such an assessment.

89. The Acting Manager Casework has a concern that FWY has had a varying opinion as to whether she can care for Sarah and Jane in the long term. She states that it is unclear whether Sarah and Jane see their brother to the frequency as set out in the care plans - that is, on a minimum weekly basis.

90. If the transition is to occur, the Acting Manager Casework indicates that it should occur in a planned manner which might include increased contact and a gradual transition.

91. In cross-examination, the Acting Manager Casework conceded she has not met the children and has only reviewed the file with respect to providing her view. She conceded that prior to 11 July 2023 there had been no discussion between Biripi and DCJ about the children being removed from FWY. She agreed with a question that it would be usual to expect children in a two year family placement of an Aboriginal background, that a non-government agency would consult with DCJ, or request a permanency consultation, and that consultation would take place prior to a decision being made. The Acting Manager Casework said that the usual review would involve consultation with a permanency coordinator to review any goal changes, plan changes and other support placements for the children.

92. The Acting Manager Casework said that the Director of Community Services has not made a decision for the children to transfer interstate. In the usual course of events, once such a decision is made the case file would be transferred to the DCJ interstate team and the agency would continue to seek assistance from Queensland Child Safety while a relevant order is sought to formalise the transfer, a process likely to take at least six months. The Acting Manager Casework agreed that given no decision has been made to transfer the children interstate there is, as at the date of the hearing, no local case manager or supports in place for these two children in Queensland.

93. The Acting Manager Casework said that she has a concern about how the best interests assessment was undertaken. That concern included the usual step-by-step tool not being used in conducting the assessment and the co-assessor, who was an Aboriginal cultural person, not being present during the entire assessment. She concludes that the required cultural lens was not applied to the assessment which was undertaken. We have placed significant weight on this aspect of the evidence.

94. The Acting Manager Casework also said that she has concerns about the removal of the children from New South Wales, particularly with respect to their attachment to FWY and their closeness to their brother and sister who live in the local area together with their grandfather. She also conceded that removing the children from their routine in childcare, and from local medical practitioners, is of concern if they move to Queensland. However, the Acting Manager Casework still supported the transition to Queensland as long as it was ‘not a swift transition’. This view was formed primarily on the pattern of language by FWY towards the children and the tapping of two fingers on children’s bottoms in the reportable conduct report, and the findings that were made by the reportable conduct inquiry in 2019. The Acting Manager Casework also referred to another report in 2014. The Acting Manager Casework formed this view despite the assessor who did the reportable conduct investigation finding that there was no significant issue raised with respect to FWY and that she had been repeatedly reauthorised as a carer. We give significant weight to the assessor’s conclusion, particularly in light of FWY having been reauthorised as a carer. The Tribunal accepts the inference from this evidence that the prior conduct of FWY, in tapping a child on the hand and bottom with two fingers, does not amount to a finding of unacceptable harm to children in the circumstances of this matter.

95. The Acting Manager Casework was asked in cross-examination whether she was aware of reports that Peter used to smack his own children. She stated that she was, but that this has occurred to other children.

96. We find that the Acting Manager Casework is an honest and reliable witness. In our view, it is concerning that a decision was made to relocate two Aboriginal children to a non-Aboriginal household without the appropriate cultural assessment having been undertaken. This is on a background of the Acting Manager Casework having no concern for the immediate safety of Sarah and Jane in the care of FWY, and where there have been no substantiated ROSH concerns for the children in that placement, nor reports received meeting the threshold of a ROSH.

97. We have addressed the concerns raised by the Acting Manager Casework below with respect to the Comparative Assessment. In summary, we find that those concerns do not amount to there being any unacceptable risk to Sarah and Jane remaining within the placement with FWY.

Care Plan for Sarah and Jane

98. When the proceedings were before the Children’s Court a Care Plan was prepared in relation to both Sarah and Jane. Those Care Plans are similar in nature. We note the following comments about FWY:

‘Backs [Biripi] observations of [Sarah] and [Jane] and FWY is that they have formed a healthy attachment and [Sarah and Jane] knows FWY as someone she will receive comfort from when in need. FWY has been able to promote an age appropriate routine and providing a stable, consistent and predictable environment for [Sarah and Jane]. [Sarah and Jane] is reported to be settled in her placement with FWY and seeks comfort from her particularly when she becomes upset after leaving family time with [Meredith].’

99. The Care Plan goes on to find that FWY is a proud and respected Aboriginal woman who is very committed to supporting the children’s cultural development, both on her parental side (Aboriginal) and maternal side (Australian-Māori). The Care Plan describes FWY as understanding the children’s need to remain connected to their cultures and is demonstrating that she can support them with this through daily living, attendance at family and community events and remaining connected with their extended family. We have placed significant weight on these remarks. The findings address a key consideration in the question before us, were made independently of the process of deciding to remove the children from the care of FWY, and there is no evidence before us that they were contradicted or challenged in the court proceedings.

100. We note in the Care Plans that further assessment was to be undertaken in relation to the long-term care arrangements for both Sarah and Jane. At the time they were placed into the care of the Minister the Care Plan proposed that FWY be the authorised carer ‘at this time’. This indicates that a further review might be considered, which is what appears to have occurred.

Best interests Comparative Assessment and evidence of the assessor

101. The key document which has led to the removal decision is the Comparative Assessment dated 1 July 2023. The assessment was completed by an apparently independent assessment team made up of two assessors – one of whom was a non-Aboriginal assessor (the first assessor) and the other who was an Aboriginal assessor (the second assessor). It is not in dispute that due to health reasons the second (Aboriginal) assessor did not participate in the entire assessment and, from that perspective, the cultural lens with respect to the recommendations in the report has not been fully captured. Equally, despite a subpoena being issued, the second assessor was not available to be cross-examined at the hearing due to personal health issues.

102. It is appropriate at this juncture to set out the principles used in the Children’s Court when a kinship/placement assessment is being considered in Courts and Tribunals. In Re Lucinda Porter (No 2) [2023] NSWChC 2, her honour Magistrate Sheedy said at [66] - [77]:

66. The Children’s Court relies heavily on kinship/placement assessments in making decisions in care proceedings. It should be borne in mind that a superficial or substandard assessments has the very real prospect of leading to decisions by the Secretary and/or by the Court that are not in the child’s best interest. The duty to be objective and thorough and not to mislead is vital in assessments because the child’s future welfare, which is a matter of extreme importance, is at stake.

67. A cursory, superficial or substandard placement assessment may result in a child being wrongly placed and thereby unnecessarily being put at risk or of placement breakdown.

68. The damage done to a child by relying on an opinion which is formulated with incomplete or incorrect information has the potential to be wrong and have adverse consequences for that child which are severe and potentially irreversible.

69. Care must be taken by assessors, before expressing an opinion, to take all the relevant and objectively justifiable material fully into account.

70. Placement assessments must be undertaken by suitably qualified persons who have all the necessary background material and have clear instructions as to the issues to be assessed. An assessor must be clear when a particular question or issue falls outside of their expertise. If the assessor does not have all the necessary material or information, then the assessor must state that any conclusion or recommendation is no more than provisional.

71. A placement/kinship assessment must comprise of more than the recording of information given to the assessor. There must surely be probing, challenges when necessary, corroboration sought when appropriate, and objective evidence considered. There must be some analysis and reasoning based on the assessor’s expertise.

72. There is no reason why a placement/kinship assessment undertaken by a person purporting to be an expert in assessments should not comply with the ordinary rules of all experts who provide reports to the Children’s Court.

73. Surely too there must be an obligation on the party commissioning an expert report/assessment to consider the nature and complexity of the assessment required. The party should only instruct experts or assessors who have the appropriate qualifications and experience relevant to the issues to be addressed.

74. The quality and reliability of kinship/placement assessments would be greatly enhanced by:

(i) Consideration being given to which assessor should be instructed taking into account the nature and complexity of the assessment to be undertaken and the qualifications and experience of the assessor.

(ii) A detailed letter of instruction as to the issues to be assessed, including a list of documents that are relevant to those issues.

(iii) Advice to the assessor that their paramount duty is to undertake the assessment impartially, not as an advocate for any position, on matters relevant to the area of expertise of the assessor

(iv) The report should include:

1. The name and address of the assessor

2. The qualifications of the assessor to prepare the report

3. Identification of the person/agency who commissioned the assessor to prepare a report

1. The issues the assessor was asked to assess and a list of the documents that the assessor considered (the letter of instruction and list of documents may be annexed)

2. The date of the assessment and the date of the report

3. The assumptions and material facts on which each opinion expressed in the report is based

4. The reasons for, and any literature or other materials utilised in support of, each opinion

5. (if applicable) that a particular question, issue or matter falls outside the assessor's field of expertise

6. any meetings, tests or other investigations or assessments on which the assessor has relied, identifying the person who carried them out and that person's qualifications

7. the extent to which any opinion which the assessor has expressed involves the acceptance of another person's opinion, the identification of that other person and opinion expressed by that other person

8. a declaration that the assessor has made all the inquiries which the assessor believes are desirable and appropriate, (save for any matters identified explicitly in the report) and that no matters of significance which the assessor regards as relevant have, to the knowledge of the assessor been withheld

9. any qualification of an opinion expressed in the report without which the report is or may be incomplete or inaccurate

10. whether, for any reason, any opinion expressed in the report is not a concluded opinion

75. Once the assessor’s report is received, DCJ must then critically review the content, reliability, and merits of the assessment and not simply accept the recommendations.

76. Even if DCJ is satisfied that the placement/kinship assessment is reliable, that is not the end of DCJ’s task. DCJ must then consider the child’s current circumstances and future needs and placement options in the context of the principles that must be applied by law, including importantly the Aboriginal and Torres Strait Islander child placement principles contained in section 13 of the Act. DCJ must balance all the advantages and disadvantages of each option and only then decide which placement will be in the child’s best interest.

77. The difficulty of the task the Secretary must perform is acknowledged yet that difficulty is outweighed by the overwhelming importance of making the best decision for the child.

103. We adopt the reasoning framework of Magistrate Sheedy and find that it is equally applicable in an application for administrative review concerning the removal and/or restoration of a child in out of home care.

104. In considering that framework and the principles it sets out, we find the Comparative Assessment to be unreliable for the following reasons.

105. First, the unavailability of the assessor with Aboriginal cultural experience to be cross-examined leaves FWY in a position where parts of the report can not be tested. The first assessor said that the second (Aboriginal-experienced) assessor was only partly involved in the assessment and, importantly, was not involved in the main interviews conducted for the purpose of assessing FWY and Louise and Peter, with whom Biripi was intending to place the children. We are also concerned, having heard from the first assessor that the second assessor was unwell at the time of the assessment process and remains unwell. The Tribunal must question whether the second assessor was able to properly conduct the assessment in these circumstances, and this question remains unanswered.

106. We are not satisfied that the assessment interviews were conducted with the appropriate cultural lens. From a procedural fairness perspective, in circumstances where one of the co-authors of such a report was not able to be cross-examined and, importantly, where the cultural lens has not been applied to the whole of the assessment, caution must prevail in the weight to be attached to the report.

107. Second, the report was purportedly independent in nature. That is, it is asserted that the report was independent of Biripi. However, we have serious concerns about the independence of the assessors. Although not disclosed in the Comparative Assessment, both of the assessors have previously worked for Biripi. The first of the apparently independent assessors (who is not the Aboriginal assessor) worked in the role of operations manager for Biripi for a two-year period up to 2019. She was also subsequently a consultant to Biripi. Similarly, the second assessor (the Aboriginal assessor) worked with Biripi as a case worker also in 2019 until possibly early 2020. The first assessor agreed in cross-examination that Biripi is a small organisation. The previous association of the assessors with Biripi was not disclosed in the report and, importantly, was not disclosed to FWY until it was revealed in response to questions at the hearing. A lay observer, in our view, would likely conclude that the assessment was not truly independent because the assessors had very recently worked for Biripi.

108. Further to this, the first assessor wrote to an employee of Biripi and said:

“ …

Wow, what a big job that turned out t be! I’m aware it’s likely to be contentious and we may end up at NCAT so we made the reports very detailed. I think [Biripi] are (sic) well-positioned, and have sufficient evidence, to argue that a change of placement is in the girl’s best interests.”

109. The assessor’s correspondence does not reflect independence. It includes statements which have the hallmarks of a ‘hired gun’. The Tribunal finds that the words ‘… I think [Biripi] are (sic) well-positioned … to argue that a change of placement is in the girl’s best interests …’ indicates that the assessor was intending to place the agency in the best position to argue a particular point. This is not what is expected of an independent assessor. For these two reasons alone the report is, in our view, unreliable.

110. Third, in cross-examination the first assessor was asked what methodology and assessment tools she used in undertaking the assessment. The assessor said that no specific tool had been used, rather she read background information, conducted interviews and considered other documents referred to in the report to provide an analysis and recommendation. The assessor was asked whether she was familiar with the ‘step-by-step’ tool. It is not in contest that the step-by-step tool is a suite of recognised foster care and kinship training and assessment tools produced by the Association of Child Welfare Agencies (AWCA) for out-of-home-care contexts, and which is backed by current writing, practice wisdom and research in the area of foster care assessment. The first assessor said that she was aware of the tool. She was asked whether that tool was widely used for out of home care assessments. In answer to that question the first assessor said it is a tool but it is not one that she used because ‘I don’t like it’. In relation to care assessments for Aboriginal children, the first assessor was asked whether there were any assessments or tools used. She said that a tool known as the Winangay model was available. The Winangay is an Aboriginal kinship care assessment tool used as a culturally appropriate method of assessment of Aboriginal kinship carers. However, this tool was also not used because the assessors were not trained to use it. Given that no such commonly-used assessment tools were used in the assessment, the Tribunal considers that the Comparative Assessment was flawed and unreliable.

111. We are not alone in this conclusion. The Acting Manager Casework gave evidence as to what would normally be expected of an assessor in undertaking this type of assessment in regard to the use of these industry assessment tools. The Acting Manager Casework stated that she was also left concerned about the reliability of the report because neither the step-by-step nor the Winangay model assessment tools were not used in the Comparative Assessment.

112. Fourth, the briefing meeting between the two assessors and Biripi staff on 24 May 2023 included what appears to be a list of complaints and grievances that Biripi had against FWY. This included allegations that Jane had said that if they are naughty they would be smacked, and that FWY had made disparaging remarks about Meredith. There is no evidence to substantiate these allegations. The meeting involved Biripi staff stating that they did not know about Aboriginal matters concerning the children and FWY. However, FWY was a prominent member of a local Aboriginal land council. There is no evidence Biripi made any enquiries in this regard. Biripi also criticised FWY for not properly engaging the children with their Aboriginal culture. However, Biripi has not filed any evidence to demonstrate that it has provided any cultural training or support to FWY in the two and a half years that she provided care to the children.

113. Fifth, the assessors were not provided with the Biripi 2021 Annual Carer Review of FWY, in which the Reportable Conduct Assessor from 2019 referred to strengths of FWY as a carer for the two children. The Comparative Assessment relies heavily on the findings of the Reportable Conduct report in 2019 but does not take into account the positive comments made by the same person after having reviewed FWY two years later.

114. Against this background, we find the Comparative Assessment undertaken by the private assessors to be unreliable. Specifically, the conclusions and recommendations in the assessment are flawed and unreliable and should be disregarded.

115. It is clear that any decision to uproot two children with 5 days’ notice and move them interstate from a placement in which there has been glowing reports from the pre-school and treating practitioners about how well the two children are progressing, and no reports of risk of harm, should not be one that is made lightly. It is also clear that any expert advice that is relied on in making the decision should be reliable, independent and have the interests of the child as paramount. The impact of such a decision would have life-long consequences for the two young girls who have a demonstrable attachment to FWY and very little familiarity or relationship with Louise and Peter.

116. We find that reliance on the Comparative Assessment to make such a complex decision was unsound and unsatisfactory.

117. It is now relevant to set out the oral evidence given by the first assessor.

118. In cross-examination the first assessor agreed that both Peter and Louise work full-time. The interview with Peter and Louise was only undertaken by the first assessor and not the second (Aboriginal) assessor. The first assessor agreed that the assessment did not undertake any consultation with respect to the children’s Māori background. In respect of the Aboriginal assessor’s engagement with the rest of the assessment, this was, at its highest, limited. This is because the Aboriginal assessor was involved in some of the assessment only up until a draft report was prepared. The final draft did not include any input from her. For the reasons set out above, we find that the Comparative Assessment lacked any cultural value from either an Aboriginality or Māori perspective.

119. The first assessor agreed that Peter and Louise had not spent any time with the children on country or where they lived. Peter and Louise said that they were willing to learn about Aboriginal culture if the children were placed with them. The assessor agreed that they had not undertaken any awareness training with respect to Aboriginal culture. The assessor identified that Peter and Louise have had little contact with the paternal family and this is identified as a vulnerability. The first assessor’s evidence supports our finding that there was no appropriate assessment from a cultural perspective.

120. The first assessor said that Peter and Louise have significant health issues and this is also seen as a vulnerability with respect to them caring for the children. She conceded that Louise’s health condition may decline and that Louise had described herself as becoming fatigued when coming off night shift after working 40 hours a week. Apart from caring for family members, Peter and Louise have no history of being authorised carers or experience in that area. This is relevant in terms of a comparison to be made between the ability of FWY, and Peter and Louise, to care for the children on a background of their age and health. Based on the evidence before use, they each have similar health comorbidities that could affect their ability to care for the children.

121. In cross-examination by the solicitor acting for DCJ, the first assessor maintained her view that the change in placement should proceed. Her main concern with the children remaining with FWY was in relation to her ‘punitive’ parenting style which she felt would not be the best to support the children. In contrast the assessor said that Peter and Louise have a more ‘nurturing and relaxed’ style of parenting. The assessor made this statement despite being aware of Peter having a history of smacking his own children as a form of discipline. Peter was not made available for cross-examination. The assessor maintained a concern that, while in the care of FWY, the children were in long term daycare and questioned why that was needed. She said that the children spent minimal time on country and had not really engaged with their cultural identity while living with FWY.

122. It is appropriate at this point to state that the Tribunal finds that the Comparative Assessment’s recommendation to change the children’s placement within five days was reckless, unreasonable and lacking proper consideration of their welfare, safety and wellbeing. We find this specifically because there appeared to be no consideration given to:

1. any child protection arrangements in Queensland for when the children were to be placed with Peter and Louise

2. any external supports being available within the Queensland child protection system in response to such a hasty transfer, and

3. importantly, the emotional trauma that might be experienced by Sarah and Jane.

123. We considered the first assessor to be an honest witness but not reliable.. However, the Comparative Assessment and its recommendations are flawed and unreliable.

Evidence of Sarah and Jane’s Aunt

124. A statement was tendered in the s 58 material by one of Sarah and Jane’s aunts dated 28 August 2023. The statement relates to an incident on 26 July 2023 at a school NAIDOC assembly attended by FWY and Jane. One of the aunt’s daughters said that she saw Sarah and Jane’s cousin approach FWY and Jane to say hello. FWY is alleged to have said ‘Go away, you are related to Meredith’. This left Jane’s cousin upset and confused. The aunt goes on to provide her view that she does not view the placement of Sarah and Jane with FWY as being ‘natural’ because it makes it difficult for natural relationships between family. In cross-examination Sarah and Jane’s aunt said that she did not witness the event but it was related to her by her daughter. We place little weight on the statement given that it contains second hand evidence and was an isolated incident. A similar statement was contained in the s 58 material from another aunt of Jane dated 29 August 2023 which records the interaction between Jane and her cousin. Again, the statement is second hand evidence and we place little weight on it.

Evidence of the CEO of Biripi

125. The CEO of Biripi confirmed the two letters regarding the removal decision had been made by the organisation. The 14 August 2023 decision was made by the delegate of Biripi. That delegate was not able to give evidence because she had recently undergone a medical procedure.

126. The CEO agreed in cross-examination that in undertaking the purported review decision she did not access the file relating to the children or the carer. She relied, rather, on the Comparative Assessment and the reportable conduct report from 2019. In coming to make the removal decision, Biripi had concerns about:

1. the length of time the two children spend in respite - that is childcare, which she felt was indicative of FWY struggling to care for the children, and

2. the reportable conduct matter – which she felt was of particular relevance.

She said nothing else was of concern to Biripi.

127. Ms Smith, the solicitor for FWY, put to the CEO the applicant’s evidence concerning her dropping the children off to childcare between 8.00 a.m. and 10.00 a.m. and usually picking them up by 3.00 p.m., and asked whether the CEO considered this to be excessive. The CEO agreed that this arrangement was not excessive. The CEO agreed that reports from the children’s childcare centre indicate that both girls are doing very well. She also agreed that the medical reports concerning the two girls in the last twelve months indicate that they are also doing well from a health perspective. The CEO agreed that there are no safety concerns with the girls remaining in FWY’s care, apart from what is outlined in the Comparative Assessment. She said that these concerns relate to difficulties FWY has in disciplining the children around mealtimes and particularly as they get older. She also said that punitive measure in forcing the children to sit for a long time during mealtimes was not in their best interests. This is despite a carer review in 2021 being provided to Biripi indicating that FWY was an appropriate carer.

128. The CEO agreed that the 2021 carer review included a number of positive views about FWY and that there had been no reason to discontinue her authorisation as a carer. She agreed that it can be inferred that FWY had met the suitability requirements of an authorised carer even after the 2019 Reportable Conduct Report.

129. Despite supporting the recommendations in the Comparative Assessment report, the CEO said she had concerns about the way in which the assessment was conducted. In that regard she said a process called ‘step-by-step’ was not followed. She also had particular concerns with respect to the short time for the change in placement that was recommended by the first assessor. She said that “given she is an expert she should have had a better understanding of the children”. The CEO, who is also an Aboriginal woman, said she had no concerns that the assessment was not conducted from a cultural perspective. We find this extraordinary given that the allocated Aboriginal assessor was only partly involved in the assessment and no specific cultural assessment tool was used. Also of concern, the CEO of an Aboriginal designated agency was unable to recall the s 12A principles of the Care Act.

130. We find the CEO to be an honest witness but her evidence was not reliable for the reasons set out above.

131. The CEO said it would be difficult for Biripi to continue to work with FWY. This is because there had been a breakdown in the relationship and that FWY had not asked for an internal review of the decision before commencing proceedings in NCAT. She said that FWY would be best serviced by another organisation for case management of the children.

Evidence of a Biripi Case Worker

132. A Case Worker of Biripi with two and a half years’ experience in that role gave evidence. She said that she had been Case Worker for the two girls for one and a half years. She said that where carers require support they can reach out to a Case Worker and management can approve any support that is required. The Case Worker agreed that during visits in 2023, no significant concerns had been raised with respect to FWY providing care for Sarah and Jane.

133. The worker was asked about how the decision to change the children’s placement came about. She said that the family in Queensland asked to be considered as carers for a long term placement. This then prompted an external assessment to determine whether that should take place. The Case Worker said it is evident that FWY loves the two girls and there are no concerns about the home environment in which they live with FWY. To her knowledge FWY has not done anything to stop contact with the girls and their mother. She has only expressed concerns about the travel time, which in the Case Worker’s view is reasonable. The Case Worker said that the girls enjoy going to school and there has been confusion in the past about their country. The Case Worker was unaware of when the last Cultural Plan had been developed by Biripi for the girls. In evidence, which is not in contest, there were Cultural Plans for each girl written in March 2023 but no earlier plans.

132. The Case Worker accepted that she has not looked into, nor asked other family members to engage the girls with, their Māori culture. She agreed that FWY does a good job with making medical appointments for the two girls and has no concern about her capacity to manage their health needs.

133. Ms Bennett asked the Case Manager about the bi-monthly case plan reviews for the two girls dated 30 November 2022. The Case Manager accepted that she had signed the relevant case reviews. She agreed that she wrote the following:

‘Sarah’s paternal uncle Peter and his wife Louise had expressed their interest in providing long term care to Sarah and her sister, Jane. All checks came back positive, however, it was decided in the girls’ best interests to stay with FWY and attend respite with Peter and Louise.’

136. The Case Manager was asked to provide an explanation about when that position had changed. She replied ‘They [Louise and Peter] approached us for it [a change in placement] and the operations manager did not want to explore this, it was taken higher and then a decision was made to explore them. Peter and Louise took it higher to the CEO. We were just informed of the decision. It went higher than me and [my supervisor]’. The Case Manager said she was not involved in any meetings when this decision was changed.

137. The Case Worker said that if the two girls were relocated to Queensland, their family in New South Wales ‘would be upset’ but she did not know what the impact would be.

138. We accept the Case Worker as an honest and reliable witness.

Other documents we have taken into consideration

139. As late as 4 September 2023, Biripi wrote to FWY and confirmed that following an annual carer’s review which was completed in 2023, her reauthorisation as a relative kinship carer for that agency had been completed. The only condition for finalisation of that was that FWY was to engage in training and development focused on positive parenting and behaviour support and that she had to read, sign, and abide by the Code of Conduct/Partnership Agreement and Placement Agreement. FWY was reauthorised as a long-term Aboriginal carer authorised to care for children between 0 to 18 years. We find this to be extraordinary given the decision made by Biripi which is the subject of these proceedings. If Biripi had genuinely held the concerns it raised in deciding to remove the care and control of the two girls from FWY, we would have expected it to engage in further consideration of whether to reauthorise FWY as an authorised carer.

140. A s 82 report to the Children’s Court, which is undated, but has references to dates of 1 January 2023 and 1 July 2023, is included FWY’s bundle at Exhibit A3(c). It records the children as having:

‘settled into their placement with FWY well and appear to be happy in their home environment. It has been observed regularly by Biripi case worker that the children and FWY have built a strong connection and relationship, with the children referring to FWY as ‘nan’.

FWY requires regular respite, and a schedule has been developed and implemented for it to occur once per month for a period of 3 days. This supports the children’s current placement and ensures a stable home environment.’

141. The report goes on to refer to the children having been booked in for their regular health care checks and attending six monthly paediatrician appointments. There are no adverse references to FWY’s inability to care for the two children contained in the s 82 report. This is a factor which weighs in favour of FWY.

142. The monthly home visit records from 7 August 2022 to 7 October 2023 also do not record any adverse events. This is consistent with the views of a number of the witnesses referred to above, namely, that there have been no concerns for the children’s safety or wellbeing whilst in the care of FWY. This is a factor which weighs in favour of FWY.

143. We have taken into consideration correspondence passing between the Biripi Case Worker and an officer of DCJ in 2021 exploring the identification of the children’s Aboriginality. It would appear from this correspondence that there was confusion amongst family members, DCJ and Biripi in this regard. We note that FWY was instrumental in making enquiries on behalf of the children to determine their country. This is a factor which weighs in favour of FWY.

144. On 15 February 2022, an email passing between the Case Manager and representatives of Biripi and DCJ record both girls as ‘progressing well in their kinship placement with carer FWY. They are both attending (preschool) and daycare, 4 days per week with reports indicating they are progressing well and meeting all developmental needs at an age appropriate level.’ This weighs in favour of FWY.

145. On 8 July 2022, an email passing between an officer of Biripi and representatives of DCJ refer to assessing Peter and Louise as possible long term carers for the two children.

146. Records of Sarah and Jane’s paediatrician and clinical notes do not raise any concern with respect to their general health or medical status. This is a factor which weighs in favour of FWY.

147. We have considered a helpline report that was made by the Case Worker with respect to a ‘scary’ doll called ‘Groot’ in the children’s bedroom. We place little weight on this as we were shown pictures of Groot, which is a child’s figurine doll, and were not convinced that the doll is likely to be considered scary by a child.

148. Jane attended a health review with FWY on 18 October 2023. The assessment was with a paediatric dietician. The assessment includes references to a concern FWY had with Jane taking a long time to eat a meal. It indicates FWY was being very careful ‘to avoid any mealtime negativity or pressure to eat’. The advice provided by the dietician included, amongst other things, congratulating FWY on her efforts with positive mealtime behaviour management. This is a factor which weighs in favour of FWY.

149. In a Case Plan completed on 20 September 2022 by Biripi the goal was for long term care for the children in a kinship placement. It is noted that when she spoke with the assessor Meredith indicated that she was happy for Sarah to be placed with FWY as she knows ‘FWY is a good carer and Sarah is being looked after’. The report records Meredith as indicating she has no concerns surrounding the placement and she supports it. The Case Plan also includes Sarah as having built a strong connection with FWY. She attends preschool four days per week and has positive relationship within the school environment. Sarah is developing positive friendships with her peers at preschool and is independent in an age appropriate way. The Care Plan also indicates that Sarah’s cultural needs were being met in that placement in terms of her Aboriginality and that she contributes to her cultural learning of Māori culture as much as she can.

150. Meredith is recorded as making similar comments in the Case Plan concerning Jane, which is dated 4 October 2022. Jane is recorded as forming positive relations with her peers and her educators and is described as being a beautiful, happy and a content young girl. There is no concern recorded at that stage with any cultural inadequacies in the placement.

Biripi’s submissions

151. Biripi submits that the Tribunal ought to affirm the decision on 12 July 2023 for the following reasons:

1. The best available evidence in the proceedings is Comparative Assessment, and the recommendation of that assessment is that Peter and Louise be the appointed carers for Sarah and Jane. Biripi asserts that the extensive reports provided by the assessor were largely unchallenged.

We disagree and find that the Comparative Assessment is unreliable for the reasons set out above.

2. Biripi submits it is of considerable concern that FWY keeps 2 children in daycare 5 days a week. Biripi asserts that FWY sought to downplay the extent to which the children are being kept in daycare in an attempt to ‘bolster her case’.

We do not accept this submission. FWY gave a reasonable explanation that she places the children into daycare for varying hours each week and that part of the reason for that is that she provides care to her elderly mother. The CEO of Biripi gave evidence that the times are not unreasonable. We do not accept that FWY was not frank and we accept her evidence.

FWY has reached an age where it is unknown whether she has a continuing capacity in the medium and long term to care for Sarah and Jane. This is because she has numerous health conditions and, under cross-examination, she was unwilling to acknowledge in any way the future difficulties she may encounter.

We reject this submission. There is no evidence to suggest that because of FWY’s various diagnoses she is unable to care for the children. Further, the proposed carers, Peter and Louise, have their own health conditions which could equally be said to affect their ability to care for the two children in the future.

3. FWY was unwilling to acknowledge the difficulty which her mother’s care will place on her ability to continue to care for the two children.

We do not accept this submission. There is limited evidence which would allow the Tribunal to make a positive finding in this regard.

4. Peter and Louise have been married for 36 years which creates a level of stability. They have 6 adult children who can assist with the care of Sarah and Jane. Peter and Louise are younger than FWY and they are able to bring the Māori culture to the care of the two children.

In contrast, Peter and Louise do not have FWY’s 20 years of out-of-home care experience. It was submitted that they would have some support from their adult children. Peter and Louise did not give evidence. In these circumstances, the Tribunal can only speculate about the level of cultural enrichment they can give to the children.

5. The evidence reveals that FWY is unwilling to develop the relationship of the two children with both the maternal and paternal side of their family. The evidence of the children’s aunts raises concerns about the conduct of FWY in regard to the family relationship.

We reject this submission. For the reasons set out above we have placed little weight on the evidence of the two aunts. We accept FWY’s evidence, which is supported by the case workers, that she has been instrumental in maintaining contact between Sarah and Jane and their maternal family.

6. There does not seem to be any real dispute that there has been a breakdown in the relationship between FWY and Biripi. If the decision of Biripi is not affirmed the reality is that there is a real prospect that the status quo will cause harm to the two children because of the poor relationship between FWY and Biripi. If however, the decision of Biripi is affirmed and the two children are under the care of Peter and Louise, which will involve a different agency in Queensland, the difficulties of the relationship will be avoided and a fresh start will be in place for the two children.

The problem with this submission is that if the decision of Biripi is not affirmed it is obvious, given the evidence of the CEO of Biripi, that Biripi is likely to seek to relinquish case management of the children. Should this happen DCJ will either take over direct case management or allocate a different agency to undertake that work. The submission also fails to take into consideration the best interests of the children over and above the relationship between FWY and Biripi, which should be a secondary consideration.

7. If the change in placement does not occur in the short term, it will inevitably happen in the medium term when FWY has reached a greater age and is in a lesser condition to care for the two children.

We reject this submission as a reason for placing the children with the proposed new carers, as the same proposition can be argued with respect to Louise and Peter.

8. The application of s 12A of the Care Act must be read alongside sections 8 and 9. Biripi submits that the effect of s 12A is not to disregard the Māori culture and the desirability for children to have care on the parental side. Section 12A cannot mean that the children must spend their entire childhood being brought up with a particular Aboriginal family in disregard to the other considerations as set out in the legislation.

In our view, any consideration of s12A must take into account the fundamental principles of the out-of-home care system. That involves, amongst other considerations, the factors set out in ss 9(2)(f), 8(a1) and 78(1) of the Care Act, which are factors we have considered in disposition of the administrative review application.

152. Biripi concedes that there was no internal review carried out in accordance with the legislative requirements and the Tribunal should have regard to the 12 July 2023 decision which is the reviewable decision.

Submissions of DCJ

153. DCJ maintains its support to affirm the removal decision. It agrees with the recommendation as set out in the Comparative Assessment, which assessed that Sarah and Jane’s long term needs would be best met with Peter and Louise, as compared with FWY. We disagree for the reasons set out above.

154. DCJ maintains that significant arrangements have not been made to connect Sarah and Jane with their extended family and maternal family. We disagree. The evidence of the Biripi case worker, the carer assessor and FWY establish otherwise. DCJ is concerned about the findings of the Reportable Conduct report dated 11 March 2019, which recommended and resulted in two children in out of home care being removed from FWY’s care. Those allegations related to disclosures that FWY had ‘smacked’ them.

155. DCJ submits that FWY was inconsistent in her evidence regarding the reportable conduct allegations, which also conflicts with the evidence provided by the three children involved in that report. DCJ contends that FWY said in evidence that she smacked the child once with a two-finger tap. When asked what part of the body that was, she said it was ‘the hand, the hand I think’. Then when she was asked whether this was the only time she hit either of the two children she said yes. DCJ says that is inconsistent with the reportable conduct assessor indicating that she tapped one of the children on the bottom. Due to the inconsistency with the applicant’s oral and documentary evidence, DCJ submits that the reportable conduct report should be preferred with respect to the detail of the disclosures made by the three children in that report.

156. DCJ notes that the reportable conduct report was known to Biripi at the time in which Sarah and Jane were placed into the care of FWY, and at the time Biripi reauthorised FWY as a carer. The reportable conduct was clearly not a sufficient factor to prevent the initial placement nor the reauthorisation. We also give significant weight to the fact that the Acting Manager of Casework for the Department indicates that the Secretary has not received any ROSH reports about Sarah or Jane while they have been in FWY’s care since 2021.

157. DCJ concedes that there are no known immediate safety concerns for Sarah and Jane’s safety, welfare and wellbeing in FWY’s care. We give significant weight to this evidence.

158. DCJ contends that the Comparative Assessment includes a pattern of language used and a history of discipline. The Department also contends that the Assessment raises concerns that as the two girls get older in the care of FWY, they would be subjected to a similar pattern of language and discipline to which the three children in the reportable conduct report were subjected. We do not accept this submission, particularly in light of there being no reports of any similar conduct while Sarah and Jane have been in the care of FWY.

Submissions of the applicant

159. FWY contends that the Comparative Assessment Report and the evidence of the first assessor should be rejected.

160. She submits that the removal decision is not consistent with the paramount concern for the safety, welfare and wellbeing of the children. FWY contends that she is a loving carer who has a strong relationship and connection with the two girls. She is able to support their Aboriginality by connecting them with their family culture. She has a strong will and desire to also engage them with their Māori culture.

161. FWY submits there are no safety concerns with the children remaining in her care. She says the children were placed into her care after the 2019 Reportable Conduct investigation was completed, and after the investigator who sustained those allegations reviewed her two years later and recommended that she continue to remain as an authorised carer and made positive comments about her caring capacity. This in our view is significant and something to which we have given significant weight.

162. FWY contends that the removal decision should be set aside.

Submissions of the Separate Representative

163. The separate representative submitted that the Comparative Assessment Report was not culturally competent, potentially biased and that it failed to allow procedural fairness to be afforded to FWY, including for the failure of one of the assessors being made available for cross-examination.

164. She contended that the statement of the aunt should be given little weight for the same reasons which we have set out above, and the evidence of the CEO was troubling, particularly in circumstances where she could not identify the relevant Aboriginal and Torres Strait Islander placement principles in the Care Act. We agree.

165. Concern is also expressed by the separate representative about the psychological harm likely to be suffered by the two girls if they are removed from FWY. We agree with this submission.

166. The separate representative supports FWY’s position and contends that the removal decision should be set aside.

Our consideration

The relevance of the reportable conduct investigation and the Comparative Assessment

167. We have considered DCJ’s submissions with respect to the contention that FWY’s evidence was inconsistent. We do not accept any inconsistency in FWY’s evidence. She maintained that she ‘two-finger tapped’ one of the boys on the hand or the bottom. FWY maintained that she had not smacked the children, hit them with a thong or punched one of the children and made their nose bleed. Without the author of that report being called to give evidence, we accept the evidence of FWY that she tapped one of the children on the bottom or the hand and that was the extent of the physical contact that occurred with respect to the children. More importantly, and as conceded by DCJ, there have been no reports of any physical incidents between FWY and either of the girls. There have been no ROSH reports and DCJ has not identified any immediate safety concerns for either Sarah or Jane in FWY’s care. Further, the same assessor who completed the 2019 Reportable Conduct investigation later found FWY to be a suitable carer. We give significant weight to this.

168. The reliance upon the Reportable Conduct findings, when considered as a whole, do not lead to a finding of unacceptable risk. The investigation must be considered along with other facts. Namely, that Biripi placed the children with FWY after the 2019 investigation. The same investigator in 2021 recommended that FWY continue as an authorised carer, and there are no adverse reports of risk in relation to FWY caring for Jane and Sarah.

169. We have found the Comparative Assessment to be unreliable. As such, it is unhelpful in making our decision and we give it no weight.

Negative view of the children’s mother, Meredith, and lack of support for their visitation

170. We accept FWY’s evidence in regard to this issue, which is set out above. That is, FWY states she has always supported the contact between Sarah and Jane and Meredith. Her evidence is consistent with the various notations included in the monthly home visit records completed by Biripi and the case worker(s). This has been consistent throughout the period in which FWY has been the permanent foster carer for the two children. As set out above, we have placed little weight on the evidence of the two aunts.

170. The objective evidence is not consistent with the findings in the Comparative Assessment.

Inability to meet cultural needs

172. There is evidence that at the beginning of the placement there was uncertainty as to the children’s Aboriginality. FWY worked with Biripi in identifying their Aboriginality and has attempted to meet their cultural needs. This is evident in attempts to involve them with NAIDOC week, and placing Aboriginal cultural items in the classroom at preschool. We accept FWY’s evidence that she has and will continue to make enquiries with respect to the children’s Māori heritage. What is apparent from the evidence is that Biripi has left most of the work to engage the two children in their cultural heritage with FWY. The Case Manager was not able to point to any programs or information that had been given to FWY to assist her in ensuring the cultural enrichment of the two children from an Aboriginal or Māori perspective. We find that FWY has done as best as she could with the resources made available to her by Biripi to promote and engage the children with their cultural needs. In our view the criticisms of the first assessor in this regard should be given no weight.

Declining health and age concerns

173. We do not accept the submissions of Biripi that FWY is now, or in the immediate future will be, unable to provide adequate care for the safety and wellbeing of the two children because of her own health and age concerns. We accept the evidence of FWY that she is consulting with her treating physicians with respect to her general health. She gave evidence that she was aware of her limitations, she is receiving appropriate treatment and takes medication in accordance with the advice of her doctors. There is no evidence before us from a medical perspective, apart from mere speculation, that FWY will be unable to meet her responsibilities as a carer to Sarah and Jane because of her health and age. As we noted earlier, Peter and Louise have their own health issues and, in the broader scheme of things, they are not significantly younger than FWY.

Confinement to the house on weekend and access to toys within the home

174. We accept FWY’s evidence on both of these aspects. In relation to limiting the time in which children spend outside of the home during hot periods we find that FWY’s evidence is reasonable. In relation to access to toys, the regime put in place with respect to access to children’s toys is also understandable and we do not accept that this forms part of a pattern of excessive discipline.

175. In conducting our administrative review, we have had regard to the considerable amount of evidence, reports and clinical opinions before us and the applicable law. In determining the correct and preferable decision with respect to the removal of the two children, we have considered and identified a range of relevant issues and discussed them at some length. In doing so, we have had regard to the family dynamics during the time in which FWY has had care of the children and the deterioration in the relationship between FWY and Biripi.

176. The paramount concern in these proceedings is the safety, welfare and wellbeing of the children, as required by s 9(1) of the Care Act.

177. We accept that a relatively strong bond has naturally been formed between FWY and the children. This is not in contest.

178. The length of time children are separated from carers and the damage that can result are things the Tribunal must consider, and these issues were considered in NS & NT v Director-General, Department of Community Services [2009] NSWADT 149 at [17]:

‘A lengthy separation has the potential in my view to materially damage the relationship between a carer and a child. Where the relationship is damaged as a consequence of the separation or, the child has developed an attachment with a new carer this may become a critical factor in the determination of the substantive application.’

179. Given the stay order, damage to the relationship between FWY and Sarah and Jane from a lengthy separation has been avoided.

180. We find that FWY loves both of the children and does her best to care for them. This is in circumstances which may not be ‘perfect’ in every sense. However, it is particularly relevant in this administrative review that there have been no ROSH reports made, or any adverse allegations made against FWY with respect to her care for the two children. The evidence of the Acting Manager Casework for DCJ is reflective of this.

181. Applying the paramount considerations set out in s 9(1) of the Care Act, and with reference to the test of ‘unacceptable risk to the child’, we find on the balance of probabilities that the children remaining in the care of FWY does not involve an unacceptable risk to their safety, welfare and wellbeing.

182. Applying the principles set out in s 9(2)(c) of the Care Act and s 12A, and with reference to the decisions in Re Tracey and Re Louise and Belinda, we find that the least intrusive intervention in the lives of the children that is consistent with the paramount concern to protect each child from harm and promote each child’s development, is to not disturb their placement with FWY.

183. As Aboriginal children, it is in their best interests that they remain in the loving care and support of FWY. They will continue to have regular access to their family members each week/fortnight. FWY is committed to ensuring that the children remain connected with Meredith and Peter and Louise. She will also ensure that they remain connected to their Māori culture. This meets the s12A placement principles.

184. The correct and preferable decision, having considered the totality of the evidence before us, is to set aside the decision to remove the children from the daily care and control of FWY.

Costs

185. FWY may make an application for costs. We have made provision for the determination of costs as set out in the Tribunal’s orders.

Orders

1. The decision of the first respondent made on 11 July 2023 to remove two children from the care of the applicant is set aside.

2. The Applicant shall file and serve any submissions and evidence on the question of costs no later than seven days after publication of these reasons.

3. The Respondents shall file and serve submissions and evidence in reply on the question of costs no later than fourteen days after publication of these reasons.

4. The Applicant shall file and serve submissions and evidence in reply on the question of costs no later than twenty-one days after publication of these reasons.

5. The submissions should address whether a hearing on the question of costs can be dispensed with pursuant to s 50(2) of the NCAT Act and whether the special circumstances provisions of s 60 of the NCAT Act apply.

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

Registrar

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

Amendments

24 May 2024 - paragraph 5 and 7 word changed from parental to paternal

08 July 2024 - Correct spelling of Member's name on coversheet

Decision last updated: 08 July 2024