Jones v Minister, Community Services

[2001] NSWADT 192

CITATION:	Jones -v- Minister, Community Services [2001] NSWADT 192 revised - 30/09/2002
DIVISION:	Community Services Division
PARTIES:	APPLICANT Lucy Jones RESPONDENT Minister, Department of Community Services
FILE NUMBER:	014009
HEARING DATES:	09/04/2001, 10/04/2001, 18/09/2001
SUBMISSIONS CLOSED:	09/18/2001
DATE OF DECISION:	11/19/2001
BEFORE:	Hennessy N (Deputy President) at 1; Monoghan-Nagle L - Member at 99; Gelin B - Member at 1
APPLICATION:	Custody - decision to terminate the custody of a ward
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Children (Care and Protection) Act 1987 Children and Young Persons (Care and Protection) Act 1998 Community Services (Complaints, Reviews and Monitoring) Act 1993
CASES CITED:	B. and R. and the Separate Representative 1995 127 FLR 438 the Full Court of the Family Court Torrens v Fleming (1980) FLC 90-840
REPRESENTATION:	APPLICANT In person RESPONDENT M O'Brien, barrister GUARDIAN AD LITEM J Smith
ORDERS:	The decision of the Minister to terminate the applicant’s custody of Cathleen is set aside.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides:
(1A) ...
1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person: (a) who appears as a witness before the Tribunal in any proceedings, or
(b) to whom any proceedings before the Tribunal relate, or
(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,
whether before or after the proceedings are disposed of.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, 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.

The Tribunal is divided in opinion in this matter. Under section 78(1) of the Administrative Decisions Tribunal Act 1997 if the Tribunal is constituted by more than one member and the members are divided in opinion, the opinion of the majority is taken to be the decision of the Tribunal.

The names of the applicant, children and foster carers used in this decision are not their real names.

Reasons of Nancy Hennessy and Ben Gelin

Introduction
1 This application concerns a child, Cathleen, who is three and half years old. She is of Aboriginal descent and has been made a ward of the state until she turns 18 years old. Cathleen is currently in the care of Mrs Jones, a 54 year old woman who is not of Aboriginal descent. The Minister for Community Services (the Minister) decided to remove Cathleen from Mrs Jones’s care and place her with two of her older siblings, Tim and Kellie. These children are currently in the care of Aboriginal foster carers, Mr and Mrs Baxter, who are 69 and 62 respectively. Cathleen has several other siblings, but only has regular contact with Tim and Kellie.

2 Mrs Jones has applied to the Tribunal for a review of the Minister’s decision. The Tribunal stayed the decision and Cathleen is still residing with Mrs Jones. She has weekly overnight contact with Tim and Kellie at the Baxters.

Jurisdiction
3 Not all the provisions of the Children and Young Persons (Care and Protection) Act 1998 (C & YP Act) had been commenced at the time of writing this decision. In particular the provisions which give the Tribunal jurisdiction are still found in the Children (Care and Protection) Act 1987 (C (C & P) Act). In relation to the placement of Aboriginal children, the relevant provisions are in Chapter 2 of the C & YP Act.

4 Under s 40 of the Community Services (Complaints, Reviews and Monitoring) Act 1993 and section 112(h) of the C (C & P) Act, the Tribunal has jurisdiction to review the Minister’s decision to terminate Mrs Jones’s custody of Cathleen. Section 112(h) provides that:

For the purposes of section 40 (1) (a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993, any of the following decisions are reviewable by the Administrative Decisions Tribunal
(h) a decision of the Minister to terminate the custody of a ward or protected person under section 91 (1) (e),
5 Section 91(1)(e) relates, among other things, to the powers of the Minister in relation to wards.

6 The Minister stated in her "Reasons for Decision" that the Tribunal does not have power to review the decision because it should not be characterised as a decision to remove Cathleen from the ‘custody’ of Mrs Jones. Rather, it is a decision to place Cathleen in accordance with the principles set out in Chapter 2 of the C & YP Act.

7 The fact that a decision may be characterised in a positive way, that is to place a child in accordance with certain principles, does not mean that it ceases to be a decision to terminate Mrs Jones’s custody of Cathleen. There is no doubt that the Minister’s decision was to terminate that custody and place Cathleen with different foster carers. The Tribunal has jurisdiction to review this decision.

Background
8 On 9 October 1998 the Children’s Court made Cathleen, Tim and Kellie wards of the state for two years. Cathleen was placed with Mrs Jones on 28 August 1998 when she was 6 months old. At that time the Department of Community Services (DOCS) did not realise that Cathleen was Aboriginal. The Entry Into Care Approval documents show her as "Anglo Australian".

9 DOCS’s plan was to restore all three children to their natural father. An attempted restoration involving Tim and Kellie was made in November 1998 but failed. After other foster placements failed, Tim and Kellie were placed with the Baxters on 26 June 1999. Mrs Baxter indicated that she could not take Cathleen as well because it would be too much work to look after a baby in nappies.

10 A further application to the Children’s Court on 20 October 2000 resulted in the wardship orders being varied to expire when each child turned 18. DOCS acknowledged that there is no short term prospect of Cathleen or her siblings being restored to the care of either of their natural parents. DOCS has no complaint about Mrs Jones’s care of Cathleen, apart from their perception that she is "denying" Cathleen’s Aboriginality. The reason for the termination of her custody of Cathleen is firstly so that she can grow up in an environment where her cultural identity is nurtured and reinforced and secondly so that she can live and develop a strong relationship with two of her siblings.

11 Mrs Jones has another child who is a ward in her care. His name is Nathan and he is ten years old.

Conduct of the proceedings
12 The case was heard over three days in April and September 2001. The reason for the break was that after the initial hearing days, the Tribunal agreed to adjourn the matter so that a further expert assessment, on the papers, could be completed. It took some time to organise that assessment.

Relevant legislation
13 There was no dispute in this case that Cathleen is an Aboriginal child. Her mother is of Aboriginal descent. Her father is not an Aboriginal.

14 Section 13 of the C & YP Act contains principles to be applied in relation to the placement of Aboriginal children in out of home care. So far as they are relevant to this case, these principles are that:

(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 out-of-home care is to be placed with:
(a) a member of the child's or young person's extended family or kinship group, as recognised by the Aboriginal or Torres Strait Islander community to which the child or young person belongs, or
(b) if it is not practicable for the child or young person to be placed in accordance with paragraph (a) or it would not be in the best interests of the child or young person to be so placed a member of the Aboriginal or Torres Strait Islander community to which the child or young person belongs, or
(c) if it is not practicable for the child or young person to be placed in accordance with paragraph (a) or (b) or it would not be in the best interests of the child or young person to be so placed a member of some other Aboriginal or Torres Strait Islander family residing in the vicinity of the child's or young person's usual place of residence, or
(d) if it is not practicable for the child or young person to be placed in accordance with paragraph (a), (b) or (c) or it would be detrimental to the safety, welfare and well-being of the child or young person to be so placed a suitable person approved by the Director-General after consultation with:
(i) members of the child's or young person's extended family or kinship group, as recognised by the Aboriginal or Torres Strait Islander community to which the child or young person belongs, and
(ii) such Aboriginal or Torres Strait Islander welfare organisations as are appropriate to the child or young person.
(2) Relevance of self-identification and expressed wishes of child or young person
In determining where a child or young person is to be placed, account is to be taken of whether the child or young person identifies as an Aboriginal or Torres Strait Islander and the expressed wishes of the child or young person.
(3) . . .
(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, fundamental objective is to be the reunion of the child or young person with his or her family or Aboriginal or Torres Strait Islander community.
(b) Continuing contact must be ensured between the child or young person and his or her Aboriginal or Torres Strait Islander family, community and culture.
These principles are subject to subsection (2).
15 Because Cathleen has one parent who is Aboriginal and one parent who is non-Aboriginal, s 13(4) and (5) apply. The Minister submitted that s 13(4) did not apply to out of home care, but only to allocation of parental responsibility within the natural or extended family. We are satisfied that s 13(4) and (5) do apply to out of home care. They are sub-sections of s 13 which deals with out of home care. There is nothing in s 13(4) or (5) which suggests that those sub-sections are intended to relate to a different situation, that is allocation of parental responsibility within the natural or extended family.

16 The combined effect of s 13 is that Cathleen should be placed with the person with whom her best interests will be served having regard to the principles in the C & YP Act. Those principles include the principles set out in s 13(1) and (2) as well as the principles set out in sections 7, 8, 9, 10, 11 and 12 of the C & YP Act. In the context of this case, particular attention should be given to s 9(a), (e) and (f) which relate to the paramountcy of the child’s welfare and well-being, the preservation of culture and identity and the maintenance of relationships with her natural family, including siblings. These provisions are set out below:

(a) in all actions and decisions made under this Act (whether by legal or administrative process) concerning a particular child or young person, the safety, welfare and well-being of the child or young person must be the paramount consideration.
(e) 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.
(f) If a child or young person is placed in out-of-home care, the child or young person is entitled to maintain close relationships with people significant to the child or young person, including parents, siblings, extended family, peers, family friends and community, unless it is contrary to his or her best interests.
17 In addition s 13(6) is relevant if Cathleen is to continue in her placement with Mrs Jones. If that is the outcome of this case, then subject to Cathleen’s expressed wishes and whether she continues to identify as an Aboriginal, continuing contact must be ensured between her and her Aboriginal family, community and culture.

18 Given Cathleen’s young age (three and a half) she has not been asked to express her wishes.

Issues
19 The Tribunal must determine whether or not the Minister has made the correct and preferable decision in terminating Mrs Jones’s custody of Cathleen: s 63 Administrative Decisions Tribunal Act 1997 (ADT Act). The overriding issue for the Tribunal is whether the safety, welfare and well-being of Cathleen is better served by remaining with Mrs Jones or by being moved to Aboriginal carers where two of her siblings are currently placed. In determining that issue, the factors outlined above are relevant.

Evidence
20 Rebecca Haddock was the person who made the decision under review. She has been employed by the Department for eight and half years. She has met Mrs Jones twice, once in September 2000 and again in February 2001. She had no negative comments in relation to the quality of care provided to Cathleen by Mrs Jones.

21 One of Ms Haddock’s concerns was that Mrs Jones was "negating" Cathleen’s Aboriginality. She mentioned a phone call she said she had with Mrs Jones before Christmas 2000. She said that Mrs Jones mentioned that Cathleen had blonde hair and did not look Aboriginal. Mrs Jones denies the phone call or mentioning hair colour to Mrs Haddock.

22 Because Ms Haddock did not outline her qualifications or expertise we are not prepared to accept her evidence in relation to bonding and attachment issues as expert evidence. We heard evidence from three well qualified experts on this issue and have decided to take account of that evidence.

23 Lisa Matheson is an Intensive Support Services worker with DOCS. She identifies as Aboriginal. She used to be the District Officer responsible for Cathleen, Tim and Kellie. According to Ms Matheson, Mrs Jones was hesitant to expose Cathleen to her Aboriginal heritage. This view is based on comments from Mrs Jones that Cathleen has fair hair and blue eyes.

24 Ms Matheson and another DOCS officer, Raylene Burton, saw Mrs Jones in a shopping centre and had a conversation with her. Ms Matheson said that Mrs Jones said words to the effect of "Cathleen looks white and has blond hair and blue eyes. How can you place her with a "black’ family?" This version of the conversation was corroborated by Ms Burton’s statement of 29 March 2001. Ms Burton said that she and Ms Matheson discussed the statements by Mrs Jones and reported them to fellow Aboriginal District Officer, John MacNamara. Ms Burton stated that "Mr MacNamara advised Ms Matheson that as Mrs Jones was denying Cathleen’s Aboriginality and was not allowing any Aboriginal input while in this placement, it would be better to remove Cathleen from this placement as soon as possible."

25 Following this incident, Lisa Matheson went to visit Mr and Mrs Baxter to propose that they care for Cathleen. Paul Devine re-assessed the Baxters for their suitability as long term carers. He recommended that they be authorised to care for the three children long term.

26 Ms Matheson said that when she asked Mrs Jones to enrol Cathleen at an Aboriginal Pre-school, she told her that she did not want Cathleen to go to pre-school. Mrs Jones says that she agreed to send Cathleen to the Aboriginal Pre-School and she commenced there on 21 February 2000. Her only objection was that full time pre-school for a two year old was too much.

27 Kari Stenning is a District Officer whose role since August 2000 has been to oversee access of the three children with their natural parents and to monitor their placement. She contacted Mr and Mrs Baxter by phone in September or October 2000 and asked them if they would have Cathleen. The Baxters agreed.

28 In a letter of 22 March 2001, Ms Stenning alleged that Mrs Jones did not invite Kellie and Tim to Cathleen’s birthday party. She expressed the view that she thought that Mrs Jones would naturally include the siblings in a special occasion such as birthdays. Mrs Jones gave evidence that there was never a birthday party. She celebrated Cathleen’s birthday with Nathan (the other child in her care) and Cathleen. No-one else was present. Ms Stenning admitted that she "just assumed" it was a party.

29 Mr Baxter said that he and his wife began as foster carers with Burnside and have had about 30 children in their care over the years. The placements have all been short term. Kellie and Tim were placed in their care on 26 June 1999 for a short term placement. Mr Baxter said that he and his wife had difficulty with Kellie and Tim in the early days, but Tim is now on medication and is coping well.

30 Mr and Mrs Baxter said they are willing to look after Cathleen as well and are capable of doing so. They want to do "what is right" by all three children. They agreed that in the Aboriginal community it was not unusual for "grandparents" to look after children.

31 The Baxters have a support network in place in the Aboriginal community. This was on two levels: firstly, Aboriginal elders in the community who attend the schools and expose the children to aspects of their cultural; second, support from foster carers in their area. They have not used crisis or respite care during the time Tim and Kellie have been in their care.

32 Mr and Mrs Baxter both said that they were in good health. A certificate from a Doctor Fogil was tendered which certifies Mr and Mrs Baxter’s fitness to foster, but does not give any details about their health or about the number or age of children they can manage.

33 Mrs Baxter admitted that she had told people in the Aboriginal community that Mrs Jones was telling Cathleen that Kellie and Tim were not her siblings. Mrs Baxter said she assumed that Mrs Jones was telling Cathleen those things because of what Cathleen had said to her. Mrs Jones denied saying anything like that to Cathleen.

34 On 12 February 2001 Paul Devine, a District Officer, prepared a review of Mr and Mrs Baxter and recommended that their approval to foster be changed to the specific, long term care of Tim, Kellie and Cathleen.

35 Mrs Jones told the Tribunal that she has another foster child, Nathan, who is 10 years old. She has had him since March 1996. She has fostered three or four other children for short term placements. Cathleen was placed with her on 28 August 1998. Jim Potts, a DOCS officer, told her at the time that the placement would be short term. Sometime after March 1999 she was told that Cathleen was of Aboriginal descent.

36 DOCS officers told her that they wanted to put all three children together in a Koori placement. Mrs Jones made the comment at the time that Cathleen does not look Koori because she has fair hair and blue eyes. She denied that this comment was putting down the Aboriginal race.

37 Mrs Jones’s relationship with Mr and Mrs Baxter was good up until the case conference in February 2001. She has not seen them since then. Access is arranged through the pre-school. She is prepared to work together with the Baxters if Cathleen remains in her care.

38 When Mrs Jones was asked what she thought it meant to be Aboriginal, she said she didn’t have any negative thoughts about it and she would do whatever she needed to do to help Cathleen to learn her culture.

Expert evidence
39 James Light, early childhood teacher with Cathleen’s pre-school, prepared a report dated September 2000. He documented Cathleen’s social, emotional, and other skills and concluded that she has significant strengths in language, cognitive and some areas of social and fine motor development. He commented that "by far the most significant area of development for children at this age is the area of social/emotional development." His observations of Mrs Jones were positive. He said that she "is always considerate of Cathleen’s . . Aboriginal heritage."

40 Comments about Cathleen’s development were reinforced by the Chief Executive Officer of the pre-school, Yvonne Weldon. She said that "it is of great benefit to Cathleen to have the opportunities in mixing with other Aboriginal children as Cathleen is limited in this with Mrs Jones." She concluded that "it is essential for Cathleen to associate and interact with Aboriginal children and her culture at a young age so that when she develops strong relationships with her family and extended family Cathleen will not feel like she is alien to a ‘new world’."

41 Other expert evidence came from Ms Wilson who is associated with Link Up and three psychologists, Ms Starkey, Ms Single and Ms Yeo. Ms Starkey and Ms Single both strongly recommended that Cathleen stay with Mrs Jones primarily because of Cathleen’s emotional attachment to her and the negative consequences of removal. Ms Wilson and Ms Yeo strongly recommended removal on the basis of the negative impact on Cathleen of not growing up embraced by her Aboriginal culture and heritage, and without full time access to her siblings.

42 Ms Wilson told the Tribunal that the purpose of Link Up is to re-unite Aboriginal and Torres Strait Islander (ATSI) adults who have been raised in non-ATSI families with birth families and to provide them with information. She has been a member of Link Up as a client for eleven years, as chair person for six years and as a case worker for three years. She has an Associate Diploma in Social Science from Blue Mountains TAFE.

43 She gave evidence that Aboriginal adults brought up in non-Aboriginal families often need counselling to help them with their perceptions of their cultural identity. In her words, it is as if they have a "hole inside", because of the loss of their Aboriginal identity. In her view, if children are brought up away from their siblings, there is a loss of that relationship. Access to siblings is not sufficient to cement their relationship as siblings.

44 Ms Wilson related her own experience of being removed from her natural mother in 1958 when she was three weeks old. She was adopted by a white family and was not told she was Aboriginal until 1990. This has left a "hole" in her personality because she was not given her cultural identity. In her view, there is an acute need for a child to grow up knowing his or her own identity.

45 Ms Wilson agreed that it was good for a child to have access to culturally appropriate services but the optimum situation was for ATSI children to be placed with the ATSI community. If the child does not have physical characteristics normally associated with Aboriginal people, then it is even more important that they are raised within the ATSI community. Even if white families provide culturally appropriate services, there is always "internalised racism" which means that the child will pick up negative images of ATSI people. With children who are fostered and who grow up with some contact with their Aboriginal heritage, some may cope reasonably well but there will still be a loss of their cultural identity through the internalised racism of that family. Often the identity issues arise during adolescence when a child is exploring their sense of self.

46 Ms Starkey prepared a report dated 10 November 2000 at the request of DOCS and gave oral evidence. She has a Bachelor of Science in Psychology and Masters Degree in Clinical Psychology. She teaches at the University of Western Sydney, does assessments for DOCS and other clients and has her own clinical practice. She observed Mrs Jones with Cathleen and then Mr and Mrs Baxter with the three children.

47 Ms Starkey concluded that Cathleen has a very strong primary attachment to Mrs Jones. If she were removed from Mrs Jones’s care she would experience the complete loss of her psychological parent which would be equivalent to the death of a parent. The strength of primary attachment is a precursor to good adult adjustments. Children who have good attachments have experienced good relationships and expect to have good relationships in the future. Even so, such children have heightened problems on separation.

48 Cathleen’s removal from Mrs Jones would have some long term impact on Cathleen. While children can eventually re-attach to adult figures who are warm and nurturing, Ms Starkey had reservations about Mr and Mrs Baxter’s capacity to provide such an environment. She said that the Baxters are already looking after two very needy children and it would be difficult for them to deal with Cathleen’s emotional distress if she was removed from Mrs Jones. Ms Starkey found that Cathleen did not have an obviously positive relationship with Mrs Baxter. Cathleen’s relationship with Mr Baxter was more positive.

49 Ms Starkey concluded that because Cathleen’s attachment to Mrs Jones is a primary one, removal should only be considered "where the benefits far outweigh the emotional damage done." Those benefits would not outweigh the emotional damage in Cathleen’s case. If Cathleen were removed, Ms Starkey would expect ongoing contact with Mrs Jones to have a negative effect on Cathleen. Cathleen would re-experience grief every time she saw Mrs Jones.

50 In relation to whether siblings should be placed together, Ms Starkey said that this was desirable especially where parental bonding is inadequate and there is either neglect or abuse within the family. In those circumstances there is a tendency for bonds between the children to become more significant in the life of a child. However, in Cathleen’s case it is not a matter of Cathleen staying with her siblings because she has not lived with them since she was six months old. According to Ms Starkey, there are no strong attachment bonds with Tim and Kellie at the moment and she applauded the fact that the three children are now in regular contact. In her view the relationship between Cathleen and her siblings could be maintained and enhanced over time even if Cathleen does not live with the Baxters.

51 Ms Starkey saw the issue of Cathleen’s cultural identity as very important. However, for whatever reason, Cathleen was not placed with an ATSI family initially and has now developed a strong emotional attachment to Mrs Jones. Ms Starkey saw Cathleen’s attendance at an Aboriginal pre-school as a positive thing. In her view, if adults embrace dual cultures it can have a positive benefit on the child.

52 Ms Starkey’s recommendations were that Cathleen should stay with Mrs Jones and continue to have regular contact with Tim and Kellie and with the Baxters. She also recommended that DOCS devise a plan which will offer all three children maximum exposure to their Aboriginal culture.

53 The hearing was adjourned to allow for a further expert report to be prepared. The Tribunal asked Toni Single to prepare a report, on the basis of all the relevant documents, and to make recommendations about where Cathleen should be placed. Ms Single is a senior clinical psychologist with the Department of Health and has been attached to the John Hunter Children’s Hospital, Child Protection Team, since 1991. She has 25 years clinical experience in child and family psychiatry.

54 Ms Single identified the two broad issues in this case as "attachment" and "identity." She said that the damage likely to be caused by Cathleen losing her psychological parent had to be weighed up against the damage of remaining within her psychological family where she is deprived of day-to-day living within the Aboriginal community and with her biological siblings. Ultimately, the question is "what is the least damaging option?"

55 Ms Single acknowledged that people suffering identity losses such as loss of culture/race may suffer profound distress and/or depression, alienation and emotional problems in later life. However, she said that these are losses which are most consciously felt when the person has some understanding of these losses. Attachment damage, on the other hand, impacts on lower areas of the brain, which are less amenable to conscious memory or insight and therefore less amenable to healing in later life.

56 Ms Single said that the literature suggests that loss of a primary care giver is very traumatic and has significant long term effects. It leads to a propensity for personality attachment disorders especially if moved to a less "attachment rich" environment.

57 Ms Single agreed that reunification with siblings is a very important consideration but it is less important than maintenance of primary attachment relationships. During childhood, loss of primary attachment is far more devastating than the opportunity to develop sibling attachments. In any event, Cathleen is developing an attachment to her siblings.

58 Ms Single’s conclusion was that Cathleen’s current placement in which she is well integrated and loved, should not be disrupted. She recommended that Cathleen continue to attend her Aboriginal Day Care Centre and that Mrs Jones attend formal educational sessions about Aboriginal history and culture and counselling sessions related to Cathleen’s identity needs. Ms Single also recommended that a program be devised so that Cathleen can spend more time with her siblings. She suggested that from school age this could include overnight access and staying with them for portions of the school holidays.

59 Ms Soo See Yeo has been a psychologist with DOCS for 15 years. At DOCS’ request, she prepared a report for the Tribunal filed on 14 September 2001. The report was based on documents in the file and interviews with Kari Stenning, Lisa Matheson and Dennis Thomas. She had copies of the reports from Ms Starkey and Ms Single.

60 Ms Yeo’s report focused on a cultural perspective of the psychological bonding and attachment of Cathleen to Mrs Jones. Her view was that any decision about Cathleen’s attachment should be based on culturally appropriate psychological assessments and methodology. She outlined the historical context of the separation of Aboriginal children from their families. Ms Yeo mentioned the opportunity for Cathleen to learn her own language and the importance of keeping contact with extended family in relation to land rights.

61 While Ms Yeo acknowledged that the function of attachment is the same across cultures, she questioned whether the assessment of Cathleen which was based on attachment theory laden with Western values and meanings is culturally appropriate. Ms Yeo did not question Ms Jones’s capacity to care for Cathleen or that they have a strong emotional relationship and that Cathleen is developing well in her placement. The real question in her mind was the possible long-term mental health and psychological well being of Cathleen if the is not given the opportunity to develop her Aboriginal identity.

62 Ms Yeo said that there would only be a short term detriment to Cathleen from a change in placement. Her conclusion was that while Cathleen would suffer short term stress on being separated from Mrs Jones, there would be no long term adverse effects if the transition were done properly. In her view it is easier for Cathleen to attach to another carer because she has a good attachment with Mrs Jones. The opportunity to grow up with her siblings and to develop a confident Aboriginal identity outweigh any negative effects of separation. Ms Yeo mentioned research material as the basis for her conclusion that "Aboriginal children often suffer acutely from an identity crisis in adolescence, especially when brought up in ignorance of or in circumstances which deny or belittle their Aboriginality."

63 In relation to sibling relationships, Ms Yeo quoted research which showed that sibling relationships are beneficial to children’s long-term welfare in terms of identity and a sense of kinship. She also concluded that foster care placements that do not permit significant opportunities for regular contact between siblings fail to support the development of a meaningful relationship over time. If Cathleen is brought up in a non-Aboriginal foster family, she will be placed in a dilemma of whether she should have loyalties to her Aboriginal siblings or her Anglo-Australian foster family.

64 Ms Yeo said that it would be acceptable for Cathleen to stay with Mrs Jones if the ATSI community "adopted" her and accepted her as Aboriginal. There will be multiple losses if she does not live with her natural siblings. If she grows up without a strong ATSI identity she will have split loyalties.

65 Commenting on Ms Yeo’s report, Ms Single said the weakness of the report was that it focused on only one aspect of well-being, that is, cultural identity. The report does not address in sufficient detail, the issue of attachment or what the loss of attachment to Mrs Jones would mean for Cathleen. Much of Ms Yeo’s report relates to Aboriginal tribal society, not to urban issues which focuses on the nuclear family environment. Ms Single also noted that Ms Yeo did not address the capacity of the Baxters to care for Cathleen given their advanced age and lack of any meaningful relationship with Cathleen. In her view there was a difference in the quality of care the Baxters could offer given that they already have two "special needs" children.

66 While Ms Single agreed that having siblings in the placement and a good attachment with Mrs Jones were protective factors if Cathleen was moved, those factors would not ameliorate the effects of loss for Cathleen.

Submissions
67 The Minister submitted that Mrs Jones had performed a great service for Cathleen but that the issue now was whether living with her siblings in the Baxter household was in her best interests. It is important for Cathleen to be placed in an ATSI family because otherwise she would have a "hole" inside her because of a lack of cultural identity. In the Minister’s view, Ms Starkey does not have sufficient experience in evaluating the impact on Cathleen of staying with Mrs Jones and being denied her Aboriginal identity.

68 In the Minister’s view, the Baxters offer an excellent placement. They have a high level of involvement with the ATSI community, including elders and extended family.

69 Ms Smith, the guardian ad litem submitted that Cathleen should be placed with the Baxters. Her report, dated 9 April 2001, submitted that Cathleen, Tim and Kellie be placed together with the Baxters so that they can develop as a sibling and family unit. She concluded that there are significant problems/issues between Mrs Jones and the Baxters which should be addressed.

Findings
70 Quality of care provided by Mrs Jones. There was ample evidence in Ms Starkey’s report and her oral testimony that Mrs Jones provides a loving and secure environment from Cathleen. Mrs Jones’s parenting skills have given Cathleen every opportunity to develop and she is well advanced in all areas. None of these findings was challenged by the Minister. Departmental officers agreed that the quality of the care provided by Mrs Jones to Cathleen and Cathleen’s physical and emotional development were not an issue.

71 Cathleen’s relationship with Mrs Jones. Cathleen has a primary emotional attachment with Mrs Jones and it is clear that she is her "psychological" parent. The breaking of this attachment would have adverse consequences for Cathleen in the short and long term.

72 Denying Cathleen’s aboriginality. There was evidence about several conversations which Departmental officers interpreted as Mrs Jones denying or "negating" Cathleen’s Aboriginality. We find that Mrs Jones did comment to Jim Potts that Cathleen had fair skin and blue eyes. She made several other comments about whether Cathleen looked Aboriginal and, at the case conference, asked if there was any medical test to determine whether she was Aboriginal. She also challenged others to say that she was not herself Aboriginal.

73 There were some differences in evidence and interpretation between Mrs Jones and various DOCS officers in relation to these and other conversations and incidents. In general we found Mrs Jones had a clear, precise and consistent recollection of events. While there is no suggestion that DOCS officers were not doing their best to give an accurate version of conversations and incidents to the Tribunal, where there is a conflict, we prefer the evidence of Mrs Jones.

74 In relation to the conversation in the shopping centre, Mrs Jones did not deny that she mentioned Cathleen’s hair and eye colour. That conversation triggered action by DOCS officers which ultimately led to the decision to place Cathleen with the Baxters.

75 Mrs Jones was prepared to enrol Cathleen at the Aboriginal Pre-School. Her only objection was to full time attendance. We draw no adverse inference in relation to Mrs Jones on the basis of the conversation that she had with Ms Matheson in relation to this issue. We also find, in accordance with James Light’s evidence that when at pre-school, Mrs Jones is always considerate of Cathleen’s Aboriginal heritage.

76 Mrs Baxter made assumptions about things that Mrs Jones told Cathleen which were untrue and which would have affected Mrs Jones’s reputation in the Aboriginal community. It is unfortunate that assumptions have been made, both by Mrs Baxter and DOCS officers about several incidents, including the birthday party incident, which were untrue. This has led to Mrs Jones being viewed unfavourably in some respects by the DOCS officers, the Baxters and some members of the Aboriginal community.

77 There is no doubt that Mrs Jones was initially not convinced that Cathleen was Aboriginal. We accept Mrs Jones’s evidence that she was not told Cathleen was Aboriginal until some time after March 1999 when Cathleen had been in her care for more than seven months. She expressed some surprise when she was told that Cathleen was Aboriginal. That is when she first made the comment that Cathleen did not look Aboriginal. These feelings have moderated to some extent, at least in her interaction with the pre-school teachers.

78 Based on the evidence, while DOCS officers and Mrs Baxter made some unfounded assumptions adverse to Mrs Jones, there is sufficient evidence to conclude that Mrs Jones lacks insight into what it means to be an Aboriginal. Her comments indicate that she would prefer it if Cathleen were not Aboriginal because that would mean that Cathleen could stay with her long term. This reaction is understandable given Ms Jones’s emotional attachment to Cathleen but it is not a response which is in Cathleen’s best interests.

79 We agree with Ms Single’s assessment that Mrs Jones’s comments are either misguided or ignorant and if maintained in the long term will be problematic for Cathleen developing a strong Aboriginal identity.

80 Suitability of Baxters as long terms carers for Cathleen. The Baxters have only ever been short term carers prior to agreeing to have Tim and Kellie long term. The original assessment says that the Baxters could manage one or two children in the short term. They initially declined to have Cathleen because a baby in nappies would be too difficult to manage.

81 Paul Devine’s assessment report dated 12 February 2001 recommended that the Baxters have long term care of all three children. After a cursory assessment which did not address the areas of caution expressed in the first assessment, the Baxters were recommended as long term carers for all three children. In addition, Doctor Fogil certified Mr and Mrs Baxter’s fitness to foster. There was no evidence about their health or about the number or age of children they can manage.

82 We are not satisfied, on the basis of these assessment, that the Baxters are suitable carers for all three children in the long term. They have not been adequately assessed. Unfortunately it appears that the lack of any other Aboriginal family to take all three children has put the Minister’s delegate in a position where there was no alternative but to approve the Baxters as long term carers.

83 If the Baxters are not able to care for all three children until they are 18, one or more of them would need to be placed elsewhere. In addition, Tim and Kellie have special needs. While the Baxters are willing to take Cathleen, there is insufficient evidence for us to be satisfied that they could adequately care for all three children in the long term.

84 Continuing contact with family including siblings. According to the DOC’s case plan, access with Cathleen’s natural parents is supposed to occur four times a year. There was only one access during 2000. There has been another access in February 2001. According to Kari Stenning, access with the natural parents has been supervised and it is positive. No explanation was given as to the reason for the case plan not being followed. According to Ms Stenning, while the natural parents are keen to continue with access, they are not major figures in Cathleen’s life. There has been no contact with Cathleen’s extended family.

85 Contact with siblings. Cathleen has been having overnight access with Tim and Kellie and Mr and Mrs Baxter as part of the plan to transfer her to their care. That access has continued since the Tribunal stayed the Minister’s decision. According to Mrs Jones, despite some initial upset, Cathleen has now adjusted to these access arrangements and appears to enjoy them. According to Ms Single, if Cathleen stays with Mrs Jones, overnight and holiday access would be appropriate after Cathleen reaches school age.

86 Aboriginal family, community and culture. Apart from access with the Baxters, Cathleen’s only contact with the Aboriginal community is through her attendance at pre-school. All the expert witnesses recommended that if Cathleen is not placed with the Baxters a plan be developed to ensure that she has adequate exposure to activities and relationships which will ensure that her Aboriginal identity is developed.

87 Effect on Cathleen of being denied the opportunity of living with an Aboriginal family. There is no legislative requirement for the Minister to consult with Cathleen’s natural parents or any other individual or group before removing Cathleen from Mrs Jones’s care. The only requirement for consultation is in situations where an emergency placement is necessary and the provisions of s 13(8) of the C & YP Act apply. However in this case consultation did take place with the ATSI community and elders expressed the view that Cathleen needed to be raised with her siblings in an Aboriginal placement. According to paragraph 13 of Ms Haddock’s statement, that opinion was based on "research that highlights the identity issues that can occur for aboriginal children, as they grow older when they are denied their heritage." Correspondence from Cathleen’s natural mother dated 19 March 2001 stated that they wished Cathleen to remain with Mrs Jones. Neither of the natural parents was included in case conferences relating to Cathleen’s placement.

88 All the expert witnesses referred to the historical and current experiences of Aboriginal children raised in non-Aboriginal environments. In the matter of: B. and R. and the Separate Representative 1995 127 FLR 438 the Full Court of the Family Court (Fogarty, Kay and O’Ryan JJ) decided that evidence of the common experiences of aboriginal and part-aboriginal children raised in non-aboriginal environments was relevant and admissible in a case where the issue was whether the Aboriginal mother or the non-Aboriginal father should have custody of one of their children. That evidence was relevant to consider in determining which placement was in the best interests of the child. Similarly, we accept the evidence given in these proceedings as relevant to our assessment of the possible effects of the alternative placements. However, much of that evidence related to the removal of Aboriginal children from their psychological parents and placing them in families where their Aboriginality was never acknowledged. That is not the situation in this case.

Reasons and decision
89 Before dealing with the central issues for decision, we will determine three miscellaneous matters. The undated Reasons for Decision emphasised that Cathleen’s placement was only ever intended to be short term. While we accept that this was the case, that fact cannot be used to justify removing Cathleen now. The Tribunal must choose the placement where Cathleen’s best interests will be served having regard to the principles in the C & YP Act. Whether the initial placement was intended to be short or long term is of no relevance to that question.

90 Despite a submission from the Minister that the interests of Tim and Kellie are relevant to the Tribunal’s decision, we must focus on Cathleen’s interests. She is the subject of the proceedings before the Tribunal and it is her interests that we must take into account.

91 On the basis of the report of the Case Conference held on 6 February 2001 and other documents including Rebecca Haddock’s statement, it appears that DOCS officers took the view that it would be contrary to law and Departmental practice for Cathleen to remain with Mrs Jones if a suitable Aboriginal placement could be found for all three children. In our view, this is not an accurate representation of the legal position. The test that the Minister and the Tribunal must apply is set out above at paras 15 and 16. The safety, welfare and well-being of Cathleen must be the paramount consideration. If the promotion of her interests means that she is placed with non-aboriginal carers, then continuing contact must be ensured between her and her Aboriginal family, community and culture.

92 The only other decision which we were able to find which is analogous to the facts of this case is a NSW Supreme Court case of Torrens v Fleming (1980) FLC 90-840. In that matter the Aboriginal mother of a 10 year old child, L, applied to have the child restored to her care. L had been living with a white family for almost all her life and had a strong emotional attachment to the family. L expressed the view that she wanted to remain with her foster carers. Kearney J said at p 75,311, that:

I consider that a critical feature is the fact that L is now living happily and well adjusted in a stable environment with a family to whom she relates as a member of that family, and that a very deep bond attachment has been established between her and the parents who have reared and nurtured her from babyhood. In these circumstances it requires, in my view, very powerful considerations to justify breaking that attachment so as to do so without harm to the child, even more so when the question of the welfare of the child is required to be taken into account as the first and paramount consideration.
93 While this case is factually different from the present case in several important respects, it demonstrates that, even before the enactment of Chapter 2 of the C & YP Act, placement with an Aboriginal family, extended family or community, was not an overriding principle to be applied despite other considerations relevant to the child’s safety, welfare and well-being. It is however, an extremely important consideration.

94 Our task is to weigh up the impact on Cathleen of removal from Mrs Jones with the impact on her of relocating to the Baxters where two of her siblings live. The expert witnesses were evenly divided in their opinions. We found the conclusions and recommendations of Ms Starkey and Ms Single to be more persuasive than those of Ms Wilson or Ms Yeo. Ms Wilson and Ms Yeo focused primarily on cultural identity issues. They did not adequately weigh up all the relevant factors in coming to their conclusions.

95 The factors which are in favour of Cathleen moving to the Baxters are that she would be living with her siblings within the Aboriginal community. Cathleen’s relationship with her siblings and her Aboriginal identity would be enhanced by this move. If this option was available when Cathleen first came under the guardianship of the Minister, it would have been a better option than placing Cathleen separately with Mrs Jones. But that option was not available at the time and Cathleen was placed with Mrs Jones. In the three years since then Cathleen has developed a strong emotional attachment to Mrs Jones. We accept the evidence of Ms Starkey and Ms Single that the loss of her psychological parent, Nathan as her sibling and her home environment would not be outweighed by the benefits in terms of the enhancement of her cultural identity and increased contact with her siblings.

96 We also support Ms Single’s conclusion that it would be a positive thing if Mrs Jones’s attitudes to Cathleen’s aboriginality could change so that Cathleen could identify strongly with the ATSI community. We believe that Mrs Jones’s comments about Cathleen’s Aboriginality can be attributed, in part, to her fear that Cathleen would be removed from her care. This view is supported by the fact that the staff at the pre-school stated that Mrs Jones has been supportive of developing Cathleen’s Aboriginal identity. In our view, once Cathleen is securely in Mrs Jones’s care for the long term, there will be no need for her to question Cathleen’s Aboriginality with the Department. This should clear the way for Mrs Jones to embrace and nurture Cathleen’s cultural identity to the best of her ability.

97 Our final point is that there is insufficient evidence of the Baxter’s capacity to look after three young children in the long term. This is an added risk for Cathleen should she be moved.

98 Our conclusion is that Cathleen’s safety and well-being will be best promoted if she remains in Mrs Jones’s care. At the same time continuing contact must be ensured between her and her Aboriginal family, community and culture.

Reasons of Linda Monaghan-Nagle

99 I have had the privilege of reading the majority of this Tribunal’s draft reasons for decision prior to drafting my reasons. I do not reach the same decision as the majority.

Reasons for Decision
100 I am in agreement with the background facts from the majority’s reasons and therefore will not reiterate them now.

The Issues
101 Noting the overriding principle in determining the issues, being the welfare, wellbeing and safety of Cathleen as the paramount concern. It was evident from the evidence and the hearing the main issues were;

a) The bonding and attachment issues for Cathleen
b) Cathleen’s relationship with here siblings, Kellie and Tim
c) Aboriginal identity of Cathleen
102 In considering the long-term interests of Cathleen evidence was given from the current carer Mrs Jones, the carers of Tim and Kellie Mr and Mrs Baxter, Department of Community Service’s case workers, supervisor and psychologists, the Guardian ad litem for Cathleen, and an independent psychologist review of the papers.

103 Two main questions evolved in considering the evidence;

i) Should Cathleen be placed with her siblings in the care of Aboriginal foster carers in the aboriginal community?
ii) Should Cathleen remain in her current non-aboriginal placement with access to learn about her heritage, whilst having access with her siblings?
104 In coming to my decision I considered the following:

Bonding and Attachment of Cathleen
To Mrs Jones and Nathan:
105 There is no doubt that the care both physical and emotional provided by Ms Jones to Cathleen has been appropriate. Ms Starkey (Psychologist) gave evidence that the stable base that Cathleen has experienced would enable her to rebond although in the short term there would be separation anxiety.

106 The issues of the separation of the siblings of Cathleen and the relationship confusion between Ms Jones’s foster child, Nathan as the ‘brother’ of Cathleen will have an effect on all the children. Ms Jones would need assistance to deal with any separation for her own sake and Nathan’s.

107 The question of long term effects of the placement of Cathleen with her siblings on her own emotional development would need to be handled with patience and care. The grief that Ms Jones and Nathan would feel would have to be balanced with the familial cultural considerations of Cathleen’s long term welfare.

Relationship with Siblings
To her Siblings:
108 Cathleen’s relationship with her siblings has been established by visits and overnight access. Cathleen has her own bed in the Baxter home and identifies Kellie and Tim as her siblings. The Guardian ad litem Ms Smith in her report mentioned that Cathleen seemed enthusiastic about a forthcoming visit.

109 While 9 of Cathleen’s living brothers and sisters have had no contact with her the contact with Tim and Kellie has been ongoing and positive. The placement of Cathleen apart from her siblings could fragment this relationship. Thus the reliance in later life of a family relationship could be negated.

110 Although at this stage the restoration of the children to their parents is not viable, should restoration happen, the fact that the children are in the separate placements would make this more difficult.

Relationship with Baxters
111 Cathleen’s interaction with Mr & Mrs Baxter has been developing during the contact with Tim and Kellie.

112 Ms Starkey (psychologist) in her assessment in relation to the Baxter’s interaction with the children made comment about a locked bedroom door. The reason could be the confusion over appointment times as mentioned in the report and the un-preparedness to be on display that could have caused some discomfort to the Baxters.

113 The assessment was conducted on a wet day, with the children confined inside and the noisy chasing game that ensued from a different cultural outlook, it could be construed as the Baxter’s acceptance that this was the children’s home, that they were interacting together. Cathleen’s enthusiasm to see her siblings as mentioned in Ms Smith’s report and Mr Baxter’s interaction on a positive note. Mr Baxter seemed to fill the male role and the issue of divided loyalties between the two women in the situation cannot be used to denigrate the potential for Mrs Baxter to provide the emotional support that the three children need if Cathleen was placed with her siblings.

114 The capability of the Baxter’s to care for the three siblings has been questioned particularly in the documentation from Ms Jones to the Tribunal. Assumptions regarding the age, physical ability and the comments on the failure to take Cathleen in the first place. From the evidence the Baxters have provided exceptional care to Tim and Kellie, two very damaged children and with the assistance of both their own family and community have turned their lives around. The comments made about Cathleen being in nappies could be misconstrued. Prioritising the older children and settling them may also have influenced their decision. Mr Baxter stated on evidence that Tim was receiving medication and Kellie counselling and both children had stabilised.

115 The Baxters have indicated their willingness to care for the three siblings long term. In relation to the age of Mr & Mrs Baxter who are accepted as senior or elders in the Aboriginal community the conception that they are too old shows a lack of understanding of aboriginal ‘mores’ that a nuclear family is not part of the culture, that responsibility for the children of the community is invested in elders and the wider community. This provides a wider framework of guidance and stability to the carers whether kin carers or community carers, traditionally and in contemporary times although disrupted by unfortunate government policies.

116 This was highlighted in Ms Yeo’s (Departmental Psychologist) report to the Tribunal which provided an overview arising from aboriginal consultations.

117 Indeed it is not uncommon in many cultures for older persons to have the care of younger children.

Aboriginal Identity Issues
118 The Department of Community Services have provided evidence that Mrs Jones has provided excellent care for Cathleen but have express concerns regarding a series of comments made over time by Mrs Jones about Cathleen’s appearance and the inference that she does not look aboriginal.

119 Mrs Rebecca Haddock (Acting Assistant Manager Mr Druitt CSC), provided evidence to the tribunal of her concerns that Cathleen’s aboriginality was being "negated" by Mrs Jones and referred to two phone calls with Mrs Jones in which Mrs Jones commented that Cathleen did not look aboriginal due to her appearance, "white skin and blue eyes". Mrs Jones has denied that these phone calls took place and she did not refer to her hair colour. I am of the belief that this phone call did take place and such comments were made to Mrs Haddock.

120 Mrs Lisa Matheson, a former caseworker of Cathleen, stated that she had gained an impression from Mrs Jones that she denied Cathleen’s aboriginality. In a local shopping centre, Ms Matheson in the company of another District Officer, Raylene Burton, had a conversation with Mrs Jones in which Mrs Jones made comments about Cathleen’s appearance. The comment was to the effect of "Cathleen looks white, she has blonde hair and blue eyes, how can you place her with a 'black' family". This comment was corroborated by Ms Haddock. Mrs Jones did not deny this comment.

121 When Mrs Jones gave evidence, she said that when she was first informed of Cathleen’s aboriginality, her response was "she does not look it". Mrs Jones feels her comments about Cathleen’s appearance is an honest observation.

122 Ms Jones challenged others to say that she herself was not aboriginal and queried if there was a medical test that could be taken to determine whether she herself was aboriginal. This shows Ms Jones’s confusion and ignorance of the criteria:

a) Aboriginal descent
b) Self identification
c) Community identification and acceptance of the person
123 Ms Smith (GAL) commented on the emotional response of Ms Jones to the aboriginality of Cathleen. It would seem that Ms Jones has a reluctance to attend further training in foster care that would deal with aspects of temporary care, siblings issues, cultural identity and "letting go" are important issues that the foster carer is not adopting.

124 Ms Jones has given evidence that a new support group for foster carers has been formed with invitation only participation was reinforced in Ms Smith’s report, this has further distanced her interaction and understanding of foster care issues. Ms Jones shows little concern or understanding of the importance of sibling relationships.

125 Cathleen’s Guardian Ad Litem Ms Smith commented in her report that when she spoke with Mrs Jones, that Mrs Jones stated that her comments about Cathleen’s appearance were done in all innocence. Mrs Jones also feels that Cathleen’s attendance in an Aboriginal preschool was sufficient to meet Cathleen’s cultural needs.

126 Mrs Jones has also commented to the Tribunal that she herself may have some claim to aboriginality, and I note from case notes she has queried as to whether a medical test could be done to determine this.

127 Further I note in a letter from Mrs Jones received by Nepean network office, Department of Community Services, on 13 February 2001, Mrs Jones writes the following "Cathleen’s mother is only eighth Aboriginal" and refers to the decision had been made on Cathleen, based on Cathleen being "partly aboriginal".

128 In the Guardian Ad Litems Ms Smith report, she states that Mrs Jones when asked about her feelings towards the Aboriginal community being involved in her life, that she was very emotional, thus the importance of her cultural identity. Mrs Dianne Starkey, psychologist in oral evidence commented on the need for foster families to "embrace cultures". This was also stated in her report that if adults embrace dual cultures that this can have a positive benefit on the child. I feel from the evidence that Mrs Jones perception of Aboriginal Identity may have been founded on ignorance but has now progressed past this point. I feel while Ms Jones acknowledges Cathleen’s aboriginal culture she does not embrace it.

129 The continued comments by Mrs Jones about Cathleen’s appearance, Mrs Jones comments about being partly or being one eighth aboriginal made well after the time she was informed of Cathleen’s aboriginality has not shown that Mrs Jones has progressed in accepting Cathleen identity or need to have a choice in her cultural identification.

130 Addressing cultural identity in measurement of blood is a fallacy. To so speak of it in those terms and to address a person’s cultural identity in terms of personal appearance is indicative of stereotypical attitudes. It is these stereotypical attitudes that not only went to formulate white Australian policy that impacted devastatingly on the Australian Aboriginal population but are still held by many people in the wider community.

131 I feel that Mrs Jones, when first informed of Cathleen’s Aboriginality, realised the issue of Cathleen’s appearance. It appears that this issue is still unresolved at large in Mrs Jones. She has not been able to grasp the importance of Cathleen’s cultural identity. She feels that Cathleen’s preschool is sufficient at present and is prepared to enrol her in an after school care programme for Aboriginal children when she starts to attend primary school.

132 Culture identity is not a learned criteria, it is living the experience, knowing you are Aboriginal. The difference between having a book read to you about a culture and living and experiencing it, is knowing your culture as well as your own sense of identity and self worth. Being told you are Aboriginal is in complete contrast to knowing your Aboriginality and living it.

133 I also have concerns that Mrs Jones’s attitudes regarding Aboriginal identity have further impacted on Cathleen.

134 Mrs Jones’s attitude - ignorance - whether it is or is not - the impact is still there, whether it is intentional or not. Things are now at a stage where Mrs Jones has entrenched herself into a position that I find she is not able or willing to promote Cathleen’s Aboriginal identity effectively.

135 Ms Rebecca Haddock, the delegate who made the decision under review, endorsed the quality of care provided by Ms Jones. Ms Haddock gave evidence that she had concerns that Cathleen’s Aboriginality was being “negated” and quoted a phone call from Ms Jones about Cathleen’s appearance. Although Ms Jones denied the phone call there is evidence from other witnesses that she had made statements to that effect.

136 Ms Lisa Matheson a former caseworker with the Connolly children stated that Ms Jones was hesitant to expose Cathleen to her culture due to her comments regarding her appearance. These comments were reinforce by a conversation held with Department of Community Services workers Raylene Burton and Ms Matheson. This formed a perception that Ms Jones was relying on appearance, a stereotypical attitude that is common with the Anglo Celtic community but not necessarily with the Aboriginal Community. Past policies have impacted on this perception.

Conclusion
137 I am not convinced that Ms Jones would in future conform to access and cultural identity processes. Ms Jones’s attitude to the Aboriginal community is negative and would disadvantage Cathleen’s development of a positive acceptance of her own identity and culture as an indigenous person. The relationship with her siblings reared up in a different environment cannot ensure that the criteria for aboriginality or the principles set out in the "Act" would be achieved.

Decision
138 I endorse the recommendations of Ms Smith (GAL) Ms Wilson (LINK UP) and Departmental Officers that Cathleen should be placed with her siblings in the Aboriginal community.

139 That the Department of Community Services should ensure that adequate appropriate communication and action be taken to ensure a short term placement of indigenous children with non aboriginal carers not drift into long term care for any reason.

140 I uphold the Department of Community Service’s decision for Cathleen to be placed with her siblings Tim and Kellie in the Aboriginal Community.

Orders
141 The decision of the Minister to terminate the applicant’s custody of Cathleen is set aside.

Appeal heard & determined - appeal dismissed - see Minister, Community Services v Mrs A (CSD) [2002] NSWADTAP 32