SRN v Department of Children Youth Justice and Multicultural Affairs - [2022] QCAT 71

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

SRN v Department of Children Youth Justice and Multicultural Affairs [2022] QCAT 71

PARTIES:

SRN

(applicant)

v

DEPARTMENT OF CHILDREN YOUTH JUSTICE AND MULTICULTURAL AFFAIRS

(respondent)

APPLICATION NO/S:

CML232-20

MATTER TYPE:

Childrens matters

DELIVERED ON:

8 March 2022

HEARING DATE:

15 and 16 February 2022

HEARD AT:

Brisbane

DECISION OF:

Member Fitzpatrick
Member Matthews
Member Murray

ORDERS:

The decision of the Department of Children, Youth Justice and Multicultural Affairs made on 28 May 2020 is confirmed.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – CHILDREN IN NEED OF PROTECTION – PROCEEDINGS RELATING TO CARE AND PROTECTION – GENERALLY - review of Department’s decision to continue child’s placement with foster carer – Aboriginal and Torres Strait Islander child – where application made by paternal aunt permanently residing in Victoria – best interests of the child – views of the parents – child placement principles

Child Protection Act 1999 (Qld), s 5A, s 5B, s 5BA, s 5C, s 6, s 6AA, s 6ab, s 82(1), s 83, s 86(2), s 99C, s99D

Queensland Civil Administrative Tribunal Act 2009 (Qld), s 19, s 20(1), s 20(2), s 24(1)(a), s 24(1)(b), s 24(1)(c)

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Separate Representative:

T Ferguson, Court Services Advisor, Department of Children, Youth Justice and Multicultural Affairs

K Kyreakou, Solicitor, Swanwick Murray Roche, Lawyers

REASONS FOR DECISION

Background

This matter involves a review of a decision of the Department of Children, Youth Justice and Multicultural Affairs (the Department) made on 28 May 2020 (the Decision). The Decision followed an application by the applicant SRN for placement of the child L-S in her care. SRN is the paternal aunt of L-S and has been approved as a kinship carer for L-S.
The Decision is that it is in L-S’s best interests to remain living in her current placement in regional Queensland with a foster carer WGC. SRN seeks a review of the Decision. By Order made on 18 September 2020 the President of the Tribunal granted permission under s99P of the Child Protection Act 1999 (Qld) (CP Act) for SRN to file a review application on behalf of L-S.
L-S is an 8 year old girl, subject to a Long Term Child Protection Order until she reaches 18 years of age. The Order was made on 12 February 2020. L-S entered the Department’s care in May 2016. The child protection concerns related to her parents’ substance use, mental health and parenting, impacting their care for L-S.
L-S has lived with her current carer WGC from April 2017 at the age of 3 years 5 months until she was reunified with her mother in August 2017. L-S was again placed with WGC in December 2018 at the age of 5 years and 1 month and has remained in her care since then. By arrangement between L-S’s mother and WGC, L-S would generally reside with WGC for 3 nights per week for the entire time she was not subject to formal Departmental intervention. This history is addressed in more detail when we discuss the evidence of the child safety officer Ms Tusa.
L-S’s cultural identity is Aboriginal and Torres Strait Islander on the maternal side. She has four maternal half sisters and one maternal half brother living in Queensland. L-S’s maternal grandmother also lives in Queensland. L-S’s mother and father live in the same regional city as L-S.
L-S is represented in these proceedings by a separate legal representative appointed following a Direction of the Tribunal made on 5 November 2020. Ms Kyreakou of Swanwick Murray Roche Lawyers appeared on behalf of L-S at the hearing and arranged for a report to be prepared by Ms Margie Newton, Clinical Social Worker.
SRN resides in rural Victoria. SRN has a number of family members living in Victoria, including her two children, her half sister RAJ and RAJ’s three young children, her mother and her aunt. There is however a split in the family as L-S’s father is estranged from his family. He has had no contact with SRN for a period of 10 years.
SRN does not identify as Aboriginal or Torres Strait Islander, however her two children with her ex-partner do identify as Aboriginal or Torres Strait Islander.

Order sought by the applicant

SRN seeks as an outcome of the review that L-S be placed in her full kinship care, living with her permanently in her home in rural Victoria. SRN effectively seeks a new placement decision to be made by the Tribunal.
At the hearing SRN acknowledged that transitional arrangements would be necessary to achieve her desired outcome. However, the proposed transitional arrangements were not particularised sufficiently to form part of any proposed new decision.
At the Tribunal’s request the Department informed the Tribunal that it is possible for a child the subject of a Long Term Protection Order to be transferred to another State. A number of steps are involved including placement in the receiving State with the support of local case workers over a 3 month period and subsequently transfer of Orders which involves a hearing in Queensland and a hearing in the receiving State, in this case Victoria. It would be necessary for SRN to obtain approval as a kinship carer and to be issued a blue card equivalent from the relevant Victorian authority. We accept that a transfer of L-S to regional Victoria may be possible, however as the resources of another State are sought to be accessed and the exercise of a judicial discretion in another State is involved, one cannot say with certainty that a transfer will be effected or the time frame involved in the transfer.

Jurisdiction of the Tribunal

The Decision is a reviewable decision under Schedule 2 of the CP Act. In exercising its review jurisdiction, the Tribunal must decide the review in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) and the CP Act. By sections 19 and 20 of the QCAT Act, the Tribunal has all of the functions of the decision-maker for the reviewable decision. The Tribunal must hear and decide a review by way of a fresh hearing on the merits and the purpose of the review is to make the correct and preferable decision. By s 24 of the QCAT Act the Tribunal may confirm or amend the decision under review; set aside the decision and substitute its own decision; or set aside the decision and return the matter for reconsideration to the decision-maker with any necessary directions.
Proceedings in the Tribunal under the CP Act are subject to the provisions of Chapter 2A of the CP Act. By s 99C of the CP Act the Tribunal is to make decisions in a review that promote the best interests of the child about whom the reviewable decision was made.
By s 99 D of the CP Act the Tribunal must have regard to the principles mentioned in s 5A, B, BA and C of the CP Act to the extent the principles are relevant.
Importantly s5A provides that the main principle for administering the CP Act is that the safety, wellbeing and best interests of a child both through childhood and for the rest of the child’s life are paramount. With the main principle firmly in mind this Tribunal must then consider the general principles. By s 5 of the CP Act all other principles are subject to the principle stated in s 5A.

Statement of Reasons filed 21 October 2020

In the statement of reasons filed in the Tribunal, the decision maker set out a summary of reasons for the Decision to continue L-S’s placement with WGC:
(a)L-S’s biological parents clearly articulated over time that they wish for L-S to remain living with WGC rather than any other person;
(b)L-S clearly articulated that she wishes to live with WGC rather than any other person;
(c)removing L-S from WGC’s care and placing her with SRN would likely result in L-S having decreased face to face contact with her parents and other extended family members due to SRN’s place of residence being in Victoria;
(d)L-S whilst remaining living with WGC is able to continue to develop a sense of connection and attachment to her extended family members through regular family contact;
(e)removing L-S from WGC’s care and placing her with any other person could have a detrimental impact upon her emotional stability, attachment, functioning at school, and feelings of safety and security;
(f)ongoing assessments of L-S’s current placement indicates that this placement is able to meet her physical, emotional, social, educational, and cultural needs.
For the reasons given in this decision and on the basis of the evidence before the Tribunal we agree that these factors are a proper basis to confirm the decision of the Department.

Evidence of Applicant

SRN filed two statements of evidence, being exhibits 1and 2 in the proceeding.
SRN’s evidence is that she has been attempting since 2016 to maintain a relationship with L-S and to be considered as her carer. SRN says that she has persevered over many years to achieve an outcome where L-S can be placed with her, and form meaningful relationships with her and L-S’s paternal biological family. SRN firmly believes that is in L-S’s best interests.
SRN has travelled regularly to Queensland to meet with L-S and maintains a weekly telephone call with L-S.
SRN described herself in evidence as sympathetic to indigenous culture. She wants to encourage L-S to know and value her cultural heritage and will connect with groups which can assist her.
SRN undertakes to facilitate ongoing contact with WGC, L-S’s half sisters and her parents, including by an annual trip to Queensland, and says that L-S’s parents are welcome to come to Victoria to spend time with L-S at her home.
Of concern is the documented fracture of the relationship between SRN and the biological father SJ. Given the health and social and financial hardships faced by both parents, it is difficult to see how those contacts and visits would be arranged given the geographic distance involved and limited opportunities for contact on return visits. We also consider that SRN was somewhat dismissive about the importance of the relationship and contact between L-S and her parents.
SRN’s evidence is that she recognises L-S may need learning support and is equipped to provide that support. We observe however that there was a troubling aspect to the issues put by SRN to witnesses, which suggested that she doubted L-S suffered from anxiety or attachment issues, which runs counter to the material before the Tribunal and to which SRN has had access.
SRN focuses on her willingness to facilitate connection by L-S with her indigenous culture. She points to her own children who identify as indigenous through her ex-partner and says that she has sought out local Indigenous organisations to assist should the child reside with her in regional Victoria. There is no evidence before us in relation to those organisations including their resources and objects. We also note that the country for L-S is in Queensland, not Victoria, and that her indigenous kin are all based in Queensland on her mother’s side.
We have had regard to the supportive statements of evidence from the applicant’s sister RAJ dated 19 Sept 2021 Ex 7 and her further statement, undated Ex 8. To the extent that RAJ raises issues critical of WGC in her undated statement we have attributed no weight to the criticisms on the basis that they are not central to the questions before the Tribunal. The issues are rejected by WGC in her responsive statement.
We also note the supportive statement of the applicant’s aunt SLT, dated 17 September 2021 Ex 3 and the statement of the applicant’s friend DSB dated 17 September 2021 Ex 6.
We accept that SRN is sincere in her desire to provide stable care for L-S and subject to the reservations we have expressed consider that SRN can provide a loving and stable home for L-S. That finding must be considered alongside the other evidence before the Tribunal in determining what is in the best interests of L-S.

Evidence of the Department

Statement of Deborah Tusa (CSO Tusa) dated 24 December 2020 Ex 4

CSO Tusa was the CSO for L-S from April 2020 until 24 December 2020. In her Affidavit material she set out that L-S has an Educational Support Plan that targets support for reading and encouraging her participation in the classroom. L-S is currently in grade 3. In 2020 the school reported that L-S had a large friendship group.
L-S’s placement history is set out in the Affidavit, in particular that WGC, L-S’s current carer, has cared for L-S since August 2017. There was a period of reunification with her mother for eleven months during this time and WGC supported L-S’s mother to care for her when there was no departmental intervention. This included providing food, transport and having L-S stay overnight with WGC when the mother needed support. L-S was returned to WGC in December 2018 when the reunification broke down. The decision to return L-S to WGC was based on their close relationship before and during reunification. Importantly, it was noted that the mother requested L-S live with WGC.
CSO Tusa’s evidence is that WGC has helped L-S to maintain a connection with her family and community and to the extent that it is possible with her culture.
CSO Tusa referred to the Cultural Support Plan for L-S, which is mentioned in the attached case plans of 29 July 2020 and the current case plan attached to the Affidavit of CSO Farrington-Laws at Ex 5. The plan seeks to link L-S with her biological indigenous family in north and regional Queensland, and to increase her knowledge and understanding of her place in kinship and the community structure, and to attend community activities. CSO Tusa told the Tribunal she believed that WGC was trying as best she could to ensure these links to L-S’s cultural identity. The evidence is that WGC told CSO Tusa she had sought information from the mother to build L-S’s cultural identify but had found at times it was a trigger to a trauma for the mother. She therefore let the mother discuss this at her own pace. The school was providing cultural activities and WGC was supporting and encouraging S-L’s participation.
CSO Tusa understood that contact between L-S and her mother has been infrequent over the years due to the mother’s lack of attendance which has caused, at times, sadness and disappointment for L-S. During the period of time CSO Tusa held case work responsibility for L-S, the mother’s contact was scheduled on the second Friday each month with the mother attending the majority of her contact visits. Observations of the visits were that there was a positive interaction between mother and child, the mother brought gifts to visits and took photos of L-S and always spoke with L-S and interacted with her in appropriate ways.
CSO Tusa stated that during 2020 the father’s contact was scheduled on the last Friday each month and he attended the majority of these visits. Contact was observed to be impacted by the father’s mental health and instability in his life and living arrangements, however their contact was positive. She said he tried to show affection to L-S.
CSO Tusa told the Tribunal that her observations were that the parents were committed to L-S. They both remained living in the regional city so they could be near L-S. She said that both parents consistently reported to her that they wanted L-S to remain living with WGC. CSO Tusa describes the father as estranged from his sister SRN for about 15 years. She says that he has a poor relationship with the extended family in Victoria. The father told CSO Tusa he did not want his daughter to live in Victoria with his sister and feels that his contact would be ceased or reduced significantly by the family. He does not want L-S to live in Victoria because of the distance from Queensland. She notes that he thinks the family would talk to L-S about him in a negative way.
As to the views of the mother, CSO Tusa reports that the mother said the move to Victoria would interrupt L-S’s “living style” as she had been with WGC a long time and that WGC gave stability to her daughter.
CSO Tusa said that L-S told her she wished to remain living with WGC. L-S completed an age-appropriate exercise, the Three Houses Tool where she drew her House of Dreams which is where she lives with WGC.
CSO Tusa gave evidence of scheduled video calls with SRN in Victoria, although these did not always occur if WGC was not able to facilitate the calls due to other family responsibilities, or if L-S did not feel like taking the call. She stated that L-S enjoyed the calls and contact with her auntie and extended family. The calls included playing games together, reading books, doing puzzles and baking. L-S expressed no negative behaviours about this contact.

Statement of Patrica Farrington-Laws (CSO Farrington-Laws) dated 20 January 2022 Ex 5

CSO Farrington-Laws is the current CSO for L-S and has held case work responsibility for her since October 2021. In her statement of evidence, she stated that the case plan for L-S outlines a number of goals to achieve stability, permanency and connection to family and community. She says that connection to family and community has been difficult to achieve as her family is spread from Victoria to North Queensland and other regional cities in central Queensland.
CSO Farrington-Laws was informed by L-S’s school that L-S requires support in literacy, numeracy and reading support with a diverse learner teacher. L-S has formed a close bond with this teacher and is making progress. It was reported by the school that L-S also struggled with separation from WGC in the mornings at the start of each term. She would not let WGC go and was visibly very distressed. With assistance from the Guidance Officer this eased but was expected to reoccur at the start of term 4.
Apparently, L-S has many more supports in place in the classroom than her peers. Her class teacher reported that L-S struggles with change and significantly reacts when things are not predictable, such as a change of teacher in the room or an activity cancelled at the last minute. L-S can throw herself on the floor, crawl under her desk, cry out or ignore her teacher. The classroom teacher reported that currently L-S has no significant friendships. We note that observation appears to be at odds with the report referred to by CSO Tusa. CSO Farrington-Laws records that L-S’s teacher was concerned that if L-S were to move school it would have a massive impact on her emotionally as routine, attachment, care and trust are paramount in L-S’s world. The teacher’s view as reported by CSO Farrington-Laws is that she strongly believes a move would result in L-S regressing in her learning and that she would slip further behind in her education.
CSO Farrington-Laws considers L-S’s school provides her with culturally appropriate support and education and WGC supports L-S in participating.
CSO Farrington-Laws stated that the contact between the father, SJ and L-S was suspended in April 2021 after a visit where he seemed to be experiencing a psychotic episode. This was frightening to L-S. Until then he had three visits with L-S over the previous 12 months. SJ was also incarcerated during this period. It is said that SJ has made enquiries with the Department to reconsider his contact and would like it reinstated. He has been invited to begin by writing letters to L-S. SJ drops gifts for L-S to the department from time to time.
CSO Farrington-Laws says she understands SJ has now obtained permanent housing and is currently under the care of medical professionals. He advises that he wishes to remain living in the regional city so that he can be close to his daughter. CSO Farrington-Laws states that SJ was clear with her that he wants L-S to remain living with WGC and that he does not want L-S to move to Victoria.

As to the mother CSO Farrington-Laws says that she has experienced homelessness and unstable accommodation. The mother told CSO Farrington-Laws that she declined to move out of the regional city to obtain housing more quickly, because she wanted to remain living close to L-S.
CSO Farrington-Laws has observed a warm relationship and a strong attachment between WGC and L-S. She said this has also been observed by the Manager of the foster care agency supporting L-S’s placement with WGC. They both considered that L-S is thriving, confident and comfortable living with WGC. They both consider that WGC is an experienced carer and has managed a vast range of therapeutic interventions over the years (not all relating to L-S). CSO Farrington-Laws considered WGC supports all aspects of L-S’s life; educational, emotional, behavioural, and social with connections to family and community. CSO Farrington-Laws’ evidence is that L-S told her that she loves WGC, and her home life with her, including the pets, the pool and activities.
The Manager of the foster care agency reported to CSO Farrington-Laws that L-S is a bubbly and positive young girl who is thriving in her placement, happy and settled with her life with the carer.
CSO Farrington-Laws said that L-S has continued to express her desire to remain living with WGC. She has also recently expressed a wish to live with her auntie in Victoria because there is snow there and her cousins live there. L-S has not been to Victoria. CSO Farrington-Laws is unsure of the significance of the expressed wish to live with SRN. She notes that L-S very much enjoyed a holiday with her Victorian family in the regional city on two occasions and enjoys her contact via video with her aunt and cousins.
CSO Farrington-Laws’ view is that despite sporadic and sometimes chaotic contact with her parents, L-S wants to have more contact with them and is comforted by them living close by. She feels the parents are committed to L-S and strongly express that L-S remain living with WGC. CSO Farrington-Laws considers a move interstate to live with SRN would cause disruption to her attachment, emotional wellbeing and connection to her parents. CSO Farrington-Laws expressed the opinion that in the future it may be appropriate for L-S to live with SRN and it is possible that she will become curious about her biological family and seek to spend more time with them.

Statement of WGC dated 20 January 2022 Ex 9 and 16 February 2022 Ex 10

WGC’s evidence confirms the period and extent of care given by her to L-S. We note in particular WGC’s support of L-S’s family relationships, including with SRN and her concern to foster L-S’s indigenous culture. We also note the recognition of L-S’s anxiety and the strategies developed to help L-S.
WGC has answered the criticisms or implied criticisms of her set out in RAJ’s second affidavit. We attribute no weight to those criticisms.
In all we consider WGC’s care of L-S to have been overwhelmingly positive.

Wishes of the father

SJ the biological father of L-S is a party to the proceeding. He did not participate in the proceeding other than giving short oral evidence to place on the record his views in relation to the placement of L-S. SJ was adamant that his daughter should remain in Queensland in the care of WGC.
SJ is the biological brother of SRN. SJ is not supportive of SRN’s application to have his child reside in Victoria. He had an impression that SRN is trying to adopt L-S.
It is noted that SJ suffers from ongoing mental health issues, drug and substance abuse and transience, which have troubled him for most of his adult life.
SJ currently resides in Queensland. He does so to be close to his daughter. We address later the evidence of Ms Margie Newton in relation to the significance of the attachment between L-S and her mother and father.
The relationship between SJ and SRN is plainly unhappy. The evidence is that the last contact between them occurred 10 years ago. We noted an angry exchange between SJ and SRN at the hearing.

Evidence filed by Separate Representative

Affidavit of Margie Newton, Clinical Social Worker dated 7 May 2021 Ex 11

The separate representative for L-S obtained a Social Assessment Report in respect of the placement for L-S, in order to assist the Tribunal. The report was prepared by Margie Newton. Ms Newton is a qualified social worker, with thirty-four years postgraduate experience. She holds a Bachelor of Social Work (Hons) and a Master of Arts (social work).
Ms Newton was fully briefed and interviewed all persons with an interest in the matter including WGC, the mother and father, SRN and L-S.
Ms Newton concluded the placement that best meets the needs of L-S is with WGS. That conclusion is based on:
(a)the history of harm that has been experienced by L-S as a young child and her unique needs related to emotional stability and consistency.
(b)The long history of deliberate and diligent care for L-S provided by WGC which has spanned 5 years and has occurred during critical times of development and need for L-S.
(c)WGC has demonstrated an attunement to L-S needs and has the capacity and willingness to respond appropriately and sensitively.
(d)WGC has established and maintained an appropriate relationship with L-S’s biological parents, which facilitates appropriate contact between the child and her parents.
(e)WGC is prepared to facilitate and promote contact between L-S and SRN in a manner that best suits L-S’s needs and as assessed by the Department.
(f)WGC is open to developing further links for L-S with her Aboriginal culture through local opportunities in the area where she lives.
Ms Newton expressed the opinion that L-S is at a stage of her development where she is consolidating skills and building new skills in all areas of her development – cognitive, social, emotional and physical. In order to achieve ongoing growth, L-S requires a consistent and stable emotional connection with her primary care givers. This connection and attachment is critical for her to be able to integrate any other learning experiences and embed new skills and competencies. Ms Newton considers that without consistent and reliable care giving, there is a significant risk that her ability to keep building her skills and competencies will be significantly compromised. This can result in not only delayed or lost cognitive capacities but also impaired emotional regulation skills, social competencies and ability to navigate challenges in life.
Importantly Ms Newton identified that L-S needs to have access to a relationship with her biological parents, as they provide the basis of where L-S has come from and her heritage. Questions that will be important for L-S in the future include: who are my family? Why aren’t I living with my biological parents? What are my mum and dad like? What’s my cultural heritage and roots?
Ms Newton reports that WGC has facilitated visits with L-S’s biological parents and speaks warmly of them. Ms Newton recounted WGC saying: “It’s really important to value a child’s biological parents and to honour them. L-S loves seeing her Mum, she gets very excited and really seems to enjoy this contact.”
WGC confirmed that L-S had Zoom contact with her sisters every two or three months, however as they were not in stable placements there were some challenges regarding this contact.
WGC also confirmed that L-S enjoys her contact with SRN and that she wants SRN to have a good relationship with SRN and her children to enable visits and to get to know the extended family.
As to cultural contact WGC enables celebration of NAIDOC week. Last year she carried L-S on her shoulders in the march. Ms Newton was aware L-S has a cultural support plan and there is an intention to involve L-S in a cultural dance group, once it recommences after Covid times. It is noted that regular contact with her biological mother and siblings offers L-S an opportunity to learn about her culture and connect with people from her family group.
Ms Newton reports that WGC has said that she is committed to providing care for L-S into the long term future. She has decided to only care for L-S and another older child under a long term guardianship order.
Ms Newton observed evidence of genuine attunement and warmth between L-S and WGC.
Ms Newton explored the relationship between L-S and SRN, noting SRN’s expression of interest in caring for L-S from 2016, her visits and regular phone calls. Ms Newton also recorded SRN’s questioning as to whether L-S suffers anxiety or has diagnosed learning difficulties. She also noted SRN’s longstanding rift with L-S’ father and the challenges of maintaining contact with L-S’ biological parents.
During the assessment Ms Newton noted a positive relationship between SRN and L-S. Ms Newton concluded that SRN and L-S have only met over the last two years and as a result there is not a deep and trusted attachment between L-S and SRN. However, she was confident that SRN loves L-S dearly and that she is committed to what she understands to be L-S’s best interests.
Ms Newton recorded the unequivocal wishes of both L-S’s biological parents for L-S to stay in the regional city and to be cared for by WGC. They were both concerned that contact would be lost if L-S went to live in Victoria. The father said he would never phone or visit SRN.
In response to specific concerns raised by SRN, Ms Newton says:
(a)as to whether L-S would be better placed with kin rather than approved carers, the important issue is the attachment L-S has to an adult. This is evidenced by a synchronicity between the adult and the child, a willingness and safety to test boundaries knowing that there is emotional safety and predictability even in the face of challenge, and a willingness from the child to receive comfort and reassurance from the adult caregiver.
(b)SRN minimises the importance and critical nature of contact between a child and her biological parents, even in the situation of a long-term guardianship order being made. If placed in Victoria contact with L-S’s parents would not occur in the same manner or with regularity. The contact is critical for L-S’s ongoing development, sense of self and her identity as a member of her family group. The possibility of face to face contact with her family in the north of the State is more likely from the regional city than from Victoria.
(c)As to whether L-S has knowledge and understanding of her Aboriginal culture, it is acknowledged that further investment in this area is encouraged, however it is necessary to pace this connection according to L-S’s specific and unique needs. It is observed that SRN minimises the importance of face to face contact with her biological mother as a way of connecting her with her Aboriginality, which is of critical importance for L-S.
(d)SRN demonstrates a limited understanding of the impact of trauma for a child who has experienced interrupted attachment in early life, which is likely to cause a child to experience significant fear in the face of change or perceived abandonment. The easy settling by L-S with SRN during a recent visit is not unusual as a child alert for rejection and abandonment is likely to demonstrate model behaviour. That should not be confused with indicators of the child feeling settled, totally comfortable or attached to that adult figure.
Ms Newton was very strong under cross-examination. She affirmed her view that every contact L-S has with her mother is critically important and that is aided by being geographically close. She also thought that the extremely close relationship between carer and child trumps the claims of kin. Ms Newton concluded that any disruption to L-S’s placement would be detrimental to her.
In all, we are satisfied as to Ms Newton’s expertise and rely upon her evidence in determining what placement is in the best interests of L-S.

Department’s submissions

The Department submits and we accept that giving full weight to the rights vested by s5C of the CP Act favours the parents’ wish to maintain a connection with their child.
We accept and find as put by the Department that consistent with the evidence of Ms Newton, placement of L-S with SRN is likely to result in reduced contact with L-S’s mother which will be detrimental to her development and her connection with her Aboriginality.
We accept and find that it is possible for L-S to know and maintain a connection with her extended family in Victoria through regular family contact both in Queensland and in Victoria.
We accept and find that as put by the Department, SRN’s proposal that L-S be placed with her is both speculative and experimental, in terms of the likelihood of success, the extent of harm it may cause and the claimed compensating cultural benefits it may have, and the advantages it may have in terms of L-S’s sense of identity and belonging.
Finally, as put by the Department, we accept the evidence of CSO Farrington-Laws and Ms Newton that placement with WGC meets L-S’s physical, emotional, social, educational and cultural needs.

Separate Representative’s submissions

Ms Kyreakou, the separate representative for L-S accepts the Department’s submissions in their totality. She makes the point that the biological parents have made their wishes clear. Weight should be given to their wishes. Ms Kyreakou says that the parents consented to a long-term guardianship order on the basis of placement of L-S with WGC. We agree that is a significant point.
Importantly Ms Kyreakou says that it is not a matter of assessing who is the better person to care for L-S and that there would be no criticism of SRN’s ability to care for L-S if she lived in the area.
As to the wishes of L-S, Ms Kyreakou says that L-S has expressed the wish to remain with WGC and to see her parents. A statement that L-S would like to live with SRN should be given discounted weight because of her age, the short period of time they have spent together and the context of holiday fun. We agree with that submission.
Ms Kyreakou highlights SRN’s apparent lack of acceptance of the importance of WGC and her parents in L-S’s life. She says that there is limited evidence of how much time SRN will be able to spend in the regional city in the future, given the cost of flights, available income and how holidays will be funded. We are of the view that in any event a transfer to Victoria will erode L-S’s connection with WGC and her parents.
As to connection with extended family, there is no evidence that WGC is not capable of ensuring a close relationship with L-S’s paternal family. We agree with Ms Kyreakou, and note WGC’s measured and rational response to allegations made against her by RAJ.
Ms Kyreakou says that the evidence of Ms Newton as to the negative effect of separation from WGC and her family should be accepted. We accept Ms Newton’s evidence in this regard.

Applicant’s submissions

SRN submits that she does not deny L-S has had a good start to life with her current carer, but the current carer WGC is not able, nor fully aware of the cultural issues which allows for L-S’s connection to her culture. We do not think the evidence supports that assertion, particularly as L-S’s primary connection to culture is through her mother. WGC has gone to great lengths to maintain L-S’s contact with her mother and does her best in relation to contact with her sisters.
SRN submits that she has and continues to work with the carer and the department to maintain her relationship with L-S. We accept that is the case.
It is SRN’s belief that L-S would be best placed with her as she can provide a good education and connection to family. SRN is an approved kinship carer. On that basis we accept she is able to provide appropriate care for L-S. However, that is not the only issue, nor in L-S’s case is it the most important issue. In this regard we rely on the evidence of Ms Newton as to the detrimental effect of making a change to L-S’s current placement.
SRN places a construction on the CP Act that placement with kin and connection with Aboriginal and Torres Strait Islander culture must take priority over L-S’s current placement with WGC. SRN says that L-S’s right to be raised by her biological family is protected by legislation. Obviously, those principles are important. However, SRN overlooks the importance of L-S’s connection to her mother and father and to her own cultural group which is in Queensland. SRN also overlooks the high importance placed by the legislation on the wishes of the parents. To place L-S with SRN would involve ignoring the parents’ express wishes and because of the geographical distance and estrangement in the family, putting L-S’s relationship with her mother and father at serious risk.
SRN submits that L-S is of an age where she understands what is happening to her and her views and wishes should be considered. As an eight year old with no experience of travel and distance we do not think any statement that L-S would like to live with SRN can be given any weight beyond an expression of affection. We accept Ms Newton’s evidence given in cross-examination that at this age L-S’ views can be given limited weight. However we do accept L-S’ views that she wants to live with WGC and to be near her parents.
SRN submits that failings of the department have occurred in not considering other family members when placement of L-S occurred, and that when the decision was originally considered, there was no consultation with the family leading to a lack of input from her family. We do not think those are reasons to change L-S’s placement now.
SRN further submits that biological family are critical to the development of L-S as children with severed family ties grow up thinking that they are not wanted, which leads to detrimental long-term effects. We agree that biological family is important to the development of a child. We see no reason why SRN’s continued support of L-S, and demonstrated love for her, cannot continue to provide the security which SRN identifies as important to L-S.

The correct and preferable decision

We consider that the safety, wellbeing and best interests of L-S are best achieved at this time in L-S’s life by her remaining placed with WGC.
We accept the Department’s submission that WGC meets the definition of kin in the CP Act, being a person of significance to L-S. We adopt the Department’s reasoning that because L-S does not have a parent able and willing to give her ongoing protection in the foreseeable future and she is subject to a long term guardianship order; then consistent with the general principles in s 5B(h) and (j) of the CP Act L-S has been placed with WGC as kin, defined as a person who has the capacity and is willing to care for her.
The principles for achieving permanency under s 5BA of the CP Act for a child under the guardianship of the chief executive have been met. The options under section 5BA(4)(a) – (c) were not the preferable options when the Children’s Court made the order for L-S to be cared for under the guardianship of the chief executive.
Implicit in the decision to have L-S cared for under the guardianship of the chief executive is that at the time of that decision consideration was given to achieving permanency for L-S, which ensures pursuant to s 5BA(2) of the CP Act that L-S:
(a)has ongoing positive, trusting and nurturing relationships with persons of significance to her, including L-S’s parents, siblings, extended family members and carers;
(b)has stable living arrangements with connections to L-S’s community, that meet L-S’s developmental, educational, emotional, health, intellectual and physical needs; and
(c)has legal arrangements for L-S’s care that provide her with a sense of permanence and long-term stability, including, for example, by a long term guardianship order.
On a current analysis, by reference to the evidence before the Tribunal, especially the evidence of Ms Newton and WGC, we find that L-S has permanency in terms of these matters in her current living arrangements with WGC.

Section 5C of the CP Act provides additional child placement principles for administering the CP Act in relation to Aboriginal or Torres Strait Islander children. S6AA requires the chief executive to have regard to these principles when making a significant decision about an Aboriginal or Torres Strait Islander child. Section 83 provides additional principles for the placing of Aboriginal and Torres Strait Islander children in care. Specifically, it provides for the child’s family to participate in the process for making a decision about where or with whom the child will live.
At the time of placement of L-S with WGC, the department considered it was in her best interests to place her near her mother and father so she could have on-going contact and continuity of connection to kin, country and culture, thus meeting the requirements of s83(5)(d). This was also the expressed wish of her parents.
At the outset we consider that L-S’s connection to her own cultural group is through maintaining a connection with her mother and her family on the maternal side. That can best be achieved by remaining in the care of WGC in the regional city where her mother lives. WGC is willing and able to facilitate that connection. We think that the connection would be largely lost if L-S moved to Victoria. Respectfully, we do not think another aboriginal community is the best substitute for L-S’s own community whilst she can be supported to access that community.
We think that by L-S remaining with WGC the child placement principles set out in

s 5C(2) and s 6AA of the CP Act are met. The prevention principle is met by L-S being brought up with the best contact possible between her and her immediate family and community. The partnership and participation principle is met by L-S’s mother, as an Aboriginal and Torres Strait Islander person clearly expressing her preference for where L-S lives, namely with WGC in the regional city, not in Victoria. The connection principle is met by the support of WGC to develop and maintain a connection with L-S’s family, community, culture, traditions, and language.
As to the placement principle we consider that placement in Victoria is not practicable for all the reasons addressed earlier, particularly the break in contact with L-S’s mother and father. Even though placement with SRN would achieve placement with members of L-S’s extended family, we think that other considerations must outweigh that principle when considering the best interests of L-S. We also note that by s83(5) of the CP Act if it is not practicable to place the child with a member of the child’s family group, the chief executive must consider a range of appropriate placements giving proper consideration to the views of the child and the child’s family; and ensuring the decision provides for the optimal retention of the child’s relationships with parents, siblings and other people of significance to the child under Aboriginal tradition or Island custom. Having regard to these matters it is clear that WGC is appropriate for placement because in accordance with s83(5) of the CP Act she lives near L-S’s family, community or language group and has a demonstrated capacity for ensuring L-S’s continuity of connection to kin, country and culture.
In any event we are satisfied that as required by s 83(7), WGC as a person who is not an Aboriginal person or Torres Strait Islander, is committed to facilitating contact with L-S’s parents and other family members, helping L-S to maintain contact with her community or language group; helping L-S to maintain connection with her Aboriginal or Torres Strait Islander culture and preserving and enhancing L-S’s sense of Aboriginal or Torres Strait Islander identity.

Concluding remarks

The tribunal has no doubt that SRN can provide care, support and love to L-S. The tribunal hopes that SRN’s motivation to continue to do so is not undermined by this decision. We recognise the importance of SRN’s commitment to L-S and acknowledge her efforts on behalf of L-S.

Decision

The decision of the Department of Children, Youth Justice and Multicultural Affairs made on 28 May 2020 is confirmed.