A and anor v Minister for Community Services and ors [2002] NSWCA 246 | Case summary

REASONS FOR DECISION 1 The Applicants sought a review of the decision made by the respondent, the Minister for Community Services, to remove three children from their care. 2 The children were removed on 16 January 2007 on the basis of allegations of abuse made by young people the Applicants had previously cared for. 3 Section 126(1) of the Tribunal Act makes it an offence to publish or broadcast the name of any person to whom any proceedings before the Community Services Division of the Tribunal relate. Section 126(2) contains an exception in relation to the publication of an official report of the proceedings. Because of the sensitivity of this matter, we have decided not to publish any details that could identify the Applicants, the children, their families or other young people that were cared for by the Applicants. We refer to the Applicants as Ms A and Mr B. We have included a table at the end of the decision setting out these pseudonyms for ease of reference. 4 The Applicants seek the return of two of the children, BY (10 yrs) and BZ (13 years). They do not seek the return of the third child [Child A] who did not want to return to the placement. 5 The Applicants denied abusing the children in their care and submitted that they are expert, experienced, dedicated and concerned carers. They submitted that it was in the best interests of the children to be returned for their safety, well-being and welfare. 6 The Minister submitted that the decision to remove the young people was correct and preferable and that the application should be dismissed. 7 Both the Child BZ and the Child BY were joined as parties and had legal representation. The Applicants and the Minister were also legally represented. The Tribunal's task, in hearing and determining this matter, was greatly assisted by all four representatives. Tribunal's jurisdiction and powers 8 It is not in issue that the decision to remove the children from the daily care and control of the Applicants is reviewable by the Tribunal. (Section 245(1)(c) of the Children and Young Persons (Care and Protection) Act (1998) [Care and Protection Act] read in conjunction with s.38 of the Administrative Decisions Tribunal Act 1997 [Tribunal Act] and s. 28 of the Community Services Complaints Reviews and Monitoring Act.) 9 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. We may have regard to all material that was relevant at the time of the decision as well as any further material that is relevant as at the time of the hearing. [YG & GG v Minister for Community Services [2002] NSWCA 246 at [25]]. 10 On review, we may decide to affirm the decision, to vary the decision, to set aside the decision and make a decision in substitution for it or to set it aside and remit it back to the Administrator.[ s.63(3)] 11 The interests of young people are paramount. The principles to be applied in the administration of the Care and Protection Act are set out in s. 9. Among other requirements s. (9)(a) requires that the safety, welfare and wellbeing of the child or young person must be the paramount consideration. Where young people are able to form their own views on matters concerning their safety, welfare and well-being we are required to give due weight to their views in accordance with their developmental capacity and the circumstances [s. 9(b) Care and Protection Act.]. The Care and Protection Act sets out objects in s. 8 of the Act. Aboriginal child placement principle 12 In this matter there was some evidence regarding whether the children concerned were Aboriginal. The Care and Protection Act sets out placement principles concerning Aboriginal children in s. 13. Section 13 includes an order of placement subject to the objects and principles of the Care and Protection Act. 13 In this matter both children had an Aboriginal and a non Aboriginal parent. Section 13 (4) provides that they may be placed with the person with whom their best interests will be served having regard to the principles of this Act. If an Aboriginal child is not placed in the Aboriginal community then arrangements need to be made to ensure that the child has an opportunity for continuing contact with his or her Aboriginal family, community and culture [s13(5)(a)]. Section 13(6) sets out principles to determine the choice of carer if an Aboriginal child is placed with a non Aboriginal carer. These are that subject to the best interests of the child a fundamental objective is the reunion with the child's family or Aboriginal community and that continuing contact must be ensured with the child's Aboriginal family, community and culture. In determining where an Aboriginal child is to be placed account is to be taken of whether the child identifies as Aboriginal and their expressed wishes. [s. 13(2)] Allegations against the Applicants 14 The three young people were removed pending the investigation of allegations made about the Applicants by two young people who had been in their care, Child B and Child C. 15 Child B alleged that Mr B hit him with a cricket bat during an incident at the Applicants' home on 12 January 2007 while he was in their care. He left the placement and spoke to the Police on 13 January 2007. The Police contacted Ms A, one of the Applicants, and informed her of the allegation that Mr B had hit Child B with a bat. Ms A made a call to the Department's Helpline on 14 January 2007 regarding the matter. The Police did not take the matter any further. 16 The Manager of the Casework Out of Home Care Team at the local Department of Community Services office provided a statement dated 8 June 2007 and gave oral evidence. She said that the report to the help line was given to Ms Hyson, a Departmental Officer, on Monday 15 January 2007 to investigate. 17 Ms Hyson provided a written statement and gave oral evidence. Ms Hyson, accompanied by another Departmental officer Mr Weaver, interviewed Child B with his mother on 15 January 2007. 18 Another young person, Child C, had left the Applicant's care in September 2006 and had made some previous allegations regarding his treatment in their care. Ms Hyson interviewed Child C accompanied by another officer, Mr Gris, on 16 January 2007. 19 Ms Galliano stated that she relied on the report to the Helpline and Ms Hyson's interviews with Child B and Child C in making the decision to remove the children from the Applicants. There was a dispute as to whether Ms Galliano had viewed the report of the interview with Child C before the decision to remove the children was made. The Applicants pointed to the 4 pm conclusion time in the Departmental notes of the interview with Child C on 16 January 2007 and Ms Galliano's evidence that they had attended the home of the Applicants to remove the children at about 3.30 pm that day. Ms Hyson and Ms Galliano acknowledged the discrepancy but both maintained that the interview with Child C occurred prior to the removal. 20 The Manager of Client Services wrote to the Applicants on 18 January 2007 [Exhibit A8] and informed them that the Department had received the following information [Mr B] hit children in care across the face; [Mr B] hit a child in care with a cricket bat, hose and cane; [Mr Y] resides at the home and is alleged to be a convicted paedophile; [Ms A] swears at the children and calls them names; and [Ms A] has the children working in her cleaning business. 21 The Applicants were told that a decision had been made to organise a new placement for the young persons so that an Allegation Against Employees investigation could be carried out. Ms Carter, a Departmental Officer was given the responsibility to conduct a number of interviews arising out of the allegations against the Applicants. 22 Ms Carter interviewed two of the children who have been removed from the placement on 18 January 2007, Child A and Child BY. She interviewed both Applicants separately on that day. She interviewed the Child BY again on 15 February 2007 and his sister on 5 February 2007. She interviewed Child C on 7 March 2007.[Exhibit R1] 23 The main allegations were made by Child B and Child C. They were later retracted. 24 Child B Allegations. At the interview with Ms Hyson on 15 January 2007 Child B described an incident with Mr B. The notes of that interview, in evidence before us, [Exhibit R 3] stated: [Child B] said that he had asked [Mr B] for his key card. [Mr B] had refused to provide the card. [Child B] had to then go to work, so he left without the card. [Child B] said that he may have used inappropriate verbal communication towards [Mr B] during the communication. [Child B] said [Mr B] then hit him on the thight (sic) with a black watering hose that left no mark. [Child B] said he threatened [Mr B] with a cricket bat prior to leaving for work. [Mr B] picked up the bat and hit [Child B] on the arm, just above his right wrist. Caseworkers observed a mark on [Child B]'s arm that resembled and (sic) inverted 'V'. The sections were about 23mm in diameter and looked like they were in the process of healing. 25 Child B also alleged that '[Mr B] always belts me up' and that he had hit him with a cane and a black stick. He also said that he had told Mr B two months ago that he was moving out and that Mr B had hit him in the head and stomach with a closed fist. [R4 Annexure C]. 26 Ms Hyson stated that during the interview Child B appeared upset, his voice was shaky and that occasionally his whole body would tremble. 27 In an interview with Mr Weaver and a Casework Manager on 30 May 2007 Child B was asked whether there were any issues from his placement with Ms A that he wanted to tell them about. He said there were no issues and that he could not remember any abuse when living with Ms A. [Exhibit R3]. 28 In a later interview on 7 June 2007 with Mr Weaver he was asked again about the Applicants. He stated that it was good staying at the Applicants and he was happy when there. He was taken to comments he had previously made regarding being hit by Mr B and being hit with a garden hose and a cricket bat. He stated that "I was trying to get him in trouble I wanted to live with my Mum' and when asked 'from your memory did any of those things happen?' he said 'nope'. He said that he had been paid $50 by Child C to make those allegations. In the course of that interview he was asked what happened if you 'mucked up' and he said you got sent to your room or the corner. [Exhibit R 3]. 29 Child C's allegations. Child C left his placement with the Applicants in September 2006. He made some allegations regarding the Applicants in an interview with Departmental staff in October 2006. Notes of that interview were attached to the statement of Frank Weaver [Exhibit R 3]. When asked why he left the placement he told the officer that 'I was sick of being abused and sick of work. Every time I turned around, she's down my throat; it was like walking on eggshells….' 30 Among other allegations he said that Ms A was verbally abusive all the time, and that he had helped her clean for nothing. He stated that because he didn't scrub the toilets properly there was a huge argument. Mr B had come out and thrown him against a wall. He had pushed him back and Mr B went away. He said that Mr B was normally a placid bloke and didn't usually do that. He said that Ms A had come back and dragged him to the toilet to finish cleaning. 31 He stated that the Applicants fought all the time. He was asked about a previous report he had made regarding a boarder at the Applicant's home, Mr Y. He was asked whether he was comfortable around Mr Y. He replied that he had told the officer about that in the report and he did not want to talk about it. When asked specifically 'I mean the time when he said to show me your dick - is that true?' Child C stated "It happened all the time for a while, I told him to shut up and it stopped." 32 In an interview with Ms Carter on 7 March 2007 he alleged that: There was a lot of swearing, everyone swore; Ms A would come home from work and say things like 'why isn't the fucking house clean?' 'Go and hang out the fucking cloths (sic) you lazy bastard'; he would come home from school worrying about what he would be in trouble for when he got home. On the day he walked out of the placement he said Ms A had gone to bed and he had cleaned the whole house and fed the kids. He was on the computer when Ms A woke up and called him a 'lazy little bastard'. He went to his room and Ms A had come in and sworn at him. He described Mr B as quiet and placid. He stated later in the interview that he would call him a lazy bastard all the time. He said that he had never been hit but when asked if Ms A ever hit other children he said 'she would hit them in the face or on the arse and send them to their room'. When he was asked about Mr B and Child B he said '[Child B] would say to [Mr B] come on I will take you, [Mr B] stood up and smacked him in the mouth and sat bake (sic) down, [Mr B] would kick him too. He denied seeing anyone hit with a cricket bat or hose but said that he was hit across the legs with a black old fishing rod, he also said that Child B was hit with it and that the child BY was threatened with it. He alleged that Sundays were a big work day for him. He was not paid for his work if he didn't clean properly. On one occasion Ms A said something to him and he told her to do it herself. Mr B had thrown him against the wall. 33 Child C later retracted his allegations and a copy of his retraction was before the Tribunal [Attachment to Exhibit R6]. Other Evidence regarding these allegations 34 Ms Carter interviewed the three children who had been in the placement at the time of the incident with Child B on 18 January 2007 and the notes of these interviews were attached to her statement [Exhibit R1]. 35 All three denied being hit by the Applicants. Child A denied that the other boys in the placement were hit although he did say that Ms A had hit the Child BY on the bottom of the legs once. The Child BZ told Ms Carter that "Child B is just lying about what happened". Both he and the Child BZ said that Mr B did not hit Child B. Child A said that he had heard Child B and Mr B yelling and swearing at each other. The Child BY said that Child B was taking a cricket bat to [Ms A's son], he was being smart and Ms A's son took the bat. Mr B came from inside and chased Child B. Child B ran around the side path. He said that he was frightened of Child B and that he "just gets too serious and hurts us". 36 The three boy's answers regarding disciplinary practices in the household were largely consistent. Child A described getting grounded, sitting in the corner, not being allowed to play with the play station and being sent to their rooms. The Child BZ said they got put in the corner. The Child BY mentioned most of these measures. 37 In regard to swearing Child A said that all the boys in the placement swore accidentally but not a lot. He also said that the Applicants swore at each other, that sometimes there was a lot of yelling and swearing although he said it was "not a lot". The Child BZ said that [Ms A] swears sometimes "but not at us". 38 Child A did not want to return to the placement. The Child BZ described living with the Applicants as 'fun'. The Child BY said that it was good and that he wanted to go back to the Applicants. Applicant's response to the allegations 39 The Applicants deny any abuse of children in their care. Mr B was interviewed by Ms Carter on 18 January 2007 [Exhibit R 1 Attachment F] and asked what happened on the morning of the incident with Child B. He stated that ' [Ms A's ] son [Child D] was here. [Child B] was asked to get out of bed and he started swearing. He refused to take his tablet. [Child B] was asked to go to work to which he started to abuse me. He threatened [Child D] with the bat and I told him I would wet him with the hose.' 40 Mr B said he was out the back, Ms A's son was near the table and Child B was at the shed getting the cricket bat. He said that Child B got on his bike, went up the side of the house and went out the gate. 41 Ms Carter interviewed Ms A on 18 January 2007 [Exhibit R1 Attachment G]. Her account of the discipline in her home was consistent with that of the children interviewed. She stated that they were put in the corner, sent to their room or the play station was taken away. 42 She said that all the boys swore and that she did not swear at them all the time, only sometimes when they swore at her. She acknowledged that she swore but said that generally that was not at anyone in particular. 43 Regarding the incident with Child B, Ms B's version of events was that Mr B had gone in to get him up for work and Child B swore at him. She went in and said 'you don't want to go to school you have to go to work'. Child B asked her to come into the room, she did and he told her that Mr B had hit him. Her son said ' no he didn't, don't lie, [Mr B] was in the toilet and you just hit the wall.' Child B went outside, Child D took the helmet out to him and I heard Child D say 'don't hit me with that [Child B]'. Mr B walked out the back and all I could hear was Child D telling him to put his helmet on and Mr B told him to get to work because he was late. Child D told her that Mr B was behind Child B and said he was going to wet him with the hose. They were laughing at the back. Child B got serious and started arguing. 44 In her written statement [Exhibit A 5] filed on 17 May 2007 Ms A stated [Mr B] hasn't hit the children across the face seriously only when playing footy in yard and wrestling amucking (sic) around and when they would spar around. 45 She denied that Mr B had hit Child B with a cricket bat, hose or cane. She said that Child B went to hit her son with the bat and Mr B told him to put it down, Child B threw it on the ground and Mr B picked it up and chased Child B down the side of the house. Child B came in and went out to get his bike to go to work. 46 Ms A said in her statement [Exhibit A5] that Child B had been back to visit and that he wanted to come back and live. She stated that 'he also told us that [Child C] paid him $50 to lie to DOC's.' Discussion and findings regarding allegations 47 Departmental staff provided evidence of their conversations with Child B where he retracted his allegations. The Department of Community Services made efforts to contact Child C to discuss his retraction statement that had been made on 20 May 2007. That statement is attached to Ms Hyson's statement [Exhibit R 6]. Despite her repeated efforts Child C did not wish to have a conversation with her about it. There is no evidence to suggest that any pressure was applied to either young person by the Applicants to retract their allegations or that those retractions were in any way forced. 48 The Minister acknowledged the retraction of the allegations. In oral submissions the Minister stated that 'in fairness it is hard to place weight on the veracity of the original allegations'. 49 The allegations were denied by the Applicants. The allegations are not backed up by the interviews with other children that were in the Applicant's care at the time. We agree with the Minister's submission and after taking into account all of the evidence we are not satisfied Mr B hit Child B with a bat, any other object or his fist. We are not satisfied that the Applicants engaged in the conduct alleged by Child B or Child C. 50 Ms A and Mr B operate a cleaning business. There is evidence before us that the children did sometimes accompany Ms A and Mr B when they went to do cleaning and participated in the cleaning. We are satisfied on the evidence before us that they were not forced to work in the cleaning business or treated inappropriately while accompanying the Applicants when they were cleaning. 51 We turn now to the children who are the subject of this Application The Child BY - Background 52 He is ten years old and has been in the care of the Minister since early 2003. The Minister has had parental responsibility for him and his sister since April 2004. He has supervised contact with his father and step-mother. Initially he was placed with his sister but was separated after some inappropriate conduct towards his sister. 53 His placement with the Applicants from November 2005 until his removal in January 2007was his sixth placement. After being removed from the Applicants he was placed in a new foster placement where he has remained. 54 During the placement with the Applicants there were up to five children placed with the Applicants. He was subjected to some inappropriate behaviour from Child A, another child placed with the Applicants. For example, in oral evidence Ms A related an unprovoked incident in which Child A had charged up to Child BY with a bread knife and pointed it at him approximately 6 inches from his face. The incident occurred at the carer's home. Ms A was present and was able to contain the situation. 55 After Child A moved in the Applicants' evidence was that the Child BY began bedwetting. He and Child A had shared a room and were separated because in Ms A's words Child A would be 'either taking the pillows from under his head, he tried to pull the mattress off the bed while [The child BY] was in there, he'd be tapping on the walls or he'd get out of bed and he'd shake the double bunks. He just wouldn't let [the Child BY] sleep at all.' 56 Ms A also stated that the Child BY and the Child BZ told her about an incident where Child A had called both children into the lounge room to watch him suck his own penis. 57 On the evidence before us we do not consider that the Applicants were responsible for these incidents. They are examples of the kinds of behaviours that the Applicants and children had to contend with given the number of high needs children that the Department of Community Services had placed together in one placement. On the evidence before the Tribunal the carers managed each of these incidents and acted to protect the children affected as best they could. 58 There was little evidence of active support from the Department to the carers in managing the behaviour and high needs of the children that were placed in their care. They had up to five children placed with them at one time. With some exceptions, the evidence indicates that often the carers were left to deal with very difficult situations themselves. 59 The Child BY's current placement. His current foster carer, Mrs X, provided a statement and gave oral evidence before the Tribunal. She lives on a property approximately 42 kms from the town that the child had been living in with the Applicants. Mrs X has been a foster carer for about nine years. The child BY attends the same school as previously. 60 The child BY's wishes. He told Ms Carter on 18 January 2007 that he wanted to return to the Applicants. By 15 February 2007 when Ms Carter interviewed him again he was confused and did not know whether he wanted to return to the Applicants or stay in his current placement. 61 By June 2007 his wishes had changed. In her statement dated 5 June 2007 his current carer, Mrs X, said that he came home after speaking to his lawyer about his wishes on 25 May 2007 and told her he wanted to tell her his wishes. He said 'I have two wishes: one is to stay here and the other is to get a motor bike.'[at paragraph 16 R9]. It was not put to Mrs X that this conversation did not occur. We accept the carer's evidence of that conversation. 62 The Child BY's legal representative submitted that weight should be given to his wishes to continue to reside where he is and that no further changes should be made to his circumstances. The Minister submitted that it was not in his best interests to move him from his current placement pointing out that he was in a stable placement with experienced carers and had been there since 16 January 2007. 63 The Applicants seek his return. The Applicants submitted that BY's current carer presented as a strong overbearing woman. They also submitted that the his seven month placement with Mrs X was the 'the outer extent of [the carer's] placements' pointing to her history of having had 20 children placed with her previously and her longest placement being for 8 months. In essence they submitted that the placement would not last much longer. They were critical of other aspects of the care received in the placement such as his 1.8 km walk from the school bus stop and the amount of time he spent out on the land with his carer. 64 We had no evidence before us as to the reasons that the other placements with Mrs X ended. We do not consider on the evidence before us that there is any indication that the placement is likely to break down. While there was evidence of the child walking 1.8 kilometres home from the bus stop Mrs X's evidence was that she picked him up in if the weather was bad. We accept Mrs X's evidence that she did not leave him alone in the house while she was working on the land and that he accompanied her when she was working outside. Her evidence made it clear that she was not out working on the land when he returned from school in the afternoons. 65 The Applicant submitted that the Child BY was excluded on a regular basis from the carer's family activities. For example, they cited their failure to take him to the Royal Easter Show when they went to show cattle. We were satisfied with Mrs X's response when asked why she did not take the child. Mrs X said 'What are you going to do with a child in - at the Easter Show while you're working with cattle.' 66 Mrs X's evidence indicates that she has made efforts to assist the Child BY including taking him for swimming lessons and participating in access visits with his sister, for example taking him to the cemetery to visit his mother's grave. 67 While the child had had some behavioural problems at school earlier in the year a letter from the Principal to his current carer dated 14 May 2007 stated that there had been a marked improvement and that the school was now happy with his behaviour and attitude. 68 Aboriginal Child Placement Principle. There was some evidence and submissions as to whether the Child BY is Aboriginal and consequently whether the Aboriginal Child Placement Principle in s. 13 of the Care and Protection Act applied. His father is not Aboriginal. He has told the Department of Community Services that the child's deceased mother was of Aboriginal descent and gave her the name of the child BY's mother's grandmother or great grandmother. The child's caseworker Ms Stacey's evidence was that she knew of that family. She spoke to one member of that family who had lived in the area all his life and was well known in the area and he was not aware of the person the child's father had referred to. 69 The child does not identify as Aboriginal. 70 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. 71 Given that the child does not identify as Aboriginal and there is no evidence that he is accepted by the Aboriginal community as an Aboriginal person, on the evidence before us we are not satisfied that the Child BY is Aboriginal within the meaning of that term in s. 5 of the Care and Protection Act. We encourage the Minister to make further enquiries to determine his background and Aboriginal descent. 72 In any event if the Child BY is Aboriginal where a child has one Aboriginal parent and one non Aboriginal parent then s. 13(4) of the Care and Protection Act provides that he may be placed with the person with whom the best interests of the child will be served having regard to the principles of this Act. 73 In this instance neither the Applicants nor the child's current carer are Aboriginal. The Child BZ Background 74 The Child BZ is about to turn 14 years old. He and his older brother were placed in the care of his grandmother in 1996. They stayed there for two years. They were then returned to their mother. They stayed with her until January 2000 when they were again placed in Departmental care. In March 2000 the Child BZ became a ward of the state for two years and in 2003 the Minister was allocated parental responsibility for him until he reached 18. He has had approximately 32 foster care placements. In June 2006 following a placement breakdown an attempt was made to restore him to his mother. That was not successful and his mother returned him to the Police Station. He went from the Police Station to the placement with the Applicants where he stayed until his removal on 16 January 2007. 75 The Child BZ knew the Applicants beforehand as his older brother was placed with them for a little over 5 years. He spent some school holidays with the Applicants. The Applicants also knew his mother and provided support to her. Initial requests for the child BZ to be placed with the Applicants were refused as the Applicants had a number of high needs children in their care. In July 2006 it was agreed that he could be placed with the Applicants. He remained with them until his removal on 16 January 2007. 76 In July 2006 he was assessed as having Attention Deficit Hyperactivity Disorder, Oppositional Defiant Disorder and associated learning difficulties. 77 Aboriginal Child Placement Principle. Ms Earle, the Child BZ's caseworker, stated that his mother identified as Aboriginal. His father is Lebanese. Ms A gave evidence that the child BZ identified as Aboriginal and that he also classed himself as Lebanese. 78 The Applicants submitted that there was evidence to support an inference that the child BZ identified as Aboriginal as he identified with his family, had nearly a four year placement with an Aboriginal carer and there was a history of the Department seeking an Aboriginal placement for him. The Minister's submissions referred to Ms Earle's evidence regarding attempts to place him with Aboriginal carers. No Aboriginal carer was available. 79 Given Ms A and Ms Earle's evidence and the fact that he had been placed with an Aboriginal carer we accept that he is Aboriginal. We agree with the Minister's submission that there is no evidence before us that would allow us to identify his kinship group or the Aboriginal community to which he belongs. 80 As he has one parent who is Lebanese then s. 13(4) of the Care and Protection Act applies and he may be placed with whom his best interests will be served having regard to the principles of the Act. Both the Applicants and his current carers are not Aboriginal. The effect of s. 13(5) is as the Minister submitted. If he is placed with a non Aboriginal family arrangements must be made to ensure that he has continuing contact with his Aboriginal family, community and culture. 81 Progress in placement with the Applicants. His caseworker from the Department of Community Services Ms Earle provided a statement dated 7 June 2007 and gave oral evidence. She had been the Child BZ's caseworker since March 2002 with the exception of a period March 2005-March 2006. 82 Ms Earle's evidence was that during his placement with the Applicants his behaviour improved and he became more stable. She agreed in cross examination that he was settled and happy and that other areas of his life started to improve. She agreed that in the time she had known him and all his successive placements that this was the first time she had really seen that happening. Ms Earle described Ms A as very focused on the young people in her care and as co-operative with the Department of Community Services. She agreed that Ms A was enthusiastic and came across as a concerned carer. Ms Earle stated that she had a good rapport with the Child BZ at the time and that he never said a bad thing about Ms A. 83 He started at a new school while placed with the Applicants and made good progress. He had previously had a history of suspensions at school but had no suspensions in Term 4 of 2006. Ms Earle reported that in December 2006 Ms A faxed her school awards that he had received in four of his subjects. Ms Earle stated that 'for a child who had been suspended many times previously, he was doing very well.' [at paragraph 33]. She was on leave at the time he was removed and expressed surprise at his removal. 84 Placement after leaving the Applicants. He was placed in a new placement after leaving the Applicants and had a new caseworker from Life Without Barriers, Ms Faith. Ms Faith provided a statement dated 7 June 2007 and gave oral evidence in June 2007. Following the adjournment of the matter she provided an updated statement dated 26 July 2007 and further oral evidence on 2 August 2007. 85 Ms Faith's evidence was that his new placement worked well at the start. By the time the hearing commenced in June 2007 it was in difficulty. On 22 June 2007 that placement broke down and he moved to a new placement. Ms Faith's oral evidence was that a lot of the reason for the breakdown of his placement was this matter before the Tribunal. He was very unsure and uncertain about where his future lay and that was unsettling for him. While Ms Faith agreed under cross examination that being suddenly removed from Ms A and wanting to return there might contribute to his unrest she stated that 'I think the instability around not knowing where he is going to be is enormous…'. 86 The acting head teacher of a support unit at his high school gave evidence before the Tribunal and provided a statement. [Exhibit R11] He commenced at the school in term 4 of 2006 and she said that 'there not any kind of negative discipline thing' in term 4. She agreed that Ms A had been positive and enthusiastic. 87 On the acting head teacher's evidence the picture changed in 2007. In March 2007 he received three yellow cards (given out for misbehaviour or a breach of the school rules), and towards the end of Term 1 he had a one day suspension. In term 2 he was placed on a pink card (given out if a student misbehaves while on a yellow card) and on 31 May 2007 he was suspended for four days. She said that "Whereas in 2006 after reading his file, we were expecting a little boy, he was going to have a lot of problems settling in, that didn't happen. He came across as a very polite well spoken, I will do as I'm told typical kid still but almost the model student, he was excellent. The start of 2007 he was beginning to show some of the behaviours that we'd read in his file, not all of them by any means but he was beginning to be using bad language, disobedient, defiant. It built up over the weeks, it wasn't instantaneous but the polite little boy that we'd had who was so cooperative at the end of last year was not there." 88 Current placement. Following the breakdown of his placement in June this year he moved to a new placement. It is the carer's first foster placement and he is the only young person in their care. The carers have five grown up children, most of whom live near by. The female carer and her brothers and sisters were foster children themselves. His caseworker, Ms Faith, told the Tribunal that to her knowledge there had been no suspensions from school since he was in his new placement. There had been a fight with another boy in the last couple of weeks and she was going to a meeting at his school about that soon after the hearing ended. 89 The child BZ's wishes. He made his wishes clear to his caseworker and his legal representative. His first preference is to return to Ms A. When first giving evidence before the Tribunal in June 2007 Ms Faith said that he wanted to return to Ms A. On 2 August 2007 she told the Tribunal about a conversation she had with him in July 2007 about his wishes. She said that: Yes, the last conversation I had with him about that would have been a couple of weeks ago, where he stated that he'd like to stay where he is if he can't go back to [Ms A], but certainly he would like to go back to [Ms A]. 90 Ms Faith also stated that the child BZ never mentioned [Mr B] to her but often mentioned [Ms A]. She was then asked: Q. Is that an indicator to you that he's, you know, that the strength of his wishes and his relationship and contact is with [Ms A]. A. Yes, definitely, he's never mentioned any of the other persons to me ever, it's always [Ms A], he's very affectionate about [Ms A], nor has he ever mentioned any of the other people that were in the placement. 91 Ms Faith's evidence is consistent with the submissions of his legal representative as to his wishes. His legal representative also stated that if the Child BZ remained in his current placement then he would like contact with Ms A. Background. The Applicants 92 Ms A provided a detailed statement that set out the children and young people she had in her care. She annexed a large number of attachments and many statements that were supportive of the care she and Mr B provided. Mr B also provided a statement. They both gave oral evidence. 93 Ms A is an experienced carer with thirteen years experience. She has mainly fostered adolescents and many of them have had high needs. Mr B has been in a relationship with Ms A since 1999 and became a carer at that time. 94 While Mr B has taken an active role in caring for the children, on the evidence before us we are satisfied that Ms A took on the main role as carer and had the majority of contact with the Department of Community Services. 95 Ms A stated that her relationship with the Department was good. Up until the removal of the children she had been treated with respect. She was co-operative in her dealings with the Department. For example, both the children's caseworkers described Ms A as co-operative in their oral evidence. The Manager of the local Department of Community Services Office, Mr Price, told the Tribunal that he had no issue with the care arrangements of the children with the Applicants prior to their removal. Indeed on both the Applicant's and the Department's evidence it was Ms A who reported the allegations that Child B had made to the Department's Helpline on the Sunday before they were removed. 96 We are satisfied on the evidence before us that Ms A was a dedicated and committed carer. She worked co-operatively with the Department of Community Services and was willing to take children and young people with high needs. At one stage she had five children and young people placed with her who were described as high needs. 97 The Applicants only request for respite care was refused as there was no-one available who could care for the number of high needs children in their care. 98 The evidence before us indicates that Ms A established long term relationships with many of the young people who had been in her care. They stayed in touch with her after they left care and contacted her for assistance when in difficulty. A number of them had criminal records or were involved with the criminal justice system. We do not draw any adverse inference from the assistance and support that she, and to some extent Mr B, provided to young people who had been previously in their care. Indeed they, and particularly Ms A, impressed the Tribunal with the support and assistance they were willing to provide. For example, Ms A made it clear that the Child BZ's older brother who had been in her care and now lives independently could return to her place if things changed between him and his girlfriend. She also provided a great deal of support to the Child BZ's mother. Mr B's criminal record 99 Mr B's criminal record was in evidence before us. [Exhibit A2 and Exhibit A4]. In 2003 Mr B was convicted of two offences of possess prohibited drug, one of receive /dispose of stolen property, one of supply prohibited drug, two counts of assaulting a police officer and one of hinder/obstruct a person executing a search warrant. Mr B acknowledged that he was convicted of these offences and they all arose out of the same incident in January 2002. 100 The Applicants submitted that the offences took place in early 2002 and were an isolated and one off event. They submitted that these were not offences against a child and it could not be said that any child had been placed at risk. They submitted that they were both anti-drugs and vigilant in keeping substances away from their home. Mr B told the Tribunal that his brother had destroyed his life in this way and he had seen other family members destroyed in this way. 101 At that time of these offences the Applicants were living separately but Mr B stayed over at Ms A's place some of the time. The Police searched Ms A's place and found a number of items in Ms A's bedroom. These included: a plastic resealable bag containing a number of other resealable bags and a set of scales in the bedside drawers; 2 plastic film containers in a jacket in the wardrobe and inside one of those canisters 4 resealable bags each of which contained a white powder that was 1.05 g of Methylamphetamine, a plastic shopping bag with small resealable bags in the wardrobe and a tin with 20 resealable bags containing cannabis under the bed, the bags contained 443.98 g of cannabis. [Exhibit R 16] 102 During the search before those items were found Mr B was arrested and removed from the premises following an altercation with Police. Ms A was present when her bedroom was searched. 103 A transcript of an electronic record of interview between the Mr B and the Police was in evidence before the Tribunal [Exhibit R15]. In that interview the Applicant was questioned about the drugs found at the premises. He was shown 20 sealed bags with cannabis and told they were located in the bedroom in a blue tin. He told police that he did know about the cannabis and that he had stolen the tin and its contents two nights ago. When asked whether he had looked in the tin he said he had and said that he had known there was cannabis in the tin prior to looking in there [at p 7]. He later said 'When I looked in the tin, they were all loose bags in the tin like they are now in that bag.' [p8]. When asked whether he handled the bags he said "I've handled two or three on the top, yes". When asked who he stole them from he said he did not know the rightful owner and told police who they were being delivered to. His explanation for taking the tin was that he hated drugs and he was going to put a stop to some of these people, if that meant getting rid of it to stop them, then that is what he would do. 104 In regard to the film canisters he told Police that a canister had been left by someone in his car when he dropped her and her child home. He said he had put the canister in a jacket in Ms A's bedroom. When asked if he was aware of the presence of four resealable bags of white powder he said 'Not until today, no.' 105 When asked about the quantity of resealable bags he told Police that he had bought a lot of them to save mint coins. When asked about the scales found in the bedside drawer he said he had taken them out of the blue tin. 106 Mr B gave oral evidence and was cross examined before this Tribunal regarding the circumstances of these offences. He told this Tribunal a different version of events. He said that his brother had delivered a tin to Ms A's door days before the Police arrived. His brother had asked her to give it to him to look after until he came back. The tin was put in the bedroom under the bed and he left it where it was put. He denied opening the tin or knowing that it contained cannabis before the Police arrived. When it was put to him that he had told the police that he had stolen the tin he agreed that he had and that he had lied to the Police. 107 In regard to the amphetamines he agreed that the Police had found some and gave the same explanation to this Tribunal as he had to Police at the time. He said they had been left in a film canister in his car by a young woman that he gave a lift home to. While he agreed that the canister contained amphetamines and small plastic bags he said that he had picked the canister up one day to take it out to his car to put coins in it, put it in his coat pocket, forgot about it and then it went back in the cupboard. 108 Ms A also gave evidence regarding Mr B's 2003 conviction. Ms A agreed that the police found a tin under the bed in her bedroom and said that she did not put it under the bed. Following an objection to a question in cross examination the Tribunal granted her a certificate under s. 128 of the Evidence Act 1995 for evidence regarding Mr B's conviction and the circumstances surrounding the offences. She told the Tribunal that she received the tin from Mr B's brother at the door the day before the police arrived and she had put the tin in her room on the floor. She stated that Mr B's brother told her "give this to [Mr B] to look after for me, I'll be back tomorrow." She told Mr B that the tin had arrived when he came home from work late that night. She said that she did not see him go and look at the tin. When asked whether she saw the tin the next morning she said 'No'. She denied that she knew the tin contained cannabis, scales and that the cannabis was in resealable plastic bags. 109 She agreed that she was present when the police found white powder in a film canister in her coat pocket in the wardrobe. She told the Tribunal that she had not used that coat for ten years and she did not know how the canister came to be in the coat. She said that Mr B had told her that he had taken a male friend somewhere and that the canister was left on his car seat. 110 At the time the police searched Ms A's house they also found a small quantity of cannabis in a bowl in the kitchen that belonged to Ms A's eldest son. Ms A agreed that her eldest son pleaded guilty to possession of that cannabis. 111 Among others present in the home at the time of the offence and the police search Ms A stated that Young Person E was there. On the evidence of the Applicant in her statement [Exhibit A5] Young Person E, now 22 years old, was a foster child in their care from March 1997 to approximately 2003. The Child BZ's brother, was also in the Applicant's care from early 2001 to June 2006 but was away on holidays at the time of the search. 112 Mr B told this Tribunal that he had pleaded not guilty to the charges and that he had given the Court the same explanation regarding the drugs as he had given this Tribunal. He acknowledged that he had been convicted of the offences and sentenced in September 2003. For the offence of supply prohibited drug he was sentenced to imprisonment for twelve months and that sentence was suspended on him entering a bond. He was placed on a bond for assaulting an officer in execution of duty and fined for the other offences. There is nothing further on his record. 113 The Minister contended that the Department did not become aware of the drug charges and conviction until after the children were removed. Mr B maintained that he had met Mr Price, the Manager of the local Departmental office, one day while he was at Court regarding the charges against him and told Mr Price: I believe it is in my best interests to let you know I have charges against me, drug charges 114 Mr B said that Mr Price asked him whether the charges had anything to do with children. When he replied 'No' Mr Price had said 'Well I don't want to know about it for now.' 115 Mr Price said that he attended the Local Court every second Tuesday as the usual Departmental representative in child protection matters. He had no recollection of seeing Mr B outside a Court. 116 Under cross examination it was put to Mr Price that Mr B had told him about the offence and what it was and that Mr Price had said word to the effect of 'Don't worry about it, you know let's not bring it up again'. Mr Price said he had no recollection of that conversation and that it would not have been Departmental policy not worry to about it. It would have required a risk assessment. Later in cross examination he agreed that there was a possibility that such a conversation could have happened. The Minister submitted that the version that was put to Mr Price of the words Mr B used differed from Mr B's oral evidence. 117 Mr B acknowledged that he had not told Mr Price that he had been charged with supplying drugs or what the drugs were and that he did not tell him of the outcome of the charges. 118 While there is a possibility that Mr B saw Mr Price at the Court one day we have difficulty in accepting Mr B's version of the conversation. We prefer Mr Price's evidence and consider it highly unlikely that the conversation as stated by Mr B took place. Even if Mr B's oral evidence is taken at his highest that amounted to informing the Department that he had drugs charges against him that did not involve children. On his own evidence he informed Mr Price prior to any conviction and did not tell him that he had been charged with supplying drugs, what drugs they were, or that he was charged with hindering police. He agreed that he never went back and told Mr Price that he had been convicted 119 We had the opportunity to observe Mr B give evidence regarding these convictions. There are many inconsistencies between Mr B's oral evidence and the record of interview with the Police and he agreed that he had lied to police in his record of interview. The matter went before the Court, on his own evidence he pleaded not guilty and gave the same explanation to that Court as to how he obtained the drugs as the one he gave this Tribunal. He was convicted of the offences including the charge of supplying cannabis. We do not accept his explanation of how the tin containing the cannabis came to be in his possession. 120 It is of concern to the Tribunal that this offence occurred at a time that both Applicants were authorised foster carers and that Young Person E, who had been fostered by the Applicants for a number of years and was still a juvenile, was present when the offence occurred and the Police searched the property. Associates of the Applicants 121 The Minister tendered evidence regarding the criminal records of several people who visited the household. That evidence was admitted without objection however submissions were made regarding the weight that could be given to the records as those subject to the records had not agreed that they were correct. 122 We accept that may be the case. Many of the criminal records related to young people who had previously been in the Applicants' care that still visited the Applicants or contacted Ms A when difficulties arose. The nature of offences varied. Examples included convictions for matters such as assault, break enter and steal and possession of drugs. 123 The fact that they still visited and that they contacted Ms A when in difficulty provides evidence of the nature of the bond that Ms A in particular established with young people who came into her care and of her commitment to them. 124 In some instances the evidence concerned events that happened after the children who are the subject of this application had been removed from the Applicant's care. For example, some time after the children were removed Ms A allowed a young person she had previously fostered who had been charged with sexual assault offences to reside at her house as part of his bail conditions. There were no children placed with the Applicants at the time and we do not consider that the Applicants placed any child at risk in having that person at their home. 125 The Minister submitted that the Applicant's babysitter had a criminal record for shoplifting. Her record was in evidence before the Tribunal and she gave oral evidence. [Exhibit R 22]. She was found guilty of shoplifting and dealt with under s. 10 of the Crimes Sentencing (Procedure Act) 1999 with no conviction recorded and placed on a bond. That was a one off incident, a relatively minor offence and we place little weight on it. 126 The Applicant's acknowledge that Ms A's eldest son, now 25 years old, has had a problem with drugs and had difficulties in the past. For example, Ms A agreed that he had kicked and punched walls when affected by drugs. She agreed that he thrown a beer bottle at Mr B and hit his head. His criminal history includes convictions for assault, stealing and he has one conviction for possessing a prohibited drug. 127 The Applicants submitted that he had has grown up significantly and moved on from his past behaviours. His most recent conviction was in 2004. The Tribunal had a police report in evidence which alleged he had assaulted a bouncer at a club in 2007. That matter was not proceeded with and we place no weight on that incident. 128 Mr Y who lived with the Applicants for a period in 2006 was convicted of indecent assault of a male in 1990. Frank Weaver, a caseworker, gave evidence that he had gone to the Applicant's place on 6 October 2006 and informed them that Mr Y was not suitable to be living with children. Mr Y had lived with the Applicants in a converted garage for a relatively short period. Mr Y was cross examined. He pleaded guilty to the offence. At the time of the offence he was approximately 46 years old and he agreed that it was possible that the victim was about 27 years younger than him. He had looked after the foster children on a number of occasions for the Applicants. 129 We accept the evidence of Ms A that following Mr Weaver's visit she organised for Mr Y to leave. Mr Y's agreed that he had babysat children in the Applicant's care and stated it was only for an hour or an hour and a half at the most, twice or three times. He denied that there was ever an occasion that he and the child BY went away together for a weekend. Is the decision to remove the children the correct and preferable decision? 130 As stated earlier in conducting this review we may have regard to all material that was relevant at the time of the decision as well as any further material that is relevant as at the time of the hearing. The interests of children and their safety, welfare and well-being are the paramount consideration. We are also required to give due weight to the views of the children in accordance with their developmental capacity and the circumstances. We have considered the evidence before us and the submissions of the parties including the children's wishes. 131 The allegations that led to the removal of the children were investigated and on the evidence before us for the reasons already outlined we are not satisfied that the carers engaged in the conduct alleged by the young people concerned. We consider it was appropriate that an investigation was conducted into these allegations by the Minister. 132 We stand in the shoes of the decision maker, the Minister, and have regard to further material that is relevant at the time of the hearing. 133 In the Applicant's favour is that they are experienced carers. They have cared for many high needs children with difficult and challenging behaviours. In some instances the children's safety was not assured in the placement because of the activities of other foster children in the household, for example the conduct of the child A towards the child BY. We do not consider that the Applicants were at fault in that regard. They did what they could to manage very difficult behaviour. 134 The Department placed up to five young people with very high needs with the Applicants at the one time. On the evidence before us they were not provided with adequate support. The Tribunal is concerned that they were not offered respite care and accept that in many instances they had very little support in undertaking a difficult role. 135 The Applicants, and Ms A in particular, impressed us as very committed to the children in their care. On the evidence of several Departmental workers and Ms A's own evidence we find that she had a co-operative relationship with the Department. Even after Child C had made allegations against the Applicants they later assisted him and Ms A persuaded him to inform the Department of Community Services of where he was. Ms A was polite and invited the Department in when they came to collect him from her. 136 The Applicant's provided support to the Child BZ's mother and assisted in both the Child BZ and his older brother maintaining a relationship with their family. That relationship has now changed and thee Child BZ's mother is no longer welcome in their home. 137 Ms A's statement included positive statements from many young people who had been in her care and other associates regarding the care that she and Mr B had provided to young people in their care. Some of those people had criminal records. We do not consider the fact that people who came to visit had a criminal record as something that automatically means the children's safety, welfare and well being is put at risk. That would depend on the nature of the criminal record and the level of supervision by the Applicants when they visited or stayed at the premises. 138 Ms A acted in a responsible manner when the Department asked her to remove Mr Y from her household. We accept her evidence that she did not know of his criminal record. She did as the Department asked and told him to leave. She assisted him to obtain new premises. Although the Applicants were cross examined in detail about a young person charged with sexual offences against a woman and a child residing with them as part of his bail conditions, this occurred after the children were removed from their care this year and they had no foster children in their care at the time. 139 The main factor that is of concern to the Tribunal is Mr B's conviction for supplying cannabis and his possession of drugs at Ms A's place. At the time of the police search a young person they had fostered for a number of years was residing with the Applicants. The Applicants were both authorised carers at that time. 140 We do not accept the Applicant's evidence as to how the drugs came to be in the house. Mr B's version was inconsistent with the version he gave police at the time and he admitted that he had lied to the police. He gave evidence that he had pleaded not guilty and acknowledged that he had been convicted of the offences including an offence of supplying cannabis. It was not a small amount for personal use. He admitted buying snap lock bags and we do not accept his evidence that he bought them to put mint condition coins in, particularly when scales were also found in the room and the cannabis and amphetamines were in plastic bags. 141 The matter went before the Court at the time, Mr B's evidence was that he pleaded not guilty and he was convicted of the offences. Although these offences occurred five years ago they raise concerns for us about the nature of the activities that took place in the household. 142 At that same time the police found a small quantity of cannabis in a bowl in the kitchen that belonged to Ms A's oldest son. The Applicants acknowledged that Mr As eldest son had a problem with drugs and that he had had a difficult past. He no longer resides in the home and we accept Ms A's evidence that she does not have much contact with him now. 143 Her evidence was that she was given the tin by Mr B's brother and that she did not know what was in the tin. We found that evidence difficult to accept particularly given Mr B's evidence about the difficult relationship he had with his brother. Even if it was true that the tin was delivered by Mr B's brother given what she knew of his background we had difficulty in accepting her evidence that she was not suspicious about the content of the tin. That said there is no evidence that she had any active involvement in the supply of drugs or that she was charged with anything arising out of the discovery of drugs at her premises in January 2002. 144 The Applicant's evidence varied about the hours of work that each undertook in their cleaning business. We accept their evidence that they ensured that the children were not left alone in the house and we are satisfied that the children were not treated inappropriately when they accompanied them to clean. Ms Z, the Applicant's babysitter's shop lifting offence was minor and we place little weight on that. We accept the evidence that the Applicants have now employed people to assist so that they will spend less time away from home in the evenings. 145 In this matter it is not the Applicant's interests that are paramount but the safety, welfare and well-being of the children. We turn to each child. The Child BY 146 Having considered the evidence of his present carer, the other evidence before us regarding the Child BY and the parties' submissions we consider that he is settled and has adapted to his new placement. He has had many changes of placement for a child of 10. By the conclusion of the hearing he had lived in his new placement for six and a half months. He has expressed his wishes and they have changed over time. Very soon after his removal from the Applicants he wanted to return, earlier this year he said he did not know and the most recent evidence before us is that he wants to stay with his current carer. 147 We have considered the Applicant's submissions including their submissions regarding the Child BY being excluded from family activities. For example, in regard to the request for respite while the carer was at the Easter Show we accept Mrs X evidence that it was the first time she had asked for respite and that they were working with cattle at the time. We do not consider it unreasonable for a carer to have periods of respite and to spend time with their own family members. 148 Having considered all the evidence and submissions before us we have determined that the safety, welfare and well being of the child BY are being met in his current placement and that it is not in his best interests to be moved back to the Applicants. 149 In regard to contact with the Applicants Ms Blissett stated that the child BY's instructions were that he sees no need to have contact and is happy to stay where he is. He does not want to get upset again. The Tribunal has no jurisdiction to order contact. In these circumstances taking into account that the child has stated that he does not see any need to have contract the Tribunal makes no recommendation regarding continued contact between the child BY and the Applicants. The Child BZ 150 The Child BZ has had multiple placements. Ms Faith impressed us as a reliable witness. We accept her evidence that the Child BZ has told her that he wants to return to Ms A. That is consistent with the submissions of his representative. We also accept that he told Ms Faith that if he cannot return to Ms A he wants to stay where he is. 151 That he did well in the Applicant's care is clear from the evidence of his caseworker, Tina Earle and the acting head teacher from his school. 152 His brother has a good relationship with the Applicants and up until recently so did his mother. The evidence is that the relationship between his mother and the Applicants has soured recently due to the way in which they alleged she had neglected her younger child while staying with them. Mr B said she was no longer welcome in their home and Ms A does not have anything to do with her now. 153 On the basis of the acting head teacher's evidence the period after his removal presented difficulties at school in comparison to his progress in the last term of 2006 when he was placed with the Applicants. 154 The paramount consideration for the Tribunal is his safety, welfare and well-being. The Tribunal has serious concerns regarding Mr B's conviction not only of possession of drugs but supply. It was not a matter where the amount of drugs was small and clearly for personal use. Mr B does not deny having the drugs and we found his evidence as to how they came into his possession inconsistent and unreliable. Although he acknowledged his conviction for the offence of supplying cannabis his evidence did not demonstrate that he accepted that he had been supplying the drug, nor that he had any regret for supplying the drug. He continued to maintain that he was anti-drug. We do not accept that evidence. We are concerned that such conduct occurred while he was an authorised carer and while young people were in the household. Consequently we are concerned about the safety, welfare and well- being of young people if they are returned to the Applicant's household and their exposure to such activity. 155 We have carefully weighed the evidence and submissions and have considered the Child BZ's wishes. The paramount interests are those of the children subject to this application. On the totality of the evidence before us we have determined that the correct and preferable decision is that the Child BZ should not be returned to the placement and that the Minister's decision to remove the children from the placement should be affirmed. 156 Although the Tribunal has no power to order contact on the evidence before us the Child BZ has a strong connection to Ms A and she has been a constant figure in his life for some time. Through his representative he has indicated that if he remains in his current placement he would like contact with Ms A. On the evidence before us we recommend that the Department organises regular contact for him with Ms A. We recommend that the Department consult with his caseworker Ms Faith, the Child BZ and Ms A to determine the most appropriate form of contact. 157 There is sufficient evidence before us to make it more likely than not that the Child BZ is Aboriginal. We would urge the Minister to make further enquiries in this regard and to ensure that he continues to have continuing contact with his Aboriginal family, community and culture. Witness Expenses 158 The Applicants made an application for witness expenses in the course of the hearing and provided some evidence in support of that application. The Applicants have 14 days to provide any written submissions regarding their application. Submissions in reply are to be filed within 14 days of the receipt of the Applicant's written submissions. Any application will be determined on the papers in accordance with s. 76 of the Administrative Decisions Tribunal Act. Orders The decision to remove the subject children is affirmed. Table of pseudonyms Ms A and Mr B : Applicants Child BY: 10 year old child, the subject of this application Child BZ: 13 year old young person, the subject of this application Child A: Foster child removed from Applicants, not subject of this application Child B: Former foster child of Applicants Child C: Former foster child of Applicants Child D: Ms A's son Young Person E: Former foster child of the Applicants Mrs X: Current carer for child BY Ms Z: Applicant's babysitter Mr Y: Former boarder of Applicants

A and anor v Minister for Community Services and ors

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Judgment (15 paragraphs)

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