Children's Court New South Wales Medium Neutral Citation: The Director-General of DFaCS (NSW) and Gail and Grace [2013] NSWChC 4 Hearing dates: 29 and 30 July 2013 Decision date: 27 August 2013 Jurisdiction: Care and protection Before: Judge Peter Johnstone, President of the Children's Court of New South Wales Decision: Application to vary final care orders allowed Final care orders varied in accordance with the revised permanency planning Catchwords: CHILDREN - Care and Protection - application to vary final care orders - revised permanency planning for children in need of care and protection - competing options for placement - role of the Aboriginal and Torres Strait Islander principles in the determination of the preferable option Legislation Cited: Children and Young Persons (Care and Protection Act) 1998 Cases Cited: Briginshaw v Briginshaw [1938] HCA 34 Director-General of Department of Community Services; Re "Sophie" [2008] NSWCA 250 Johnson v Page [2007] Fam CA 1235 M v M [1988] HCA 68 The Department of Community Services v "Rachel Grant", "Tracy Reid", "Sharon Reid and "Frank Reid" [2010] CLN 1 Re Bethany [2012] NSWChC 4 Category: Principal judgment Parties: The Director-General of the Department of Family and Community Services (DFaCS) The children The mother and father of the children The paternal aunt of the children The paternal grandparents of the children Representation: Mr McLachlan, solicitor (Director-General) The mother was unrepresented and appeared in person Ms Kaberry, solicitor (Father) Mr Kemp, solicitor (Paternal Aunt) Ms White, solicitor (Paternal Grandparents) Mr Munday, solicitor, Independent Legal Representative for the children File Number(s): 2013/322 & 323 Publication restriction: Pseudonyms have been used in order to anonymise the children and parties Judgment The nature of the proceedings and the issues 1These proceedings concern two very young sisters, Gail and Grace. 2Their mother is Donna. Their father is Graham Clark. 3The father is Aboriginal. The two children are identified as Aboriginal. 4On 8 October 2012 the two children were removed from their parents pursuant to the Children and Young Persons (Care and Protection) Act 1998 (the Care Act 1998). Subsequently, the Children's Court at Tamworth determined that the children were in need of care and protection, and on 19 March 2013 made final care orders placing them under the parental responsibility of the Minister until the age of 18. The orders were made on the basis of permanency planning which assessed that there was no realistic possibility of restoration to the parents and which proposed permanent out-of-home care by way of placement of the children with their paternal grandparents, in Queensland. 5The children were not, however, placed with the paternal grandparents as envisaged. Instead, the Department placed the children with the paternal aunt and her partner, in Tamworth. 6On 1 May 2013 the Director-General made an application for variation of the final care orders made on 19 March 2013, pursuant to s 90 of the Care Act 1998. Leave to make the application was granted by the Children's Court at Tamworth on 21 May 2013. 7The application for variation of the orders came before me for hearing at Parramatta on 29 and 30 July 2013. I now give these reasons for my decision. The proceedings are governed by the Care Act 1998 such that the decision is to be made consistently with the objects, provisions and principles provided for in the Care Act 1998, and where appropriate, the United Nations Convention on the Rights of the Child 1989 (CROC). 8The Director-General has submitted revised permanency planning for consideration by the Court consisting of a new Care Plan filed on 4 July 2013 and an Addendum filed on 25 July 2013, which proposes long-term placement of the children with the paternal aunt, not the paternal grandparents as was originally proposed. The Department therefore seeks final care orders involving placement of the children with the paternal aunt and the allocation of sole parental responsibility to the Minister, until the children attain the age of 18. 9Both the parents and the paternal grandparents oppose the proposed permanency planning and the final orders sought. They seek placement of the children with the paternal grandparents, preferably pursuant to s 78A(4) of the Care Act 1998. 10Restoration of the children to the parents themselves is not an option, it being conceded that there is no realistic possibility of restoration to the parents. 11The principal issue for consideration, therefore, is the permanency planning for the children, specifically, whether or not they should remain with the paternal aunt. The parents and the paternal grandparents contend that placement with the aunt poses unacceptable risk of harm to the children, and seek placement with the paternal grandparents. 12A secondary issue is the appropriate allocation of parental responsibility, which will be informed by the determination as to placement: s 79. The applicable legal framework 13The objects of the Care Act 1998 are set out in s 8. The Act is required to be administered according to various principles. The overriding principle is that the safety, welfare, and well-being of children are paramount, even to the exclusion of the interests of any parent: s 9(1). 14Subject to that, the Care Act 1998 sets out other, particular principles to be applied, in various sections including sections 9(2), 10, 11, 12 and 13. 15It is now well settled law that in all decisions under the Care Act 1998 involving the paramount concern for the safety, welfare and well-being of a child, including issues of removal, restoration, contact, custody and placement, the proper test to be applied is that of "unacceptable risk to the child": The Department of Community Services v "Rachel Grant", "Tracy Reid", "Sharon Reid and "Frank Reid" [2010] CLN 1 per Judge Marien at [61]. The appropriate test is whether there is an "unacceptable risk" of harm to the child: M v M [1988] HCA 68 at [25]. 16Whether there is unacceptable risk of harm to a child is to be assessed from the accumulation of factors proved according to the relevant civil standard, as discussed below: Johnson v Page [2007] Fam CA 1235. 17The standard of proof is on the balance of probabilities: s 93(4) of the Care Act 1998. The High Court decision in Briginshaw v Briginshaw [1938] HCA 34 is relevant in determining whether the burden of proof, on the balance of probabilities, has been achieved: Director-General of Department of Community Services; Re "Sophie" [2008] NSWCA 250. 18The Children's Court must not make a final care order unless it expressly finds that the permanency planning for the children has been appropriately and adequately addressed: s 83(7)(a). 19Permanency planning means the making of a plan that aims to provide a child or young person with a stable placement that offers long-term security: s 78A. 20The permanency plan must: a) have regard, in particular, to the principle that if a child is placed in out-of-home care, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the child's 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: s 9(2)(e), b) meet the needs of the child: s 78A(1)(b), and c) avoid the instability and uncertainty arising through a succession of different placements or temporary care arrangements: s 78A(1)(c). 21The plan must also include provision for appropriate and adequate arrangements for contact for the child with persons of significance. 22When considering the allocation of parental responsibility, the Court must first give particular consideration to the principle in s 9(2)(c) that must also be satisfied that any other order would be insufficient to meet the needs of the children: s 79(3). The principle in s 9(2)(c) of the Care Act 1998 is: "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." 23Of particular importance in the present matter are the Aboriginal and Torres Straits Islander Principles set out in Part 2 of Chapter 2 of the Care Act 1998; together with the provisions of s 78A. 24These principles involve self-determination for Aboriginal people, their participation in decision-making and a general order for placement for any Aboriginal child or young person who needs to be placed in statutory out-of-home care. 25It is appropriate to set them out in full: "11 Aboriginal and Torres Strait Islander self-determination 1.It is a principle to be applied in the administration of this Act that Aboriginal and Torres Strait Islander people are to participate in the care and protection of their children and young persons with as much self-determination as is possible. 2.To assist in the implementation of the principle in subsection (1), the Minister may negotiate and agree with Aboriginal and Torres Strait Islander people to the implementation of programs and strategies that promote self-determination." 12 Aboriginal and Torres Strait Islander participation in decision- making Aboriginal and Torres Strait Islander families, kinship groups, representative organisations and communities are to be given the opportunity, by means approved by the Minister, to participate in decisions made concerning the placement of their children and young persons and in other significant decisions made under this Act that concern their children and young persons." "13 Aboriginal and Torres Strait Islander Child and Young Person Placement Principles (1) The general order for placement Subject to the objects in section 8 and the principles in section 9, an Aboriginal or Torres Strait Islander child or young person who needs to be placed in statutory out-of-home care is to be placed with: a) a member of the child's or young person's extended family or kinship group, as recognised by the Aboriginal or Torres Strait Islander community to which the child or young person belongs, or b) if it is not practicable for the child or young person to be placed in accordance with paragraph (a) or it would not be in the best interests of the child or young person to be so placed-a member of the Aboriginal or Torres Strait Islander community to which the child or young person belongs, or c) if it is not practicable for the child or young person to be placed in accordance with paragraph (a) or (b) or it would not be in the best interests of the child or young person to be so placed-a member of some other Aboriginal or Torres Strait Islander family residing in the vicinity of the child's or young person's usual place of residence, or d) if it is not practicable for the child or young person to be placed in accordance with paragraph (a), (b) or (c) or it would be detrimental to the safety, welfare and well-being of the child or young person to be so placed - a suitable person approved by the 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. (2) Relevance of self-identification and expressed wishes of child or young person In determining where a child or young person is to be placed, account is to be taken of whether the child or young person identifies as an Aboriginal or Torres Strait Islander and the expressed wishes of the child or young person. (3) Child or young person with parents from different Aboriginal or Torres Strait Islander communities If a child or young person has parents from different Aboriginal or Torres Strait Islander communities, the order for placement established by paragraphs (a), (b), (c) and (d) of subsection (1) applies, but the choice of a member or person referred to in those paragraphs 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. (4) Child or young person with one Aboriginal or Torres Strait Islander parent and one non-Aboriginal and Torres Strait Islander parent If a child or young person has one Aboriginal or Torres Strait Islander parent and one non-Aboriginal and Torres Strait Islander parent, the child or young person may be placed with the person with whom the best interests of the child or young person will be served having regard to the principles of this Act. (5) If a child or young person to whom subsection (4) applies: a) is placed with a person who is not within an Aboriginal or Torres Strait Islander family or community, arrangements must be made to ensure that the child or young person has the opportunity for continuing contact with his or her Aboriginal or Torres Strait Islander family, community and culture, or b) is placed with a person who is within an Aboriginal or Torres Strait Islander family or community, arrangements must be made to ensure that the child or young person has the opportunity for continuing contact with his or her non-Aboriginal and Torres Strait Islander family, community and culture. (6) Placement of child or young person in care of person who is not an Aboriginal or Torres Strait Islander The following principles are to determine the choice of a carer if an Aboriginal or Torres Strait Islander child or young person is placed with a carer who is not an Aboriginal or Torres Strait Islander: a) Subject to the best interests of the child or young person, a fundamental objective is to be the reunion of the child or young person with his or her family or Aboriginal or Torres Strait Islander community. b) Continuing contact must be ensured between the child or young person and his or her Aboriginal or Torres Strait Islander family, community and culture. These principles are subject to subsection (2). (7) Exceptions: emergency placements and placements of short duration Subsection (1) does not apply to: a) an emergency placement made to protect a child or young person from serious risk of immediate harm, or b) a placement for a duration of less than 2 weeks. (8) Where an emergency placement is made to protect an Aboriginal or Torres Strait Islander child or young person from serious risk of immediate harm, the Director-General must consult with the appropriate Aboriginal or Torres Strait Islander community as soon as practicable after the safety of the child or young person has been secured. Note. In the course of any consultation under this Part, the Director-General must have regard to the right of Aboriginal or Torres Strait Islander children and young persons and their families to confidentiality." A brief factual background 26The children are identified as Aboriginal. 27Their father, aged 33, is Aboriginal. Their mother, aged 24, is non-Aboriginal. 28The father's mother is Aboriginal. She is referred to in the proceedings as the maternal grandmother. 29Graham Clark's father is Richard Clark. He has subsequently married Anna Clark, the paternal step-grandmother. They are collectively referred to in the proceedings as the paternal grandparents. Neither of the paternal grandparents are Aboriginal. 30Graham Clark's older sister is Patricia Kane, and is referred to in the proceedings as the paternal aunt. She is Aboriginal. Her mother is Aboriginal. Richard Clark is not her father. 31Patricia Kane's paternal grandfather was an Anawan man and her grandmother was a Danghutti woman. Patricia Kane (the paternal aunt) 32Patricia Kane, the paternal aunt, is now 38. She is Aboriginal, but is said to also have some Irish and Mexican heritage. She is the older of two children, her younger brother, Graham Clark, being the father of Gail and Grace. Patricia and Graham have different biological fathers. 33Patricia was born in Tenterfield. Until the age of 2 she lived with her mother and father on a large property out of Tenterfield, but then moved to Maitland where she lived till the age of 3. Patricia next went to live with her grandmother until the age of 12 when the grandmother passed away. There was, apparently, no particular reason for living with her grandmother other than that she loved her and wanted to be with her. Subsequently, Patricia moved to the Ipswich and Inala areas in Queensland where she lived with cousins. She first obtained work at the age of 13 and 9 months, but completed Year 10 at school. 34After leaving school, Patricia worked for a couple of years before commencing a university degree, studying social work. She only completed a year of the course, because she met a man to whom she fell pregnant. Her first daughter was born early in 1995. Subsequent to that, it appears that Patricia met and married Mr Kane, with whom she lived with for some 10 years at Kootingal. She had two more children in that period: David (born 1998) and Susan (born 2001). Patricia described herself as a "stay-at-home" mother until Susan was 5 years old. 35Patricia then separated from Mr Kane and returned to Brisbane with her two daughters. David remained with his father. She described the break-up as the biggest crisis she ever had to face, and that it severely affected the children. She and her daughters underwent counselling, but David did not receive any counselling. 36Patricia lived in Brisbane but moved to Tamworth with her daughters sometime after the birth of Gail. David, who was still living with his father at Kootingal, visited on weekends. 37Around April 2012 Patricia began living with her current partner who is also Aboriginal. 38Towards the end of September 2012 Graham and Donna (the parents) moved from Brisbane to Tamworth with Gail and Grace, and moved in with Patricia, where they resided until Gail and Grace were removed on 8 October 2012. During that four-week period Patricia not only accommodated the parents and Gail and Grace, but also purchased all the food, formula milk and some clothes for and Grace. She suspected that the parents were spending most of their Centrelink money on drugs and alcohol. Although she did not personally see the parents ingesting drugs, she said that the parents spent a lot of time in the back shed and came back to the house seriously affected by cannabis, which she could smell when she washed their clothes. She stated that she made a report to Community Services when one of her children found a pipe in the house used for smoking crack cocaine. 39After Gail and Grace were removed from the parents by Community Services, they were placed with authorised Aboriginal carers, for about 7 months. They were then placed with a non-aboriginal couple for a couple of weeks, before being returned to the Aboriginal carers. 40In the meantime, Patricia sought to have the children placed with her, and between 7 January and 8 February 2013 an officer from Community Services, Ms Kelli Hilton, undertook a Relative/Kinship Carer Assessment in respect of Patricia and her partner. She produced a report dated 8 February 2013. The report made an evaluation of the strengths and limitations of the suitability of a placement with Patricia. 41Ms Hilton recommended: "The applicants, Ms Kane and her partner, be approved (to) become authorised Aboriginal relative/kinship carers for subject children, Gail and Grace ". 42Simultaneously, another Relative/Kinship Care Assessment of the paternal grandparents was being conducted, at the request of Ms Hilton, by Mr Stephen Huckerby from Assessments Australia, between 11 and 31 January 2013. His report of 31 January 2013 recommended: "It is recommended that the applicants Richard Clark and Anna Clark be authorised and approved as the relative/kinship carers of the subject children Gail and Grace." 43Thus, Community Services was in the comfortable position of having two viable options for permanent placement of Gail and Grace. It appears that the Manager Casework, Ms Carrie Galliano, made the decision to place the children with the paternal grandparents. This decision apparently reversed the original proposal that Gail and Grace be placed with Patricia Kane: see the affidavit of Ms Megan Waters, Manager of Client Services at Tamworth 1 May 2013 (at paragraph 27). 44The basis for that decision might be gleaned from Ms Waters affidavit, to the effect that Ms Galliano's decision to place the children with the paternal grandparents in Queensland was due to the (negative) relationship between the parents and Ms Kane and "the importance of supporting contact between the parents": (at paragraph 23). There is also a reference in the Care Plans filed on 19 March 2013 which reads: "The paternal family are much divided due to personal violence; the maternal grandmother and Ms Kane have a current AVO in place protecting them from Graham and Donna." 45Patricia had applied to be joined as a party to the care proceedings, but her application was dismissed on 11 March 2013, when it was opposed by all the pre-existing parties, including the Director-General. Thus, Patricia did not have the opportunity of pressing her interest in permanently caring for the children, or of having the court objectively assess the relative merits of the two alternative options for their placement. 46Care Plans were filed in the Children's Court at Tamworth on 19 March 2013, which formed the basis of the permanency planning approved by the Children's Court at Tamworth that day. This proposed permanent out-of-home care by way of placement of the children with their paternal grandparents, in Queensland. These Care Plans were silent as to the competing request by Patricia for the children to be placed with her. 47Those Care Plans proposed face-to-face contact for the children with her extended paternal family on 4 occasions per year. Then there were the following curious paragraphs: "(The paternal grandparents) are willing to transport the children to contact visits between Brisbane and Tamworth and acknowledge the need for Grace and Gail to maintain their relationships with their aunt, grandmother and cousins... Community Services proposes that during (their) time with Ms Kane, she will assist Grace and Gail to develop their cultural knowledge and connection to (their) Aboriginal community. In addition, whilst with Ms Kane, Grace and Gail will have visits with their maternal grandmother who will also support the children to maintain cultural connections and knowledge." 48More important, at least from my perspective, was the inadequate attention paid by the Care Plans to the Aboriginal and Torres Straits Islander Principles set out in Part 2 of Chapter 2 of the Care Act 1998, as set out above. 49On 11 March 2013, Community Services received an enquiry from the office of the local Member of Parliament on behalf of Patricia Kane, the concern being that the proposed placement with the paternal grandparents was "not in line with Community Services' Aboriginal child placement principles". "She was also seeking an explanation for why she had received a recommendation that she care for the children after completing the carer assessment, and yet the children were still not to be placed with her." 50For some unexplained reason, Community Services did not respond to the enquiry until 19 March 2013, the day of the hearing at Tamworth Children's Court when Ms Waters informed the Member's office that she supported Ms Galliano's decision. She did so after talking to Ms Galliano, but without reading either of the placement reports. 51Ms Waters did not meet with Patricia Kane until 22 March 2013, when she requested a review of the "proposed non-Aboriginal placement" for Gail and Grace, following which Ms Waters directed another officer from the Department to ring the paternal grandparents in Queensland to inform them that a review of the placement would be carried out. 52But the authorised carers with whom Gail and Grace had been temporarily placed indicated to Community Services that they were unable to continue to care for the girls. 53Ms Waters undertook an urgent review of the placement. She read the placement assessments, and other material on the file, and formed the view "that there was no evidence to indicate why the children could not be placed with Ms Kane." She then had discussions with the caseworker, Ms Wendy Sinclair, who had been involved with Ms Galliano in the preparation of the Care Plans filed on 19 March 2013. 54According to Ms Waters, Ms Sinclair was unable to "provide any facts as to why the children could not be placed with Ms Kane other than the dysfunctional relationship between Graham and Donna and Ms Kane." Ms Waters then consulted the Department psychologist, Ms Noeline Broomfield, who proceeded to review the available material surrounding the question of placement. According to Ms Waters, Ms Broomfield responded that the most significant issue, in her opinion, was that if Gail and Grace were placed with the paternal grandparents in Queensland they would stand to lose their cultural identity despite any possible best intention from the parties involved. 55Ms Waters went back to Ms Galliano and further discussed the question of placement. According to Ms Waters, Ms Galliano was unable to provide any evidence as to why the children should not be placed with Ms Kane, in line with the Aboriginal placement principles, other than "the ongoing difficulties of contact due to the volatile relationship between Ms Kane and the parents". 56This aspect of the evidence was tested when Ms Galliano was called as a witness, and was cross-examined. She candidly conceded that she was unhappy with the overriding of her decision as to placement, but also said that she was now happy with the current proposal to place the children with Patricia, having observed them with her. She said words to the effect that: "I may have underestimated the capacity of Ms Kane, and I have been pleasantly surprised." 57In reviewing the decision as to the placement of Gail and Grace, Ms Waters had regard to the Aboriginal placement principles in the Care Act 1998. She formed the view that the children's best interests would be met by placement with Ms Kane who would be able to better foster cultural identity and Aboriginal family connections. 58That, combined with the evidence of the positive attachment the children had developed with Ms Kane, persuaded Ms Waters that the decision as to placement should be reversed, and she therefore authorised placement of the children with her, pending an application to the Court under s 90 of the Care Act 1998 to vary the final care orders made on 19 March 2013. 59I can indicate that in my view Ms Water's proposition "that the children's best interests would be met with Ms Kane who would be able to better foster cultural identity and Aboriginal family connections" has been clearly borne out. 60I have already adverted to the inadequate attention paid to this issue in the Care Plans presented to the Court on 19 March 2013. Ms Galliano effectively conceded as much when she gave her evidence. 61More important, however, was the comprehensive and compelling evidence given by Patricia Kane as to her capacity for and commitment to the promotion and advancement of the cultural heritage of the children. 62Patricia has embraced her Aboriginal heritage from a young age: "I've known all my life I'm an Anawan woman, from my grandmother. My Nan was taken at 16 and was sent to Darwin." 63Patricia eloquently described her activities to further her cultural heritage, including the development of an Aboriginal descendant's plan, tracing the family history, sharing stories and lore, and practising daily the Anawan language: "It's a huge part of my life. It always has been. It's important for the children to learn as much about their heritage as possible." 64She was an impressive witness, sincere and in my view reliable. The case for placement with the paternal aunt 65The Director-General's case is straightforward. His departmental officers having reviewed the decision about placement, and taking appropriate account of the Aboriginal placement principles, he contends that the interests of these children will be better served by placing them with the paternal aunt, Patricia Kane. In particular, he contends, Patricia Kane is better placed and more motivated to address the cultural identity of Gail and Grace on a sustained and continuing basis. 66Such risks as might be posed by such a placement are not unacceptable risks, and are outweighed by other factors, including the cultural identity issue and the attachment that the children have formed with Patricia. 67The submissions for the Director-General were supported by Mr Kemp, the solicitor representing Patricia Kane. The case against placement with the paternal aunt 68Opposed to placement with the paternal aunt, and supportive of placement with the paternal grandparents, were the parents, the paternal grandparents, and the Independent Legal Representative for Gail and Grace. I heard submissions on their behalf from their legal representatives. 69The essential thrust of the submissions was that a placement of Gail and Grace with the paternal aunt, and her partner, and her children, would pose unacceptable risks of harm to them. 70In addition, the paternal grandparents can adequately and sufficiently address the cultural needs of the children. Mr Richard Clark, although not himself Aboriginal, has significant Aboriginal connections and a willingness to involve Gail and Grace in Aboriginal activities. 71Further, it was submitted, the relationship between the parents and the paternal grandparents is not attended by the same animosity and antagonism as their "deeply fractured" relationship with Patricia, such that issues surrounding contact and family harmony, the children's view of their parents and their having positive interaction with them, would be better addressed by placement with the paternal grandparents. 72Finally, it was said, Patricia will not adequately cope with the ongoing demands and stress of having 5 children in the house, and her capacity to supervise and care for Gail and Grace will be correspondingly diminished. 73Specifically, the issues of unacceptable risk pointed to included: * An assertion that Patricia has a violent temper and who regularly goes out drinking and brings men home afterwards, and who inadequately supervises her own children. She provides her children with alcohol, and allows them to smoke cigarettes. She allows her son, David (now 15) to smoke marijuana. * The proposition that Patricia 's relationship with her partner is unstable, volatile and potentially violent. * Allegations of inappropriate behaviour on the part of Patricia's partner, including drug taking and drinking. He has a criminal history, a recent episode of drink driving, and a record of violence. * Reports of inappropriate behaviour on the part of David Kane, including drug and alcohol abuse. * The closeness of Patricia to her mother, a woman with a history of drug taking and violence, who once attacked the grandfather with a tomahawk, an incident which Patricia Kane condones. 74It was submitted that Patricia 's motives for wanting the children to be placed with her are impure, and are driven by a desire for the welfare money that will generate. 75It was also suggested that Ms Water's decision to review the decision as to placement was politically motivated, in response to the enquiry from the local Member of Parliament. Is there unacceptable risk of harm from placement with the paternal aunt? 76In my view, none of the matters raised and asserted against the proposed placement of the children with Patricia Kane, either individually or collectively, is productive of unacceptable risk of harm. 77Each of the assertions and allegations has in my view not been substantiated, and amounts to mere conjecture, or has been shown to be trivial, motivated by spite, or so historical as to be lacking probative value. 78It is to be remembered that most of these matters were raised, considered and rejected by Ms Hilton in her assessment of 8 February 2013 because they did not give rise to current concern. 79It was suggested, in my view unfairly, that Ms Hilton's report was superficial, undertaken cursorily and made without adequate follow-up, particularly the allegations surrounding or emanating from David. 80Ms Hilton's report is in fact detailed, balanced and fair. In her evaluation (page 16) she carefully and lucidly sets out the strengths and limitations of Patricia Kane as a long-term carer, including issues as to alcohol and drug-taking, and the respective histories of Patricia and her partner. None of the issues now agitated was sufficient, in her view, to justify a different recommendation to the positive one she finally came to. 81As I have already found, Patricia Kane was a reliable and impressive witness. She clearly stated her disapproval of smoking and drug taking by David, a position that is supported by his father. The suggestions of a violent temper, and inappropriate drinking, on her part were not borne out. Likewise, the suggestion of an inappropriate tolerance of her children smoking and drinking was not established. 82The assertions about her partner were historical at best. The proposition that he smoked marijuana with David was not established. 83I place little weight on the tomahawk incident involving the grandmother, given its antiquity and the circumstances under which it was generated, namely the infidelity of the grandfather. 84To the extent that any of the criticisms of Patricia and her partner emanate from the parents, they are to be rejected as unreliable having regard to the level of animosity and spite they have for Patricia, generated by their resentment concerning her involvement in the removal of their children. This, in my view, was in fact a demonstration of her concern for the children, and her capacity to care for them. 85That Patricia and her partner may have had a loud argument on one occasion when he stayed the night elsewhere is not probative of an unstable or violent domestic atmosphere in the home where Gail and Grace are to be placed. 86I am not persuaded that Ms Waters was motivated by bias, or otherwise influenced by the enquiry on Patricia 's behalf by the local member of Parliament. Clearly it would have been more satisfactory had she been involved sooner rather than later, but in my view, having become involved, she acted appropriately and objectively, and went through a careful process of discussion, analysis and testing in her consideration of the conflicting considerations concerning the placement issue. 87The opinion of the Departmental psychologist, Ms Broomfield, went unchallenged. Ms Galliano, as I have already recorded, also now supports the placement with Patricia Kane. 88The children have developed a positive attachment with Patricia and her partner. This attachment started prior to the actual placement of the children with her. 89Ms Hilton did not believe that Patricia could not cope with 5 children, and nor do I. Given the age of her own children, and her level of energy and commitment, I am comfortably satisfied she will provide a safe, caring and nurturing environment for Gail and Grace. The ATSI principles in the Care Act 1998 90There being no unacceptable risk of harm to these children posed by placement with the maternal aunt, the overriding principle that the safety, welfare, and well-being of children are paramount is comfortably met. 91The determination in this case falls, therefore, to be made according to the Aboriginal and Torres Straits Islander Principles set out in Part 2 of Chapter 2 of the Care Act 1998; together with the provisions of s 78A. 92The evidence on this issue is all one way. 93Application of and attention to these principles is sometimes inadequately addressed by Community Services. This case is an example, at least insofar as the Care Plans put to the Court on 19 March 2013 are concerned. The revised Care Plans currently before me have been criticised by the Independent Legal Representative as also lacking in relevant detail. That may be so, but fortunately the appropriate evidence did emerge at the hearing, albeit mostly from Patricia Kane. 94The Aboriginal and Torres Straits Islander Principles are in the Care Act 1998 for good and well-documented reasons that do not need to be traversed anew in these reasons. They are to be properly and adequately addressed in all permanency planning and other decisions to be made under the Act and in matters coming before the Children's Court. 95I wish to place on record that this Court is increasingly frustrated by the lack of cultural knowledge and awareness displayed by some caseworkers and practitioners in their presentation of matters before it. The time has come for a more enlightened approach and a heightened attention to the necessary detail required, which may require specific training and education by the agencies and organisations involved. The s 90 application 96Leave was granted to the Director-General in this matter under s 90 (1) of the Care Act 1998 to apply for variation of the care orders made on 19 March 2013. 97The Care Act 1998 prescribes a set of requirements that must be taken into account when the variation sought relates to an order that placed the child under the parental responsibility of the Minister, or that allocated specific aspects of parental responsibility from the Minister to another person: s 90(6). The matters specified in s 90(6) are: (a) the age of the child or young person, (b) the wishes of the child or young person and the weight to be given to those wishes, (c) the length of time the child or young person has been in the care of the present caregivers, (d) the strength of the child's or young person's attachments to the birth parents and the present caregivers, (e) the capacity of the birth parents to provide an adequate standard of care for the child or young person, (f) the risk to the child or young person of psychological harm if present care arrangements are varied or rescinded. 98These principles were considered and applied by Magistrate Graham Blewitt AM in Re Bethany [2012] NSWChC 4. 99I have taken each of the matters in s 90(6) into consideration, although in this case the wishes of the children is not a matter to which I need to accord any weight, given their age. I have already addressed the attachments they have formed with Patricia Kane, and changing the placement now could create a risk of unnecessary psychological harm. 100The provisions of the United Nations Convention on the Rights of the Child 1989 (CROC) are capable of being relevant to the exercise of discretions under the Care Act 1998: Re Tracey [2011] NSWCA 43. Most, if not all, of the provisions in CROC have been incorporated into or are reflected in the Care Act 1998. The circumstances in Re Tracey were unusual and unique. The parties in the present matter made no submissions based on the Convention. 101There was, therefore, no suggestion that this Court needed to take into account any provision in CROC such that there was some different requirement, some additional principle, or some gloss that required the Court to have particular regard to in determining this case, such that I was required to go beyond the Care Act 1998 and the case law interpreting that Act and the relevant provisions, or in the consideration of the permanency planning proposed. Findings and conclusions 102I am satisfied that it is appropriate to vary the care orders made at Tamworth in the Children's Court on 19 March 2013. 103I formally confirm acceptance of the assessment of the Director-General that there is no realistic possibility of restoration to either of the children's parents. 104I am comfortably satisfied that the proposed placement with the maternal aunt will not expose the children to any unacceptable risk of harm. 105The permanency plans for the children clearly meet their needs: s 78A(1)(b). 106The permanency plans for the children have regard to the principle that arrangements should be made in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising their circumstances and that, the younger their age, the greater the need for early decisions to be made: s 9(2)(e). 107The permanency plans for the children avoid the instability and uncertainty arising through a succession of different placements or temporary care arrangements: s 78A(1)(c). 108The permanency plans for the children include provision for appropriate and adequate arrangements for contact for the children with persons of significance, in the long-term interests of the children. 109The permanency plans for the children adequately address how they have complied with the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles in s 13 of the Care Act 1998, specifically in this case s 13(4): s 78A(4). 110I expressly find that the permanency planning for the children has been appropriately and adequately addressed: s 83(7). 111The original care orders provided for sole parental responsibility for the children in respect of all its aspects to be allocated to the Minister until they turn 18. 112I have given particular consideration to the principle that the course to be followed must be the least intrusive intervention in the life of the children and their family that is consistent with the paramount concern to protect them from harm and promote their development: s 9(2)(c). 113Nevertheless, I am comfortably satisfied that placement of the children into the parental responsibility of the Minister until the age of 18 is the only acceptable option consistent with the paramount concern. 114I am also comfortably satisfied that any other order than that proposed would be insufficient to meet the needs of the children: s 79(3). 115For all the reasons discussed, I confirm the allocation of all aspects of parental responsibility for the children to the Minister for Family and Community Services until they turn 18. 116The Director-General proposes that a report be provided to the Court pursuant to s 82 of the Care Act 1998 within 8 months. 117In my view that is appropriate and sufficient. 118The permanency planning proposes referral of parties to mediation to assist with family relationships in the interests of the children. 119In my view, mediation between family members is important. Disposition 120I make the following final care orders and notations: 1. The orders and notations of the Children's Court made at Tamworth on 19 March 2013 are varied as follows. 2. Allocation of all aspects of parental responsibility for the children to the Minister for Family and Community Services until they turn 18 is confirmed. 3. The Director-General is to prepare a written report within 8 months of the date of these of these orders which complies with s 82(2)(b) of the Children and Young Persons (Care and Protection) Act 1998 and which details, in relation to Gail and Grace: (a) the level, frequency and suitability of contact between them, their parents, grandparents and extended family members; (b) their general development, progress and health; and (c) the general suitability of their care arrangements. Notations The Court notes the proposals in the permanency planning in respect of: 1. Permanent placement of the children with the paternal aunt. 2. A minimum regime for contact with other family members. 3. The referral of parties to mediation to assist with family relationships in the long-term interests of the children. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 September 2013