UI & UJ v Minister for Community Services [2006] NSWADT 16 (18 January 2006)

Last Updated: 24 January 2006

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL COMMUNITY SERVICES DIVISION

CITATION: UI & UJ v Minister for Community Services [2006] NSWADT 16


PARTIES: APPLICANTS
UI & UJ
RESPONDENT
Minister for Community Services



FILE NUMBERS: 054029

HEARING DATES: 29/11/05-30/11/05

SUBMISSIONS CLOSED: 30/11/2005



DECISION DATE: 18/01/2006

BEFORE: Smyth M - Judicial MemberMonaghan-Nagle L - Non Judicial MemberGroth D - Non Judicial Member





LEGISLATION CITED: Aboriginal Land Rights Act 1983
Administrative Decisions Tribunal Act 1997
Children and Young Persons (Care and Protection) Act 1998
Uniform Civil Procedure Rules 2005

CASES CITED: McDonald v Guardianship Administration Board [1993] 1 VR 521 at 530
YG & GG v Minister for Community Services [2002] NSWCA 247

APPLICATION: Removal of children from authorised carer

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANTS
V Raison, Foster Carers Assocation

RESPONDENT REPRESENTATIVE: RESPONDENT
G Moore, barrister
CHILDREN'S REPRESENTATIVE
R Wilkinson, solicitor

ORDERS: 1. The decision to remove the children is affirmed.


Reasons for Decision:

REASONS FOR DECISION

Introduction

1 By letter dated 19 May 2005, Ms Doyle, a caseworker from the Department of Community Services, informed the Applicants of the decision to remove three children aged 6, 4 and 2 from the Applicants’ care. The children are Aboriginal and have resided with the Applicants since being placed in their care by the Department of Community Services on 6 September 2004. The Applicants are not Aboriginal. The Minister for Community Services has parental responsibility for these children until they reach the age of 18 years.

2 By application dated 7 July 2005, the Applicants sought a review of the decision to remove the children from their care and lodged an application for a stay of that decision.

3 The Applicants submitted that the decision to remove the children from their care and place them with another family is not in the children’s best interests and that the decision should be set aside.

4 The Minister submitted that the reason for the decision to move the children was to comply with section 13 of the Children and Young Persons (Care and Protection) Act 1998 [Care and Protection Act] and provide the children with a culturally appropriate placement. Section 13 is reproduced later in this decision and sets out the principles for the placement of Aboriginal children in out-of-home care. The Minister submitted that the decision to remove the children is the correct and preferable decision and is in the children’s best interests.

Internal Review

5 Section 55(1)(b) of the Administrative Decisions Tribunal Act 1997 [Tribunal Act] provides that a person may only apply to the Tribunal for a review of a reviewable decision where, among other things, an internal review has been finalised. Under s 55(2) a person is not prevented from making an application to the Tribunal about a reviewable decision where an internal review has not been conducted if the Tribunal is satisfied it is necessary to deal with the application in order to protect the person’s interests and the application was made within a reasonable time following the decision of the administrator.

6 At the time the Applicants were notified of the decision to remove the children from their care they were not informed that they could make an application for an internal review of that decision. They learnt of their right to an internal review in the course of a hearing before this Tribunal on 15 July 2005. By letter of 18 July 2005, the Applicants requested an internal review of the decision to remove the children from their care.

7 On 29 July 2005, the Department wrote to them and requested that they agree to delay the internal review until the Department received two reports, one from a psychologist and the other from an Aboriginal expert. That letter also noted that the Department had advised the Tribunal that it had no objection to proceeding without an internal review given that these reports were to be undertaken. The letter asked the Applicants for their written advice that they accepted an extension to the normal completion time for an internal review and agreed to it being completed after the completion of the two reports. On 10 August 2005 the Applicants agreed to an extension until 16 September 2005, but stated that they did not agree to the review being completed subsequent to the completion of the two reports referred to above as those reports did not inform the original decision to remove the children. By the time of the hearing no internal review had been undertaken.

8 In this instance the application was made promptly after the Applicants found out that they had the right to request an internal review and the Department requested an extension of time to conduct one. The Department had no objection to proceeding without an internal review. In our view, it is necessary to deal with the application in order to protect the Applicants’ interests and the necessary elements of s 55(2)(c) are satisfied. Therefore, the Tribunal can proceed to determine this application.

9 On 15 July 2005 the stay application came before the Tribunal. At that hearing the Minister for Community Services readily gave an undertaking that the children would remain with the Applicants until this matter was determined. The Department of Community Services has complied with that undertaking but implemented a transition scheme of contact visits to the new carers. On the basis of that undertaking, the Tribunal did not proceed to hear the stay application at the time and we now dismiss that stay application.

10 Because of the sensitivity of this matter, we have decided not to publish any details that could identify the Applicants, the children that are the subject of this application or the children’s birth family. In these reasons we refer to the Applicants as Mr UI and Ms UJ, the 6 year old as UL or the oldest child, the 4 year old as UO or the middle child and the 2 year old as UQ or the youngest child. Evidence was also given about the proposed new carers for the children and we refer to them as Mr A and Ms A.

Jurisdiction and Powers of the Tribunal

11 There is no issue as to the Tribunal’s jurisdiction to hear the matter.

12 In conducting this review, we ‘stand in the shoes’ of the administrator, and make the "correct and preferable" decision having regard to all relevant material [Tribunal Act s 63], including any material that postdates the decision under review to remove the children (See YG & GG v Minister for Community Services [2002] NSWCA 247 at [25]). We are obliged to conduct our review of the decision to remove the children "without any presumption as to the correctness of the decision": McDonald v Guardianship Administration Board [1993] 1 VR 521 at 530 (SupCtVic, Appeal Div).

13 On review we may decide under s 63(3):

(a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

14 In making our decision, we are instructed to give paramount consideration to the safety, welfare and well-being of the subject child [s 9(a) of the Care and Protection Act]. As this matter concerns Aboriginal children, we must also consider the Aboriginal Child Placement Principle. That principle is set out in s 13 of the Care and Protection Act.

15 Section 13(1) deals with the placement of Aboriginal children in out-of-home care and is subject to the objects and principles of the Care and Protection Act. The objects, principles and the Aboriginal child placement principle are set out below.

16 The objects of the Care and Protection Act (s 8):

(a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, taking into account the rights, powers and duties of their parents or other persons responsible for them, and
(b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and
(c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.

17 The principles to be applied in the administration of the Care and Protection Act are (s 9):

(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. In particular, the safety, welfare and well-being of a child or young person who has been removed from his or her parents are paramount over the rights of the parents.
(b) Wherever a child or young person is able to form his or her own views on a matter concerning his or her safety, welfare and well-being, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child or young person and the circumstances.
(c) In all actions and decisions made under this Act (whether by legal or administrative process) that significantly affect a child or young person, account must be taken of the culture, disability, language, religion and sexuality of the child or young person and, if relevant, those with parental responsibility for the child or young person.
(d) In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child’s or young person’s development.
(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, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the child or young person’s circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement.
(g) If a child or young person is placed in out-of-home care, the child or young person is entitled to a safe, nurturing, stable and secure environment. Unless it is contrary to his or her best interests, and taking into account the wishes of the child or young person, this will include the retention by the child or young person of relationships with people significant to the child or young person, including birth or adoptive parents, siblings, extended family, peers, family friends and community.

Aboriginal Child Placement Principle

18 Section 13(1) states:

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 organisations as are appropriate to the child or young person.

19 Section 13 (2) requires that when determining where an Aboriginal child is to be placed account is to be taken of whether the child or young person identifies as Aboriginal and the expressed wishes of that child.

20 Section 13 (3) provides for children whose parents come from different Aboriginal or Torres Strait Islander communities. Where that occurs the order of placement set out in s 13 (1) applies

...but the choice of a member or person ....... is to be made so that the best interests of the child or young person will be served having regard to the principles of this Act.

21 Section 13 (6) sets out the principles 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 and states:

........(a) Subject to the best interests of the child or young person, a fundamental objective is to be the reunion of the child or young person with his or her family or Aboriginal or Torres Strait Islander community.
(b) Continuing contact must be ensured between the child or young person and his or her Aboriginal or Torres Strait Islander family, community and culture.
These principles are subject to subsection (2).

22 The Care and Protection Act defines the meaning of Aboriginal as having the same meaning as Aboriginal person in the Aboriginal Land Rights Act 1983 [s 5]. The meaning of Aboriginal person in the Aboriginal Land Rights Act 1983 is set out in s 4. That section states:

Aboriginal person means a person who:

(a) is a member of the Aboriginal race of Australia, and
(b) identifies as an Aboriginal person, and
(c) is accepted by the Aboriginal community as an Aboriginal person.

Background

23 These three Aboriginal children were removed from their mother due to difficulties in parenting, drug use and because the relationship between their parents involved domestic violence. At the time they were removed, the local office of the Department of Community Services did not have any Aboriginal carers available to care for the children. They were placed with the Applicants on 8 September 2004. Proceedings before the Children’s Court were finalised on 21 December 2004 and the children were placed under the parental responsibility of the Minister until each child turns 18 years. The Minute of Care Orders from the Children’s Court dated 21 December 2004 in evidence before us stated: [at 4]

The children to remain with their current carers for the purpose of stability until a culturally appropriate placement can be obtained.
It is the intention of the Department of Community Services to make further referrals to Aboriginal Out of Home Care Agencies to obtain a long term placement that allows the children to be placed together as a sibling group and that meets their individual needs.
If that is not successful it is the intention of the Department to advertise, recruit and train suitable Aboriginal carers.

24 The Department filed reports with the Children’s Court on 16 March 2005, 21 June 2005 and 28 September 2005 and these reports were in evidence before us. All of these reports referred to the Department’s efforts to obtain a long term Aboriginal foster placement for the children.

25 The March report referred to the Department’s intention of locating an Aboriginal foster placement. The report stated that Burran Dulai and Great Lakes Manning Aboriginal Children’s Services had no foster placements available and did not expect to have any in the immediate future. The report informed the Court that a specific advertising campaign to identify suitable Aboriginal carers was to commence soon.

26 The June report referred to the difficulty in identifying a suitable Aboriginal long term placement for the children and advised the Children’s Court that the children have "only recently commenced transitioning to their long-term placement under the supervision of the Great Lakes, Manning Aboriginal Children’s Services". The report also stated that:

Given the length of time that the children have been placed with the current carers significant consideration was given to the appropriateness of a further placement with Aboriginal carers versus having the children remain in this non Aboriginal placement [the placement with the Applicants] long term. Following discussion with the Great Lakes Manning Aboriginal Children’s Service it was felt that while the current placement was more than meeting the children’s needs, in the longer term as the children aged, it would become much less suitable and therefore the decision to proceed with an Aboriginal placement was made.

27 The September report, signed by Ms Doyle and Ms Tracey, refers to the proceedings before this Tribunal and states:

As a result the children have continued to reside with the current carers and were having weekend access with the Aboriginal Carers for the purpose of continuing their relationship and additionally to enable a bonding and attachment assessment to be conducted. The bonding and attachment assessment was to consider the children’s attachment to their current carers and to consider the developing attachment with the Aboriginal carers.

28 The issue for this Tribunal to decide is whether the decision to remove the children from their current placement with the Applicants is the correct and preferable decision.

Nature of care provided by the Applicants

29 Ms Doyle, the Departmental caseworker from December 2004, told the Tribunal that the children had done well in their placement with the Applicants and that all the feedback was positive. In a letter to the Applicants dated 15 June 2005 Mr Rogers, Client Services Manager from the relevant Community Service Centre acknowledged the quality of care provided and referred to reports that the children progressed markedly in the Applicants’ care. The Minister made it clear in submissions that there was no issue regarding the quality of care provided by the Applicants.

Expectations of the carers regarding the length of the placement.

30 The Applicants submitted that the Department of Community Services led them to believe that they would be seriously considered as long-term carers for the children. Ms UJ affirmed an affidavit on 17 November 2005 [Exhibit A1] and gave oral evidence at the hearing. She stated that in a phone call in December 2004, Ms Allan, a caseworker from the Department of Community Services, told her that the Department was having difficulty finding an Aboriginal carer for the children and asked her if she would be prepared to have the boys long term.

31 As a result of that conversation, Ms UJ stated that she and her husband began making long-term plans for the boys as part of their family. The plans included regular access to their birth family and ways to maintain their Aboriginal heritage.

32 Ms UJ also stated that Ms Doyle visited their home on 11 January 2005 and asked whether they could care for the boys for another 6-7 months while the Department advertised for Koori carers. Ms UJ was surprised by this as following Ms Allan’s phone call in December 2004 she thought that she and her husband were going to be seriously considered as the long-term carers for the boys. She further stated that Ms Doyle told her of the difficulty in finding suitable Aboriginal carers. Ms UJ stated that Ms Doyle then "asked if we would provide long-term care if no suitable Aboriginal carers could be found".

33 Ms Doyle, in an Affidavit affirmed on 25 October 2005, believed that she had said words to the effect of "Could you give some thought to the possibility of providing long-term care if suitable Aboriginal carers are not able to be located".

34 It is clear from the Applicants’ evidence that, even if she and her husband thought they would have the children in the long term following their December 2004 conversation with Ms Allan, by 11 January 2005, the Department’s intention to pursue an Aboriginal placement for the children and to advertise for Aboriginal carers was made clear to them by Ms Doyle. We accept Ms UJ’s evidence that they were asked whether they could care for the boys for another 6-7 months. This is consistent with Ms Doyle’s evidence. There is little difference between the evidence of Ms UJ and Ms Doyle on the question of whether they would be prepared to care for the boys in the long term if no suitable Aboriginal placement could be found.

35 In regard to Applicants’ assertion that they were led to believe that they would be seriously considered as the children’s long term carers, the Minister submitted that the children’s welfare is the paramount consideration. In our view, the paramount consideration is, indeed, the safety, welfare and well-being of the children. In any event, aside from a period in December 2004 and very early in January 2005 there is no evidence to suggest that the Applicants were told by the Department that they would be the long-term carers. The Applicants’ own evidence was that the Department was seeking Aboriginal carers and that the Applicants would only be considered if it were not possible to find a suitable Aboriginal placement for the children. Accordingly, we do not place a great deal of weight on the Applicants’ submission that they had an expectation they would be seriously considered as long-term carers.

Relationship between the children and the Applicants

36 The Applicants assert that the three children have developed a strong attachment to Ms UJ and her family and describe the attachment as mutual. At the time of the hearing, they had cared for the children for a little over fourteen months.

37 Mr Lord, a psychologist, undertook an assessment and his report dated 20 September 2005 was tendered by the Minister for Community Services [Exhibit R 7]. He also gave oral evidence.

38 Ms Doyle, the Departmental caseworker, sent Mr Lord a written request for a report including an overview and history of the case. That overview provided information, among other matters, about the placement with the Applicants stating that the children had progressed well in the placement. Information was provided about the Applicant’s efforts to link the children with the Aboriginal community. The final page of Ms Doyle’s referral documents included a typed page that stated the following, labelled underneath in handwriting as Instructions to John Lord:

What is needed now is evidence that shows:

1. The placement with [Mrs A] will be a good stable and permanent placement, and
2. The failure to transfer placement from the [Ms UJ and Mr UI] to [Mrs A] will be deleterious to the safety, welfare and well being of the children
3. [Mrs A’s] success as a carer
4. The ability or otherwise of the [Ms UJ and Mr UI] to foster maintain significant aboriginal cultural and social connections for the children including in residential settlings
5. The advantages to the children in being in an aboriginal placement –this evidence will need to include aspects making it particular to the children

The disadvantages in there not being in such a placement – this evidence will need to include aspects making it particular to the children
To achieve this a bonding and attachment assessment needs to be undertaken. This assessment needs to look not only at the bonding and attachment between the children and [Mr and Ms UJ] but also it needs to look at the relationship that is forming between the children and [Mrs A].
The psychologist who undertakes the Bonding and Attachment Assessment will need to be highly respected and thorough. He or she will need to be engaged quite quickly and should look at both sides of the equation. The children with current and proposed carers.

39 In oral evidence Mr Lord stated that he was aware of the Expert Witness Code of Conduct. The Applicants referred to the statement "What is needed now is evidence that shows..." in the instructions and questioned the independence of the report. Mr Lord’s evidence was that he did not interpret the instructions like that and he understood that this was a perception held by one party.

40 Although the material that preceded the final page set out above was balanced, the final page of instructions set out the conclusions that the Department wanted from the assessment report. In our view the Department’s inclusion of that final page in the instructions to the psychologist was inappropriate and contrary to normal practice when engaging an expert to undertake such an assessment.

41 The Tribunal’s Practice Note No 14 [17/3/2004] Expert Evidence and Reports outlines the procedures that the Tribunal will follow in dealing with expert evidence and expert reports. As an expert witness Mr Lord’s paramount duty is to the Tribunal and he is not an advocate for the Minister. His overriding duty is to assist the Tribunal impartially.

42 In these particular circumstances we are satisfied that, despite the Department’s instructions, Mr Lord was aware of the Expert Witness Code of Conduct and approached the assessment and preparation of his report in an impartial manner. His report was admitted and was in evidence before us.

43 In his report, Mr Lord addressed the attachment between the three foster children and the Applicants and set out the various ways he conducted his assessment. He observed all three children in the Applicants’ home with the Applicants and their sons aged 12 and 15 and daughter aged 5. He observed the two younger foster children at their child care centres. He interviewed the foster parents and conducted additional assessments of the foster children. The oldest child completed the Bene-Anthony Family Relations test and was observed in a semi-structured play activity with Mrs UJ. The middle and youngest children had similar observations but did not complete the Family Relations test as it was not age appropriate. Mr Lord also interviewed the proposed new foster carers, Mr and Mrs A, and observed an access visit between the children and Mr and Mrs A and their family. In addition, he observed the reunion between the children and the Applicants after their visit to Family A.

44 On the Family Relations Assessment, Mr Lord noted that the oldest child’s response to the assessment indicated "that at the present time his most significant relationship lies with Ms UJ". He also noted that the oldest child’s responses suggested possible conflict or displacement of negative feelings towards the Applicants’ 12 year-old son. Mr Lord stated that "The expressed frustrations with the 12 year old by [the oldest child] were supported by observations of this relationship at other times" and he noted that "[the 12 year-old] and his brother impressed as more distant in their involvement with the three boys" and that the two older boys [the Applicants’ sons] had well established interests and activities with little overlap with joint activities. Mr Lord also noted that the oldest child did not make comments regarding his foster father. He noted that Mr UL impressed as a quieter person who, while taking on a role of providing support for Ms UJ’s desire to foster, had a substantial commitment to the children. Mr Lord noted during his visits that the children related primarily to Ms UJ and to a lesser extent to Mr UL.

45 On the basis of his assessment Mr Lord concluded that

In this assessment all three children were observed to have developed positive attachments (secure bonds) with Ms UJ. [The oldest child’s] response to the Family Relations Test indicates that he has formed significant attachment to his [Ms UJ] over the past 12 months. ....These results were confirmed during both the home observations and the observations at the office. Similarly both [the middle and youngest children] have established a secure bond."[ 9,10].

46 We are satisfied on the Applicant’s evidence and Mr Lord’s evidence that there is a secure bond between Ms UJ and the three children.

47 Mr Lord observed that the Applicants’ daughter, who was a similar age to the oldest child, was involved with the three children but his evidence does not indicate any strong bond between the three children and Mr UI or the two older boys.

48 He concluded that the care and stability of home life provided by Mr UI and Ms UJ and their family had played a significant role in the children’s life and their support of contact between the children and their natural parents. He stated that the consistency of this contact along with the stable home environment had contributed to the stability of the children’s emotions.

Longer term issues for the children

49 Mr Lord raised additional considerations about the long-term care of the children. In particular, he raised the capacity of the Applicants’ family to provide a sense of inclusion across all levels for the children and the capacity of any placement to continue the active role in promoting parenting contact for the children.

50 Mr Lord stated that his observations suggested that there is a risk that a long-term placement of the children with the Applicants might precipitate additional stress for the Applicants’ family as the adolescent demands of their own children emerge. His observation of the Applicants’ two boys was that "Both boys had impressed as maintaining a sense of distance and at times for understandable reasons this can lead to a level of intolerance in certain circumstances".

51 Mr Lord stated that on his two visits to the home, Ms UJ had presented as stressed in juggling complex demands. In his view, the three boys (the subject of this application) continued to have a strong need for support and that was most likely to demand Ms UJ’s attention.

52 Ms Doyle and Ms Allen also raised the issue of the longer term in their report to the Children’s Court of 20 June 2005. In a passage cited earlier in this decision taken from that report, they referred to their discussions with the Great Lakes Manning Aboriginal Children’s Service regarding the suitability of the placement in the longer term.

53 The Applicants challenged Mr Lord’s assessment of their two sons’ involvement with the three foster children. Ms UJ’s evidence was that although her two older boys did have separate interests due to the age gap (they are 12 and 15), they frequently interacted with the [foster children]. She gave examples of them playing on the Play Station, tag, and on the trampoline with the boys. She also stated that her 15 year-old son often dressed the boys after their bath, had changed the youngest child’s nappies and that if the youngest child woke during the night it was often their 15 year-old he called out to. Ms UJ also referred to Ms Doyle’s file note of her home visit of 10 May 2005 in Attachment LD1 to Ms Doyle’s affidavit at Tab 18. In that file note Ms Doyle stated that:

All the children were observed interacting with each other and foster siblings and carer. All appeared relaxed and comfortable, were appropriately dressed and engaging in games and watching TV [LD1 at Tab 18].

54 The Applicants put to Mr Lord that they had told the older boys to hold back at the middle child’s birthday party, one of the occasions on which he observed the children together.

55 Ms UJ stated that she was very stressed when Mr Lord visited because of his presence in her home as she is generally shy in front of strangers. She was nervous and stressed as she was worried about the assessment. She stated that she considered that she normally managed "the complex demands of being a wife and mother of six children with efficiency and good humour".

56 Under cross examination, Mr Lord agreed that being assessed could be very stressful but reiterated that his observation was a high level of stress and that he did not see it moderate during the visits. Similarly, he reiterated that at the middle child’s birthday party he observed Mr UI and Ms UJ’s 12 year old-son to have a sense of reservation and an indication that he would rather be somewhere else.

57 Mr Lord stated that he did not see the children’s attachment to Ms UJ as an impediment to them being moved. Under cross examination he stated that 12 months was at the outer limit for moving children. When asked whether 14 months went beyond the period, he stated that that there could be an escalation of the children’s levels of anxiety and that they could start to show or develop regression regarding attachment problems. He noted that [Mr UI and Ms UJ] had provided a secure basis for these children and that there needed to be a decision about where they would live and agreed that the period of time for transition had become protracted. In his view, the amount of contact that Mr and Mrs A had already had with the children would moderate the impact. The frequency of the children’s visits to Mr and Mrs A meant that it was more like shared care.

58 In summary, his view was that both families were excellent carers and both had challenges. In regard to Mr and Mrs A, he stated that he did not see the same level of persistence regarding seeking contact with the natural family, particularly from his assessment of Mr A. This contact would need to be actively sought particularly if the natural parents moved some distance away. He added that he understood that the children’s parents had been invited to Mr and Mrs A’s home. In regard to Mr UI and Ms UJ, the challenges were about the stress which would be placed on the family in the future.

Placement issues for Aboriginal children

59 Ms Menzies, a social worker and independent consultant, provided a report and gave oral evidence. In her report she stated that she was asked for an opinion that is soundly based having regard to the literature and research around placement issues for Aboriginal children. She described the opinion "is as to the advantages and disadvantages for the three subject Aboriginal boys that might follow a change of placement from a non Indigenous placement, in which appropriate cultural and community contact is maintained and is intended to be maintained into the future, to an Aboriginal placement and vice versa".

60 Ms Menzies’ report referred to the historical background of Aboriginal childhood separation from their families and communities. She referred to the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families and the 1997 Bringing Them Home Report produced by the Human Rights and Equal Opportunity Commission following that Inquiry. Ms Menzies set out some of the literature regarding protection and assimilation policies and their impact on Aboriginal people. After referring to the Bringing Them Home Report and the small number of Aboriginal people that had told that Commission of positive experiences after being placed with non Aboriginal families she stated [p 6]:

However, the underlying sentiment for children who experienced a permanent separation through the assimilation policies was the confusion and distortion about their identity and culture, and ultimately who they were both during childhood and later in adulthood (Link-Up and Wilson 1997).

61 The aspects of her report dealing with assimilation and past practices were not in issue in these proceedings.

62 In her oral evidence, Ms Menzies conceded that it was possible that a non-Aboriginal family may be able to provide an appropriate environment for Aboriginal children given the right resources and supports. She noted that this was dependent on how the child was exposed to their cultural identity.

63 In her written report, Ms Menzies stated that a non-Indigenous placement could de-culturalise the children. In her oral evidence, Ms Menzies stated that more than just information about culture was needed and that culture needed to be absorbed daily. That evidence was similar to that of Mr Lord who referred to work he had done with the Aboriginal community and said that a sense of culture comes from a sense of connectedness with community and that developing culture was a matter of exposure.

64 Ms Menzies referred to identity issues that could arise. She noted that if a child is brought up as part of the Aboriginal community then there is general acceptance as to appearance. The child learns behavioural norms by being part of the Aboriginal community. Although schools may communicate cultural norms, the child comes home to a completely foreign environment if placed outside of the Aboriginal community. That can mean children internalise confusion about who they are and become alienated.

65 Ms Menzies stated that when children are little, the issue of identity is not as paramount as when adolescence is reached. In her experience it is common that placements break down at adolescence, particularly if the birth family is not involved. This is compounded for Aboriginal children when they don’t look like their carers and issues of identity are raised.

66 In her report she stated:

Foster care placement outside the Aboriginal community has compounded the identity confusion of children, while their physical characteristics ensure that they will often be perceived as "Aboriginal". If they are removed while very young, they never learn how to behave and respond in an Aboriginal manner. Yet if their appearance marks them as Aboriginal in a society that makes much of racial difference, the social expectation that they should be Aboriginal would present them with a constant dilemma. Individuals whose childhood socialisation was disrupted by foster home placement outside their culture face enormous challenges in assuming nurturing roles as adults. Having a sense of one’s own Aboriginality depends very much upon the community with which they identify (Ah-Kee & Tilbury, 1999). [p10]

67 In both her report and oral evidence, Ms Menzies referred to research done in analysing caseworkers’ notes regarding placement changes in adolescence. She stated that interviews with Departmental (Community Services) social workers found that many saw problems with Aboriginal children who had been in white foster families for many years. The research indicated that breakdown when children reach adolescence is very common and that:

It was felt to be due to the fact that the ‘normal’ identity issues to be coped with at adolescence were exacerbated "by additional ethnicity or cultural identity issues faced by Aboriginal children (Gain 1987)" [p 11]

68 Ms Menzies’ report and her oral evidence stated that an advantage of placement within [Family A] included the large extended network and the connectedness to Aboriginal community and culture. She noted that the large extended family environment that Family A provided was characteristic of Aboriginal families. She referred to parental roles being the collective responsibility of all members of the family and contrasted this with the current foster family where parental responsibility in her view "appears to be exclusively assigned to [Ms UJ]. She noted that this may become burdensome for Ms UJ given that she has her own three children to care for, one of whom allegedly had ADHD.

69 In Ms Menzies’ view, Family A met the criteria of an approved and appropriate Aboriginal Placement with the exception of being proactive on access for the family of origin. She acknowledges that this may be because the Department of Community Services has omitted to convey the importance of ongoing and regular access with the birth parents and referred to the role that the Department and non government, out-of-home care services can take in facilitating access.

70 Ms Menzies saw the advantage of a placement with the Ms UJ and Mr UI as the children’s attachment to Ms UJ and their commitment to actively maintain contact with the children’s birth parents. She noted that although the birth mother made positive comments regarding Ms UJ’s care of the children she had also said that she wanted the children restored to her care

Proposed placement with Family A

71 While the Applicants stated their support for the Aboriginal Child Placement Principle, they opposed the removal of the children from their care so that they could be placed with Family A. They submitted that the proposed placement was not in the children’s best interest.

72 The Applicants submitted that Mrs A, who will be the primary carer, is not Aboriginal. Ms UJ stated she had heard that the children of Mr and Mrs A are called "coconuts", a term described by Ms Bridge from the Great Lakes Manning Aboriginal Children’s Service as meaning "black on the outside and white on the inside". The Applicants expressed concern that the three children will be referred to in this way if placed with Family A.

73 The Applicants were concerned that the three boys would need to share a room at Mr and Mrs A’s house. At present the 6 year-old boy has his own room and the two younger boys share a room. They also submitted that in the future it was likely that the three boys would need to share a room with another three year-old boy in Family A’s care. At present, that child shares a room with a three year-old girl but this will not be tenable when they get older.

74 The Applicants submitted that Mrs A will not be as available to the children as Mrs UJ. They referred to the number of days that the two three year-olds currently in Mr and Mrs A’s care spend in childcare. They submitted that the three children are likely to spend more time in child care if they are placed with Family A.

75 The Applicants raised concerns about the nature of care provided by Ms A. The Applicants stated that Family A returned the children early from access visits on a number of occasions and were not available on occasion to care for the children. Ms UJ stated that on one occasion the children returned from an access visit at Family A’s place at 7 pm and had not had dinner. Ms UJ stated that she then provided the children with a meal and they ate it. The Applicants also referred to Mrs A’s failure to pay a bill for baby equipment on time and to obtain glasses for a young foster child in her care until 4 months after they were prescribed.

76 As part of Mr Lord’s assessment he also observed the Family A. They have been foster carers for 4 years. At present they have two three year-old, unrelated foster children in their care.

77 Mr and Mrs A have 5 children of their own who live in their household. Their 24 and 21 year old sons are both employed, one as a mechanic and the other is completing a diploma in child care and working in the preschool that middle child attends. Their daughter aged 17 has just completed her Higher School Certificate and their two sons aged 13 and 12 are school students. They have three other adult children who do not live at home and are all employed.

78 Mr Lord observed the children with Mr and Mrs A. In his report he stated that from his observations, Mr and Mrs A provided excellent care for the two children they had in their foster care. He observed that the three children this application concerned were relaxed and positively engaged with each of the Family A members at different times.

79 He concluded that the three children had all developed positive relationships with Mr and Mrs A and that the family had an excellent potential to take up the primary care role. He noted that Family A is a large family and that the adult children in the home take on a support role.

80 He concluded that Mr and Mrs A were approached equally by the children and stated:

The children [the subject of this application] have spent substantial time visiting the home and have emotional ties within the family and particularly with [Mr and Mrs A]. The children readily accept comfort and support from [Mr and Mrs A] and during my time in the home frequently would approach both for contact.

81 In his view, if the children did end up spending more time in childcare or if they were required to share a room, that would not necessarily disadvantage them.

82 He noted that Family A would require support to ensure that there is an active approach to maintaining contact with the children’s natural parents.

83 He concluded that:

As a result of the ages of the children, their already well-established attachments to their natural parents, the maintenance of them as a sibling group and while the time in care does not become protracted much beyond the current 12 months the children’s attachment [to the Applicants] does not pose an impediment to considering another placement. Such considerations would need to address the quality of care, capacity for continuity and support for maintaining significant relationships including parents and previous foster parents. The management of any change for the children should ensure the minimum of distress.

84 In his oral evidence, Mr Lord adhered to his report and also gave evidence about the contact he has had with Aboriginal people. He has worked as a psychologist with Aboriginal people and now does voluntary work as a psychologist for an Aboriginal community in addition to his paid work elsewhere.

85 In response to a question as to whether Mr and Mrs A lived a "white lifestyle", he replied that his observation was that the household was typical of many Aboriginal families. There were a number of people there, a network and shared responsibility for the children.

86 In response to a question regarding how the Aboriginality of young Aboriginal children who do not reside with their parents should be encouraged, he stated that a sense of culture comes from a sense of connectedness with their community. In his opinion developing culture is a matter of exposure.

87 Ms Bridge is an Aboriginal woman from the Biripi Nation and the Co-ordinator of the Great Lakes Manning Aboriginal Children’s Service. She provided two affidavits and gave oral evidence. Family A’s foster care file was also in evidence before us. Ms Bridge’s evidence was that, despite Mrs A not being Aboriginal, the family functioned as an Aboriginal family having similar morals and values and undertaking activities as a family in a similar manner to most Aboriginal families in the area.

88 She gave evidence of her observations of Family A over four years. She stated that while Mrs A is the primary carer for the children she had observed Mr A taking an active role in the care of the children. She described seeing him babysitting the children, cooking dinner and stated that "When I have seen the children ask for [Mr A’s] attention he has always responded to them and shown affection towards them, for example by cuddling them". She also stated that Mr and Mrs A’s children assisted in the care of the children and household duties.

89 Ms Bridges gave evidence regarding Mrs A’s financial difficulties in paying for some baby goods she had obtained so that she would be properly equipped to provide respite care for young foster children. There was also an issue regarding an outstanding payment for some child care fees. These matters were both resolved after some intervention by Ms Bridge’s service. At that time, two of the Family A girls had been selected to represent Australia in an under 19’s cricket team and the family had experienced some financial pressure as a result of the additional expenses in sending the girls overseas.

90 The Applicants questioned Ms Bridge regarding a four-month delay in obtaining glasses for a foster child in Mr and Mrs A’s care that was documented in case notes held by the Great Lakes Manning Aboriginal Children’s Service. Ms Bridge told the Tribunal that there was a conflict between Mrs A and the Department of Community Services over who should pay for the child’s glasses. The Department had apparently paid for his sibling’s glasses and in the end agreed to pay for the glasses in this instance. In regard to the delay in obtaining the glasses it was submitted for the Minister that this was a fair criticism, but that the criticism could be levelled as much at the Department of Community Services as the foster carers.

91 Ms Bridge was questioned about an allegation that Mrs A had hit a child in her care. Ms Bridge gave evidence that the child was a Care Plus One child meaning that he had serious behavioural difficulties. She stated that Mrs A had told her that the incident was an accident. The child had been "acting out" and in an attempt to move his arm, Mrs A had accidentally flicked him. In Ms Bridge’s evidence she referred to difficulties between this child and two of the Family A children as the child would not respond to attempts to engage him. She gave examples of his difficult behaviour. The child was moved after a placement of six months although he did return for a short-term respite placement at his request in October 2005.

The wishes of the children

92 There was no evidence as to the wishes of the two youngest children. Given that at the time of the hearing these children were 4 and 2 years, that was not surprising. The oldest child is aged 6 years and was reported to have made a number of statements that give some indication of his wishes. He is reported as saying that he liked Mrs A but did not want to sleep at her place. On another occasion he was reported to say that Mrs A was nasty in the way she treated her children.

Wishes of the children’s parents.

93 There was no direct evidence from the children’s parents before us.

94 Ms Doyle set out her conversations with the children’s parents in her affidavit affirmed on 25 October 2005. She refers to a conversation with their father in July 2005 and stated:

The natural father informed me during the course of that conversation that he is comfortable with the care the children are receiving, however, when the Department’s reasons for pursing an alternate placement were discussed he said word to the effect of ‘Yes I can see that’.

95 At a meeting on 13 September 2005 Ms Doyle reported on discussions at a meeting held at the GLMACS where she discussed the proposed placement with Mr and Mrs A with the natural father. In the course of that discussion Ms Doyle states that the children’s father said :

I grew up here. This is my hometown. I know of them. Isn’t there anyone else you can place them with?

96 Following further discussion Ms Bridge had stated:

I think I know what it is about. Is it about the thing at [another town]? With their nephew?

97 Ms Doyle stated that the father nodded. The "thing" was about an allegation of that their nephew had committed a sexual offence.

98 Ms Bridge had informed the father that Mr and Mrs A did not have contact with that nephew and the father had replied "Yes but he’s their family". Arrangements were then made for the father to talk with Mr and Mrs A regarding this issue.

99 Ms Doyle and Ms Bridge’s evidence was that Ms Bridge had discussed this issue with Mr and Mrs A and they had said they had no contact with this family member.

100 Ms Doyle refers to a meeting with the children’s mother in April 2005 who said that she was happy with the current carer and the children were becoming attached to Ms UJ. In a conversation on 25 July 2005, Ms Doyle was told by the natural mother that she was happy with Ms UJ as a carer for the children. Ms Doyle states that when she explained the Department’s view that Aboriginal carers would be more able to meet the children’s needs in the long term the mother had stated "Yes".

101 Mr Lord stated in his report of 20 September 2005 that he interviewed both parents and both expressed a preference for the children to remain with the Mr UI and Ms UJ. Mr Lord stated that Ms UJ had consistently and actively supported the children’s contact with both parents and stated that both parents "saw [Ms UJ] as a person who "loved" their children and were pleased that she was able to continue to care for them".

102 On the basis of Mr Lord’s evidence and that of Ms Doyle we are satisfied that the parents wish the children to remain in their placement with the Applicants. The Minister submitted that the Tribunal should not put too much weight on the wishes of the natural parents and referred to recent evidence of meetings between them and Mr and Mrs A and their family. For example, the mother has now twice visited Family A. The Minister submits that the Tribunal could be confident that on-going contact with the parents would not cease if the children were placed with Mr and Mrs A.

Aboriginal Child Placement Principle

103 The Minister submitted that the move of the children is in accordance with the requirements of the Care and Protection Act, in particular the requirements of s 13. The Minister submitted that the Aboriginal Child Placement Principle is subject to the objects and principles in the Care and Protection Act. This Principle sets out a descending order of priority.

104 In this instance, the Department has been unable to find a placement within the child’s family or kinship group, the first priority according to s 13(1)(a). The Minister submits that it is arguable that the proposed placement with Family A fits within s 13(1)(b) - a member of the Aboriginal or Torres Strait Islander community to which the child or young person belongs.

105 Ms Donohue, an Aboriginal caseworker from the Department, provided an Affidavit sworn on 24 October 2005. Her evidence was that the children’s paternal grandparents were from the Biripi and Dunghutti nations and the children’s maternal grandparents were from the Bundjalong and Wiradjuri nations. The children’s maternal grandfather married a Dunghuttie woman and the children’s mother moved to the Dunghutti Nation as a young girl. Ms Donohue stated that the mother continues to live in the Dunghutti Nation area and has a strong connection to that community. Before coming into care, the children lived in the Dunghutti Nation. Ms Donohue’s evidence was that the Biripi and Dunghutti Nations are connected and have similar cultural beliefs and values. Ms Donohue was not required for cross examination and we accept her evidence.

106 Ms Bridge completed an assessment of Mr and Mrs A as Authorised Foster Carers and prepared a report on 28 February 2002. In that report she included information about Mr A’s background. Mr A’ s mother is from the Woromi Nation and his father’s family originated from the South Sea Islands but has lived in Australia for several generations.

107 The Minister submitted that if the placement does not fit within 13(1)(b) then s 13(1)(c) will apply as the placement is with a member of some other Aboriginal family that resides in the vicinity of the children’s usual place of residence. If the children’s place of residence is taken at the time the children were placed in care then the Minister submitted that as the placement is an hour and a half’s drive from that place it is "in the vicinity". The Minister argued that this is beneficial legislation and it would not have been the intention, given the history and evidence of the Aboriginal community that a placement that is one and a half hours away could not be in the vicinity.

108 The Minister submitted that if s 13(1)(c) does not apply then the placement must come within s13(1)(d). Mr and Mrs A are suitable persons that have been approved by the Director General. The Minister submits that:

there has been consultation with the extended family and further that the Act only refers to consultation, so that the agreement of the family is not necessary;
attempts have been made to place the child unsuccessfully, for example through consultation with appropriate Aboriginal organisations, for example the Aboriginal organisation in the children’s home town, and this has not been successful, and
the whole intent of s 13 is that Aboriginal children be placed with Aboriginal carers subject to sections 8 and 9 of the Child Protection Act.

Findings and Conclusions

109 We must determine the correct and preferable decision. Under the Care and Protection Act the safety, welfare and well being of the children is the paramount consideration. Given this matter concerns Aboriginal children, the Aboriginal Child Placement Principle is relevant. The Act places an emphasis on the placement of Aboriginal children with Aboriginal carers subject to the objects and principles of the Act. The principles of the Care and Protection Act refer specifically to taking account of the culture of children and to preserving, as far as possible, the children’s identity and cultural ties among other matters (s 9).

110 On the basis of the evidence before us and the submissions of the Applicants and the Minister, we are satisfied that the Applicants have provided the children with high quality care for the duration of the placement.

111 We have had the benefit of expert evidence from Mr Lord. He is an experienced psychologist who had the opportunity of observing and assessing the bonds that each of the children had formed with the Applicants and their children. Despite the nature of his instructions from the Department he gave evidence in an impartial and professional manner and was willing to highlight the strengths and weaknesses of both the Applicants and the proposed carers.

112 We accept Mr Lord’s conclusion that the three children had developed positive attachments (secure bonds) with Ms UJ and that is not in dispute.

113 The evidence from Ms UJ and Ms Doyle also points to an amicable relationship between Ms UJ’s children and the foster children. We also accept that Mr UI has been involved in the care of the children, for example by bathing them. In our view none of that negates Mr Lord’s conclusion that the bonds between the three foster children and Mr UI or the two older boys are not strong. Mr Lord’s conclusion was based on his own observation and expert opinion. For example, Mr Lord notes that in the oldest child’s response to his assessment there was an absence of comments about his foster father. Similarly, we accept Mr Lord’s evidence that the Mr UI and Ms UJ’s two older boys appeared distant and that the oldest child’s response to the assessment suggested possible conflict or the displacement of negative feelings towards one of his foster brothers.

114 On the basis of Ms UJ’s and Mr Lord’s evidence we find that the children have developed an attachment to Ms UJ. In our view, the evidence establishes that Ms UJ was the primary carer and the main person that the children turned to for emotional support.

115 The transition plan put in place by the Department has given the children the opportunity to get to know Mr and Mrs A and their family. They have now visited their home on more than twenty occasions including a number of overnight stays.

116 We had the benefit of Mr Lord’s observations and opinion regarding the proposed placement with Family A as well as the observations of Ms Bridge. Mr Lord concluded that Family A provided excellent care for the two children in their foster care and that the three children who are the subject of this Application had positive relationships with them. Ms Bridge’s evidence is consistent with that. In Mr Lord’s opinion Mr and Mrs A and their family have excellent potential to take up the primary care role for these children. Mr and Mrs A have managed to bring up a large number of children and the evidence before us is that their adult children are all doing well.

117 We have considered the concerns raised by the Applicants regarding the nature and quality of care that Mr and Mrs A will provide for the children and are satisfied that each incident they have raised has been adequately explained. For example, we have considered the evidence that Mrs A was late in paying bills for baby equipment and child care and that there was a significant delay in obtaining glasses for one of her foster children. We find that these incidents occurred. In regard to the glasses, we accept the Minister’s submission that any criticism for the delay could be levelled at the Department itself for its initial refusal to pay for the glasses. In regard to the non payment of bills, these matters were eventually sorted out and in our view they are not of such significance that they would prevent Mrs A from adequately caring for children. In regard to the allegation of Mrs A hitting a child, the evidence given by Ms Bridge places that allegation in context as an accidental occurrence in dealing with a child who had serious behavioural problems. We accept her evidence.

118 The Applicants have questioned the commitment of Mr and Mrs A to the children on the basis that they were not always available to take the children and that they returned them early on occasion. Given the number of visits that occurred and the protracted period of transition, in our view they have demonstrated a sufficient commitment to the children.

119 We do not share the Applicants’ concerns about the possibility that the young children would spend longer in childcare if they moved from their placement with Mr and Mrs A. In our view, based on the evidence before us, it would not be detrimental to the children. We accept Ms Bridge’s evidence that if the oldest child was required to share a room with his two brothers or eventually with an additional child that this is a common occurrence in Aboriginal families. There is no evidence before us to show that this would be detrimental to the children.

120 Mr Lord noted that Family A would require support to ensure that there is an active approach to maintaining contact with the children’s natural parents.

121 The children’s parents’ views are that the children should remain with the Applicants and we understand that view. Nevertheless, on the evidence before us we are satisfied that on-going contact with the natural parents would not cease if the children were placed with Mr and Mrs A. There is evidence that Mr and Mrs A have made contact with the natural parents and in our view that is something that is likely to develop as they get to know each other better.

122 Mr Lord concluded that:

As a result of the ages of the children, their already well established attachments to their natural parents, the maintenance of them as a sibling group and while the time in care does not become protracted much beyond the current 12 months the children’s attachment [to the Applicants] does not pose an impediment to considering another placement. Such considerations would need to address the quality of care, capacity for continuity and support for maintaining significant relationships including parents and previous foster parents. The management of any change for the children should ensure the minimum of distress.

123 Ms Menzies provided expert evidence regarding the very real damage that has been done to Aboriginal people by past policies of assimilation. The Applicants had no issue with that evidence and we accept that evidence.

124 Ms Menzies has had lengthy experience in dealing with children in out of home care. Her evidence was given in an open manner and she conceded that in some circumstances it may be appropriate for children to remain in non Aboriginal families. She has had the opportunity to review much of the literature in this area.

125 We accept her evidence that a non Aboriginal placement could de-culturalise the children and that culture needs to be absorbed daily. We accept her evidence regarding identity issues for Aboriginal children who are placed with non Aboriginal families and that identity issues are likely to arise in adolescence. We also accept her evidence, based on the research she analysed, that breakdown of placements for Aboriginal children in white foster families when children reach adolescence is very common and that normal adolescent identity issues are exacerbated for Aboriginal children by additional ethnicity or cultural identity issues.

126 In our view, in determining the correct and preferable decision, we need to take into account evidence regarding the likely long-term consequences of the children remaining in their current placement. On the evidence before us we find that there is a real likelihood that these children will experience the kinds of identity issues that Ms Menzies referred to. We also accept the evidence of both Ms Menzies and Mr Lord that culture is a matter of exposure and needs to be absorbed as a daily thing. The maintenance of cultural ties is specifically referred to in s 9 of the Care and Protection Act.

127 The Aboriginal Child Placement Principle in the Care and Protection Act is relevant and is subject to the objects and principles of that Act.

128 Despite efforts the Department has not been able to place the children with a member of the children’s extended family or kinship group [s 13(1)(a)]. Mrs A is not an Aboriginal person. The evidence before us is that Mr A’s father and his family originated from the South Sea Islands and his mother is a woman from the Woromi Nation. We are satisfied that Mr A is an Aboriginal person and that although he would not be the primary carer for the children he would be one of the carers. In the particular circumstances of this case we accept that he is a member of an Aboriginal family.

129 The evidence before us from both Ms Bridge and Mr Lord and the submission of the Minister was to the effect that Family A live in accordance with Aboriginal culture. On the basis of that evidence we accept the Minister’s submission.

130 On the evidence before us we are not able to satisfy ourselves that Mr A is a member of the Aboriginal or Torres Strait Islander community to which the children belong. It may be the case but we do not have sufficient evidence before us to make such a finding. For that reason we cannot be satisfied that the proposed placement comes within s 13(1)(b) of the Care and Protection Act.

131 We accept the Minister’s submission that if s 13(1)(b) does not apply then s 13(1)(c) applies. On the evidence before us we are satisfied that Mr A is a member of some other Aboriginal family residing in the vicinity of the children’s usual place of residence. Family A resides approximately one and a half hours away from the town that was the children’s place of residence before going into care and in our view that is "in the vicinity".

132 We also accept the Minister’s submission that if s 13(1)(c) did not apply then the proposed placement would come under s 13(1)(d). The Applicants have been assessed as suitable carers and members of the child’s family and appropriate Aboriginal organisations have been consulted.

133 Given the ages of the children, we do not have evidence regarding the wishes of the two younger children and have taken into account the wishes of the oldest child. We understand why he would want to stay in an environment he knows and where he is attached to his primary carer. The child is very young and we agree with the Minister’s submission that the other factors relating to his welfare outweigh his wishes. Consequently, although we have considered his wishes we do not attach great weight to them.

134 The Minister submitted that the paramount interests of the children require that they be moved to an Aboriginal placement. Taking into account all of the evidence before us we agree with that submission.

135 In our view the welfare and well being of the children will be best met by having the opportunity to grow up in an Aboriginal family. We have determined that the decision to remove the children from the care of the Applicants should be affirmed.

136 In coming to this view we make no criticism of the Applicants. They have provided good quality care for the three foster children and impressed us as dedicated and committed foster carers. In reaching this decision, we appreciate that this process has been difficult for the Applicants who are clearly attached to the children. During the course of these proceedings, we developed considerable respect for their generosity and the high level of care that they have provided for these children. We also recognise the steps they have taken to ensure that the children stayed in contact with their parents and had contact with Aboriginal people through their pre-school and school.

137 Although we do not have the power to make any orders regarding contact, we consider it important that the Applicants are able to continue to play a role in the children’s lives given the important role they have played for the children at a very difficult time in their lives. We recommend that arrangements be made for continuing contact between the Applicants and the children.

138 We also note the Applicants requested that the Department inform people of their right to request an internal review of Departmental decisions at the time decisions are communicated. Section 48(1) of the Tribunal Act requires an administrator who makes a reviewable decision to take reasonable steps to give any interested person notice in writing of the right of the person to have the decision reviewed. That includes the right to an internal review. While we have no power to make an order to the effect sought by the Applicants we can make a finding that the specific provision in s 48(1) of the Tribunal Act has not been complied with.

139 That is a serious matter that requires urgent attention from the Minister and the Department of Community Services. The Tribunal Act is designed to ensure that significant decisions made by administrators are subject to review. If those affected by those decisions are not informed of their rights, then those rights cannot be protected.

140 Although we were satisfied in this instance that the psychologist Mr Lord approached his assessment in an impartial manner and admitted his report into evidence, we remain concerned about the final page of the Department’s instructions. Those instructions were given when this matter was already before this Tribunal and his report was likely to be used as evidence. Although we have no power to order the Department or Minister to do so, we recommend that all staff of the Department who may be requesting assessments and reports from experts are adequately trained and supervised to ensure that they are aware of the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005 and the Tribunal’s Practice Note No 14 [17/3/2004] Expert Evidence and Reports so that instructions to experts are appropriate.

Orders

The decision to remove the subject children is affirmed.