TranscriptCreator - Web viewThe placement unit’s role and the out-of-home care unit’s role is to ensure they know where that child is placed and to ... I have lost the word

AUSCRIPT AUSTRALASIA PTY LIMITEDACN 110 028 825

T: 1800 AUSCRIPT (1800 287 274)E: [email protected]: www.auscript.com.au

TRANSCRIPT OF PROCEEDINGS

O/N H-786499

THE HONOURABLE M. WHITE AO, CommissionerMR M. GOODA, Commissioner

IN THE MATTER OF A ROYAL COMMISSION INTO THE CHILD PROTECTION AND YOUTH DETENTION SYSTEMS OF THE NORTHERN TERRITORY

ALICE SPRINGS

11.08 AM, WEDNESDAY, 31 MAY 2017

Continued from 30.5.17

DAY 41

MR P.J. CALLAGHAN SC appears with MR P. MORRISSEY SC, MR T. McAVOY SC, MR B. DIGHTON, MS V. BOSNJAK, MR T. GOODWIN, MS S. McGEE and MS R. RODGER as Counsel AssistingMS S. BROWNHILL appears with MR C. JACOBI and MS A. SWINDLEY for the Northern Territory of AustraliaMR D. WOODROFFE appears with MR O’CONNELL for North Australian Aboriginal Justice AgencyMS F. GRAHAM appears for the Central Australian Aboriginal Legal Aid ServiceMS C. GOODHAND appears for Dylan VollerMR J.B. LAWRENCE SC appears for Josie Crawshaw and ADMR T.G. LAMBERT appears for Dr Bath

.ROYAL COMMISSION 31.5.17 P-4145©Commonwealth of Australia

5

10

15

20

25

30

35

40

MR McAVOY: We continue today with personal stories of those who have experienced the care and protection system in the Northern Territory. So far we have heard stories of a child in care and the grandfather of a child in care. Today, we turn to the personal stories of two carers and their perspectives on the welfare system and the challenges that they have faced. These recorded stories have been gathered by the Commission’s staff and are, again, the personal recollections of these individuals, which are not to be the subject of cross-examination.

The first recording we will hear this morning is that of CQ. CQ tells her story as a carer for a young girl aged four years. She also shares her experiences engaging with the welfare system and her views on how the system could be improved by talking to community elders more. Could I ask the operators to commence the recording of CQ.

RECORDING PLAYED

MR McAVOY: Thank you, Commissioners, just for the sake of clarity, I will add that that carer’s story was voice disguised.

COMMISSIONER WHITE: We thought that would be the case.

MR McAVOY: Thank you.

COMMISSIONER WHITE: You might need to instruct those who are doing these recordings, though, that they do need to make sure that the sound is working well for them and not rustle papers right in front of the microphone.

MR McAVOY: I will ensure that the message is conveyed, Commissioners.

COMMISSIONER WHITE: Well, you can tell, can’t you – you can’t tell when you’re doing it, but, in fact, it makes it quite difficult to hear some of it. I know we have a transcript, of course, but it would improve the audibility.

MR McAVOY: Yes. Commissioners, the second story is that of a person who was identified as CP. Like CQ, she too, has had the experience as carer of children and has insights into how the system and the community need to engage more to improve outcomes for children. If we could proceed with the second story.

RECORDING PLAYED

MR McAVOY: Commissioners, that concludes the personal stories that are intended to be played today. The next witness is Ms Couch.

.ROYAL COMMISSION 31.5.17 P-4146 ©Commonwealth of Australia

5

10

15

20

25

30

35

40

45

COMMISSIONER WHITE: Yes. Thank you.

MR McAVOY: And my learned friend, co-counsel, Mr Morrissey, will be conducting that examination.

COMMISSIONER WHITE: Thank you.

MR MORRISSEY: Good morning, Commissioners. I’m instructed that Ms Couch is approaching.


MR MORRISSEY: She is here because I have met her already, but she is on her way.


<MARNIE LEE COUCH, AFFIRMED [11.38 am]

<EXAMINATION-IN-CHIEF BY MR MORRISSEY

COMMISSIONER WHITE: Kindly be seated. Thank you, Ms Couch.

MR MORRISSEY: Ms Couch, would you state your full name please?---Yes. Marnie Lee Couch.

Couch. Sorry. And what is your current occupation?---Acting executive director for out of home care.

Very well. I will ask you to say something more about that in a moment, but, firstly, did you prepare a statement dated 18 May for these proceedings?---Yes. I did.

And did you make certain annexures to that statement?---Yes. I did.

Have you had a chance to look at that statement for the purposes of these proceedings?---Yes. I have.

And what do you say about the truth and correctness of that statement?---It is true and correct.

Commissioners, I tender that statement.

COMMISSIONER WHITE: Exhibit 476.

.ROYAL COMMISSION 31.5.17 P-4147 M.L. COUCH XN©Commonwealth of Australia MR MORRISSEY

5

10

15

20

25

30

35

40

45

EXHIBIT #476 STATEMENT OF MARNIE LEE COUCH

MR MORRISSEY: Ms Couch, I’m going to get you, in a moment, to explain the structure of your duties but I have just got some initial questions concerning kinship, if I may. The Aboriginal Child Placement Principle, which is embodied in the Care and Protection Act at section 12 recognises that Aboriginal child should be placed by way of preference with family or with kin. You’re aware of that principle, aren’t you?---Yes. I am.

And you’re aware that sometimes in a shorthand way that is referred to as kinship care?---Yes. I am.

You’re familiar with that term, and you have referred to that in some respects throughout your statement?---Yes. I have.

Alright. So that kinship care – that’s a model of care reflecting Aboriginal family realities and structures and tradition; correct?---That’s correct.

Alright. And you are aware through your work and through your life in the community that that principle is important to Aboriginal communities both as a principle and because it empowers the community in managing its own children, helping to assist and to reintegrate its children; correct?---Yes. I am.

You are also aware that it’s very important for the child involved to establish a reconnection to that community where that’s possible; correct?---Yes.

In short, it’s a desirable – it represents not merely a mode of practice for you, but a desirable general principle in empowering Aboriginal communities and the kids who come from those communities; correct?---Yes.

Alright. Thank you for that. Now, the kinship care model has got three – at least three applications, one of which is central to you, but in some respects I will go outside of your employment in these questions, but unless you feel as if you are really being asked to speculate, do the best you can. But first of all, the kinship care model can be relevant at the front-end of the process where a child – where there’s the possibility of an order removing the child from his or her family, the kinship principle may, in some instances, provide a way of diverting from that rather drastic outcome; correct?---With regards to out-of-home care, and in terms of kinship care, then you would be referring to the emergency authorisation.

Yes. Yes. So that is – but what that means though is that prior to an order separating the child, an order bringing the child into care, into Territory Families care, that the kinship principle can provide a model whereby a child can be removed pursuant to a short emergency type of order, perhaps a 72 hour order, for a short period of time but placed pursuant to the kinship principle on a voluntary basis, thus avoiding the need


5

10

15

20

25

30

35

40

45

for the child to come into care at all?---That would be under an emergency authorisation.

Yes?---Correct.

Alright. A second area, and the one which you’re chiefly concerned with to discuss in your statement is in the use of kinship care as a mode of placement for the child who has been removed; correct?---Correct.

Alright. And a third area which does touch upon your area of responsibility, is that the kinship care model can be a very useful way of transitioning a child out of Territory Families’ care and back into the community during the reunification process. Is that also correct?---If I could ask you to expand on what you mean by that.

Well, where a child is to come out of care – firstly, we had the reunification person yesterday, who gave some evidence about all of this – that kinship placements can be used in the process of reunification?---They can.

Yes. And you have seen that happen; is that correct?---Yes.

Could I just take you to some figures, if I may. As we understand the situation, based upon materials provided to the Commission, at the moment, there are 1045 children who are in Territory Families’ care, having been removed from their family pursuant to order; is that your understanding?---Yes.

And, of those 1045, 935 of those are Aboriginal kids; is that correct?---Yes.

And so that represents something in the order of nine out of 10 kids being Aboriginal?---Yes.

And as a general principle you would agree that’s a very unacceptable proportion of children to be represented in those figures?---It is a high proportion.

And of those children, of the 1045, can I just put some figures; that at the moment 232 of those – something in the order of 25 per cent – are in kinship care?---Correct.

299 of those kids are in the species of care under the broad umbrella of family day care placements?---Purchased home-based care.

Purchased home-based care. So is that 299 plus 26 of an allied nature?---Purchased home-based care.

Yes. Okay. You have got 269 placed in foster care; is that correct?---Correct.


5

10

15

20

25

30

35

40

45

At the moment, and you have got a number of kids who are under a category, a smaller residual number of kids in the category living independently or other category; correct?---Correct.

And that includes kids who are in custody or in mental health facilities or have established some species of independent living quite separate to that?---Also includes boarding school.

Yes. Boarding school. Alright. Thank you for that. Are there also at the moment, or at least as of March this year, 46 young persons under the age of 18 listed as being self-placed?---That would be correct.

Yes. And can you just explain to the Commission what is the official definition of a child who is self-placed?---Self-placing is where a child has an approved placement and they have made an independent choice to live with generally extended family.

COMMISSIONER GOODA: Is that a formal definition?---It’s not.

Because I’m worried about a formal definition of – if someone – well, an order not being complied with, for instance?---I understand, Commissioner. I can certainly seek the formal definition, if you like.

COMMISSIONER WHITE: Is there one?

COMMISSIONER GOODA: If there is one. If there is one. Doesn’t it strike you as strange, someone has placed an order, an order to be somewhere, but then they just decide not to go there? Isn’t - - -?---It’s not the preferred option, Commissioner.

Of course it’s not. But, I mean, to even have a formal definition of it that the department knows – there must have been a drastic action. We had a judge tell us that there would be a drastic need to remove a child. So that decision has been made. Then they just decide – the child decides not to comply with it and - - -?---Commissioner - - -

- - - this ought to be accepted?---My apologies. Commissioner, it’s not accepted. The circumstances - - -

..... formal definition of it?---Yes. The circumstances generally are with adolescents and the difficulty of maintaining them in their approved placements. Territory Families does try and work with the child and the family to return them to their placement.

COMMISSIONER GOODA: Of course.

COMMISSIONER WHITE: What perhaps you are telling us is you are accepting the realities of life. That’s what happens and so you actually have to deal with it?---I guess, Commissioner, we are working with the realities of life with the adolescents


5

10

15

20

25

30

35

40

45

and I have seen many times where case managers try and return a child and foster carers and kinship carers also work to try to return a child to an authorised placement.

One can understand that with the older adolescents quite readily, of course. Do you have that description applied to younger children?---I’m not aware of any younger children, Commissioner, that are self-placing. In my experience, it has largely been the adolescents who are able to move around the cities and communities.

COMMISSIONER GOODA: But it begs the question then, for me, that if it’s accepted and by having a definition that so many kids, children, in that situation, why remove them in the first place if you’re leaving them with the self-placement families?---I can understand that concern, Commissioner. I am here to talk about out-of-home care, and whilst I can broadly speak about my experience with children and young people that are self-placing, that may be a question that can be better answered by the people from Territory Families following.

..... exercise your mind. You’re doing the out-of-home care and these children are self-placing?---Mmm.

Does it ever strike someone to say, well, if they are living – they have self-placed into another family or their own family, maybe we shouldn’t have removed them; they shouldn’t even be in the system?---It’s certainly a valid question, and I think it would warrant Territory Families going back in those situations and re-evaluating the orders and the child and the purposes of them being brought into care and whether orders should be rescinded and is there further work we can do with the families to maintain safety for the child and where they’re self-selecting.

That sounds like a really good approach, doesn’t it?

MR MORRISSEY: Just pursuant to that, could I just ask – it does sound like a good idea, but does that in fact happen? Perhaps you could speak to the Commissioners about how a child is identified as being self-placing. Do they come to be seen as self-placing simply because they’re no longer at their approved placement or is there some further process that gets them into that category?---Generally the placement unit is advised that the child has self-placed, which means that the child’s whereabouts are known but they are not in an authorised placement.

So self-placing is a term that sounds as if there’s some rational decision-making going on, at least by the child. But you don’t actually have any visibility of the child at all. All you have is a notification by the care provider that they have gone missing, is that correct?---I need to think about that question a little bit. The placements unit is advised that a child is self-placing. The question as to whether Territory Families has visibility over that child – the case management does have visibility over that child. The placement unit’s role and the out-of-home care unit’s role is to ensure they know where that child is placed and to work towards, with the case manager, returning that child to an authorised placement.


5

10

15

20

25

30

35

40

45

COMMISSIONER GOODA: Would there be an occasion when, like you would take more – you have got the notification of the self-placement. Would there be an occasion when it’s of real concern that the child has gone back to where they’re living. Like, I have heard of cases, not in this jurisdiction, but even the Federal Police have got involved with children who have, sort of, absconded. Are there some of those occasions, when – it’s not just self-placement; there’s actually a concern the child has sort of absconded?---Yes, Commissioner. There are many instances where the case manager is concerned that the child has self-placed, and there are provisions within the legislation to remove a child and return them to a safe place, and that may be a question better answered in some respects by others that are prepared to appear before the Commissioners. But I can give you my broad sense and my experience in terms of my time in child protection.

Look, I can understand the difficulties. You know, we have had children and young adults, young people appear before us, and they have admitted they have run amok, and absconded, so I can understand the difficulty. I just think there’s an order made and I just see that order not being complied with?---I agree, Commissioner. It is a valid concern, and I wish I had the answer. As I said, in my experience, I have seen case managers work tirelessly to try to return a child to an authorised placement and perhaps we need to look at the fulsomeness around that young person and see whether we can create and maintain safety where they are selected. I have seen many teenagers returned time and time again to placement, and if they have no desire to be there they will vote with their feet and leave, despite the best intentions of the carers looking after them at the time.

Have you ever seen it work, like, as a benefit – it has caused a reassessment, and think, “Well, that’s not a bad placement for the child after all”?---So there are instances, Commissioner, where a child has – or a young person – I need to be clear it’s largely adolescents – have self-selected a placement. The case management will then make a referral to the out-of-home care division, which is the carer assessment and support team. And then we will go in and do an assessment on largely that family unit to see whether we can approve them or authorise them as a kinship carer so the child can retain their home there and remain safe.

Okay. Thank you. And sometimes it works?---Sometimes it does work. Yes.

MR MORRISSEY: It may or may not be something that there statistics on, and if there are they may not be ones that you’re familiar with, but we are told that in the last six months there were 800 reports of self-placements. That’s not to say 800 children but 800 reports. I think mentioned a moment ago that there’s a number of times where you see kids leaving time and time again?---That’s correct.

And that would be consistent with the numbers that I have just put to you; that 800 reports may involve perhaps 100 or more children, some of whom have left on numerous occasions?---I would perhaps even suggest it would be less than 100 children. The n remains relatively steady around the 40 to 50 mark, sometimes fluctuating up and down, and that number does reflect the number of times a child –


5

10

15

20

25

30

35

40

45

not necessarily individual children. So we might have a person that continually leaves their placement and they might be recorded 10 times within that data.

Yes. Alright. Now, you gave - - -

COMMISSIONER WHITE: Can I just intervene here to ask - - -

MR MORRISSEY: Yes. Of course.

COMMISSIONER WHITE: That data recording, and you have referred to other places too in your statement, gives a misleading picture, doesn’t it, in a sense? If one is concerned to know how many children, in fact, are doing this, 800 is a staggering figure and you need to interpret the data. Is there not a better way of capturing?---Commissioner, there is. So the council has provided the totality of that data over a period of time. The placements unit maintains daily and weekly records of the young people that are self-selecting and are aware largely of the individuals, and then work with the case managers to try and return that child to placement. So whilst the totality of the figure might look like it’s difficult to pull apart, for want of a better expression, there are people within the placements unit who work closely with case managers who can identify those individual children.

MR MORRISSEY: It may be, Commissioners – I will just show you an annexure to Mr Tywford’s statement. Can we have up on the screen, please, LT58, and the ring tail number is 0416.0003.0453?---I need to change my glasses.

Yes. Of course. Can you see – so something will come up on the screen in front of you?---That’s better.

And if we can go to page – the following page, and scroll down to the bottom of that page. So here you are about to see table 4.2. If it could scroll back up a tiny bit so we can have table 4.1 as well. That’s good. Thank you. That’s perfect. Just have a look there. Now, do you see table 4.2?---I do.

You’re familiar with this table?---Yes. I am.

Yes. Thank you. Could you just explain to the Commissioners what that top line of table 4.2 represents, that the whereabouts or location of a child is unknown and there’s a concern for the immediate safety and/or wellbeing. Now, that’s overwhelmingly the largest percentage of people falling into that category, isn’t it?---That would be correct. And once again, Commissioners, I’m happy to answer the questions; being that it is Luke Twyford’s statement, he may be in a better experience to provide detail. But I can give you my experience.

Yes?---And this number, once again, is the totality over time, which is almost a running figure, that might actually be a very small number of individual children which, totalled up, looks like a larger figure. Does that answer your question?


5

10

15

20

25

30

35

40

45

You have got – just – that does answer my question, but just to refine a little bit further, these are situations where you have a person who has disappeared from the home, from the placement, and the placement have dual notified that that occurred; correct?---That’s correct.

Alright. Now, although you mentioned that in some – you gave some anecdotes to the Commissioners of occasions where they will – a person will abscond, self-place back to the community, and then your case manager will work to get them back there. Can you say what is the effect of – where a young person has disappeared, or self-placed, to use the more polite term, on more than one occasion, does that automatically trigger a review of the order on which they’re currently placed?---That is an area that sits within the case management decision-making.

Yes. Well?---But I can answer too, if I may.

Yes. Of course?---Is that where we have a child that is regularly leaving placement without permission, then the placement unit’s role is to call the significant parties together, which would be the case managers, carers, and other service providers where applicable, and talk through what are the issues around the child not remaining in placement and what we can do to try and help the child stay in placement.

We have heard some evidence that case managers are very heavily overworked and have a high case load, perhaps higher than what is ideally recommended. Is that your experience too?---I can tell you my experience in the out-of-home care division with the cares, assessors, and practitioners. In terms of the current case loads of the case managers, I am not up to date on those figures.

Just in terms of the workload inflicted on a case manager where a kid absconds, are they equipped, to your knowledge, to follow up that child and to investigate in the community and the various places that they may be, or are they time-poor?---I would like to answer that question to the best of my knowledge. Given that case management are not under my line management and not within the out-of-home care division, I can talk to my experience on the front of the out-of-home care division. And where do have children that are continually self-placing or leaving without permission, I do know my placement unit call on case managers to meet and that they do meet with us to try and resolve those issues.

Alright.

COMMISSIONER WHITE: And I think part of the thrust of the question, Ms Couch, was whether the case load is such that this extra burden, if you like, of needing to follow up the children who leave and adolescents, whether that is perhaps beyond their available hours, their capacity to do this?---Commissioner, I do not line manage case managers, so I would be hazarding a guess at this point, and I - - -

Well, don’t answer it then. No. We will ask those questions of someone else?---Thank you.


5

10

15

20

25

30

35

40

45

MR MORRISSEY: Yes, Commissioner. Could I return to the issue of kinship care, following which I will take you through the statement in somewhat more of a – the order of the statement. But in terms of kinship care, we identified earlier that it was 232 children currently in kinship care. That’s something like 25 per cent. Now, can I suggest this to you for your comment. That is an abysmally low percentage of children to have placed in kinship care, given the principle, the Aboriginal child placement principle to which we earlier referred. Do you agree with that?---What I would say is that we would like those numbers to be much higher. Every child deserves to be in kinship care wherever possible, and I would say where it doesn’t compromise their safety, the out-of-home care division and Territory Families in its totality wishes to increase the number of kinship carers. And we actually work hard to do that. And I’m happy to explain to the Commissioners, if they would like more information, about how we go about trying to attract kinship carers and Aboriginal carers.

I think we do.

COMMISSIONER WHITE: We would indeed.

MR MORRISSEY: That’s precisely what we want to take you through, if we may?---Okay. Lovely.

So just - - -

COMMISSIONER WHITE: I think Ms Couch was going to do that.

MR MORRISSEY: Yes. I was simply going to say, if you would like to locate yourself at the statement, because you have said – and I am going to permit you to do this, of course. But what I would like you to do is just have the statement, your statement, open at the relevant section?---If you point me towards paragraphs.

Yes?---And I will just say it’s easier to speak to it, because I do have to change my glasses to read and then look at the Commissioners and yourself.

Well, you have a section headed Kinship Care beginning at paragraph 81?---Mmm.

So you proceed as you wish, and I wasn’t meaning to prescribe you, in that respect, but what I would like you to do is just have that there, because I will ask you some questions arising from the statement as we go through. So if you just have that part of the statement open and then return and proceed your own way with the Commissioner?---Okay. Thank you. The kinship – finding kinship care model is one of the policies that’s included within my statement and case management largely drive the finding kinship model when a child is potentially coming into care or where a child has been brought into care. So that is the case manager’s role. The out-of-home care division has a number of elements to it. So one of those – one of the work units is our carer recruitment and retention team, and part of their role is to go to – I don’t have the technical term – the Darwin show, the Katherine show, Alice Springs


5

10

15

20

25

30

35

40

45

show, Freds Pass, and they will have a stand to talk to people. Both foster, kinship, Aboriginal carers; anyone that is interested. We also hold stands at the expos, such as the defence expo, and when we have other offers, we will take that up and hold a stand there. So we have a public presence to answer inquiries from the general public. That is one part of the business. Carer assessment and support also work with – particularly when we have got kinship carers, we work with the family to try and identify other members of the extended family who may be interested and able and willing to be assessed as part of that community of kinship carers, so that the child can move between family members. Another significant piece of work that we have done in the last 12 months is the talking posters which has been produced in five different languages – and, excuse me, Commissioners, I cannot remember those languages and I would not want to do them an injustice.

COMMISSIONER WHITE: But they are all set out in your statement anyway?---They are. I just would not like to try and pronounce them. So with those launches what we did was go to communities. We worked with local service providers and the councils and the local community members to talk about the talking posters and talk with the community on how we could best work with them to identify Aboriginal carers and kinship carers.

Is paragraph 93 of the statement – and perhaps it could be put on the screen so that those who are interested in the languages can read it for themselves?---Thank you, Commissioner. I travelled to the communities myself to assist in those talking posters launch. It was a very humbling experience, I have to say, being able to talk to people in the community. And whilst we can’t say we attracted Aboriginal carers, which was the first intent of the talking posters, what I can suggest is that we did attract further kinship carers. They were referred on through the case management, so we didn’t have any pure data to be able to track that. But I can say the talking posters were very well received, and the community members enjoyed them. And I think it will be difficult to see the outcomes, because sometimes it can take a number of years for carers and kinship carers to think about and be in a good position to step up and be a carer. So we may not be able to track the data, but the reception was extremely positive.

COMMISSIONER WHITE: It would be, I think, quite interesting for us to see one of those posters, are there any - - -?---Commissioner, I actually thought of that when I landed in Alice; that I would have liked to have brought one with me. I can certainly take it on notice. If nothing else, we might be able to get some video of the talking posters. I know it won’t be the same as in person, but - - -

We will be in Darwin too?---Well, of course. Then we can organise for them.

COMMISSIONER GOODA: I raised it yesterday when Ms Schinkel gave her evidence about Queensland – I don’t know if you have noticed in the last month or so a really big program of recruiting foster carers generally, but of course part of that is kinship care. Do you think a big campaign like that would help?---Commissioner, I would like to think that. We did do our foster care recruitment retention campaign


5

10

15

20

25

30

35

40

45

and largely that involved a lot of media exposure. We looked at all the research and the data over this time as well because obviously we wanted to get the optimum benefits out of the campaign and target our energy where it was going to have better outcomes. The research, the national research that I looked at suggested that those campaigns do not have a very high – I have lost the word - - -

MR MORRISSEY: Return?---Diversion rate. So - - -

COMMISSIONER WHITE: There’s not much take up from them; is that right?---No. So the conversion rate – and I am recollecting, so if someone has different figures, I’m happy to be corrected – nationally it looks largely like it was about a 2.5 conversion rate. There were times when we looked through the process and we were getting up to, and I say cautiously, a 25 per cent conversion rate. But there were many reasons why people pulled out of that process over the time. Commissioner, to answer your question, I don’t want to go off track, the research also suggests that foster carers in particular take a number of years to reach a point where they will actually make a final decision to go through an application and authorisation, and the research suggests that media campaigns can be beneficial when they are repeated over a period of time. So even a 12 month period is not necessarily going to be enough. It’s continued exposure to the media that makes potential foster carers and possible kinship carers actually think about and get to the point where they’re in a position to be. Did that answer your question?

COMMISSIONER GOODA: Yes. Well, I think ..... useful. I have seen initial figures of fairly big increases in inquiries, but I suppose it gets to your point about turning those inquiries into actual foster carers?---It is. And we looked at - - -

..... will take a bit longer than .....

COMMISSIONER WHITE: And it’s also a very intrusive process to go through for the people, the assessment process?---It is. Commissioner, I have been a foster carer myself. I am familiar with both sides of the business. And, on saying that, we work very hard not to make it intrusive. However, the very nature of the questions and the assessments that we have to go through to establish motivation and the ability of the carer to provide a good home for the child, it is naturally going to be intrusive, no matter how hard we try.

COMMISSIONER GOODA: Mr Morrissey, I might pre-empt you here, but in the issue of kinship carers, do people have to have an ochre card? Is that what the equivalent of, say, a blue card?---Yes, Commissioner.

..... is the ochre card. Do foster carers have to have an ochre card?---Yes, Commissioner.

What sort of offences would preclude a person from getting it? Is it any offence, or is it – there’s certain categories of offences that would prevent a person getting a ochre card?---So I can’t answer specifically, given that I don’t run the unit that does


5

10

15

20

25

30

35

40

45

the ochre card and working with children checks, but what I can talk about is my experience over time. And I have worked in the out-of-home care division for three years now, so I have seen the types that pass and the types that don’t pass. So the work unit takes into consideration all criminal history. They will look at the patterns and significance of events. Where there is – and I can’t talk to what we will rule out and rule in, specifically, but what I can answer is that where there are concerns about a criminal history, the applicant will be provided the opportunity to provide a response to the panel who look at the applicant’s file and then the panel will reconsider or take under further consideration whether the history is an impediment to the future safety of a child and holding a working with children’s check. So I may have not have answered your question.

No. We can go – find more detail somewhere else. But I’m thinking also – we have had lots of evidence, particularly in the last day, about a kinship model of care, and seen an Arrernte woman – women yesterday telling, you know, there’s a whole network of mothers. How – someone with a significant criminal history, say, how close would they have – or how far away would they have to be away from the care of that child to actually effect the placement of the child back into a community? Like, is it in the same house, is it the house next door, or - - -?---I would like to give you a simple answer to that. It is a complex one, and I will answer it as best I can. So first of all, I would like to start and say we actually encourage all family members to put in an application for kinship care, even if they do have a criminal history. Because we will take into consideration – and out-of-home care division does this, so I’m well familiar with it. We will take into consideration the length of time over the criminal history, the number of events, the significance of the events and whether there are any patterns, and that will not necessarily preclude a kinship carer proceeding. What we will then do is go to the applicants and talk through that criminal history with them. In regard to household members, if they are a household member that is not moving through and that there are for a period of time, they are considered part of the household and once again we will also look at their criminal history. But under – excuse me. Sorry. I am getting a little – with my hands. We will look at it within the same context. So a criminal history does not preclude someone immediately. I can give you examples, though, and we do take this matter very seriously. We consider whether it is going to affect the safety of the child. And in a lot of circumstances with kinship carers or not – kinship care applications, and it might not even be the applicant, but it may be the household members and the obligations they hold to their family members. There may be household members that have a significant criminal history, and we do take that very seriously. And where we can ensure safety of the child, we will. But if the criminal history is so significant that it would compromise the child’s safety, then we have to make the best decision by the child. What we will do on saying that, though, is work with that applicant and talk to them about some of the impediments, that if there is a change in circumstances, we will encourage them to reapply. Does that answer – I feel like I have talked a lot.

No. No.


5

10

15

20

25

30

35

40

45

MR MORRISSEY: But could I follow up with a question arising from that after - - -

COMMISSIONER WHITE: Could I suggest, then, that if the kind of crime which would concern you would be a series of assaults, domestic assaults, as opposed to petty theft?---So – absolutely. So aggravated assault. So examples of what I might look like – look at is a pattern of aggravated assault; aggravated assault, intent to enter a dwelling; use of an offensive weapon in public. I have also had – excuse me for not getting the terms quite right – harm with the intent to cause death. So I’m not talking low-level, because we would certainly be determining the safety of the child. We’re largely talking aggravated assault, weapons in the community.

COMMISSIONER GOODA: And of course it’s just natural; any offence against children would rule them out?---That would be naturally so. Yes.

MR MORRISSEY: Just on that – just to follow up that issue, where you are speaking of a third party, either somebody who is living in the household or proximate, is it feasible, and do you do this, to approach that person, the person who is said to be a problem, the household member?---Yes. Absolutely.

Alright. And how is that done?---That’s done as part of the carer assessment, so there needs to be an understanding and a permission from the household and the kinship care applicants that all household members will be part of the assessment and talked to, so it’s an open and transparent process.

Yes. And you used the term safety, and not inappropriately so, of course, but could you just expand upon that. Safety is a very general notion of course?---Yes.

And really what one is dealing with in terms of that sort of assessment is a degree of risk. Now, could I just ask you: how are your workers trained to access a degree of risk posed by a person who may have several offences of serious assault, perhaps, against adults?---So, the carer assessment and support team go through all the Territory Families mandatory training. That is one aspect to it. They are also supervised and provided ongoing supervision and mentoring by their team leader, their manager, their director and then I have the final sign-off on that. So there are a number of layers. We are continually in conversation with our carer assessors to look at all the facts. And I am aware there has been some information to – provided to say that the Aboriginal context is not taken into consideration when you’re talking about the make-up of a household in an Aboriginal community. The staff are trained through various mechanisms to consider the context of an Aboriginal household and, for example, household members. So if there are multiple household members which would normally exceed what we would consider a mum and dad and siblings household, then the carer assessment, or carer assessor is required to look at the construct of the household members, family obligations, who has the roles and responsibilities and decision-making and authorities within that and whether there is any impediment to the safety of the child in there. So I guess the short answer is I’m saying multiple household members, once again, will not stop a kinship application


5

10

15

20

25

30

35

40

45

proceeding but we need to look at are there any safety concerns? So just like some of the examples

where a child will come into care, they are some of the examples that we also have to assess at the other end when we are looking at kinship carers.

MR MORRISSEY: Yes. But I just – sorry. If I could just return to the question a little bit. You see, you have listed some relevant considerations, which are relevant. But the issue is the degree of risk. And you used a phrase, I think in your answer there, “any degree of risk”. So there will always be with a degree of risk in any household that is not simply a fortress?---Mmm.

The question is: what’s an acceptable risk and what isn’t? And can I ask you to expand on that. Where does a risk cease to be an acceptable risk? Is it any risk or is it – how do you do it?---I would love to have a simple answer for that again. And it is a case-by-case scenario. So please don’t think I’m avoiding the question at all. So I will try and give some examples. If we have a kinship care application where there are a number of household members and there is a pattern of domestic violence, and I will clarify domestic violence in terms of ongoing verbal abuse or physical abuse, that can affect a child, whether they are in the same room or not and whether it’s verbal or physical.

COMMISSIONER GOODA: As a matter of fact, you know, there’s studies in Victoria about the 1000 children they’re looking at – one of the main reasons for removal is domestic violence?---Yes, Commissioner.

So you can’t put them back in?---No. Exactly. So if – and, once again, I’m trying to answer the question. I’m just trying to think of case scenarios.

MR MORRISSEY: No. No. It’s fine for you to proceed anecdotally. That is helpful, because you have identified verbal domestic violence as an issue, and that’s where I’m getting to the - - -?---And physical.

- - - question of what’s the degree of risk that we’re talking about. Supposing you have a lot of verbal abuse, which can constitute domestic violence in some circumstances - - -?---I think one of the things that we see a lot of is food insecurity. So whilst we understand the family obligations to provide a home for family or kinship care systems that are moving through the community, one of the risks to that is food insecurity for the children. So that is – that would be another risk factor that we would take into consideration.

Would you please define food insecurity?---Food insecurity – and I’m not going to come up with the official definition but food - - -

No. That’s okay?--- - - - insecurity in terms of assessment is where the people that have the responsibility for the child are unable to provide enough basic food for that child on a daily basis. And some examples would be, and I have had this in the past:


5

10

15

20

25

30

35

40

45

we had a kinship carer that had – I think she was about five months old, on formula, and household members coming through that household were actually taking the formula and therefore she did not have the mechanism to stop family members, and therefore did not have the mechanism to provide the daily requirements for food for that child.

Now, there are all sorts of models in which food insecurity may operate and you have just described a fairly extreme situation. But is that not an area that could be improved in this sense: that the very expensive option of keeping the child out in some other form of care as opposed to kinship could be cured by some relatively inexpensive support in terms of ameliorating the food insecurity by providing some help for groceries or formula and so on. How is that possibility dealt with?---So I think you have posed two things there. One is financial support and food support. And the foster care and kinship care allowance is for the provision of a child in terms of their food and daily basic needs. So we would expect that foster or kinship care allowance is providing the food and provisions for the child. To go back to the first part of your question, would it be best that we put in supports and services to try and assist that kinship carer to provide, I’m going to say, boundaries and safety around the child? Absolutely. And we have done that in the past. And I have worked with families myself, remembering I have had a number of roles within Territory Families over my years. I have worked with a number of kinship carers who have described it as being incredibly difficult to say no to family. And even when we get services involved, the pressure on them is immense, and in one example, a kinship carer was working incredibly hard to put boundaries around family in her home but when she went down to the local store to buy food, the pressure – sorry; I have done it again – the pressure from community members and family members was substantial that she just couldn’t even manage it with services and supports in place. And I think as much as we would like to see that change, we have to respect that some family members recognise that the obligations will surpass their ability to maintain safety around the child at some time.

COMMISSIONER GOODA: But I have seen experiences with totally different issue around Sorry Business and miners, you know, and the miners have actually – Sorry Business can go on for a month or more and they have come to an arrangement with communities about that particular thing and it’s okay if they come for a week, and we can – so it’s almost, in the case like that, it’s almost a case of saying how is the community going to respond to this, this issue? And do you think there’s use in engaging communities to say, “Look, there’s a real issue here around food insecurity.” How should we deal with that as a community and government – I’m not thinking government exits this conversation by any means?---Commissioner, I think you make a very good point. We need community to come on board and help with that case because it is sometimes the pressure within that community and the isolation of that kinship care household that will mean a child can’t stay there. So the answer to that: I think Aboriginal organisations can be incredibly beneficial in working with community and kinship carers. I think also, as well, with kinship carers it’s no different to their family obligations. We actually also need the


5

10

15

20

25

30

35

40

45

extended family around them to be stepping up and helping them with that so that it’s not just one person’s responsibility.

And I know these are delicate issues, but is there value in raising it, in a sense, like there’s an issue in this community. How do we deal with it as a community. Not just the foster family, because ..... you were saying that go to the shop and the pressure is still there?---Yes.

I am sure people can decide decisions around Sorry Business - - -?---Yes.

- - - ..... they can negotiate if there was a proper relationship between government and community?---I think you have a very valid point, Commissioner, and there’s a lot of work to be done in that space is building community capacity and community around that child so we can maintain them in the community.

We’re looking at that in the Royal Commission?---Yes.

So yes?---I absolutely agree with you.

Thank you.

MR MORRISSEY: Could I just follow that up a bit further, because your anecdotes are actually very helpful, and far from not articulating a principle, we are happy for you to say examples like that. But you indicated in response to Commissioner Gooda’s question earlier that you would like to see the possibility to engage community, Aboriginal community organisations, in this very situation where you have a worker going and making an assessment and seeing a potentially plausible placement option, but there’s a problem, and your worker has to assess that problem.

Do you have – first of all, I will ask you: do you have any good news stories about that? Do you have any occasions you can think of in your time here where that was done, where there was the ability to engage with a senior Aboriginal person from an organisation or just a respected community person, to intervene and make it happen. Do you have any such stories?---I don’t have any individual stories. I can tell you that we do experience, over time, where we have a placement, and I like to call it a home for a child, that is potentially going to fall apart through community pressure – we have ACWs, Aboriginal Community Workers, and senior ACWs in out-of-home care division who will travel out with the carer assessor and support person and work with the community. And that will be people such as health, education, police and remote family support services, which a Territory Families section, to provide a safety network around that kinship carer. And also part of that is talking to case management and having conversations with, in some cases, the mother and father, where the child can’t remain. And making sure that they respect the boundaries of the kinship carer. So we are doing the work on an individual basis. I would like to bring you one example, but I can only speak to broadly. I know that we do do it.


5

10

15

20

25

30

35

40

45

That’s okay. If you can’t remember one, you can’t. However, do you see – the situation arises with kinship often in a fairly acute way where your worker is going to make – or your team is going to make an assessment on the spot and time is ticking. So what sort of times do the assessments take that you have described?---So I would just like to clarify, the carer assessors do not make an assessment on the spot. An application is submitted by the case manager. A carer or kinship carer assessment takes a 12 week period, generally speaking. This 12 week period allows for a number of probity checks such as the criminal history check, the ochre card check, the child protection check to occur. Also takes into - - -

May I stop you and just interpose a question, then continue. I don’t want to lose that, but I think you have mentioned the 12 week figure. Can you break that up for the ochre card, the police check, and the other check: how long each of those individual checks take; what’s the quickest they can be done?---Okay. So the ochre card is dependent on the criminal history, once again. So if there is no criminal history, it’s quite straightforward and we can – we are reliant on another work unit. We can receive them back within 7 to 14 days sometimes. Where there is a criminal history and the panel needs to consider that criminal history, it can take months. And it can be also delayed when, where I spoke about if there’s a history that needs to be considered by the panel member and they write a letter to that household member or applicant saying “We would like a response”, that can also delay the process. Sometimes people do not receive that mail or communication or may not be confident to respond. So we need to find somebody who with facilitate that for them. Criminal - - -

Alright. Thank you. So I stopped you and asked for those time frames but could you now resume. You were saying how long the whole process took?---So a criminal history check can take a number of weeks. Child protection check, we are actually in control, we do that ourselves, so that is a 24 hour turn around. The assessments: depending on whether it’s in the urban area or the communities – sometimes travel can be difficult. Commissioner, you mentioned earlier Sorry Business. Sometimes we have multiple events of Sorry Business in a community, and despite our best intentions and efforts we are unable to go to talk to the applicants and proceed an assessment. So it can take over 12 weeks when that is the occasion. We also have inclement weather in the Northern Territory, so where we have to fly to community, that can also delay the time frame, but we do aim for 12 weeks and under. Noting that there are a number of levels within that assessment, not only the probity checks, but also the interviews. We will also seek information where appropriate from education and health. And where we have multiple household members, then we need to gather the information on household members. And it is difficult. There are some household members, I have heard it mentioned earlier, that have difficulty obtaining ID. In that case we need to facilitate a stat dec on their behalf. We also have kinship applicants that will get partway through the process and withdraw and say that they’re not in a position to pursue a kinship application.

COMMISSIONER GOODA: And you mentioned a panel: is it a panel decision?---For the ochre card, Commissioner? Yes, it is.


5

10

15

20

25

30

35

40

45

Just for the ochre card?---Just for the ochre card.

Yes.

MR MORRISSEY: Yes. Alright. I’m sorry. We are remaining on kinship care, but it’s a matter of significance. I wonder if you could put the reading glasses on. I want to take you to some parts of your statement here and go first of all to paragraph 81. This question relates to the policy and processes relating to selection of kinship carers, and you say that they’re the same for foster and kinship carers. And I just wondered if you could say, are there any differences – well, sorry, there are some differences in the nature of foster care and kinship placement. Why is it that the same policies are used for each?---Territory Families has made the decision that foster carers and kinship carers will be assessed on the same basis. That is what we adhere to.

Alright. That’s simply a working reality you have?---Correct.

And you don’t have any – do you see it as an appropriate model? Do you think there are extra considerations that should be – or different considerations that should be taken into account when assessing kinship carers?---I think there are professionals experienced in that field who may be in a better position to answer that question than myself. What I can say is if we used the same checks prescriptively against foster carers and kinship carers, then there may be difficulties with the models. Given the amount of training and supervision and ongoing daily support that we give to our staff to increase their ability to not be prescriptive and take into consideration all of the cultural factors, as I described before, the household members, and not – a prescriptive application would be, say, there’s two rooms and there are eight adults in this house and I’m not going to approve them. As I explained earlier, we don’t do that. We take into consideration the safety of the child. So I would suggest there is enough flexibility within the assessment process and the templates that we take into consideration in the context of the family and in particular kinship care households and kinship care systems.

Could I just ask you to turn to paragraph 82 now and these are some of the, if you like, the realities, as you have described them, concerning the assessment of household members, household standards and numbers of people in the household. Now, I am going to ask you a series of questions based on this paragraph. I have a general one first of all. The Commission has heard a lot of evidence about what might be described as endemic distrust on behalf of many Aboriginal communities and their members of Territory Families and its predecessors. You know, they are viewed from time to time and by many as taking children too readily, keeping them too readily, not returning them in a timely fashion and not providing love and nurture and care. Without entering into a judgment about that, you are well aware of that perception on behalf of many in the Aboriginal community, aren’t you?---I would like to say I’m not well aware of that perception by many in the Aboriginal community. I am aware there is a lot of rhetoric and literature and research to say


5

10

15

20

25

30

35

40

45

that. I’m just clarifying that is not the message that I have received from Aboriginal community members, but I’m very aware of the literature around it.

Yes. Are you aware of a level of distrust, one might say institutional distrust, of the department?---Once again, whilst I can understand that it is reported that this is the case, that has not been my experience.

Does your experience arise from dealing with communities where you hold a certain level of discretion and power as to whether a child is replaced or placed in that community?---Could you say the question again?

Do you - - -?---I understand – I understand the position of power, absolutely, yes, that is perceived.

Are you communicating with persons from Aboriginal communities where you hold a significant balance of power advantage in that communication?---I think the very nature of statutory protection implies a level of power. We can’t get away from that.

Yes. And as a result of which, do you understand that persons may, from time to time, be disinclined to express hostile or distrusting sentiments to you in those communications. In short, they don’t want to get angry with you because you hold a certain amount of power. Do you agree with that?---Coming from a social work background, that is a social work theory I’m well familiar with, and particularly in the child protection statutory domain. I think that is a risk with any family member. I think it is an increased risk and it’s well-researched risk with Aboriginal families given the history and the intergenerational trauma. What I can say – that is, within my work field, if any of my staff member – I guess what I’m trying to say is I work with the individual staff members and my leadership team work with individual staff members to ensure that they treat all families with respect to their values and tradition and heritage. So we treat families on an individual basis. I can’t – I can’t answer to the general perceptions and what you’re talking to, but we do work hard within the out-of-home care division to make sure everyone is treated with respect.

COMMISSIONER GOODA: Maybe we can turn that around, then, and say, from your long experience, how would you go about building the trust of a family, of a community, because there is a certain amount of distrust. We can’t argue about the level but - - -?---Yeah.

How would you – you know, what would be ingredients – you talked about staff treating people with respect and treating them individually?---Mmm.

What would be the other things that could help?---I think, and I’m speaking from personal and professional experience here.

Yes?---I think you can have the hard conversations in nice ways that don’t disempower and disrespect a person. But you can have an open conversation around what the worries are and how do we overcome what we’re concerned about. I think


5

10

15

20

25

30

35

40

45

when there is a lack of transparency and we can’t have those hard conversations in a nice way, that can lead to distrust. So for me and the teams, it’s about how do we have open and honest conversations in a respectful way and how do we work together to try and resolve the issues that is not – we are not coming from a judgmental perspective that, you know, someone is good or bad. It’s just how do we actually improve this.

And there are hard conversations to be had?---There are. There are.

COMMISSIONER WHITE: We have heard that historic removals, I’m not talking about the last year or two, but historic removals, a fairly constant account of them is nobody explained either to the child or to family members who were concerned about why this was taking place. Now, in many cases, it will be an assumption about language and that the communication is adequate. But in other cases, it would seem that things happened quite abruptly, from the perception of those in community. Would you think that that would be a real problem in terms of trust?---Commissioner, if it’s occurring, it is a real problem.

I think I prefaced it by historic because older cases within our terms of reference that have come to our attention?---I think there are many circumstances, having been involved in the removal of a child from parents myself as well, along the way, and supporting my staff through the removal of a child. There are a number of different circumstances. There is sometimes a language barrier and sometimes interpreters aren’t always available at the time. I think there are also occasions where truthful and hard conversations have been had with parents and grandparents and aunties and uncles around the child prior to the child coming into care. However, the event of removing a child from a family can be incredibly traumatic, and it’s not really going to be a time and a place where you can sit down and have a thorough conversation because everybody is incredibly stressed about a child being physically taken away from a family member, whether that be mum, dad, aunty or uncle. I think we need to build space around the removal of a child and whether that’s before or after, to ensure that we are having those hard conversations in a nice way. And also making sure that they’re heard, because - - -

Yes?--- - - - we may have people, and I’m not speaking – I’m only speaking from my past experience – we may have people that feel that they are having a good conversation, I shouldn’t use the word good, but a robust conversation around the reasons, but there are different reasons why someone might hear something differently or not to the degree of which it’s being said. And I think that warrants further consideration.

COMMISSIONER GOODA: And leaving aside the cultural competence bit for a moment, that’s a hard conversation for any family. Would it affect the type of people you would recruit? Is there a workforce issue here? Do we need to get people who have those qualities? I’ve seen people with qualities – without them. It’s really a special person who can go through those processes, isn’t it?---So,


5

10

15

20

25

30

35

40

45

Commissioner, I think you positioned two things to me there. Do we have an issue with our workforce?

Yes?---I believe we’ve got a lot of qualified and well-intentioned people within Territory Families trying to do the best job they can. Secondly, you asked should we be recruiting people that are well-skilled in that area, and I think there’s a level of attributes that a person needs to hold to be able to be able do that job. Yes, absolutely, because we need to be having those hard conversations in a nice way to be able to work with families and move forward.

Would you be able to – not right now – but maybe provide us with some of those attributes from your perspective, you would see would be necessary?---I can, Commissioner.

Thank you?---I will provide them with the talking posters.

MR MORRISSEY: The questions that I was taking you to really are now specific ones but it’s against the background of the questions that you’ve just answered. Perhaps one more general one before we go back to 82. One of the issues that stares the Commission in the face here is, given we have a relatively low number of persons currently in kinship care, an issue arises – and I think you’ve drawn attention to it early in the statement – of the preparedness of appropriate people to come forward to provide that care in a particular case, bearing in mind the nature you’re dealing with, you always have to do a case-by-case assessment. Now, what disincentives are you seeing, just thinking over your professional life in the area as well, what disincentives do you see to persons stepping forward to step into that kinship space where the parents or parent are unable to maintain the child? There obviously are some disincentives. You pointed out there sometimes is a short supply of people, yet there is not a short supply of community people, we are not talking about a shortage of Aboriginal people: we are talking about a gap of people who are stepping forward to your Department. So therefore it’s important to identify possible disincentives. Are you seeing any such disincentives in your work and if you can identify them perhaps it will help to remove those disincentives?---I would like to clarify two things.

Yes, of course?---Feel like I say that a low. The – one thing is that whilst there may be many community members, we have not had a lot of Aboriginal community members step forward to be a general foster carer, and that is even with our talking posters. So we need more people in community, Aboriginal carers, who want to be general list foster carers to step up and contact us. With that said, in my travels and in talking with families, there is no doubt – first of all, I have to say the statutory system is a scary system. It can be a hard place to navigate and there are a lot of processes and systems that require some knowledge or assistance to work your way through. When – there was a time, and I’ve had fed back to me, that some people did not wish to approach the Department to be kinship carers because the number of forms they needed to complete in the application was onerous – not in their words, in my words, but there was a lot of them. And also understanding that there are times


5

10

15

20

25

30

35

40

45

where, when you have English as your second or third or fourth language, then completing forms in English can be extremely difficult. So that is one of the impediments. One of the practices we put in place – so once again, I – those people I have talked to, we strongly encourage them to encourage other community members and possible kinship carers to step forward and at least talk to us, because we have lots of ways we can help with that. My team will actually sit down with potential applicants and they will fill out the forms for the applicants, so there is support there along the way, both in understanding what the forms say, understanding what the forms mean, what the requirements and the completion of them. So my team can walk away with a final product after sitting down with the applicants.

Alright. Well, you’ve identified two issues there. The statutory scheme itself could be said to be intimidating and the implementation of it, through forms and so on, may also be intimidating because of language. What I wanted to ask you: do you think that the practice of both your unit and Territory Families more generally might constitute a further disincentive? By that question, I ask you to consider the process in paragraph 82 whereby assessments must be made, and here I’m asking you to go into the shoes of Aboriginal community members who are subject to this assessment:

The household is inspected, the physical space is looked at, hygiene is checked for, small spaces are assessed. The prospective – the ability of – capacity of prospective carers to control the number of visitors is assessed and all discussed.

Do you think – and you’ve set out a number of other requirements there. Now, they’re all rational areas that your Department must assess, but do you think that process might spook and scare potential carers and make them think that they’re being checked out and perhaps even condescended to in the process of assessment? In other words, does the assessment process provide a disincentive for people to engage?---So I would just like to correct, I don’t believe I used the word “intimidating”, however I will accept if I was wrong. I think as we discussed before, the process of assessment can be a – I will say a daunting one for both Aboriginal and non-Aboriginal carers. It can be a confronting process to be asked personal issues of your life. As said, having been a foster carer, it can be confronting to have someone come through your house knowing they are assessing your house for safety and asking you about your life, your relationships, your supports. That is a very detailed assessment which can be daunting for some people. Is it a necessary action? Absolutely, because we need to ensure the safety of the children. And we need to be able to have, once again, honest and upfront conversations around what safety looks like for a child. When we are assessing both kin and foster carers, we take the process very seriously, because we are authorising and we are saying that those carers can provide safety and good outcomes for a child in care. So yes, it is a serious assessment. Yes, it can be daunting. With that said, I’m confident my teams work hard to work with applicants to make it as easy as possible.

Yes. But in terms of - - -


5

10

15

20

25

30

35

40

45

COMMISSIONER WHITE: Can I just - - -

MR MORRISSEY: Yes, of course.

COMMISSIONER WHITE: - - - ask you this: throughout our meetings in numerous communities in the Northern Territory, one recurring issue was the issue of public housing. And its long waiting list, years and years and years and growing families, real problems to accommodate them in any way that would be regarded as even reasonably appropriate. Very difficult. Is this something that you confront in your assessment issues?---Commissioner, we – we – we have a lot of assessments where there are multiple household members, and there is obligations for family members passing through and, as explained, we do take that into consideration. From my – the best of my recollection, we actually do not, for want of a better expression again, reject many applications due to the housing situation. And where there are housing situations that may be an impediment then the carer assessor and case management will work to try and resolve them, but they are not a large portion of our kinship care assessments.

Thank you.

MR MORRISSEY: Could I just ask you to explain briefly a particular tool that is used in the process of assessment, genogramming. There has been some evidence about that already?---I’ve heard.

I’m not asking you to – you don’t have to start from the beginning and explain it all. But Can you say a little about how long has that tool been in use in your section and is it subject to refinement or further development, to your awareness? Are you aware of any criticisms and what comment can you make about genogramming in general?---So I’m familiar with the comments about use of genogramming in the Aboriginal context and the kinship and family systems. A tool is, once again, only as good as the operators, so it’s important that our staff understand both the benefits and the limitations of using such a tool, particularly within Aboriginal kinship care systems. I can speak to out-of-home care and I can also talk to, in my experience, that where we are genogramming, particularly in out-of-home care, an ACW or a senior ACW will assist that process, and that is where I would expect ecomapping or kinship care systems mapping would occur, so that we’re identifying not just the necessarily the biological lines of that child, but the other recognised kin within the child’s system so that we are not being prescriptive and missing any opportunities for a child to have a potential kinship care placement. Did that answer your question?

Yes, it does, thank you very much. Just returning – earlier on, you’ve made reference at paragraph 93 to the Territory Families carer attraction recruitment and retention campaign. I think you said something about that in the general explanation you made - - -?---I did.

- - - earlier on, and the posters, and in the languages in – languages in which that was composed. But has there been, if one might say, a coordinated effort to engage with


5

10

15

20

25

30

35

40

45

Aboriginal bodies – with representative bodies, in order to address this issue? The need for more potential foster carers to feel welcome enough to step forward and make themselves available. And, in the same way, to encourage persons to step forward at some times at quite short notice where a kinship placement is being considered? In other words, it’s an option I haven’t heard you speak about yet but there may have been some engagement. What can you tell us about that?---Look, there certainly is on an individual and operational level, that work does occur with communities and Aboriginal organisations to try and assist in the – I will say the attraction, but at least having conversations with potential kinship carers and Aboriginal carers. From an organisational perspective, I believe Luke Twyford’s statement will go into more detail around the outsourcing of out-of-home care and the work that will occur with Aboriginal organisations. So is there more work that can be done? Absolutely.

Yes. But in terms of that more work, it is helpful that you make your suggestions as a person who has a direct connection with the work that’s being done. Are you seeing that as a possibility? Is that something where, if you had some more staff who could engage, or how would you see that being brought about?---I think partnerships with other providers, whether they are Aboriginal or non-Aboriginal, NGO, can always be improved and I think that’s about our communication and working relationships and I know Territory Families is very focused on improving our partnerships. I could not say that that – the outcomes or those relationships is dependent on more staff. I think it is an about improving our relationships and partnerships and communication.

Do you have to deal with that situation in very disparate communities, some far flung and very different types of communities. I take it, it would be of great assistance to have a peak body where you could direct that sort of initiative?---Maybe so.

Alright. I was about to turn away from the kinship issue as a general proposition now, but if there were other areas to cover.

COMMISSIONER WHITE: No.

MR MORRISSEY: Alright. Thank you. Could I ask you to go back to the start of the statement and deal with a couple of the issues that you’ve explained there. First of all, you’ve made reference – and this is at paragraphs 10 and 11 of your statement – to a notion of an order of preference for the continuum of care. Now, there are a number of options, as you’ve set out and they’re quite different. Is there a – one might say, a template order of preference for placements or is it really done on a completely individual basis, or do you have guidelines that you prefer for younger persons that they be placed in one forum, older person placed in other. What are the criteria that apply, or is there simply an order of preference?---There’s a number of criteria that apply. Maintain sibling groups is one. Children zero to five is also one. With regards to placements, our preferred option is always kinship care or general foster care. That is our preferred option each time. Where we have the situation that we do not have foster carer or a kinship carer available then we need to consider the


5

10

15

20

25

30

35

40

45

next option and as has been discussed, purchase home based care is one of those options. We also have the situation where, as a child moves towards adolescence, sometimes their behaviours – due to trauma and neglect – will be exacerbated and we’re unable to put them within that placement. And, even with kinship carers at times, families cannot manage those behaviours and under those circumstances we will look at general residential care. And whilst residential care is not our option, sometimes the complexity around the child, it is the option we have to move towards.

Are you able to indicate as a general – perhaps if there are specific figures you can tell us, but I don’t think there are. In residential care does one find a preponderance of older children?---Yes, that would be correct, except for the community based model which is the residential care that is designed to maintain the child within their community, such as Alice Springs or Tennant Creek, while further work is done with the family to try and reunify them or move them to a kinship care model. Other than that, yes, they are largely adolescents.

Alright. Now, could I ask you to perhaps – it’s a sideways issue from what we are talking about, but an important one nevertheless. So children who are transitioning out of detention, for example, those who have finished a placement, but do not have a family home to go to, are you able to say where such young persons typically go? There is a pattern of that, are there statistics upon that topic?---Yes. General residential care, and sometimes into an individual placement arrangement, due to the difficulties of the child. It is very unlikely, sadly so, that children moving in and out of that system will be placed in a foster care or kinship care placement. That’s not to say it doesn’t occur, but a large proportion of them move into and out of and back through general residential care.

Yes. So that’s to anticipate we will come to in about 10 minutes concerning the situation in the residential care homes, but it is the fact that the residential care homes are often the homes for individual young people with major trauma, major problems, major difficulty?---And pain based behaviours, yes, that’s correct.

Yes. Okay. Do you have a ratio of workers to residents in the residential home setting?---Generally speaking, it is two to one.

Yes. Now, the residential home care is provided by Territory Families and in some instances by NGOs; is that correct?---That’s correct.

What’s the percentage or approximate percentage of - - -?---NGO versus - - -

Versus Territory Families?---Territory Families hold the smallest percentage, so we have three in Alice, three in Darwin, and then the other service providers around the NT wide, I can’t recall the numbers. We have got approximately 46 houses under NGO providers.

Very well. Now, in terms of parity between the situation of a young person placed in residential care, Territory Families as against NGOs, there is broadly speaking parity


5

10

15

20

25

30

35

40

45

in the sort of – in the ratios between those institutions?---Except for the community based care model where there’s six children.

Yes. No. I – and yes, so I should say that, unless I say so, I’m exempting that?---Okay. Yes. That’s correct?---So what we are moving to – and I may pre-empt your question – what we’re moving to is consistency amongst the Territory Families and NGO residential care houses, so that when a child moves from place to place there is not a disparate change in the way they are managed. So we are trying to make that transition as seamless as possible.

You are pre-empting the question. There are currently differences that need to be standardised, are there not?---And Territory Families recognise that. In the year 2017 we have put in place a number of auditing and scheduling inspections with NGO and Territory Families houses. We have also started the quarterly residential care meetings with providers and Territory Families. We have also commenced meeting with service providers at the end of the inspection so we can talk about any positive or negative patterns or observations that we have made and how we can improve it.

I think you have set that, actually?---Correct.

Those steps quite clearly. Thank you. I’m grateful for that. So just in terms of the current distinctions, right now in a territory family residential home there is a ratio of one worker to two children?---Correct.

There’s particular complaints mechanism that exists in the instance that a complaint needs to be made; is that correct?---That’s correct.

And is that the same complaints mechanism that applies currently in the NGO residential home?---Yes.

Now, what about the duty to report when a child absconds and vanishes? I understand that there’s a term that is used at the moment, self-places, but where a child disappears, is the same reporting obligation placed upon staff in Territory Families’ homes as there is in the NGO homes?---Yes. There is also policies and procedures and, once again, I’m stepping into the case management domain here but I’m happy to talk briefly to it. In terms of where a child regularly leaves a placement without permission, there are policies and procedures on what action should be taken around that. In terms of reporting requirements both Territory Families and NGO providers have the same obligations to report those matters.

And the NGOs have a legal requirement to report, do they not. Is that a statutory requirement?---They have a service agreement.

A service agreement?---Service agreement requirement. Also it is conversations we are currently have in the residential care services meetings as well, to make sure we


5

10

15

20

25

30

35

40

45

have consistent practices, and once again there are policies and procedures around the requirements for reporting a child.

But is there an obligation upon the NGO based residential care providers to notify promptly? Is there a legally enforceable obligation to do that?---In terms of a service agreement?

Yes. Is that a legally enforceable?---Service agreements are legally enforceable, correct. Once again, we would go through to the policies and procedures and these may be better addressed in further statements. I am talking about case management once again. However, there are clear policies and procedures on how we should manage when a child is continually leaving placement without permission, and here are varying degrees of reporting which may or may not occur depending or the danger and risk to the child, and some of that can be the age of the child.

Yes. But in short, although you have identified a couple of disparities, what you’ve said is also that you’re working to address those disparities. You would expect within the next year, you will have common practice across the residential sector, whether it’s NGO or NT Government homes?---Correct.

Alright. However, there is another kind of placement, is there not? Now, what is described as a family day care service. What is the name?---Purchased home based care.

Sorry, say again?---Purchased home based care

Now, what do you – what – can you explain, “purchased home based care”. What does that embrace?---Purchased home based care is carers that – well, not carers, sorry, they’re purchase home based family day carers which come under the national accreditation scheme for child care.

COMMISSIONER GOODA: Is that what they refer to as – we have heard other people refer to as professional?---That’s correct, Commissioner. We do not have professional carers. They are, I believe, referring to purchased home based care.

MR MORRISSEY: Alright. And is that the term that you would prefer to use – I just want to have commonality of terms?---That will allow a consistent response.

Alright. Now, how many kids are currently in purchased home based care?---I believe you quoted, previously, around 200.

Yes. Are you able to say what percentage of those are Aboriginal people?---I would suggest a high percentage, given the high percentage of children in care that are Aboriginal.

Alright. Now, with respect to those particular placements, what’s the ratio of worker to child?---The day care system?


5

10

15

20

25

30

35

40

45

Yes?---There would be – we have capped it at a maximum of four. So there may be a mum and dad within that system.

These – the purchased home care providers are professional incorporated bodies, generally speaking, are they not?---They’re under the National Day Care Accreditation Scheme.

They need an ABN; is that correct?---That would be my understanding.

Yes. Okay. I will come to their accreditation shortly. Just at the moment, I want to get a sense of what oversight you have of those bodies. Your understanding is that the ratio is capped at one to four; is that correct?---That’s what we do, correct.

Yes. Alright. And how – and is that cap, how is that cap imposed, is that a statutory requirement?---No, it’s not. As I’ve explained, they are under the family day care accreditation national system. My placement units caps it at four, unless there are exceptional circumstances where – and it’s largely involving a sibling group.

Yes. So it’s not really capped at four, it’s capped at four as a general principle, but - - -?---You could say that.

Yes. Okay. That’s right. And is there a need or a requirement that those providers notified you when the ratio goes above one to four?---Well, it’s my placement unit which is responsible for that. So where it would go, before, I should already know.

When – I’m sorry, I’ve used you, in the royal “we” manner there, so I do apologise. You’re referring to the placements units, that’s what I’m referring to, too, but that’s okay to point that out. But is it a requirement for those service providers to tell your placement unit, “We have gone over the one to four ratio”?---We’re responsible – the placement unit is responsible for making the placement of a child, so if they went over the ratio of four, it would be my placement unit that would have made that, so perhaps I’m not understanding the question.

No. I understand. I do understand. What I’m talking about is a situation where somebody back, somebody who had self-placed out, and returned?---I can answer – I can answer to that. So where a child has left placement without permission, then we will hold that placement open for five days at a minimum. We will hold it open longer if we can be assured that every effort is being made to return that child. What that means is we won’t place another child there. So therefore there would be no mistaking that placement to go over the numbers because a bed will have been held for that child to return.

COMMISSIONER GOODA: How much do they get paid?---Commissioner, I believe the chief financial officer will be discussing that in her statement. So she has the details of those figures.


5

10

15

20

25

30

35

40

45

COMMISSIONER WHITE: She would probably then be able to tell us at what point does the funding cut off for an abscondant or removed child. In other words, you hold it open for five days, presumably continually funded over that period but there will be a point when it will stop?---So, Commissioner, that is something we need to consider with all of our children, and – in terms of payment, and when that funding stops. So it is a case by case scenario again. If there is a high likelihood that we can return that child and particularly where that child has had a longstanding home with that person then we will make every effort to keep that placement or home open. And, in those cases, we would largely continue financial reimbursement so that they have the mechanisms to hold the place open for that child.

Thank you.

MR MORRISSEY: Yes. Can you just explain what it is that requires such an institution to advise where a child has disappeared. I know it’s .....?---Sorry, the institution you’re referring to?

I’m referring to the service provider?---The purchased home based carer?

Yes?---Okay.

So take an example of a purchased home based carer in with respect of whom a child absconds. What legal obligation do they have to advise your office of that fact?---The best way I can answer that – I understand what you’re asking, do they have a legal obligation? There is no legal obligation to notify when a child has left placement without permission, but what we do expect is that we do have – we have policies and procedures around our expectations on who will notify who and within what time, when a child has left without permission or has gone missing, and that is what we expect all of our placements to adhere to.

Alright. So you’ve indicated you have an expectation of such a carer, but how do you enforce that expectation? Can you enforce that expectation?---I’ve never had to be confronted with the need to enforce it. These are conversations that we have regularly with our service providers, whether they be purchased home base care or residential care provides or other, and we clearly explain policies and procedures so that the expectations are clear and that it largely occurs. That’s not to say there won’t be, at times, human error and that is an opportunity for us to go in and have a further conversation.

Alright. And you – just – you may not know the answer to this, but you might. There may be – take for example, a child who is unhappy and perhaps might be said behaving in an unstable way with respect to that care placement. They may be unhappy, they may leave, as you’ve indicated, on a fairly frequent basis. In that situation, is it your observation that you’re advised or your office is advised on each and every occasion that that child leaves, or is there a discretionary element for the carer to determine, “They’ve just gone for a walk, they will be back tomorrow, I won’t advise”?---I would just like to separate that matter out. So there is an


5

10

15

20

25

30

35

40

45

expectation that the case manager is advised in every instance that a child leaves the home without permission. Once again, it is governed by policies and procedures, and it is agreement between the case manager and the carer, dependent on the risks and the age of the child. That’s one part of it. As talked about or discussed before, the placement unit being advised of that child being absent from placement will not always occur and, to give an example of that, you might have a child that leaves to return to family on a daily basis without permission, but then returns back to the carer’s home at night. Therefore, there would be no benefit in notifying the placement unit of that movement. That would warrant a conversation and a meeting with the child and the carer and the case manager.

Could I turn to the question of accreditation of those who work in a purchased carer setting. What qualifications are such carers required to have?---So, as explained, purchased home based carers are expected to have the qualifications that are deemed necessary for the accreditation for long day care or family day care.

COMMISSIONER WHITE: Yes. You say that in paragraph 45 of your statement. Without going to look it up, I don’t know what that is. Are you in a position to inform us about what the nature of that – the basic qualifications are?---It is quite detailed, Commissioner. I would like to take that on notice if at all possible and I can get that information for you.

Of course you can. That’s a third – that’s a third thing?---It’s a third thing. I’m getting quite a list.

MR MORRISSEY: That’s okay. I have some questions which might assist you and, if you can answer these, feel free to you. You are aware under the Children Protection Act the CEO or the delegate can place a child in any arrangement considered appropriate in the circumstances?---That’s correct.

So quite a ..... discretion, you understand that. But there is a requirement that the arrangement be considered appropriate; that’s the test. Now, under the Care and Protection of Children Act – sorry, perhaps I will take a step back from that. The purchased home care providers are really an improved provider of an education and care service, aren’t they? That’s the way - - -?---Correct.

And, therefore, to answer Commissioner White’s question, the qualification they have is to certificate, certificate III children’s services (family day care); is that correct?---Thank you.

That’s the – I know you didn’t have the words immediately in your head, but that’s right, isn’t it? That’s how it is. Okay. But just on that topic, the education and care services which is National Uniform Legislation Act of the Northern Territory has a section specifically states at section 5:

The definition of an education and care service does not include care provided under a child protection law.


5

10

15

20

25

30

35

40

45

Are you familiar with that section?---I’m not familiar and I would need to look further into that.

No. Okay because it looks as if there’s a carve out for day care care, but it does not qualify you for care – to provide care provided under a child protection law. Now, I take you simply weren’t aware of that?---I’m not aware of that statement in isolation. What I would like to do is take that statement and look at the context around it and the information that supports that statement.

Day care is very different to residential care. Even long day care; you would agree with that?---That’s correct but, being unaware of the context around that statement, I’m not sure of the purity of the statement. I’m not saying I distrust what you’re suggesting, but I would like to understand the context around it.

That’s okay. And I’m – yes - - -?---I may be able to answer - - -

Perhaps it’s inappropriate for me to ask?--- - - - the question a different way.

Yes. Okay. Well, perhaps we will see how the law looks in due course. But, in any event, what I’m asking you to concede here is there’s just no similarity between long day care and residential care in terms of the sort of work that one actually does in a facility, is there?---I don’t believe you can compare the two, no. One is in a family home and one is in a residential care setting. Perhaps I’m misunderstanding the question.

Sorry. Just on the face of it, it appears as if the people, the carers, in that system appear to have a qualification that has got nothing to do with providing residential care to any teenagers, let alone ones coming out of Don Dale or similar. Would you agree with that?---We don’t classify them as residential care, Commissioners.

No, I know you don’t do that, but that’s the problem, isn’t it? That in fact that’s what they’re providing, residential care, putting the kids to bed, calming them down, providing such love as a professional can provide, and waking them up in the morning; correct?---I don’t believe that’s correct. We also have foster carer and kinship carers who have up to four children in their household, and we don’t classify them as residential care, so I’m not sure what we’re - - -

That’s not the point that is being made here. The point is the day care qualification looks as if it is remotely relevant, at best, to providing the sort of care that is needed. Would you agree with that or disagree?---In terms of residential care, I really am trying to understand the question.

COMMISSIONER GOODA: Children live there?---That’s correct.

In residential care, they live with foster carers they live in professional care?---Purchased home based carers.


5

10

15

20

25

30

35

40

45

They live in ..... isn’t that a – forget about the qualification of residential care facilities. Isn’t it a residence where they’re staying?---I guess. I’ve never come across that question before. We don’t term it as residential care. A residential - - -

They’re living there?---Well, we can say they are working in a residence, but residential care involves a rotation of staff through - - -

No, no, I’m saying in this category, professional – purchased home based care, children live there?---That’s correct.

I think what we are trying to get at is does the qualification as a day care automatically mean they’re qualified to provide that sort of care where kids live overnight in those facilities?---So I will go back to – I wouldn’t classify them as residential care. In terms of their qualifications to provide care for a child overnight I would expect, and I’m feeling my way through this question, bear with me – that their qualifications that allow them to care for a child throughout the day would be the same qualifications that would support providing safe care through the night.

Does it?---It’s my understanding it does, yes.

COMMISSIONER WHITE: How long would a child remain in a purchased home based care placement?---It is not our preference, Commissioner.

Yes, I discerned that?---I – yeah, so it should not be a long-term option. I can’t answer to when this practice began. So I would not be able to give you the history to how we ended up at this point. When I can talk to is we have ended up at this point due to having a limited number of foster carers and kinship carers. So where we are able to increase our foster and kinship care numbers, the intent of Territory Families is to move those children into a kinship or foster carer, out of a purchased home based arrangement.

Yes. I think that’s quite clear, from the tone of your statement, but it might be something like – relatively speaking, short-term, a night or two, up to something longer than that?---That would be our intention, but the reality is that we do have children that have been in purchased home based care sometimes for years due to the limitations – I will not shy away from that.

Yes.

COMMISSIONER GOODA: Do they go through - - -?---And – sorry, Commissioner.

Do they go through the same – we talked extensively previously about the criteria and the judgments about kinship care. Do they go through a similar process?---They don’t. They’re not considered authorised carers.

But some of them are there for years. You just said that?---That’s correct.


5

10

15

20

25

30

35

40

45

Do you think they should be going through a similar process of, say, kinship care?---What I would like to see is purchased home based carers come over to be our foster carers, and we do and have successful engaged some of them to become carers for us. As I said, it’s not our preferred option, which we are working to increase our numbers. I wish I had a better answer for you than that.

COMMISSIONER WHITE: There is nothing wrong with the answer.

COMMISSIONER GOODA: That’s fine.

COMMISSIONER WHITE: Does it mean the purchased care workers don’t receive the same training as your foster carers, for example, would receive?---Under the - - -

You set out that the residential care workers, in paragraph 46 of your statement, quite extensive training. That doesn’t occur, I take it?---I can take another matter on notice. But what I can tell you, in terms of my work with the purchased home care providers, because I will – I will work with the head of that agency, that they do put a lot of training into their carers and some of that training is around trauma and neglect, dealing with complex behaviours. We’re also looking at how we support any of our partners with further training. I’m unsure about the details of that training, because it does come within the national framework.

Yes, thank you.

COMMISSIONER GOODA: So the purchased home based care, is it families running like a family day care or are they .....?--- That’s correct, Commissioner, yes.

It’s not a conglomerate of people running it?---It’s families running day care.

MR MORRISSEY: Well, perhaps that could be clarified a little bit, though. When you say it’s families running day care, some of the organisations – sometimes it’s a big, corporate – a bit larger corporate organisations which subcontracts to such families; is that correct?---Large families?

Well, no, no.

COMMISSIONER WHITE: Mr Morrissey is suggesting that an organisation might in fact have a number of families on its books that will provide this kind of service?---That’s correct, and it is the head of the service providers I largely work with.

MR MORRISSEY: Yes. Well, perhaps if we could have on screen now – sorry I’m going to take you to a document to assist with that.

COMMISSIONER WHITE: Can I ask you to think about the time, Mr - - -

MR MORRISSEY: I am. May I finish this – perhaps it’s an appropriate moment.


5

10

15

20

25

30

35

40

45

COMMISSIONER WHITE: Well, no. It’s perhaps a bit more complex than that. We need to ascertain how much longer you will be, how long the cross-examination will be, and whether Ms Couch is in fact booked on a flight to Darwin?---I am, Commissioner.

What time is your flight?---5 o’clock, my flight leaves.

COMMISSIONER WHITE: Well, we might be allowed to have lunch, then. And we have Dr Bath this afternoon. So - - -

MR MORRISSEY: Yes. I’m aware of that. It has been an informative session, but it’s – yes, I accept that we – perhaps if I could seek that the Commissioners consider a shorter lunch break.

COMMISSIONER WHITE: We will certainly do that. We really just need to know how much longer you think that Ms Couch will be, taking into account the cross-examination as well, and it may well be that some of the issues have already been covered by some of the questions that might reduce it.

MR MORRISSEY: Yes. I should think we will finish within the half-hour.

COMMISSIONER WHITE: Ms Graham doesn’t look as though she is completely in agreement with that.

MR MORRISSEY: Sorry, I’m told there’s 25 minutes of cross-examination. So perhaps 40 minutes.

COMMISSIONER WHITE: We can do that. We will then – we will take a 40 minute lunch break and return probably about 2 o’clock. Perhaps Dr Bath could be notified that we will be a bait later starting with him. Perhaps whoever is looking after Dr Bath - - -

MR MORRISSEY: I am, and we will.


ADJOURNED [1.21 pm]

RESUMED [2.06 pm]

MR MORRISSEY: Thanks very much. Okay. I have just got some questions now concerning the payment regimes for kinship and foster carers as opposed to those – the payment regime for purchased home based care providers. Do you see on the screen there the annexure I referred to before lunch. This is the ringtail reference


5

10

15

20

25

30

35

40

45

WIT.0220.0001.0016, and we’re at page 0017. That is annexure to Mr Charles, annexure number 2 to Kym Charles’ statement. So is that a list there on the screen of purchased home based care providers?---That is some. Yes. That is correct.

Alright. Now, when you say some, you see there are two corporate providers that are funded to the amounts of 12 million, that being Kentish Lifelong Learning and Care incorporated and Territory Child Care Group incorporated – some 9,907,000. You see those?---Yes. I have looked through the document.

Now, do each of those organisations subcontract to other providers?---My understanding is that they have day carers on their books. We work with the head of the service provider. And I would just - - -

Now – sorry?---I may ask – given that this document wasn’t annexured in my statement, Kym Charles may be able to answer the questions in a fulsome manner, but I will give it my best.

Thank you. Well, we understand. That’s appropriate to point out that issue. But I will ask you to. The individual care givers on that list, aside from the two big ones that I pointed to, Kentish, on one hand, and Territory Child Care Group on the other, are the other providers on that list subcontracting to Kentish and to Territory Child Care Group, or are there further ones, further providers who are not on that list?---There are a number of individuals that work for Kentish and Family Day Care. So that, in itself, would not be an itemised list of every carer, I would not be able to answer that verbatim, though, and they would be under the auspices of both of those service providers.

Yes. So you personally don’t have any dealings with those – what would we call them? Subcontractors?---Well, I would say they are purchased home based carers employed by Kentish and Family Day Care. That’s how I would describe them.

They’re employees, as far as you know, or are they subcontractors?---I would need to go into the legalities around that, and I do have the details, but I can’t bring it straight to hand.

Alright. Well, however they’re categorised, do you deal directly with them?---There are occasions where we deal directly with them through the placements unit.

Yes?---The placements unit will also work with the service provider themselves in terms of the manager or the placements unit within the service provider.

Yes?---There are also occasions that we will deal with the individuals when we are working towards maintaining a placement. So the placement might be at risk. And also I will be dealing with – or out-of-home division will be working with the individuals when it comes to the auditing and scheduling of unannounced and both announced home visits.


5

10

15

20

25

30

35

40

45

Yes. Alright. But having said those things, you don’t have any oversight or visibility of those particular providers, do you, in terms of their training or their appropriateness, generally speaking?---In terms of the training, I would work with the head of the service provider to talk about what training they’re provided.

Yes. Alright. So when you yourself – well, when your organisation is involved in placing a particular child into purchased home based care, one of those 325 kids who are placed there, you don’t know yourself if the individual carer has received any training at all from Territory Families; is that correct?---The placement units expectation would be that anyone who is under Kentish or Family Day Care would have met the accreditation standards as set in day care national standards.

Well, you know they are supposed to have received the certificate 3 in day care; is that right?---That would be correct.

Yes. But that’s all you know about their training?---Unless I make further inquiry, yes.

Okay. Well, and you don’t make further inquiries?---There are times I have made further inquiry, and I explained earlier their carers are also afforded training in trauma and neglect and dealing with difficult behaviours of children in care.

Yes. Alright. And what you would agree is that up to now and pending the establishment of the auditing regime that you have talked about, you know that they have not been audited by Territory Families at this point; correct?---Perhaps we should agree on a term of auditing. There has actually been times that I have gone to individual carer’s homes when there has been a requirement.

Well, just explain that a little bit further. You have attended at those homes. Is that in response to a particular issue that has arisen?---It is. Yes.

It’s not a general oversight visit?--- It’s not a general oversight.

No. Alright. And, in short, you rely upon the agencies to deliver the training and to deliver any quality control over those care providers at all; correct?---That’s correct, and to also complete home visits to oversee the safety in the home.

So it’s quite a stark contrast between the oversight that prospective foster carers or kinship care providers are exposed to on the one hand and those providing purchased home based care?---That would be correct.

Yes. Alright. Just in terms of the remuneration of such providers, purchased home based carers negotiate a fee in advance, do they not?---Correct.

And that is a fee for which they – it’s negotiated in advance and they don’t have to subsequently account for how it’s spent; correct?---They do account for how it’s


5

10

15

20

25

30

35

40

45

spent within the invoicing, and once again we go through the agency to explain the invoicing and pricing associated with it.

But it can be done on the basis of a weekly rate, can’t it?---It can be, depending on the placement needs of the child.

Yes. And it can be done on a weekly rate of something in the order of $1000 week; is that correct?---Is the daily rate, and depending on how much detail you require me to go into here, I would like to refer this conversation to Kym Charles’ statement, in which she has annexured this document.

No. I think you have answered that sufficiently for now. Whereas the situation for foster carers and kinship providers is the reverse, isn’t it? That’s a reimbursement system, correct?---It is an allowance to meet the needs of the child. That’s correct.

Yes. But, in other words – but it really depends upon demonstrating the expenditure relative to the particular child; correct?---We don’t ask foster carers and kinship carers to demonstrate their expenditure.

And what are the amounts typically speaking?---The payments will depend on the location of the child. So there is a remote allowance. They also depend on the age of the child and the complexity of the child. So there is a varying rate of payment depending on all of those.

Okay. And what’s the base rate?---It would be – for the youngest child at a complexity level 1, it would be – and I’m just recalling a figure as a base rate; I apologise for not having the numbers to hand.

That’s okay. That’s alright?---Perhaps in the order of $200 a week for a very young child, low complexity.

And it can be, when a person is in purchased home based care, though, that it can be as high as $1000 a week, can’t it?---On average, yes, it can. And, once again, I would feel that Kym Charles would be able to answer those questions fully.

Yes. Okay. Now, could I just ask you this: the bodies that are listed in the document on the screen there, particularly Territory Child Care Group, incorporated, and Kentish: they are private concerns; is that correct? They are businesses?---Sorry. I don’t understand the question.

They’re business concerns. They are - - -?---They are day carers.

Yes?---Yes.

Okay. And do they provide – are you aware, for example, whether Kentish provides day care – actual day care as opposed to?---Long day care?


5

10

15

20

25

30

35

40

45

Yes?---Yes.

And that’s simply done for profit according to a legitimate business model?---I would need to like further into that. And once again, I would expect that the statement that this is annexured to will explain that in a more fulsome manner.

Okay. Alright. Now, could I ask you whether kinship carers and foster carers are paid according to the same pay rates or the same scale?---No. They are paid according to the foster care and kinship care allowance.

Yes. Are they different rates?---They are not these rates. They are different rates. Yes.

Yes. What’s the difference – what’s the basis of having a different rate for kinship carers and foster carers?---Kinship carers and foster carers are paid the same rate.

Sorry. That was the question. I think – yes. Perhaps there was a misunderstanding. The question I had was are kinship carers and foster carers paid according to the same rate, one against the other, kinship and foster?---They are paid at the same rate, depending on the age and complexity level and the location of the carer.

Alright. Thank you. Are you aware any – of a perception – has it been brought to your attention that there’s a perception of kinship carers as being paid less?---I’m not aware of that perception.

Alright. Now – alright. Could I just turn to another question arising from – if you wouldn’t mind going to paragraph 60 of your statement. Do you have that in front of you?---I do.

Alright. Thanks. Now, you make reference in paragraph 60 to Territory Families not having a comprehensive response to – I’m sorry.

COMMISSIONER WHITE: Because you have been asking questions in relation to that document, even though it’s appended to another statement, would it be handy to have it located here as well.

MR MORRISSEY: I could, yes, so I could offer that for tender as well.

COMMISSIONER WHITE: Yes. I think that would be useful. Thank you. Exhibit 477 for the purchase home care payments document.

EXHIBIT #477 PURCHASE HOME CARE PAYMENTS DOCUMENT


5

10

15

20

25

30

35

40

45

MR MORRISSEY: Yes. So you made reference to a comprehensive response to providing training to carers living in remote locations. Now, I think you made reference earlier on in your – do you see that?---Paragraph 60?

Yes?---Does not have a comprehensive response?

Yes. I just want you to explain: what do you mean by a comprehensive response?---The best way to explain that is that foster carers and kinship carers have access to the same training; that it is largely delivered in urban areas. It is also delivered in Katherine and Gove. Some of the difficulties, where carers or kinship carers are in remote locations, they may not have the transport or the wherewithal to travel to those areas or centralised places of training, and that is a difficulty for us. That is something we are considering.

Okay. You do provide some more ad hoc support, though, for persons in that position. Can you just explain quickly to the Commissioners what you do provide to those in remote locations?---I can. So the carers assessment support and practitioners are on a rotation of monthly contact with carers and kinship carers. As I said, that is sometimes complicated by the determinants of the NT. But it does include face-to-face contact with kinship carers, and I would expect my staff, and I know my staff will talk through kinship carers at that time around statutory roles and responsibilities and roles and responsibilities of the carers, so those are pieces of information also covered in the training, but it’s delivered in more of a one-on-one manner than an on-site training.

Yes. Could I just turn to another issue now. I put some figures to you earlier on. It was said that there are 935 Aboriginal children in care. And we also established that there were 232 children in kinship care placements. But the question is: is each of the 232 children in kinship care placements Aboriginal? In other words, is it by definition, if you’re in a kinship placement?---It’s an Aboriginal carer.

They are Aboriginal?---Correct.

Because the phraseology of that is it’s not necessarily closed; in a sense, conceptually, one may be able to do a placement of a non-Aboriginal kid on a kinship basis. But what you’re saying is that all of these 232 are in fact?---To the best of my recollection, yes.

Yes. Alright. Alright. Thank you for that. Now, could I ask you to go, please, to page 112 of your statement. Sorry. Paragraph 112 of your statement. Now, this touches on some materials which we heard in the detention part. Sorry, you just take a moment and just locate yourself?---That’s okay. I’m familiar with the paragraph.

Yes. Okay. Alright. So here you were dealing with the issue of young people who are incarcerated. You say that they’re monitored to ensure a suitable placement is available on release. Could you explain: what do you mean by that? How are young children –young people monitored for that purpose?---So a better way to


5

10

15

20

25

30

35

40

45

phrase that is that the placement unit is engaged in meetings with youth justice and case management to discuss how the young person is travelling, any of their special needs, and what placement would best suit them, and also the reality of the behaviours that the young person is presenting with so we can ensure staff are best prepared to respond.

Okay. Now, I just ask you to draw a distinction which arose for us in other hearings between children who were sentenced and those who are on remand and maybe making application for bail?---I’m familiar.

So we have heard evidence about the volatile situation for those who are on bail. They may face a very large number of charges, some of which are subsequently dropped. They may offend or reoffend or allegedly reoffend whilst on bail, and, in short, their situation is volatile. Now, appreciating that sentenced young people might be amenable to the sort of monitoring you’re talking about there in paragraph 112, how do you deal with the situation of young people who are remanded in custody but subsequently released on bail by a court following a bail application?---I’m not sure that we’re talking about different things. You have discussed the monitoring of a child that’s on bail as opposed to in detention and I’m talking - - -

No. No. I think – no. You misunderstand. Perhaps I didn’t put the question well?---Okay.

I’m speaking about – I think you have explained how you will liaise with youth justice where a child is coming towards the end of their sentence?---That’s predominantly through case management, so it’s part of all the people involved in the child’s life.

Alright. What about, though, situations for young people who are on remand and are remanded in custody but then make an application for bail and it’s granted?---And - - -

COMMISSIONER WHITE: Where do they live?

MR MORRISSEY: What involvement do you have, what engagement is there by a case manager or any other person with your unit to assist them to find somewhere to live, and when that happens, where do you put them?---Thank you. Now I understand the question.

Okay?---So we are dealing with children in care, and any child in care is managed by the placements unit. So the placements unit will identify a suitable home or place for the child to go to, and that comes generally under the residential care system that we discussed. Does that answer your question?

It does. And typically where do such youngsters end up? Is this in resi care?---It is in general residential care, as I discussed earlier. Due to the complexities of the


5

10

15

20

25

30

35

40

45

trauma and neglect and the experiences of the children, by that time they are largely presenting a host of complex behaviours which makes a kinship carer or a foster carer placement unlikely. That’s not to say that we don’t try.

Yes. Have you ever encountered the situation where the residential care houses or homes are just all full up and you have a youngster ending their sentence who needs to be placed in one but there isn’t a place?---There’s no doubt sometimes we have difficulties. We have a large need for our general residential care properties, and given the complexities of the children, there are times when you do have difficulty locating an appropriate placement and sometimes the placement unit has to take a thorough look at what children are placed where to see if there’s somewhere we can accommodate a child coming out of detention.

Yes. Well in the interim period of time, does it ever occur that a child simply must remain in the institution, in Don Dale or similar, while a suitable place is found?---That has never been our instruction or our decision.

No. Are you aware of that ever occurring?---I can only recall one case where there was some ambiguity with the release date of a young person and therefore we had difficulty naming what would be the appropriate placement and we needed to actually get a set date for the release of that child so we could look at who was within the residential care system. But I would not say it’s an occurrence that comes regularly to mind.

Alright. The final question I have before others commence their cross-examination of you is this: could you go to paragraph 18 of your statement, please. You have indicated here that there are rigorous approval procurement processes at the outset requiring strict compliance with a number of obligations. As you know, you have been asked some questions about that so far. Could I ask you, are you aware of a review by Deloittes of service provider procurements by Territory Families?---I am familiar with it. Yes.

Yes. Okay. And you are aware that that’s – and, Commissioners, that is annexed to the statement of Luke Twyford, one of the many, but it’s dated 5 May 2017, annexure LT31. I will just put to you a couple of the matters that arise from that and ask for your comment whether they have been actioned in any way to your knowledge?---I will do my best, understanding it’s not annexured to my statement.

I understand that. So among the findings were these: that 48 per cent of out-of-home care services were provided without any formalised agreement being in place. Now, do you agree with that finding?---I would not disagree with that finding. What I can explain is those circumstances are generally where we have arranged for an individual placement arrangement. Individual placement arrangements are provided by the same providers that we have under service agreements under grants and tenders. So they are a known entity. Individual placement arrangements are not our preferred option, again. However, there are some children or young people that require a placement or a home where they cannot be placed with others due to the


5

10

15

20

25

30

35

40

45

risk to themselves or the risk to others. And there have been at times – this has been ordered through the court that we seek an individual placement arrangement as well. They are a short-term measure and we do work to ensure they have got appropriate therapeutic interventions around them. They’re a short-term option and we try and approach it as a step-down approach.

Yes. Alright. Now, number – the next finding of the Deloittes review was that the use of these particular services is very costly, it’s a general comment that they made, but do you agree with that?---That would be correct.

That the placements made were often not in fact suitable for the child in question; were you aware of that?---I’m going to refer this matter to the person whose statement that is attached to. Without the context of that, I cannot comment on it.

COMMISSIONER WHITE: That is very much a value judgment, of course.

MR MORRISSEY: Yes.

COMMISSIONER WHITE: You would need to know a lot more parameters about what they meant by suitable.

MR MORRISSEY: Well, with respect, I agree with that, Commissioner, and if the witness is saying that that’s something she would prefer to defer to someone else, that’s – I won’t pursue it. That is the situation, you don’t feel you are in a situation to comment on that subjective term “suitable”?---I’m not in a position to make comment on that statement. What I can say, though, is the individual placement arrangements – as stated, Commissioners, they are the same service providers that we have arrangements under grants and tenders. We do have a very positive and robust working relationship with the service providers and there is oversight over these individual placement arrangements.

COMMISSIONER WHITE: Would the oversight – and these are quite clearly special and difficult placements from what you’ve said earlier – I take it the service providers then offer those to Territory Families as a solution? You go through them?---That’s correct, Commissioner.

MR MORRISSEY: Yes. Another finding was that what should be emergency placements were being used as long-term housing for children. And that picks up on something you said to the Commissioners, I think earlier on, that it is in fact – although they were contemplated as short-term, in fact, you didn’t shy away from its use as a long-term placement over several years?---I’m sorry, I will have to – can you clarify that statement?

I will put it to you again. This is simply – it’s an extract – it’s extracted from a Deloittes?---I understand. It is quite difficult, given I didn’t – I didn’t make the statement. I will – I will do my best to answer.


5

10

15

20

25

30

35

40

45

That – well, this – look, it sounds as if you don’t – I am not criticising but it sounds as if you would prefer to know the full context before you said anything about that?---It is – it does – it is helpful.

That’s okay. Well, we will leave that to the deponent of the statement. But – and finally, a summary comment was made to this effect: that children were being placed with these services when there was no formalised agreement in place, no understanding as to the scope of the services. Now, I think you’ve said what you wanted to say about that, but could I ask as to those matters that I just listed, are you aware, or how did you come to be aware of the Deloittes report, was that made available to you as a manager, or was it made available to you for the purposes of this proceeding?---I was – it was made available to me as part of the leadership group.

As the leadership group. Okay?---Correct. And as the executive director of out-of-home care.

Yes. Very well. So, just in relation to that, was it proposed – what action was proposed to deal with the findings of the Deloittes report?---Once again, I believe that will be referred to in Mr Twyford’s statement in which he talks about the Government and Territory Families commitment to the outsourcing of out-of-home care in the next seven years.

Yes. By outsourcing of out-of-home care you are not suggesting, though, that it’s proposed that you would outsource to the same – on the same model that we’ve just been looked, the purchased home care model?---Having been familiar with Mr Twyford’s statement I’m confident that that addresses the questions that are being posed to me.

Yes. It is evident what you’re contemplating – what your Department is contemplating is to have an far more rigorous oversight, including an accreditation process?---That would be correct, and whilst I’m trying my best to answer, the outsourcing of home care has a number of steps in it to ensure it is taken in the best direction, that’s why I would refer that matter to Mr Twyford.

Now, just finally, I appreciate you have been in the current role since March 2016. You’re familiar with the area, as you set out in your statement, from a variety of previous roles, but has the – in the time when you’ve been working in the sector, has the percentage seemed to you to be fairly stable? In other words, has the purchased home based care model accounted for approximately the same percentage of care over that period of time or have you noticed it expand or contract?---Last month it actually slightly reduced. So it doesn’t fluctuate a great deal and, as previously discussed, it’s my team’s job to continuously revise placements in purchased home based care, work with cases managers, particularly where we have got pending kinship care referrals in, and where we take on new foster carers to see if they can transition a child into a foster or kinship care arrangement.


5

10

15

20

25

30

35

40

45

You’ve mentioned several times in a general sense you’re committed personally and your team recognises the desirability of promoting foster care and kinship care and increasing the percentage of children placed in that setting. Is there a strategy in place to do that, to increase the percentage of children who are so placed?---That would be the carer retention recruitment strategy I talked about before: the travel to shows, the shopping centre stands, to recruit more carers, is that what you’re referring to?

Yes?---And the talking posters to increase Aboriginal foster carers as well as kinship carers.

Yes. I think you described those well earlier on, but that is an ongoing strategy?---It’s an ongoing strategy, yes.

Yes. Thank you. I would invite the representative from NAAJA to come forward.

COMMISSIONER WHITE: Yes, thank you. Thank you, Mr Woodroffe.

<CROSS-EXAMINATION BY MR WOODROFFE [2.33 pm]

MR WOODROFFE: Yes. If the Commissioners please.

Ms Couch, my name is Woodroffe, I appear for the North Australian Aboriginal Justice Agency. If I could just talk to you about particular issues surrounding cultural competency of residential care employees, but I would also like to talk about purchased home care providers as well. Are you able – you’ve told us that there’s online training modules for residential care employees. Does that also occur for purchased home day care providers?---That is certainly something we are looking to progress as part of the auditing and scheduling, the first role of that roll out of that was to provide our online training to our residential care partners.

And you would consider that is a minimal standard of cultural training to provide, but there could be greater levels of cultural training?---I think cultural training is incredibly valuable and I think we can always improve in that area.

Okay. And working with things such as – working with Aboriginal organisations, interpreters, particularly training by interpreter providers about how to identify language issues and how to work with an interpreter and communicate using an interpreter?---Yes, very important.

You see that as fundamental?---Yes, absolutely.

If I could move to the issue of auditing and oversight of residential care, there is – as you’ve indicated, there’s quarterly audits but also rolling audits of out-of-home care providers; that’s right?---That’s correct.

.ROYAL COMMISSION 31.5.17 P-4190 M.L. COUCH XXN©Commonwealth of Australia MR WOODROFFE

5

10

15

20

25

30

35

40

45

And as part of that auditing process it’s in accordance in following the national standards for out-of-home care; that’s right?---That’s – that’s one component of it, yes. The other component is the work health and safety as set out in the service agreement through the procurement branch.

Now, I believe you said to Senior Counsel Assisting that there is no similar auditing process of purchase based home care?---What I did say was that that is the second roll out of the auditing inspections, that the purchased home based carers will have those same audits, both announced and unannounced, and I will – out of home care will be meeting with the service provider head at the end of those to discuss any observations that we have found.

Okay. Perhaps if it’s possible to put up the document of the – an outline of national standards for out-of-home care, and if I could take you to page 7. Ms Couch, I’m just - - -?---Am I getting page 7. I will look it up. Could I have it a little larger, please? Thanks.

Recognising those standards, I just direct you to standard 3 and standard 2. Well, firstly about the importance of Aboriginal and Aboriginal and Torres Strait Island participating in decisions concerning the care and placement of children and young people. And what I would like to ask you about is out of home care residential employees. What are some of the criteria or assessment things that your auditing process looks into?---In relation to this standard?

So whether – the use of interpreters, the use of cultural practices, of visits, things of that nature, or the engagement by family members in communities of their child?---Okay. With regard to children in residential care, the primary driver is their care plan by the case manager, and that should have a cultural care component to it that would largely be our map for working for that child within residential care. We have also utilised interpreters in the residential care setting where it has been identified that a child’s primary language is not English and that might be their second or third or fourth language. So we have engaged interpreters. Sometimes there has been difficulty engaging those interpreters due to availability. I can’t provide any more information on that, but that has sometimes been our experience.

Do you report in respect of data about the use of the numbers of interpreters, things of that nature?---Sorry?

The actual – the engagement process by individual out-of-home care providers, about their use of interpreters, do you collect data sets in relation to that?---No, I do not.

Okay. Is it something worth considering and doing?---I think any information is helpful in which we can look at improvement.

Okay. And the use of interpreters – the second issues I would like to draw you to the standard is about how children and young people participate in decisions that have an impact on their lives, and particularly reporting against – processes for complaint


5

10

15

20

25

30

35

40

45

process. What sort of things do you do to ensure that children have a right to understand how to make a complaint?---So all children in residential care and in the care of the CEO are afforded information on the Charter of Rights for Children. In residential settings, which is what you have particularly referred to, residential care providers hold weekly house meetings where the young person is invited to sit and talk about any issues, concerns. That also will then branch into what they would like for dinner, or any recreational activities that they might enjoy. The reality is that not all young people want to be involved in those meetings, so – but they are a regular event and that is part of the auditing schedule in which I’ve worked with both the NGO and Territory Families residential care providers to ensure that is occurring. In terms of - - -

And – sorry - - -?---If I could just go a little further. Also the placement unit, as part of the out-of-home care division, where there is presenting issues, no matter what that is, for the home or a placement of a child, where we feel it is appropriate, i.e., age appropriate, the young person is also invited to participate in that meeting, so that they are able to talk about what they would like and what’s concerning them.

Are there similar review processes in purchased home care, similar procedures. Are you aware of procedures in each particular provider?---That is what I will start to look at in terms of this auditing schedule. So I can’t say that they don’t occur. What I can’t say at the moment with certainty is that they do occur, and that is something I will be addressing.

Now, if I was to suggest to you about independent auditing, with the creation perhaps of the Office of an Aboriginal Child Commissioner, could such an auditing process of all out-of-home care, whatever its shape and form, could that be a process that could occur?---It could be a process. I think, in terms of we are – given that we are moving towards accreditation in the out-of-home care domain and the outsourcing of out-of-home care, I believe all of that will be fully explored and assessed throughout that process. I also think it’s very healthy to have independent assessments.

Thank you, those are my questions.

COMMISSIONER WHITE: Just while Ms Graham is coming forward, could I just ask you this question. We have heard from the recipient of care, someone who has been in care, that he was placed with a Fijian family and on another occasion with a PNG family. We have heard that a number of people working in this sector are from overseas; that they are not long-term residents of the Northern Territory. There is also a large migrant and refugee population in the – particularly the Top End, but also in this part of the Northern Territory. That background, the placement of Aboriginal children into non-Indigenous, and not what I will just broadly call non-Indigenous but Australian families, may create a double cultural barrier. Is that something that the Department is thinking about when it places a child with a family in that circumstance?---Commissioner – and I’m just giving some thought to how I answer this because, once again, there are a number of aspects to it. In terms of our foster carers in particular – which would be the first point of call – and referring to


5

10

15

20

25

30

35

40

45

the Aboriginal Placement Principle, which is a cascading principle, there is an expectation as per that principle that if a child is placed with a non-Aboriginal carer, no matter the place of origin, that they are in understanding and support of maintaining and supporting that continued cultural connection with family and community for that child. That is our expectation, and that is something we consider in the assessments, and we continue to consider in our ongoing support. And if it becomes an issue, that is discussed with the carer, in a supportive and educative way, but we don’t shy away from that. It’s paramount that a child maintains connection to their culture, community and family. When it comes to residential care providers and the training, mentoring and support of residential care providers, there is – and I guess if I can take one step back, so whilst we might work with a carer and recognise they may have certain values and beliefs, we also have frank conversations about values and beliefs should not impede on a child’s right to their own culture, heritage and beliefs, if that makes sense. The same expectation is from residential care workers. You might have a heritage and a set of beliefs, but at no point should that subjugate the needs of the child when we are talking about an Aboriginal child and their need for culture and community, and I think in my experience, whilst we have not had any overt cases where that has been an issue because I would be able to recall that easily, I know my work with service providers and within Territory Families residential care it is something we are continually mindful of and, if it arose, we would not shy away from approaching it.

Is it something that’s under active consideration?---I think it’s under consideration – it should always remain under consideration under the Aboriginal Placement Principle and that first port of call is our priority, if a child cannot be placed with a family or Aboriginal within community is that the carer respects and maintains that culture.

Thank you. Thanks, Ms Graham.

<CROSS-EXAMINATION BY MS GRAHAM [2.45 pm]

MS GRAHAM: Ms Couch, my name is Felicity Graham. I appear for the Central Australian Aboriginal Legal Aid Service. You acknowledged in your evidence, in answer to questions from Mr Morrissey, that about nine out of 10 children in home care are Aboriginal children and the proposition was put to you by Mr Morrissey that that is a very unacceptable proposition. Your answer was that – I’m sorry, a very unacceptable proportion. Your answer was that it was a high proportion. Are you prepared to acknowledge that it is an entirely unacceptable state of affairs that nine out of 10 children in out-of-home care are Aboriginal children?---I will answer that as best I can in saying I – I, like others, would like to see no children in care, Aboriginal or non-Aboriginal. That would be my preference. We know that will not be the case, though.

.ROYAL COMMISSION 31.5.17 P-4193 M.L. COUCH XXN©Commonwealth of Australia MS GRAHAM

5

10

15

20

25

30

35

40

45

And acknowledging that that will not be the case, are you prepared to acknowledge that it is entirely unacceptable state of affairs that there is a gross overrepresentation of Aboriginal children in care?

MS BROWNHILL: I object to the question. It builds in so many value judgments about what is unacceptable, how children get to care, why they get to care. It really doesn’t offer this Commission much in the way of assistance, an answer one way or the other, in my submission.

COMMISSIONER WHITE: Well, it’s a difficult – it is a difficult question. The objection is pretty well taken, I think, Ms Graham, because it calls forth lots of topics for conversation. I wonder if you might like to perhaps test your proposition by talking about population bases and things of that kind. Just give it a bit more context than just the raw figures. If you can’t do that, or you don’t want to do that, why don’t you move on to the next question.

MS GRAHAM: Thank you, Commissioner White.

Given the demographics in the Northern Territory, where Aboriginal people are certainly not 90 per cent of the population, they’re a much smaller proportion in the nature of about 30 per cent of the population, are you prepared to acknowledge that it is an entirely unacceptable state of affairs that Aboriginal children are represented at a rate of about nine out of 10 children in out-of-home care?---I feel I’m being asked to make a statement, and I’m more than happy to answer questions. My position is that it would be my preference that no child was in care in an ideal world, whether they be Aboriginal or non-Aboriginal, and that’s the position that I take.

Do you accept that the conceptual framework that underpinned the care and protection system in the Northern Territory includes a predominantly western view of what a family is?---The whole of the system?

Underpinning the whole of the system, yes.

COMMISSIONER WHITE: Are you talking about the Care and Protection of Children Act in the Northern Territory and then what flows from it, or a wider construct?

MS GRAHAM: I will ask a different question, if it’s posing a difficulty.

COMMISSIONER WHITE: It might be a bit broad.

MS GRAHAM: I will give you some examples, Ms Couch. The out-of-home care definition is one that has in mind alternative care arrangements where children can’t live with their parents, the reunification of children is conceptualised as reunification with their parents. In these ways, the conceptual framework of the care and protection system is one that is underpinned by a western view of a family unit. Do you acknowledge that?---I think I’m being asked to make a very – or answer a very


5

10

15

20

25

30

35

40

45

broad statement. However, I will just pick one thing out of there which you said, and then perhaps then you can know my position somewhat. You referred to reunification as only taking or being a western concept in terms of returning a child to their parents. The reunification process should return the child to their primary carer, and that may be an aunty or a grandparent or an uncle, but where the child was taken into care from would be the same point of where reunification was to occur. That’s as best I can answer that.

And I don’t have time to take you to all the references, but where you refer to reunification in your statement as being reunification to parents, we should read that as reunification to primary carers, is that - - -?---Then I wish to rephrase that, and I will go back to my statement that where a child is taken into care from would be the point of reunification back to.

The Commissioners have heard evidence this week about unconscious bias and how that might play a role in judgments being made about Aboriginal parenting and there being a Eurocentric gaze to decision-making. Do you see training of staff on the phenomenon of unconscious bias as something that would be useful?---Absolutely.

Is it actively pursued currently in Territory Families?---The formal training around unconscious bias – and understand I’m from a social work background, so I can only talk about the social work background, is something that is discussed at length throughout a social work degree. I would also say, whilst I don’t have the figures here, social workers make up a large portion of the child protection workforce. So I would expect they would have had that in their university training. In terms of unconscious bias, I think any training around that would be beneficial because society can also suffer from an unconscious bias on a daily basis, and unknowingly so. In the absence of the training I would expect, and I have seen, both in my work and work with others, that unconscious bias should be something that’s continually on everybody’s mind and if it presents, then it’s up to the manner of supervision and line management, mentoring, support and professional development to be fully aware of and cognisant around that, and approach it if it does occur.

The Commissioners received from evidence from Andrew Walder, who is an employee of the Tangentyere - - -?---I saw his presentation.

You saw his evidence. Part of his evidence include some evidence in relation to the use of interpreters and he gave evidence that, despite the fact that for many families in central Australia, English is a second or third language, the use of interpreters at initial home visits and even case conferences is rare. Not only does this mean that families struggle to understand, it also means that often they are not able to communicate their thoughts around the situation effectively. You’ve given some evidence yourself earlier about the care and protection system and the way that it operates necessarily involving hard communications with people. Do you acknowledge, first of all, that there is a failure by Territory Families – an ongoing failure by Territory Families to use interpreters with Aboriginal families, parents, children, as a general proposition?---I’m probably going to reframe that and say that


5

10

15

20

25

30

35

40

45

yes, the use of interpreters is incredibly important. What I have described earlier is sometimes there is a difficulty in accessing interpreters through the system. That is not something that I have the information or data on, that I can answer with any authority, but it is imperative that, where an interpreter is required, that we do engage an interpreter because, as discussed earlier, we need to be able to have those hard conversations in a nice way and, if language is a barrier, that’s the first hurdle we need to get over. I would also like to add that in my experience – and I can’t answer to the intent of families but I’ve been involved a number of times and seen other staff involved, when you pose the question in terms of, “I’m saying this and do you understand what I’m saying?” Families will often say, “Yes.” That’s a very broad sweeping statement, and I think it requires further consideration as to what might lead a family to say that, and we can come to many conclusions around that and it might take some creative thinking as to how do we engage interpreters more fully if a family is saying, “I’m okay,” and, “I don’t need an interpreter,” but we’ve got this – perhaps gap.

And do you recognise that it’s not just about the family and their perspective and whether they say that they need an interpreter or would like an interpreter but also, on the departmental side, there may be a real difficulty in that person understanding the message that’s being conveyed or sought to be conveyed from an Aboriginal person if there’s not an interpreter there?---Correct. It can go both ways, I absolutely agree.

And in terms of speaking about difficult topics in a respectful way, do you acknowledge that the role of interpreters goes beyond mere language translation to really providing that cultural conduit for the message to be passed on and received in a meaningful way and in a culturally safe way?---Absolutely. I think interpreters are integral to that and there are so many nuances to culture that the interpreter has to negotiate, aside from having to interpret the message that we’re giving. So, on saying that, I think we can’t put all the pressure on interpreters. The first person having that conversation, even if it’s through an interpreter, needs to be able to have those hard conversations in a nice and clear way so that the interpreter is best positioned to have that conversation in language with the family.

You say, at paragraph 104 of your statement, that the search for a suitable kinship placement continues until all options are exhausted?---Yes.

Ms Couch, I suggest to you that that is more in the nature of an aspirational statement than the reality of kinship carers being identified and assessed and finally children being placed with kinship carers. Would you agree with that?---What I can answer to is that the finding of kinship care models is the responsibility of the case management. So I would not like to comment as to whether that’s an aspirational statement. Commissioners, what I can talk to is the placement unit, and I oversee some of this myself, and I see their work on a daily basis. Where a child is not placed with a kinship carer, if they have to extend a home or a placement for a child, the question goes back to the case manager, “Have you explored all kinship care options?” If it comes back that the answer is that there is a kinship care referral in,


5

10

15

20

25

30

35

40

45

then we will track that kinship care referral and we will monitor to see that that kinship care referral has an outcome. So that would be my answer to that one.

For example, the Commission has heard evidence from Ms Liza Balmer, the CEO of the NPY Women’s Council earlier this week, and she gave evidence that, “DCF say they asked the family about options for placement, and could find no one, while when we conduct and inquiry and ask the family and community, we find six options,” for example. So do you recognise that there are failings in Territory Families in terms of their capacity and – their capacity, let’s start with, to identify kinship carers?---So what I would say is there are cases when we do it very well, and there are cases when we could do it a lot better, and there is definite benefits to having others, particularly community service providers, family, Aboriginal organised – led organisations to help us find kinship care. We cannot do it along – alone. We never have been and I never would say we could or will. So absolutely. We can definitely improve in that area.

One of the positive situations that we have heard about earlier this week was having a Territory Families or DCF worker embedded in an organisation like Congress in Alice Springs, where there can be more fluid information sharing and more of a trust built up between the Aboriginal community - - -?---I heard the evidence.

- - - Aboriginal organisations and the Department. Is that kind of model being considered by Territory Families to be implemented again to try to better address, for example, kinship carers being identified and being able to take placements?---So I would say that’s not an area that I’m able to answer to. That may be better answered by other people who are providing evidence. What I will say is that, once again, working together is critically important. What that model looks like, there are many ways that we can do that and, in the absence of that model – which I did experience myself – I think there is a lot of work we can do in terms of strengthening partnerships and communication with our NGO partners and Aboriginal organisations to improve outcomes for children in care, even in the absence of that model.

Who would be better placed within the department to answer that question?---That would be statements that you would look towards in terms of service development from Mr Twyford.

The time keeper to my right is giving me the signal, Commissioners.

COMMISSIONER WHITE: Mr Morrissey, do you have any more questions?

MR MORRISSEY: Thanks. Just one – it’s a management one rather than anything else, Commissioners. Thank you for giving your evidence. I don’t have any further substantive questions for now. But it occurs to us that it’s possible as more material is coming in all the time, it may be there are some further questions to ask. And might I just ask, as a matter of convenience, you are based to Darwin?---I am. That’s correct.


5

10

15

20

25

30

35

40

45

And would you be based in that week – the fortnight beginning 19 June?---Yes. I would be.

If the Commission saw that it might – you might have some further assistance to give for an hour or so, do you think it would be possible to schedule that in that time?---If the Commissioners would like to talk to me again, I will make myself available.

COMMISSIONER WHITE: Thank you. Of course, you have your list of tasks?---I do, Commissioner, which I’m already on to.

MR MORRISSEY: Commissioners, in those circumstances I would seek that the witness not be formally excused, although I indicate that we will do what we can not to get her to come back, but, in any event, to thank her for answering the questions, which were pressing at times.

COMMISSIONER WHITE: Well, it’s not very difficult to issue a fresh summons, Mr Morrissey, and since it might not happen, it probably – I think probably would be better to let this part go, unless you have got some overwhelming reason why that shouldn’t be the case, and we will allow Ms Couch to be released from her present summons; issue a new one if we need it. That’s the least of our problems, a fresh summons.

MR MORRISSEY: Yes. Commissioners, that was the only reason that I made the suggestion, so that’s certainly my learned friend’s preference.

COMMISSIONER WHITE: Have you got a problem with that, Ms Brownhill?

MS BROWNHILL: No. That’s our preference. The course that you suggested, Commissioner, is precisely what we would seek.

COMMISSIONER WHITE: Well, that’s a happy concatenation. Thank you, Ms Couch, very much for your assistance to us, and we look forward to receiving that extra material from you and we may see you again?---Thank you Commissioners.

<THE WITNESS WITHDREW [3.03 pm]

COMMISSIONER WHITE: We will take a brief adjournment while Dr Bath is called to give his evidence, just before he comes. Thank you.

ADJOURNED [3.03 pm]

RESUMED [3.11 pm]


5

10

15

20

25

30

35

40

45

MR MORRISSEY: Thank you, Commissioners. I call Dr Bath.

<HOWARD IAN BATH, SWORN [3.11 pm]

<EXAMINATION-IN-CHIEF BY MR MORRISSEY

COMMISSIONER WHITE: Thank you, Dr Bath. Kindly be seated. Mr Morrissey?

MR MORRISSEY: Thank you, Dr Bath. Would you state your full name please?---Howard Ian Bath.

And what is your current occupation?---I’m a consultant.

And were you formerly the Children’s Commissioner for the Northern Territory?---Yes. Yes.

And have you already, for the purposes of these proceedings, had three statements tendered as exhibits dated 1 October 2016, 24 March 2017, and 20 April 2017, respectively?---I have.

Did you also testify previously last year in respect of this Commission?---Yes.

During that time, were you also – did you also have tendered the summary report and both volumes of the complete report of the Growing Them Strong Together reports?---Yes.

And, Commissioners, those are exhibits 13, 14.001, 14.002. And also was the report of the Children’s Commissioner regarding the functions referred to in the Ombudsman report tendered as exhibit 15.001. Commissioners, I just seek to tender a number of other documents at this point. They may be referred to from time to time during – so may I seek to tender a series one after another of annual reports of the children’s Commissioner. May I tender, please, tender bundle index 9, the annual report of 2008 to ’09.

COMMISSIONER WHITE: Exhibit 469.009.

EXHIBIT #469.009 TENDER BUNDLE INDEX 9, ANNUAL REPORT OF 2008 TO 2009

MR MORRISSEY: Tender bundle 10, the annual report for 2009 to ’10.

.ROYAL COMMISSION 31.5.17 P-4199 H.I. BATH XN©Commonwealth of Australia MR MORRISSEY

5

10

15

20

25

30

35

40

45


EXHIBIT #469.010 ANNUAL REPORT FOR 2009 TO 2010

MR MORRISSEY: Exhibit 16, annual report for 2010 to ’11.



MR MORRISSEY: Exhibit 136, annual report for 2011 to ’12.



MR MORRISSEY: Exhibit 178, annual report from 2012 through ’13.


EXHIBIT #469.178 ANNUAL REPORT FROM 2012 TO 2013

MR MORRISSEY: Exhibit – tender bundle 208, annual report for 2013 to ’14.



MR MORRISSEY: Tender bundle index 1, the Northern Territory community services high risk audit executive summary and recommendations of November 2007.



5

10

15

20

25

30

35

40

45

EXHIBIT #469.001 NORTHERN TERRITORY COMMUNITY SERVICES HIGH RISK AUDIT EXECUTIVE SUMMRAY AND RECOMMENDATIONS OF NOVEMBER 2007

MR MORRISSEY: And tender bundle 2, the report into the Northern Territory families and children intake and response processes of 2009.


EXHIBIT #469.002 REPORT INTO THE NORTHERN TERRITORY FAMILIES AND CHILDREN INTAKE AND RESPONSE PROCESSES OF 2009

MR MORRISSEY: Thank you.

So Dr Bath, I won’t traverse all of the matters that you gave evidence about in a general sense last year, but take you straight to the Board of Inquiry in which you were involved. Would you just explain to the Commissioners, firstly, what was the Board of Inquiry and what was the reasons why it was convened?---The Board of Inquiry was set up after a number of highly publicised incidents occurred and were reported on, primarily in Darwin but also involving the Central Australia. At that time there was a lot of concern expressed about the operations of, in particular, the intake service, the Central Intake Service of the Northern Territory Children and Families. There were also reports of infants dying after allegations of abuse, and in that context, there was quite a lot of, I would say, political activity which resulted in the Minister calling for – commissioning an inquiry from me to look at the intake services in Northern Territory Families and Children. Around that time, there was still clamour from memory, about the nature of the inquiry, the extent of the inquiry and who would be running the inquiry. The result, after quite a lot of discussion between the various political parties and the independents, was the setting up of the Board of Inquiry under the Inquiries Act and it was to look into the child protection system of the Northern Territory.

So it was a systemic review?---It was a systemic review.

Just briefly, at around the same time, there was the lifelong shadow report or investigation?---Yes.

Could you just explain to the Commissioners what that was and how it differed from what you were doing?---The lifelong shadow report didn’t come out until some years later and the inquiries, I understand, being undertaken by the Ombudsman were occurring around the same time. So there was quite some, I was going to say confusion, but there was a lot of uncertainty about what that was covering, what that particular inquiry was covering by the Ombudsman and what would be covered by


5

10

15

20

25

30

35

40

45

the Board of Inquiry. The Ombudsman’s report was looking much more specifically at specific cases, as I understand, particularly around concerns relating to intake services.

Yes. Now, so – and so there was an overlap in interest in intake services but the Ombudsman’s report was far individually case-based in its nature?---Yes. Yes.

Alright. Thank you for that. Now, could we just proceed to the question of the department’s own position about the extent of the problem. Obviously, the department cooperated in the Board of Inquiry. Could I just ask that on the screen be placed document witness WIT.0261.0001.0276. Just broadly speaking, do you see in front of you there, a memorandum addressed to Jodeen Carney, at the time was the CEO, from Leonie Warburton?---Yes.

Now, could we just go please to page 0280. There is a particular passage. I have an extract, I will commence to read it to you and hopefully that will come up onto the screen when it can be fished. But there the comment was made:

The Department does not currently have the capacity to sustain an adequate response to the growing demand in intake, child protection investigations and out-of-home care. Early and targeted ongoing supported families will help create diversion from a long term contact with the statutory system.

Sorry. We may need to scroll. Just excuse me a moment, sorry. Yes. We have it now. Sorry. Thank you. It’s at the bottom of page 3. So I was just reading that to you, and I will just complete the passage:

Early and targeted ongoing support of families will help create diversion from long-term contact with the statutory system. The current policy in service system response is clearly not sustainable into the future. The time has come to reconfigure vital links at the service level and address gaps and quality issues in current service delivery systems both statutory and non-statutory.

Now, does that accord with your understanding of how the Department viewed the problem at that time?---If you recall, there had been a number of changes in the management of Northern Territory Families and Children. The long standing director had left after one of the big inquiries into a death of a child. There had been a number of interim or one or two interim CEOs, and I think at around that time – are they referring to a particular time here?

Yes. I think if we could go back to the front page of that document, please. So it seems to be dated 7 April 2010?---This is the submission. Yes.

Yes?---Okay. And around that time, the – by that time, a new director had been appointed, Clare Gardiner-Barnes, and my understanding was that, from my memories of this particular submission, that there wasn’t a great deal in that submission that was contrary to what the Board of Inquiry came up with.


5

10

15

20

25

30

35

40

45

No?---I’m talking here in terms of the general thrust and the general position, not the detail.

No. Could we just go over to the next page, please. Now, here we have noted some core trends and I would just like to take you to those, to some extent. First of all, it’s noted that over the period of 13 years, kids in care rose from 88 to 482 in 2009, and that over the last five years the number of kids in care had actually doubled. Now, these trends, just – you noted these trends in the course of the Board of Inquiry?---Yes.

Alright. Thank you. You noted also that there was an increased demand for child protection services and that there was a very large increase in the number of notifications, a 69 per cent increase at that time. Now, those matters having been identified by the department, you agreed that those were relevant trends at the time; is that correct?---Yes.

And did you have an independent basis for verifying that those were indeed issues to be dealt with?---I’m not sure where they got all these data from, but they were certainly data that we had too. In fact, some of it could have come from our office or from other reports that had been prepared at that time. Yes. In general, I think most of that stuff, most of that material was in the public domain so it was easily accessible.

Sorry. Just excuse me. Commissioners, I would be minded to tender that, but it will be tendered. It’s annexed to Mr Vatskalis’s statement, to be tendered tomorrow. I can tender it now if that’s easier for the Commission, but - - -

COMMISSIONER WHITE: No. I think it’s quite closely juxtapositioned to this evidence, and that will be fine.

MR MORRISSEY: Yes, thank you. Very well. Thank you.

Now, one other issues that I wanted to raise is that at that time it appears the Department estimated – we can take you to the document if we need to but it estimated that it received 800 notifications per month by the year 2015. So the projected number was going to be about 9600 notifications. It does appear, jumping forward to 2015 to ’16 that there’s in excess of 20,000 negotiations, in fact 20,465. Do you recall that figure of a projection of 9600?---It seems to ring a bell. I think it was about – it was about 7000 when we looked at it in 2010 and it’s tripled since then.

Very well. And just finally, I won’t take you to each and every passage in the Department’s recommendations, but the Department did also recommend that:

To address significant growth in child protection notifications and other trends outlined above and systemically addressed the issues that have been widely


5

10

15

20

25

30

35

40

45

reported in recent coronials, a new whole of Government strategic commitment to redesigning the current child protection is required/

You recall that to be, in broad - - -?---Yes.

- - - terms, their recommendation?---Yes.

That was your recommendation?---It was.

What was the name of the report that was produced by the Board of Inquiry?---Growing them Strong, Together.

Very well. Now, among the recommendations – which I will come to about that in a moment, but that document has already been tendered and it had the 147 recommendations, which were set out at the end of the summary report on a chapter broken up into recommendations per chapter. But in broad terms, among the recommendations, were recommendations designed to ensure the quality of staff delivering the services; is that correct?---Yes.

To reorient service provision, to have much more effective prevention, as well as early intervention programs for families at greater risk in order to reduce statutory notifications; is that correct?---Yes.

It was a recommendation to heavily invest in new integrated service model and expand the continuum of services across the universal and secondary spectrums so children and families received the range of assistance they need, when they need it, to prevent escalation into the child protection system; is that correct?---Yes.

And finally:

To improve whole of Government arrangements to deliver greater efficiency and greater and better outcomes for children, young people, and families.

And is that correct as well?---Yes.

Thank you. You understood, at the time, that the then-acting CEO, Ms Gardiner-Barnes Barns was instrumental in the Department’s submissions; is that correct?---I’m assuming so.

Yes. Alright. Now, could you just say a little bit about some of the issues that arose, that you were addressing at that time, in substance, to understand why these issues were seen as important? And then after that, I will take you to what was the effect of the report and what sort of buy in did you notice across the sector and how that was expressed. So perhaps if I just take you to a couple of issues and explain that to the Commission as why it was that you saw them as significant and important. So the issue of provision of expanding the provision of primary universal and secondary services, what was the reason for the reemphasis on those services?---I think really


5

10

15

20

25

30

35

40

45

that’s the pivotal recommendation of the Board of Inquiry, and it has been in other jurisdictions as well. The – it was very clear that the Department at that stage was struggling to keep up with the number of referrals that were coming in. There just weren’t enough staff, there weren’t staff with the adequate training and backgrounds to deal with the overwhelming numbers that were coming in, you know, increasing numbers that were coming in not only in terms of notifications, increasing numbers of substantiations, but also increasing numbers of kids in out-of-home care, all of which are very staff intensive in terms of trying to process. The indications were that this was going to keep happening, that these increased numbers were going to keep swamping the response system. As we found during that inquiry, there was a very significant backlog of kids who were identified through the notification system as needing to be investigated because of risk, a backlog of kids who were waiting for that investigation. In fact, at one stage I think it got to nearly 900, it was between 800 and 900 children from memory who were deemed to be at risk, but who had not been investigated by the Department. And, in fact, that is nearly the number of the kids that were substantiated each year, the number of kids that were sitting in the backlog. So it was of great concern. The Department was very concerned about it, and so – so were the public. Now, the reality is that in the Northern Territory that there is a very significant need and risk that’s carried by a lot of families. On every indicator, children proportionately are more at risk – a bigger proportion of children are at risk in the Northern Territory than in any other jurisdiction. Just, for example, the latest child protection data suggests that across Australia, on average, three per cent of all children are subject to some form of child protection involvement. That ranges from notifications through to out-of-home care. Three per cent. In the Northern Territory it’s almost 10 per cent of children. So that’s an enormous load on the Department, but an enormous demand for services. And that was apparent back there in 2010 as well. So where do we go with it? Keep on building up the tertiary services, or do something about the large number of children and families that are really struggling. Struggling with safety, and struggling with nurture, struggling with getting the kids to school, a very large proportion of those families were deemed to be at risk. And they were, if you like, the feeder families for child welfare. They were the upstream issues that were affecting the child protection system. Unless there was something significant done to work with those at-risk families, there was no way that the system was going to be able to effectively manage those children once they came into – to the attention of the authorities. And we also - - -

MR MORRISSEY: In dealing – sorry, no, you go on?---We also had a system that would not do very much at all for families until the child had actually been neglected or abused. The system is set up that way, so that in the absence of preventive services, all we’re doing is waiting until the harm is done and then trying to provide some sort of remediation. There has to be a focus on preventing those children coming into care but also on enabling their families to provide safety and nurture. I often think about it as – it’s a little bit like the problem with cigarette smoking that all the system is doing is treating the lung cancer victims or the people with respiratory illness, it’s not doing anything about trying to prevent people from taking up the habit or getting them off the habit once they’re on it. We need to have a


5

10

15

20

25

30

35

40

45

preventive mindset if we’re going to do anything about the child protection numbers in the Northern Territory.

Could I ask you, at that stage, and at that high level of principle, while you were writing the report or supervising the report, and when it was released, was your sense that there was bipartisan support politically? I don’t necessarily mean limited to political party versus political party in a spy versus spy sense, but simply did you feel that there was a bipartisan acceptance of that position, that there needed to be a focus on primary and secondary care, and not merely at the symptomatic tertiary level?---I can’t say that, because I wasn’t really aware of the – you know, support for that particular position. I was aware that, despite a rocky start, that both sides of politics were supportive of the Board of Inquiry, but I guess they, at that stage, didn’t have the core recommendations.

No. Can I ask you, did you ever hear, if you like, an evolved or developed intellectual position that favours mere tertiary level intervention over primary and secondary intervention such as those you are proposing?---There’s an articulated position, that is a political one, that in some circles that child protection should just be about the tertiary end. That state involvement should only occur where a child is deemed to be in need of protection and care, but I don’t think – it’s held by some, but it’s not widespread.

Yes. So you’ve indicated that it’s a political position. You’re not aware of that position developing out of any professional literature or any, if you like, shared learning within the social professions?---No, no.

It’s really a political position rather than a theory of child – social welfare, I should say?---That’s my understanding.

In relation to how that was to be achieved, can you just explain to the Commissioners what was the dual pathways approach?---There were two ways for it to be achieved, but primarily the dual pathways idea was that there are so many struggling families in the Northern Territory, and the reality is a very high proportion of them are Aboriginal families, because of the circumstances that have affected the Aboriginal community now for a very long time. Many of those families, naturally have a reticence or a wariness about statutory authorities, whether they’re Child Protection, or police, or whatever. A wariness based on history. The reality is that struggling families are more likely to be cooperative and work with and feel – and, you know, receive support from people who weren’t the statutory authorities. And so, you know, the focus was on service delivery by NGO services, and also in particular for services that are Aboriginal operated and run.

Could I ask you to expand on that just, for a moment. It’s an issue that has arisen in various contexts, and that is the issue of distrust by Aboriginal communities of the Government instrumentality now known as Territory Families. How does – how do you find that distrust articulated? Where does one turn to, to find that distrust?---I don’t think you have to look very far. If you talk with Aboriginal organisations and


5

10

15

20

25

30

35

40

45

Aboriginal people about the wariness literature, Aboriginal biographies, I mean it’s everywhere, about the historic mistrust that’s arisen because of many events, including Stolen Generations. I don’t think it’s a mistrust that’s held the same in all jurisdictions and in all places, but it’s particularly powerful here in the Northern Territory because of the history here. Now, that doesn’t mean that Aboriginal people won’t accept services or work with the authorities. It just means that there’s a wariness, and that – especially in remote areas tend to be much more comfortable working with NGOs and Aboriginal run services, as occurs in the health services area.

Yes. So part of the proposal was that NGOs, and particularly Aboriginal groups, would be best placed to provide the services that needed to be provided?---Yes. And particularly the notion of the dual pathways is that the vast majority of families that come to the attention of the Department do not end – do not – it doesn’t result in those children being taken away from their care. In the vast majority of cases, there’s either family support provided or some sort of intervention short of removing a child. Now, many of those interventions can be provided by NGOs. They don’t have to be provided by the statutory service. And so the idea of the dual pathways is that instead of that 21,000 notifications coming into the Department for child protection processing, there could be another pathway where people could refer families that were struggling, that were at risk, and indeed were at risk of having children coming into the system, that the dual pathway means that referrers – and we’re referring here to mainly people like the police, education, other NGOs, the Department, family members, could actually call up a referral line, a contact centre that wasn’t the departmental contact centre and arrange for services to be provided for those families. That is the alternate pathway. And so you would have a much smaller group of families being referred directly to child protection services. That was the idea of that.

Now, it does seem that for that aspiration to be a reality the NGOs and the Aboriginal organisations to which you’ve referred would need – first of all, the sector would need to be sufficiently large and sufficiently robust to carry the weight of delivering those services, and therefore that the capacity of those organisations needed to be developed. Now – and in particular it was, for example, issues such as having sufficient staff, sufficient staff that was of sufficient longevity and training to deliver those processes. So what was the emphasis that your report gave to those issues, to developing the NGO sector and its capacity, and to support the training and retention of staff within those?---Well, as I said, that was a primary focus of the report around chapter 6, if I recall, and the pivotal recommendation that over a period of five years we called for the Government to significantly redirect its focus onto something called secondary prevention and tertiary prevention services, meaning focusing on families that were at risk, that could be identified as being at risk, and also those that actually were deemed to be at risk. But provide a focus on preventing children coming into care and preventing abuse occurring. And what we called for was that within a five year period, that as much would be spent on that prevention work as is spent on child protection and out-of-home care services; in other words, the tertiary end of the system.


5

10

15

20

25

30

35

40

45

May I interpose something there. Why the five year period? Why was it necessary to set so long a period of time for that process?---Realistically, any change of that nature is going to take a long time to redirect funding patterns and priorities, staffing, building up the out-of-home care sector, for example. When we understand that 10 per cent of all children in the Northern Territory are coming to the attention of the child protection authorities, that means that proportionally our out-of-home care services – sorry our supportive services like NGO services need to be proportionally that much more – that much larger and more robust than in any other jurisdiction. So there needed to be a comprehensive plan for building up the support sector.

Yes. I mentioned the issue of bipartisan support already once but I take it by proposing a five year period you were well aware that it was implicit in that plan that there be at least some measure of bipartisan support for the measures, because they involved a significant commitment of funding over a period of time longer than any Government could guarantee?---Well, it was our understanding that we had that, at least in the initial – at least while the report was being prepared, and shortly after the report.

Yes. May I just ask you something about the funding issues that arose here. You’ve referred to these, but there was an allocation made, you will be familiar, of $130 million with a further $44 million identified on an ongoing basis. Did you regard that as, although it seems sizeable in itself, as being adequate to meet the needs at that time?---It was sizeable in itself, because that represented several years of funding for the child protection – for the tertiary child protection system as it stood. But if it was just a one-off it certainly wasn’t going to address, in the longer-term, the turnaround in the system that was needed. The 30 million that you mentioned was Federal Government funding that was to be directed towards secondary prevention services.

Yes. Alright, thank you. Some specific recommendations now, and I mention these specifically because we will turn to what happened in these areas later on. But first of all could you just explain the importance of the following issues, to this proposed shift away from mere tertiary focus and towards primary and secondary considerations. Firstly, the role of Aboriginal child care agencies. What was the proposed role? How important was that?---I’ve already touched on that issue of trust and engagement, and in many of the remote areas, the health services provided by the Aboriginal services are very well patronised, and I don’t think there’s any question there that they are providing – you know, a very good job for the populations. They are trusted and they are used widely. And so that was also a focus and thinking in terms of our report. In every other jurisdiction they’re Aboriginal managed and run organisations working in the child protection space. We have already had a number here in the Northern Territory, Tangentyere, for instance, and Congress and others have been funded to run some child protection services, but we’ve had had no services, or no services were in operation that were primarily focused on the wellbeing needs of families and child protection concerns.


5

10

15

20

25

30

35

40

45

Another issue that I would ask you to comment on is the importance and significance of an Aboriginal peak body. Now – in particular in the child protection space. What do you see as the role of such a body and how important was it?---The role of the child protection peak – the idea was that we would have a number of Aboriginal-run child protection services springing up. That was the hope around the Territory. And that the peak body – its main focus would be on supporting those new initiatives, supporting in terms of - - -

You are drawing a distinction there between the body as a peak body representing other service deliverers on the one hand and on the other hand a body which in fact is a service deliverer as well?---Yes. There is some confusion there. Peak bodies can be service providers, but typically they provide support services to enable other services to operate, like for instance Northern Territory Council of Social Service would have that particular role, and typically wouldn’t be actually running services themselves. So the idea of the peak was that they would be there to support services, for instance with recruitment, with the idea of developing policies and procedures, guidelines for how you would work with selecting kinship carers, for example. And the peak body would take on that particular role, and would also take on an advocacy role, but we didn’t understand that they were there to provide a service, a direct service.

Perhaps – what I’m doing at the moment is taking you through a list of topics or list of areas which were of significance to the implementation of the Board of Inquiry’s plan. But could I just divert on that issue of the peak body. In fact, the safety body was instituted. Now with hindsight, it would be helpful for you to make a comment, if you could, on the strengths and the pitfalls which that body encountered over its period of existence, which was really from 2011 through to a certain point in 2013. This is not really asking you to make an inquiry or a damning indictment of it, although if you wish to, you may. But just to comment on what might be learned from the progress of that body?---My first comment is that it did arise from one of the recommendations of the Board of Inquiry. It was – I think I have to say there was a little bit of confusion in terms of the practicalities as to whether it was going to be operating as a peak or as a service provider, and I think the reality is that the Department’s view was that it was a service provider rather than a peak in terms of they didn’t want to fund – this is my – I didn’t have a formal role in assessing this. This is my perceptions from my position as Children’s Commissioner.

That’s all we’re asking for?---And so they’re just my ideas, my thoughts. So they created this body. I’m not quite sure of the mechanisms. I have to say, it did struggle, and – but that’s not unusual. It’s a new player in a new place doing a new thing. And I think this idea of whether it was a peak or a service provider was a complexity. I am aware that the people running SAF,T were concerned that they felt that the goal posts were changing all the time; that the department’s requirements of SAF,T were changing quite frequently and what they were supposed to deliver was changing. I am also aware that SAF,T itself had a very clear idea of what it wanted to do and my understanding is what it wanted to do wasn’t the same as what the Department wanted it to do and so there were tensions there.


5

10

15

20

25

30

35

40

45

Perhaps – could you make a comment, it might assist that, in the event that the Commissioners recommended the establishment of a peak body of one sort or another, what would you say are the key lessons to be learned from the career of SAF,T? In other words, it sounds as if are you recommending that the terms of reference be very clear at the start, that it be adequately resourced of course to do that, and that it enjoy some bipartisan support and not have the goal posts changed. But are there any comments you would like to make about that; how one sets up a functioning and useful peak body?---Look, I would have lots of thoughts on that but I need to order them and think that one through. But I would say your comment is very right. I think you need to be very, very clear about what it exists for and what its tasks are. There was definitely confusion about that. Now, I have to say this also: that if the government is not going to fund the establishment of a number of child protection services, there’s no point in having the peak, if you know what I mean. The peak was there to support the nascent services around the Territory. As it turned out, the only funding that was provided was to that organisation, so they immediately set out to be a service provider.

Yes?---So there was confusion there right from the beginning about the role of that service. And then as it started getting into its role, the goal posts – well, this is what was reported to me, I’m not certain about this, but they were concerned that the goal posts were changing. Now, I understand also that there were the, you know, some difficulties in terms of the governance. Again, I only heard those things second-hand. But, you know setting up a new organisation, in a complex environment like the Northern Territory, you are going to expect difficulties around governance, but I don’t think that means we give up. It’s a matter of keeping on, because other Indigenous organisations, AMSANT, for example, and the Indigenous service – primary health services around the State, I think it’s widely acknowledged are doing a very good job. It’s not as if they can’t work; it just means we have got to think carefully how they are provided with their – you know, how they are provided with support and direction. Now, I also have to say that there are also Indigenous services currently now providing child protection services like out-of-home care and family support. That already does happen. It’s not as if it’s not happening; it’s just that there aren’t services dedicated to child protection related services in the Territory.

Could I just ask you to comment briefly on a couple of further recommendations that emerge. You have already spoken about dual pathways, and I won’t return to that. Aboriginal family conferencing?---Yes. I would have to say that this is one area where I think Northern Territory should be taking a leadership role in the country rather than doing nothing. It’s around finding a new way of doing child protection in the Northern Territory by mobilising the strengths of the Indigenous community to make their own decisions, to try and find solutions for children within the larger family networks. It was, in my view, a very promising initiative. There’s good data from other places that it works well. But it needs support. And that there was actually research evaluation being done on a pilot program that – my understanding is – was very promising. And so it was very, very disappointing to find all those initiatives were cut.


5

10

15

20

25

30

35

40

45

Well, I was just going to list a couple of other ones and then I will come to the cutting process. So was there institution of community child safety and wellbeing teams?---Yes. And my understanding is that they were instituted in, for instance, the two main hospitals, but also in some of the remote areas and I understand that they were in existence, I can’t say that they are in existence now, but those teams were in existence until, you know, shortly before I finished up as Children’s Commissioner. The vision was that they would be operating in all the remote communities, but that didn’t happen. But some of those teams were instituted and were, in – my understanding was – were doing a good job.

Yes. Can you say the same about the multi-agency assessment teams that were brought into being?---I know that they were brought into being, but I haven’t seen the specific reports from them.

Were you aware of Tennant Creek – of the institution of family support services at Tennant Creek at that time, specific ones in the Barkly region?---I was area of services there, but I’m not sure what you’re referring to.

Alright. Very well. What sort of expansion of the workforce occurred in that period of time, following the issuing of your report in 2011?---Around the time of the report, because it wasn’t just after the report, it was during the report, significant increase in funding was announced, I think by Minister Vatskalis at that time, even during the report, announced, if I remember rightly, during the inquiry announced that there would be a significant increase in frontline staff. And my understanding was in terms of front line staff there had been a doubling within a year or two of that report of the number of staff providing frontline services in child protection. It was a very, very significant increase over a five-year period from, you know, just before the report.

Now, in short, you – I said earlier I would ask you a question about the vibe – I have to say it, but – that the effect and the reception of your report within the sector was positive. Now, was that your perception; that the initiative was welcomed and that it was embraced, generally speaking?---It was my perception, because you say my report, but the reality was that there were not only three co-chairs, but there was input from agencies all around the Territory, from individuals all around the Territory, from communities. But also from experts all around the country on the advisory team. And also in the secretariat itself. So it was – there were many, many people providing input into that Board of Inquiry’s report.

Very well. Now, there was a change of government in August of 2012, which occurred and the then Labour government was defeated in the election and the CLP government was elected. Minister Lambley assumed the relevant portfolios; is that correct?---Yes.

And she also held the Treasury portfolio, I believe; is that the case? I just wonder if we could have on the board, please, a document: DCF.0021.0001.0090. It actually commences at 0089. What’s about to be put is a document that it’s unlikely you had.


5

10

15

20

25

30

35

40

45

It’s a ministerial briefing document, you will see here. And I wonder if we could just go to the following page here. But you will see it deals with – by way of background, it deals with the commitment that was made. Now, you will see there, there is a list of – it’s described as a re-scoping of child protection services. Are you familiar with the term re-scoping?---No.

Very well. In fact, have you ever seen it before?---No.

Alright. Well, having a look at that there, you will see that a number of initiatives were to be scaled back or ceased. Some of those are initiatives that I have set out for you already. One of them is an initiative which I hadn’t taken you to and I would ask you to explain it briefly, if you could; that is, the role of and the importance of the external monitoring and reporting committee. Could you explain what that was and what it was supposed to do and then I will deal with what does it mean that it was to be scaled back and de-scoped?---I think the setting up of the external monitoring reporting committee was one of the very significant decisions of the then government after the Board of Inquiry. At one stage it was thought that I would be asked or it would be part of my duties to review the response to the Board of Inquiry. The government at the time thought it would be better to set up an external monitoring and reporting committee and I think they’re actually right because it was an independent body. It involved experts from around the country and the Northern Territory. And it provided an independent review of what is actually happening, whether the responses of the various departments were satisfactory and whether the targets were being addressed. And they weren’t reporting - - -

Can I just interrupt for one second and just explain a little further to the Commissioners: what is the benefit of it being external? I appreciate you came to share the view that it should be, or appreciate it was a good decision. Why external?---Well, I guess – it sort of helps to guarantee their independence or their impartiality in terms of reviewing the data. They are reporting to the Minister, but they’re actually reporting to the Parliament on progress in meeting the recommendations. It’s, if I can say, less contaminated by, you know, various allegiances. It’s there as an independent reviewer of whether change has occurred or not. And, you know, I think it was a sign of the end when one of the first decisions was to get rid of that external monitoring committee.

Very well. Well, could I take you now to the proposals that are listed there. It says that a range of commitments funded by the previous government will be scaled back or ceased. Now, are you able to give a general comment – I appreciate could speak for a long time about each of these, and we need to remain at a certain generality. But could you comment on what was the ill effect on the scheme that – your report – and I’m calling it your report in shorthand – what was the ill effect of abolishing the external monitoring committee, and we will work down that list?---Well, first of all, the incoming government did not say it was going to reject – it had rejected the recommendations. It said it would – it had a fairly ambivalent approach to them, from memory. They did say after a short period of time that I think there were six of the recommendations that they would not be pursuing, but they would seek to meet


5

10

15

20

25

30

35

40

45

all the other recommendations. That was the official statement from the government at the time. Now, of course, we were disappointed that the six, because they contained the one pivotal recommendation, however, we were disappointed with that, but our understanding was that there would be a commitment to meeting those recommendations. However, when you get rid of the external reporting committee, you get a situation, you know, where you’re not having those independent reports coming in. You have just got the departments themselves reporting on what’s actually happening in terms of meeting the recommendations and then, of course, it was clear very early in the piece that there wasn’t a commitment to those sort of reforms in the system that the incoming government wanted to do its own reforms or make its own changes. But it was not clear what those changes were going to be.

Very well. Turning to the termination of the SAF,T service agreement and its – the funding for the Alice Springs child care agency, you have indicated there were some problems with SAF,T at that time, but what do you say about the complete – what was ultimately the complete termination of SAF,T?---Well, look I have to say, I haven’t seen this document before. And I’m aware of the contents obviously, because of what happened - - -

Well, it’s really just a platform for your comment?---But it is a surprise to me that very early in the piece that decision had been made to get rid of SAF,T.

COMMISSIONER WHITE: This is just a ministerial briefing paper, of course, Mr Morrissey.

MR MORRISSEY: Yes.

COMMISSIONER WHITE: That has to be quite clear.

MR MORRISSEY: Yes. I think – sorry. Perhaps I will just clarify with the witness that that is clear.

You understand this is merely a briefing paper, and I understand you did not – it’s not your document, and, Commissioners, I’m merely using it as a platform for - - -

COMMISSIONER WHITE: No. I didn’t mean that. But I just meant that that’s all it is. Whether that then played out into action – we actually believe that most of it did from other evidence that we have heard, but at the time when it was proposed it was probably preceding some of the actions that we have heard about.

MR MORRISSEY: I think it was preceding – I think the Commissioner is correct.

COMMISSIONER WHITE: And maybe by some time. So it has got to be put in that context that that is what it is, Dr Bath.


5

10

15

20

25

30

35

40

45

MR MORRISSEY: Yes. I think so. If we go to the final page of it, you will see it is in fact signed by the Minister, but your points are still – we accept, and that’s the answer to be given.

COMMISSIONER WHITE: What is the date of the document? That might be helpful.

MR MORRISSEY: 31st of the 10th. 3rd of the 10th. Sorry.

COMMISSIONER WHITE: 2012?

MR MORRISSEY: It’s signed – yes. 2012. And it is signed by the Minister on the 11th?---Okay. So it’s very shortly after the incoming .....

COMMISSIONER WHITE: Yes. Just a couple of months, isn’t it?

MR MORRISSEY: Yes. Alright. Well, I appreciate that’s not your document there, but you can see that there this – can we just go – yes. Thank you. Just going back to those. So you can see there that funding to NTCOSS and NAPCAN would be reduced. Funding to the Tennant Creek Family Support Initiative would be put on hold, and funding would cease for the hospital based multi-agency assessment and coordination teams to which we made reference before. Now, this obviously represented a very significant winding back of the actual bodies and some of the services that were contemplated under your plan?---Most definitely. Most definitely.

Do you know, or were you aware of what consultation with the sector occurred with the incoming government?---I’m pretty certain there wasn’t consultation on these particular issues. There obviously was some statement. I am aware that there were statements that there needed to be a complete, I think the term was root and branch change in child protection, but those specific recommendations – sorry – those specific decisions I don’t believe were discussed publicly.

Indeed, may we go to the final page of that document. Again, it’s not your document, but, Commissioner, I’m about to tender this and I just point out the top paragraph there. That it appears that in the document itself, it says:

Due to the highly sensitive nature of this work, consultation has been limited to the senior executive within the department.

That accords really with your comment?---It’s appalling.

Yes. Commissioner, I tender that document, tender bundle 290.

COMMISSIONER WHITE: Thank you. Exhibit 469.290.

EXHIBIT #469.290 TENDER BUNDLE 290


5

10

15

20

25

30

35

40

45

MR MORRISSEY: Now I have – that’s as far as I wanted to take that particular document. Before I move on to more specific issues concerning child protection work including early intervention services, I just wanted to ask you about the notion of a cycle of crisis. It does appear in the Northern Territory there have been very, very many reports on various aspects of youth justice and child protection over a period of time. And sometimes, as here, there has been an engaged and, one might say, well-funded and followed through response. Could I ask you about that. What do you think are the drivers of the cycle that you’re speaking of, and, perhaps at a general level, what are you seeing as some of the ways of curing that cycle and ensuring that where there is an advance made, it doesn’t vanish or get wound back opportunistically at a later time?---Look, that’s a tough one. I think in terms of if we are talking about the cycle around child protection reforms and decision-making, what we have been talking about has been to do with the political cycle, which is, from memory, three years in the Northern Territory.

Four years?---Four years. Four years. So it goes a little bit longer, doesn’t it. But this particular initiative only had two years to embed before there was a change of government. But there wasn’t – there was bipartisanship initially but it seemed to evaporate at the time of the election. However in other jurisdictions that hasn’t necessarily occurred. For instance, in New South Wales with the Wood Commission and in Northern Territory – sorry – in Queensland with the Carmody Report. In both those cases, the new incoming governments, as I understand, adopted those particular reforms. So it’s not something that will necessarily happen, and I would suggest that reforms that might come out of, for instance, this sort of inquiry where it’s not operated or it hasn’t been instituted under one political party, might be more widely accepted across the political spectrum here in the Northern Territory because very clearly there’s a real difficulty around partisanship here in the Territory around these sort of matters, a very strong divide.

I wanted to ask you a question about that. We have pointed to the – there’s a self-evident loss of services and of particular bodies where a government determines to wind back rather drastically the funding for those services and bodies. That’s an obvious cost and it can be tallied up and there can be political arguments for and against doing so. But I would like to ask you about other costs to the system that a sudden drastic wind back of services may have. For example, in terms of expertise, training, staff retention and morale in the sector?---Well, that can be devastating, especially in somewhere like Northern Territory where there is already a high turnover and these sort of things will certainly exacerbate that. Can I also say, just going on from that, that what was of concern to me, if we were talking about child protection, was that prior to the Board of Inquiry, there was – child protection services were nested in with health in the Northern Territory. They were a branch or an arm or a division of health services. After the Board of Inquiry, the decision was made to make child protection the focus on child protection so that it would become its own department. It would have the status of a department amongst the executive of government and would have its place at the table because it was important that all the various government departments saw themselves as playing a role in child protection as well. It was seen – it was to elevate it in the public mind that it was an


5

10

15

20

25

30

35

40

45

important initiative. Shortly after that letter, not only was – were these particular cuts made, but the Department itself was demoted into an office of the Education Department, for some reason. So from being its own department with its executive sitting along the executives of other departments, it became merely an office within the Department of Education and I’m aware at that time there was a very significant loss of expertise from the Department at that stage. Then, of course, alongside of that you had very significant cuts in the NGO sector. So you had many staff, many of which I could name personally, leaving the Territory because their jobs were wound up at that time.

COMMISSIONER WHITE: At that higher level, the first time you posited your question about this cycle of investigation into child protection – it’s not at all peculiar to the Northern Territory though?---No.

It does seems to be prompted when there is some critical event occurs in any of the jurisdictions within Australia and also, of course, outside Australia. It’s a bit hard to understand why that ought to be the appropriate response. Sometimes the investigation shows that that’s right to be looking at systems. Often it is just a terrible event which has occurred because this is a high-risk area - - -?---That’s right, Commissioner.

- - - in any event. But have you got any words of wisdom about that approach to responding to a crisis event?---One thing that these inquiries can do is break those – the downward spirals and actually put a significant impetus into positive change. I do have to question that issue of there being many reports. Many of those reports weren’t systemic reports. In fact I think the Board of Inquiry report – I can’t think of a previous systemic inquiry into child protection in the Northern Territory. Now, I had myself been commissioned to do a report on the intake services, which is really only a very small number of staff, when you look at the – and one specific unit within child protection. A few years prior to that, I had looked at responding to risk. But again that was spread across a whole lot – in fact, four different government departments. It wasn’t a child protection specific investigation. So they really only has been, in my view, in recent – I mean, there was the Little Children Are Sacred Report, of course, but that was focusing on, again, a specific area within child protection and I might say that represents, in terms of the child protection load, something like 4 per cent of the clients. Do you know what I mean? In terms of systemic look at child protection there hadn’t been - - -

COMMISSIONER WHITE: So I was looking across the country, of course - - -?---But across the country, yes. There has been a whole swag in – virtually every state or jurisdiction has had a major view into systemic changes in child protection.

Largely, one supposes just in a fairly general observation, is that the systems in existence are thought not to be working, and so looking for something that might work?---Yes. And one of the difficulties is that they tend to come about because of a series of highly publicised crises. And so they’re crisis driven, if that’s ..... and that


5

10

15

20

25

30

35

40

45

certainly happened here in the Northern Territory. The impetus came from a number of news reports close together of child deaths in child protection.

Yes. Nonetheless, of course, I mean, if you put those to one side, the review suggests with the increasing numbers and so on, that we have already been hearing about, that certainly the system as it is operating, isn’t managing to reduce those numbers because it’s only talking about the protection rather than the prevention ..... the conclusion we must come to?---I think so, Commissioner, because the incoming government was explicit about the role of the statutory child protection body sitting there at the tertiary end, just at the tertiary end. In other words, the ambulance at the bottom of the cliff.

Yes?---That was seen as the role of that. The problem is that they also, in my view, also at the same time said “We are not responsible for preventive services or not primarily responsible for those”, and that’s where the tragedy lies, in my view; that every other State in every other jurisdiction, the child protection authority has a primary role – sorry – a pivotal role in the delivery or the funding or the tendering of secondary prevention services.

MR MORRISSEY: In fact, that’s consistent, if I may interpose there, with section 7 of the Care and Protection of Children Act that provides that the Northern Territory government has responsibility for promoting and safeguarding the wellbeing of children and supporting families in fulfilling their role in relation to children?---I think it’s absolutely true. And, in fact, I don’t think you can do tertiary services without providing secondary services as well.

Dr Bath, there’s a couple of – we have some questions that have been agreed to by our learned friends so I need to rush through a couple before I cease, if I may. Could I just take you to the intake system and just a couple of specifics about that. It’s the fact that you performed a high-risk audit report back in 2007 and you noted at that time that there was a significant backlog in the follow-up and notifications. You did an intake report in 2009 and there was in the annual report of 2008 to 2009, which we have, a rise in notifications from 2984 to 6190. That’s a doubling. And in subsequently annual reports you have noticed the increases in notifications, I won’t take you to all the figures, but they’re there. We can identify them in due course. In total, though, you have an experience – I appreciate you are not in that office any more, but you have experienced in identifying the issues concerning intake. It’s clear that the department, over time, has had difficulties in formulating a good system for identifying and addressing children at risk. What are you seeing as the fundamentals of improving the intake process?---Well, I think one of the fundamentals is this idea of the dual pathway; that we have a situation where the public, especially the referring public, and so I’m including there the police, the educationalists, the other NGOs, as well as the family members and other concerned citizens are educated – part of this is educating them – that there is this alternate pathway. You don’t always have to refer all the children to the child protection gateway, but there’s a gateway to a set of services that will be provided for families, at-risk families who are struggling. That was the idea.


5

10

15

20

25

30

35

40

45

Alright. May I just ask you finally concerning issues from case management. There are a couple of areas I would like to seek your comment on. The Commission has heard some reports or heard some evidence that there is, in terms of care plans, that there has been sometimes noted an inadequate number of care plans on files, whether completed or current. The figures change over time and it seems to be indicative of insufficient staff or perhaps insufficient engagement with a file. Can you make any comment about care plans and how that might be improved?---Yes. There are lots of indicators of whether a department is actually providing supportive protective services. The availability of care plans is one of those indicators. Another one of course, is to the extent that they’re responding to child protection, actually undertaking investigations. Another one is checking up on kids in care; doing in-person visits to children in care. So there are all these indicators whether the department is able to do its job, or is able to do – the workers are able to do the job. And part of it also is a proxy for the – these are indicators for how they’re going in terms of case load because you find that once these indicators start, you know, showing that the job is not being done, you can bet that the case load per individual worker is going up. So the idea of the case plan is, in my view, central to the child protection – to child protection work. But case plan defines why you have got that kid under supervision, why you are concerned about them, and what you are doing about it. Without that plan, we are none the wiser as to why the child is being supervised by the State. Why there’s State involvement in this kid’s life or indeed in the family, in the life of the family. It tells us that there is a purpose behind the supervision order and there is a goal and there’s a desired outcome. Without that, we just don’t know what’s happening to those children and those families.

I take it from that that visibility of the children, where children are placed in an out-of-home care placement, whether that be residential care or the long day care system that seems to be proliferating with the last witness, that there needs to be significant visibility of the child and their progress in that setting to the case manager and the case worker. Do you agree with that, and what do you see as the bottom line requirement there?---When you say visibility, that has been an issue – you know, coroners’ inquiries have pointed this out as it has been an issue, and it certainly was an issue at the time of the Board of Inquiry. There are statutory requirements visiting kids in care, to see how they’re doing, to see if they’re making progress. And what we found is, you know, some pretty concerning rates of – some pretty concerning data on children being months in care without being visited by a statutory worker. So if things are starting to go pear-shaped in the care setting, the department is not going to know if there aren’t in-person visits with the child in care. At the time you might be aware that there are – there have been some tragedies in the Northern Territory and associated with those tragedies have sometimes been the fact that the family hasn’t been visited on a regular basis by the statutory department.

Final question, concerning the data upon which you rely. You, in compiling the reports, you had data that allowed you to measure the number of notifications, children who were in out-of-home care and so on. That data arises from the intake system. Can you make any comment about how confident one can be of that data, what are the shortcomings of it, what can be done to improve it?---There’s problems


5

10

15

20

25

30

35

40

45

with data collection all around the country and data is only as good as the inputting, you know, the input into the data system. We found that there were very significant problems around the inputting of data into the system and so we made recommendations about reviewing that and improving those data systems. Look, I do have to say that that is a significant problem here in the Northern Territory. The data system is actually quite antiquated, the – if that is still in use, and I believe it is. It is quite an antiquated system. And, of course, the other side of that is: are staff adequately trained as to how they input the data? One example of that is that when we were doing the Board of Inquiry, Northern Territory had the lowest number of children proportionately in out-of-home care of any jurisdiction. But in fact that was an artefact because in fact it had the highest proportion of kids in residential care, but the data was problematic. In other words, people were ticking the wrong box. And so the reports going to the Institute of Health and Welfare for national compilation were showing Northern Territory to have the least number of kids in care, whereas in fact we had the most or close to the most. And that was purely a data and a data management problem.

Commissioners, may I invite the representative from NAAJA to come forward.

COMMISSIONER WHITE: Yes. While that is happening, Dr Bath, you said a little earlier that the placement of the body that – the State body that looked after the care and protection of children had variations locations during your time. Where, ideally, would you place such a Department, or would you have it as a standalone Department, and how would that hold – it’s its own Department, but how does it hold Health, for example and Corrections to account for dealing with the children?---Yes. That’s a very interesting question, and I note around the country for instance, youth corrections seems to bounce between the corrections departments and child welfare – sometimes education, it has been in.

..... Attorney-General?---Yes. Look I don’t think, in the Northern Territory, child protection has to be its own Department, but I do think child and family wellbeing should be – that’s just my personal opinion – a Department. So that encompasses the early support services to families as well, rather than just focusing on the protection of children. And I note an interesting trend all around the country has been the change in terminology. So when I was a young practitioner, we – the Departments were all family welfare departments, they talked about welfare. And now the focus is on safety. And I think – obviously we have to have a focus on safety but I think the idea of welfare is a much broader notion, albeit maybe a little bit archaic now, but the idea of wellbeing of families, I think, goes very well with child protection. And I think safety is one aspect of wellbeing.

Thank you for that contribution. Ms Graham.

<CROSS-EXAMINATION BY MS GRAHAM [4.23 pm]

.ROYAL COMMISSION 31.5.17 P-4219 H.I. BATH XXN©Commonwealth of Australia MS GRAHAM

5

10

15

20

25

30

35

40

45

MS GRAHAM: My name is Felicity Graham, and I appear for the Central Australian Aboriginal Legal Aid Service?---Yes.

Dr Bath, in the 2010 Board of Inquiry report, Growing them Stronger, Together, one of the particularly vulnerable groups of children that was identified was children with disabilities in out-of-home care, and at pages 367 and 368 of the report you dealt with that. But particularly you noted that there were children that were taken into care because of their medical or other support needs, rather than there being a child protection issue; is that right?---Yes. There had been a number of those children, yes.

And you also noted that those children were often placed away from remote Aboriginal communities, because of the needs that they had by virtue of their disability?---Yes.

And that – you further noted that there was minimal contact that had been attempted or maintained with parents, families and communities for those – and they were predominantly Aboriginal children; is that right?---Yes.

You noted that, of the children in out-of-home care, about 13 per cent of those children did experience some kind of either physical or intellectual disability or both?---Can I just add there, that was in terms of the official data, and that’s another problem with the data collection system. In some States it is around 40 per cent and I would suggest in Northern Territory it probably is more realistically around that number in terms of kids who experience some form of disability but, again, I don’t think that data collection was adequate.

One of your recommendations was that a review be conducted of all of those children that had been identified as having a disability to check the appropriateness of them being dealt with through the child protection stream rather than through the aged and disability stream of Government; is that right?---Yes. And at that stage the disability services weren’t running care services themselves, as they do in some other jurisdictions. So from memory, the department of aged and disability didn’t have its own, for instance, foster care program or group home program for young people with disability.

What’s your view about that?---Well, I certainly think that these children shouldn’t be in considered in – you know, in a child protection system, when they don’t need that sort of protection. In fact some people – memories are coming back, some witnesses to the commissions pointed out that they had to actually – how can I say – threaten to leave their child to try and get a service, because they could only get a service if they were neglectful of the child. Do you understand what I’m getting at? In other words, that’s where the services would come from if it was deemed that the child needed to be protected by the State. So most certainly there was a need for – you know, a more proactive look at these families and these children and primarily I think you’re looking at the Department responsible for disability services to be providing for that need.


5

10

15

20

25

30

35

40

45

And was it your view that more could, and should have been done to support families where there was a child with a disability to help them deliver the care and remain connected to family, remain on their communities, and with family?---Yes, most certainly. I think that should be the thrust of service delivery, yes.

Dr Bath, in your role associated with the monitoring committee, or perhaps as the Children’s Commissioner thereafter, are you aware whether the Government undertook that review that you recommended of children who experience disability and the appropriateness of being dealt with under child protection as opposed to the disability stream of Government?---Yes. Look, as you know, I wasn’t officially monitoring what was happening in terms of the recommendations, but I do remember that there was – that was part of the decision-making, that they were actually looking at the young people that we identified as having a disability and making sure that – you know, the needs of those children were addressed adequately. I know that there was an initiative within the Department to do that, but I can’t tell you about the outcome of that.

Finally, Dr Bath, I have some questions about the way that the systems, both the child protection system and the youth justice system, operate and whether you have observed that those systems have been perpetuating the problems that they’re meant to be fixing, and perhaps I can suggest to you, firstly this: that the increased use of incarceration is more likely to entrench disadvantage and trauma, particularly in Aboriginal communities, and is more likely to be criminogenic in its effect and so perpetuate the further mass incarceration of Aboriginal young people. Would you agree with that?---There’s a lot there. I agree with the general thrust of that, that – you know, Northern Territory incarcerating twice as many young people proportionally than other jurisdictions, especially Aboriginal young people, I think there’s no doubt about that, that the outcomes of that can’t be considered to be, you know, in the interests of those young people or their families or their communities. Now I absolutely couldn’t disagree with that proposition.

Or the Northern Territory community at large?---Yes, absolutely.

And can I suggest to you that increased removal of children or high rates of removal of children from their families and communities, again, is more likely to entrench disadvantage and trauma, particularly within Aboriginal communities, and perpetuate a cycle of intergenerational disadvantage, perpetuate further removals and dislocation of families?---I absolutely agree with that. There’s one observation on that, that the data do suggest that fewer Aboriginal children proportionally are placed into out-of-home care in the Northern Territory than any other jurisdiction bar Tasmania, where I don’t think it’s comparable data. That’s changing. And the number that are coming into care is – the proportion that is coming into care is increasing but Northern Territory still has the smallest proportion of Aboriginal children actually being placed into out-of-home care.

You certainly advocate that there needs to be a fundamental shift in focus in both of these systems to early prevention and addressing the underlying causes of offending


5

10

15

20

25

30

35

40

45

or a lack of safety for children or a lack of welfare or wellbeing for children?---Look, absolutely. There’s a very significant study in Australia by Weatherburn, who showed that the most significant predictor of young people coming into youth justice services was child neglect, which happens to be the biggest category of maltreatment here in the Northern Territory. And so it is absolutely one of those factors that’s a feeder factor into the child protection – into the youth justice system. The more that we can do to support, to support the communities and to support the families, the more we’re going to address that particular dilemma.

Thank you, Dr Bath.

COMMISSIONER WHITE: Could I just take up the figure response that you gave to Ms Graham’s question. We did hear earlier that nine-tenths of the children in Territory care are Aboriginal children, but I discerned you to say that out-of-home care was proportionally, or do you mean in absolute numbers the smallest in Australia?---No, I mean proportionally. If you mind, I have just got a new numbers here in front of me.

Yes, that would be helpful?---It is intriguing is that Northern Territory has the largest proportion of children in out-of-home care of any jurisdiction. That’s right across the board, the largest proposition, and that works out at about 1.6 per cent of the population. So 1.6 per cent of the child population is in out-of-home care in the Northern Territory. Now, that compares with 0.8 per cent for the rest of the country. So 0.8 per cent of the population. So the largest proportion, largest number of children proportionally in care. However, for the Indigenous population, if you just look at Indigenous populations in the different jurisdictions, bar Tasmania which has a very unusual statistical collection around Indigenous kids, Northern Territory has the lowest number – lowest proportion of Aboriginal kids in out-of-home care. For example, they have 3.4 per cent of all Aboriginal kids in the Northern Territory are in out-of-home care. I presume this is on 30 June, the count, the last count on 30 June. 3.4 per cent. The Australian average is 5.7 per cent of Aboriginal young people. That’s one of the quirks of our system here. And there has been argument that, in fact, the child protection system does not serve the children who really do need the service in some instances here, but I believe that service needs to be more focused towards prevention and family support than it does to out-of-home care.

That is interesting, isn’t it. It doesn’t have anything to do with the fact that 30 per cent of the population is Aboriginal?---It absolutely has to do with that. 43 per cent, from my recollection, of children in the Northern Territory are Aboriginal children. And - - -

And I believe growing?---No. It’s not growing as fast – it’s growing, yes, but not as fast as Aboriginal populations in other jurisdictions. So it’s unusual aspects. But 43 per cent are Aboriginal children. 60 per cent of those are from remote and rural areas, where there are – is the highest concentration of disadvantage, and where you’ve got all the indicators of families that are struggling. And I think that huge proportion – you know, even approaching 50 per cent, that huge proportion is why


5

10

15

20

25

30

35

40

45

there’s such a load on the child protection services. And probably why, proportionally, the number is lower that are actually in out-of-home care.

I understand, yes. Thanks, Dr Bath, for clarifying that.

MS GRAHAM: Thank you, Commissioners.

COMMISSIONER WHITE: Thank you, Ms Graham. There can’t be any want of players here. I wonder – is it convenient – I know Mr Lawrence will be taking to a large extent, or asking questions about detention. Would it be convenient if we dealt with the child protection tranche of questions first before turning to detention? And I think - - -

MR MORRISSEY: Commissioners, just excuse me one moment. Excuse me, I will answer.

COMMISSIONER WHITE: Yes. I – we have the sheet here, but I think that would be a bit more coherent to do that.

MR LAWRENCE: .....

COMMISSIONER WHITE: Yes. Thanks, Mr Lawrence. Mr Woodroffe, do you have questions? NAAJA has some leave.

MR WOODROFFE: We have ..... spoken. But it’s not necessary, given Senior Counsel Assisting - - -

COMMISSIONER WHITE: You have all the answers you wanted. Yes. Thank you for that indication. Ms Lee, have you got – I’m sorry, Ms ..... can’t see that far, and you’re wearing black.

<CROSS-EXAMINATION BY MS GOODHAND [4.38 pm]

MS GOODHAND: Thank you. Some of my questions have been answered.

So, Dr Bath, I act for Dylan Voller. I would like to ask you some questions in relation to the timeframe late 2011, early 2012. Around that time, your office – at that time, the Children’s Commissioner, had some involvement with Mr Voller; that’s right?---Yes.

And is it fair to say that you were looking at the therapeutic services and supports that were involved with Mr Voller at that time?---We did receive a complaint that the services weren’t adequate and we’re talking here about services from – to be provided by Department of Children and Families, not Corrections at this stage, so we were looking at that matter because it was – at that stage the complaint, the

.ROYAL COMMISSION 31.5.17 P-4223 H.I. BATH XXN©Commonwealth of Australia MS GOODHAND

5

10

15

20

25

30

35

40

45

original complaint came in before we had any jurisdiction over issues to do with youth justice.

And do you remember, off the top of your head, when that complaint came in?---It was before mid-2011.

Now, at around that time, do you ever recall having a conversation with someone in Corrections about Mr Voller and therapeutic services?---Not at that time, but I certainly did at some point and I can’t recall the point. I would need to look at the documents. But certainly Mr Middlebrook, himself, I had discussions with, and I believe it might have been John Fattore, but I’m not sure, someone else from the Department was involved in that discussion.

Are you able to describe what was said in those conversations?---In terms of?

In terms of therapeutic services?---No. There was a discussion around – I think there was some concern that my office was making – perhaps making waves around Mr Voller’s circumstances and treatment, and Corrections were suggesting that it was just a very challenging situation and they needed more professional support at that stage. And in fact, at one stage, the suggestion was could I offer some of that support because my background was in that area. And I suggested, at that time, that would be quite inappropriate because my role was to investigate services, not to provide them, at that stage. So – however, I was asked about other people who could do an assessment and work out an intervention and support plan for the young person involved, and I gave a few names from memory, of people that I had worked with previously who might be suitable, and I understand that a person was commissioned to do a review of all the interventions that had been done and to try and draw it together into a cohesive intervention plan.

And in terms of that, are you aware if that actually occurred?---I know that the assessment occurred. I don’t know whether it was put into place.

And do you have any recollection of when the assessment was done?---I would need to look up documents.

Would it have been around that time or in that year?---I would have thought just a bit after that, because there were two investigations that we were involved with, that weren’t to do with Corrections. And it was in the context of, I think, the second one of those, but I couldn’t be sure.

And without necessarily naming the name of the person who undertook the assessment, are you able to describe their expertise?---The person that – I think I suggested two names. The one that they went with is quite a well known psychologist and practitioner in New South Wales that works with youth justice services, the courts and NGOs, very well known practitioner and investigator down in New South Wales.


5

10

15

20

25

30

35

40

45

And are you aware of the nature of the recommendations made?---No. Only that recommendations were made about the treatment and the planning and interventions with Mr Voller.

And, to your knowledge, after that assessment was done are you aware if that was ever followed up?---I couldn’t – I couldn’t tell you the detail of what happened after that.

Thank you. Those are my question questions in relation to protection. I did have one question – two questions into detention, if I may.

COMMISSIONER WHITE: If it is convenient to do it while you are there, thank you, Ms Goodhand.

Thank you. In your statement, of 1 October 2016, specifically at paragraphs 77 and 78 - - -?---Sorry, what was the date?

COMMISSIONER WHITE: That’s your first statement?---My first statement. Yes. Okay.

MS GOODHAND: You describe a meeting that occurred between yourself and Mr Shanahan in April 2012, and at that were meeting there were two other senior staff from Youth Corrections present?---Yes.

And at the meeting you showed some video footage?---Yes.

I want you to assume there has been some evidence given that Mr Middlebrook did not attend that meeting and that Ms Anderson and Mr Fattore did attend. Does that accord with your recollection?---Yes, it does.

And are you able to describe the response you received, if any response was received by you, from Ms Anderson or Mr Fattore at that meeting?---The context of this meeting was we were doing the – we were doing a review of an investigation, and it was very clear because people that were subject to that review had also had charges brought, and we deemed it inappropriate to continue with our particular investigation while another legal investigation – sorry – was occurring at the same time. That raised a dilemma because we were investigating allegations of abuse in the youth justice system. We had these tapes, and it could be months and months before we could actually finalise the investigation, so the idea of the – the context of this particular meeting was to actually show the Department – senior departmental officers what was occurring within the youth justice settings, and to get action immediately, rather than having to wait until the report was put in. My recollection of that meeting was that – I think there was either three or four tapes shown on a number of times, that the CEO that was there immediately saw that what was depicted was inappropriate, and the meeting – he concluded the meeting by saying that action would be taken to ensure that those sort of interventions – abuses would not reoccur in that Department. Now, I will say this: my impression was that the


5

10

15

20

25

30

35

40

45

youth justice staff that were present were not as convinced that what was depicted was inappropriate. That’s my recollection.

Thank you, thank you Commissioners.

COMMISSIONER WHITE: Thank you, Ms Goodhand. Mr Lawrence.

<CROSS-EXAMINATION BY MR LAWRENCE [4.46 pm]

MR LAWRENCE: Thank you.

My name is Lawrence. Just – we will actually keep on the theme of child protection, because I’m engaged as counsel to represent Ms Josie Crawshaw, which is spelt C-r-a-w-s-h-a-w, and she was the first executive officer of the entity that we have been calling SAF,T?---Yes.

And I will ask you some questions about SAF,T, if I may?---Yes.

You know Ms Crawshaw?---I do.

And you know that she was indeed appointed in, I think it was July 2011, as the first executive officer of the entity SAF,T?---Yes.

And that entity flowed from a couple of your recommendations from the Board of Inquiry, specifically numbers 5 and 3?---Yes.

And I wonder if I could request that that recommendations be placed on the board. I think it’s exhibit number 10.001, please. What I want to do is go to this – the wording of those very recommendations to refresh yourself, and then I will ask you some questions about SAF,T itself.

COMMISSIONER WHITE: We have had a considerable amount of evidence about SAF,T this week from witnesses, Mr Lawrence, I’m not sure whether you are aware of - - -

MR LAWRENCE: Yes. No. I’m well aware of it.

COMMISSIONER WHITE: Good. So it doesn’t come as - - -

MR LAWRENCE: Is this a problem getting this up on the board? Because I’m happy to read it out, if that’s more expeditious.

COMMISSIONER WHITE: I have the impression it’s on its way.

.ROYAL COMMISSION 31.5.17 P-4226 H.I. BATH XXN©Commonwealth of Australia MR LAWRENCE

5

10

15

20

25

30

35

40

45

MR LAWRENCE: While that’s happening, I will ask you this in relation to the numbers. 147 recommendations, no less, correct, and your inquiry took about a year – approximately a year?---10 months, maybe.

10 months. So a thorough investigation with three other – two other members of the board?---Yes.

And is it – would it be the case that the fact that these recommendations are placed up high numerically that they bear a greater emphasis or importance, or - - -?---No, no. Sorry. We grappled with that issue. It really was a matter of sequencing, in terms of the chapters. Some of those 147 were obviously much more significant than others. Some really just required, you know, policy attention in terms of wording of some document, but others were much more significant in terms of systemic change. And it wasn’t – you know, that – that was at the beginning. What was significant was wanting to start off by acknowledging the context of issues affecting the Aboriginal population, particularly here in the Northern Territory, and that’s why it was important that the first chapters were looking at that background and particularly around Indigenous dispossession and the – you know, the framing of services for child protection. We wanted that to be the context of Aboriginal child care agencies in terms of future. And that’s why it’s in that first chapter. But the low numbers aren’t necessarily associated with importance.

Alright. Is it your view that these recommendations, 3 and 5, which were followed through were one of the more important ones, nevertheless?---No doubt.

Let’s just read them, forgive me, but if I may, number 3 says:

An Aboriginal child care agency or agencies be developed in stages.

?---Yes.

And:

That such an agency or agencies is funded by Government, with a major role in child safety and wellbeing, with consultation to determine how the Aboriginal community should be represented. Alternatively, the agency functions may be developed as part of an existing Aboriginal controlled organisation.

Now, you mentioned that you understood that there was a difficulty emerged once SAF,T began, which was whether it was a peak organisation or in fact a safety provider. And that was one of the reasons used – I think to use your word, it struggled; is that correct?---Yes.

Now that sits within that recommendation, doesn’t it, that sort of aspect about whether it’s going to be providing the services or whether it’s going to harness other organisations. Was it anticipated that might prove difficult or was it something that just happened?---The context of talking about the peak body, as I said before, was


5

10

15

20

25

30

35

40

45

that there would be other services that would need supports in that particular area, in terms of the development of those services. We understood that they would be small services. For example, small services aren’t able to have, like, a training arm or a training division and help with HR, those sort of issues, and we anticipated that the peak body would be the one that provided support for the development of the service, but also advocacy about – you know, areas that needed particular focus. So yes, that’s the context of the idea of the peak body.

Similarly, with 5 – and I won’t read it out but certainly the last sentence then again touches on that aspect which became struggling:

…peak body would support the process of the development of Aboriginal child and family wellbeing and safety and child protection agencies.

?---Yes.

Such a body had never existed in the Northern Territory prior to this?---Well, no. There had been a Child Protection body called CARU, that was operating in Darwin for some period of time, but it was no longer in operation when I was – when I was there in the Territory.

And what you were recommending, which became SAF,T, does in fact exist in other States of Australia?---Yes. I think every other jurisdiction has Aboriginal controlled organisations that work in this space. They don’t all do the same work. Many of them focus on preventive work with families, but I think the majority of them also do kinship work and foster care work amongst the Aboriginal community.

Well, we heard Ms Balmer give evidence about the Victorian example and I think you were up here when that was happening. And that certainly covers the field that you were recommending - - -?---Yes.

..... and would you agree that it covers it effectively?---Certainly, the – I think the experience in Victoria is a case in point: that it’s always there at the table representing Aboriginal children and Aboriginal families and, you know, supporting Aboriginal service delivery.

So, by example interstate, what you recommended in your opinion then and would it be your opinion now, could and can be done if it’s done properly?---I have no doubt that it can be done.

And would you accept that when SAF,T was formed in 2011 was a big exercise to start from the ground up?---Yes. It was a total green field in terms of how that service was done. However, they did have support for a while from AMSANT. It was nested in the initial stages in with an existing organisation. That, I have to say – how can I say this? It had a chequered background because, you know, tensions do sometimes arise with a new body and the auspicing body and I’m not quite sure what


5

10

15

20

25

30

35

40

45

happened there but it was not a long period of time before it went off by itself. It emancipated from the peak body.

Having the assistance of AMSANT wasn’t necessarily a bonus, perhaps?---I think some of the - - -

For human reasons .....?---Some of the people in SAF,T I don’t think thought it was a bonus for them.

In your recommendation 3 you say in stages, so can we ..... anticipated this is a process. It can’t be done in a year or two years. You’re looking at several years of regular funding, consistency in Government approaches, and you’ve mentioned earlier about how there was problems with the fact that there was a large number of changes with Ministers and CEOs?---Yes. That’s absolutely the case. You don’t want to throw a new service into the deep end by doing – by just focusing on tertiary services. They need to develop, of course, the staffing, the training, the expertise of the organisation by focusing on, you know, what’s achievable in the first instance. And that usually is around family support services, moving then into things like recruitment of carers, kinship care, that sort of thing. And – you know, already we have Indigenous organisations, Tangentyere is case in point, running residential out-of-home care services in the Territory.

So would you accept your evidence here – your view here, from your background and expertise this can be done as it has been done elsewhere, and it can be run by Indigenous people from the top through the middle right through to the bottom?---There’s no doubt about that.

That covers that. Can I just ask you about a thing that can be a problem a lot, but it’s the acronym which I think has a good story, SAF,T. There’s actually an explanation for that, or there’s a philosophy behind it, and is it the fact that, say Strong Aboriginal Families, Together, and is the credo that if family is strong, then children, by and large, are cared for?---I think that’s absolutely the case. And that was the focus of SAF,T in the initial stages. In fact, just to be frank, I think that’s where some of the difficulty was, that SAF,T initially really wanted to focus on the wellbeing of families and I think that was – that’s pretty important, because what you say is absolutely right. The – it’s the families where there isn’t wellbeing, where there’s tension, where there’s lack of safety, where there’s lack of nurture, those are the families that are coming to the attention of the child protection authorities. So they wanted the focus – which I think rightly so – on the wellbeing of vulnerable families. That – there was a little bit of – well, there was a clash, really, between that and the priorities of the Department. I don’t want to get into judgment about who was right and who wasn’t right, but I’m just saying my perception was there was a little bit of – you know, a different perspective. In other words, SAF,T wanted to focus on the wellbeing of families, and that wasn’t always the immediate focus or the need, let’s say, of the statutory Department, because they really did – their sense – and this is just my opinion – their sense was that they needed the Indigenous organisation to


5

10

15

20

25

30

35

40

45

help with the harder end of child protection. That was my sense of what was happening.

Can I take it from your evidence when you were showed the ministerial – if that’s the right term – from October 2014, a matter of months after the CLP government got in, that you’re not really in a position to comment on the changes that that regime brought in, in relation to SAF,T? Remember, they showed you the stuff about basically cutting the budget of SAF,T and also cutting some other non-government organisations, and you hadn’t been consulted about that?---Well, it looks like a lot of people weren’t consulted. My surprise was I hadn’t seen that document. I’m not surprised at the fact that a document like that exists. What struck me as the – that very firm – that document was just stating very firmly that, “We have these priorities, they’re controversial, we are not doing consultation about them and we’re putting them into place very quickly.” And that certainly, in my view, wasn’t flagged in any way.

Ms Crawshaw will give before the Royal Commission in relation to what occurred throughout her tenure, including some fairly significant changes brought in by the CLP government. You wouldn’t really be in a position to know what they were, from your position back then, would you?---Sorry, I don’t understand.

Well, you weren’t aware of the changes that the CLP brought in, in relation to – for instance they shut down the Alice Springs centre for SAF,T?---I don’t think there was a SAF,T branch in Alice Springs. There was discussion.

Proposed?---Yes – yes. No, I understand that it proposed. It was proposed in the Board of Inquiry.

Yes?---But they hadn’t given any of that funding, and then they – and certainly that memo or that letter suggests that they weren’t going to.

No. Alright. Well, we will leave that. That’s everything – part of – I think that’s all I have in relation to SAF,T. Can I ask you some questions now on behalf of the other client I represent today. And he is known in the Commission, because he’s a child, AD. And you know who AD is, don’t you?---Yes.

Alright. So – and what I’m wanting to ask you, really, is about – we are going about to juvenile detention, we are going back to Don Dale, we are going back to – from what I gather from your statement is you’re trying to resign, and there’s an incident in August which keeps you at the helm, and that’s August 2014, of course, when there was this incident on the 21st which ended with the deployment of CS gas, which you subsequently investigated. Alright?---Yes.

And that was an investigation of your own initiative?---Yes.

Alright. And that was heavily publicised at the time in Darwin, and Australia, and indeed internationally?---Yes.


5

10

15

20

25

30

35

40

45

Amnesty International came over and said some things about that incident, and so you quite properly pursued your responsibility to set up a Child Commissioner investigation and part of that would have involved you interviewing the relevant players on the evening?---My officers.

Your officers. I understand that the report was finalised almost 12 months later and, of course, you didn’t sign off on it. I think you finished work as Children’s Commissioner in December?---End of December.

Alright. Would it be fair to say your officers gathered most of the evidence that was used in that report?---A lot of the evidence.

A lot of the evidence. I take it you’ve read the final report?---Yes.

Yes. And the evidence – it basis itself on or it relies on is consistent with the evidence - - -?---Yes.

- - - that you discovered. And, of course, we’re talking about interviewing some of the children; correct?---While I was there, children were interviewed, certainly as part of that process, but it was mainly the staff that were interviewed.

..... staff, which is youth justice officers?---Yes.

The superintendent and the two IC which is Mr Caldwell and Mr Sizeland respectively?---Yes.

The Commissioner, Mr Middlebrook?---Yes.

And also some prisoners who attended, who were members of the AIT?---Yes.

And the dog handler?---Yes.

And indeed the prisoner officer that deployed the gas itself?---Yes.

But, probably more importantly or at least more graphic as evidence was, of course, you were able to rely on the footage which was film and indeed audio components with it of the actual incident; correct?---Yes.

Now, that was footage taken from the CCTV cameras, but also some of the handycam cameras that the youth justice and prison officers had?---Yes.

You saw all that, you’ve heard all that. Now, can I ask you this: did you discover in the investigations that on the night in question there was access, or availability, to what – I will use the terms, banks of console televisions which are in the control room of Don Dale which show live shots from the cameras that were situated throughout Don Dale at the time including, most, importantly the BMU?---Was there – that occurring?


5

10

15

20

25

30

35

40

45

Yes?---Yes.

That was available on the night of 21 August?---As far as I know.

As far as you know. Did you – was there any evidence gathered at all from any source that said that any of these cameras were faulty?---I don’t think so.

Alright. So is it your view that, from gathering that evidence, it was feasible for anybody that was there at the time to look at the consoles as the thing was panning out and see what was going on, whether it was in a cell, or whether it was in the adjacent area in the BMU?---Anything that is on the tapes, that everyone has seen - - -

Yes?--- - - - was visible on the panels – on the panels within – within the detention centre that night.

Yes. Alright. Thank you. Now, you have been a – you were a Children’s Commissioner for seven years back then. Is it your knowledge that that is the first time ever in Australian history that gas has been deployed in an incident in a juvenile detention centre?---Look, I can’t say that with 100 per cent certainty, but I’ve looked into this a little bit, and I can’t find any other instance where gas has been used on young people in detention in Australia. Now, like I say, I haven’t found any evidence that that’s the case. But I found evidence of thousands of very, very difficult, riotous type events occurring.

Right?---But I haven’t found evidence of the use of gas to control those things people.

And that’s incidents in juvenile detention centres?---That’s juvenile detention centres.

And it would include a lot incidents that were far worse than the incident you investigated thoroughly to do your report?---Like I say, I’m presuming so, because in many of those instances you had actual riots where there were numerous young people destroying things and – you know, throwing items around. In this case, we just had one young person who had escaped their correctly, but was actually still in a secure area, and he had the gas deployed when there was – within closed rooms also involving young people that weren’t involved in the incident. Yes. So the question is, you know, how does it rate as a dangerous incident compared with all those other dangerous incidents that have happened in Youth detention centres?

Well, just on that word, “riot”, my client AD actually takes exemption to the use of it. I don’t know who was the first person to utter it. But I would suggest to you that is not an appropriate word to describe the incident that you investigated, basically starring AD on his lonesome out in the adjacent area doing what he was doing?---Yes. Mr Lawrence, I think that has been aired in a couple of the reports, and it was aired in the Children’s Commissioner’s report, you know, the use of the


5

10

15

20

25

30

35

40

45

word riot. That – I think it’s something – officially an unlawful assembly or something like that. But in fact, yes, it was just an individual. I think the term “disturbance” might have been more appropriate. It certainly wasn’t a riot.

Aright. Now, just one other aspect, in your first statement, can I take you please to that, forgive me, you haven’t got the number, but I want to look at paragraph 98 because it deals with what happened to AD and the others after the disturbance. This is the statement - - -

COMMISSIONER WHITE: It is on the screen, Mr Lawrence.

MR LAWRENCE: Right. Now, there has been a lot of talk about how AD and the other five kids were in isolation in the BMU for a large number of days, from about 3/4 December through to the incident itself on the 21st. But you point out that thereafter, and we know that AD was taken up to Berrimah prison as it then was, for adults, and taken back to Don Dale the next day when it was discovered he was under 15. But thereafter those other kids were kept in isolation in the whole centre, were they not?---Yes. The reports, and everything I’ve heard, talks about this young man I believe you represent, that was in isolation for 17 days. It was considerably longer than 17 days. He was returned from the adult correctional centre to isolation at Don Dale and from there, taken to the new Holtze facility and placed again into isolation for a considerable period of time. I don’t know the exact number of days, but it was considerable period of time. I visited that facility to see where the children were being held and was not able to – not allowed, actually to see the young person.

Really?---Because it was considered at that stage – what’s the term that’s used?

Operational?---Operational, due to the good order, or something like that, the good order of the facility.

In case he escaped while you were visiting them?---Well, obviously there was concern about those young people, but the fact is they were in there for a considerably longer period of time than just the 17 days. It led to myself and others from my office, you know, strenuously arguing with the Corrections Department about this continued punishment of these young people in isolation there, but it hasn’t really come up, in much of the discussion, just how long they were kept in those conditions.

And can I tell the reason you point that out quite unequivocally in paragraph 98 is that you think it is relevant for this Royal Commission as well, it’s not just the BMUs but what happened immediately thereafter is certainly relevant - - -?---Yes.

.....?---Yes. It’s certainly not just the BMU.

Okay. Many thanks, Dr Bath. That’s all the questions I have for the witness.

COMMISSIONER WHITE: Thank you, Mr Lawrence.


5

10

15

20

25

30

35

40

45

MR MORRISSEY: Commissioners, may I ask – sorry.

COMMISSIONER WHITE: Yes.

<RE-EXAMINATION BY MR MORRISSEY [5.09 pm]

MR MORRISSEY: Sorry, I thought you were about to ask one. Commissioners, may I just ask two final questions in brief terms.

Firstly, Dr Bath, you provided some statistics earlier on where it was said that 3.4 per cent of all Aboriginal children in the Northern Territory are in out-of-home care whereas the Australian average was 5.7 per cent. Could you please identify the source of that statistical material?---Yes, Yes. Each year the Australian Institute of Health and Welfare published data on child protection – I think it’s called Child Protection Australia, is the document. And it comes out each year, and those data were extracted from the 2015/16 publication, which is the most recent one as I understand.

The source of the data from the Northern Territory, is that the intake data to which you made earlier reference or a different source?---No. That’s – sorry, that – yeah, the intake data that I – I spoke earlier of the proportion of kids in the community that were subject to an intervention. And that was from – also from that particular publication.

Yes. Thank you, very well. The other question related to the notion of SAFT, and you drew a distinction between safety and wellbeing and, in a sense, you drew, you depicted safety from that perspective as being an aspect of wellbeing?---Yes.

We have heard some quite extensive evidence about safety. Is there any literature or learning taking a critical stance to the term “safety” and either its overextension or its under-extension because in a sense, if safety be the touchstone for an intervention, one would like to have a grasp of what safety actually means and how far safety extends. So may I ask that question: are you aware of any literature or any learning on that topic?---There’s a lot of discussion in the social work literature about – you know, the limits and the parameters around statutory intervention, and that’s where a lot of the discussion about safety comes. The whole concept of safety is now featuring very strongly in the whole literature of trauma. But I think that’s a slightly – that’s a slightly – that’s slightly tangential, but the issue of safety in terms of child protection, yes. Because, as I mentioned before, they used to be called “child welfare departments” not “child safety departments”, and there has been this shift, and really I think it’s driven – it’s driven not only by financial considerations but also by philosophical idea that, you know, the State should only involve itself in families where it’s absolutely necessary for the State to involve itself. But the difficulty is this notion, if you take a public health approach, it’s not as if they suddenly appear and become abused. There’s a history where the family – if a preventive focus is

.ROYAL COMMISSION 31.5.17 P-4234 H.I. BATH RXN©Commonwealth of Australia MR MORRISSEY

5

10

15

20

25

30

35

40

45

taken, they can be supported and the child does not need to come into statutory – under statutory supervision or protection. There is discussion in the social work literature, but I wouldn’t be able to tell you exactly.

No. I won’t ask you to do it cold now, but it may be that we approach you and have a discussion out of court and have a discussion concerning some of the literature on that topic. But those are the questions I have, Commissioners.

COMMISSIONER WHITE: Thank you Mr Morrissey. Dr Bath, your counsel is approaching.

MR LAMBERT: Your Honour – Commissioners, out of courtesy more than anything, I’ve been sitting in the back of the court.

COMMISSIONER WHITE: You have been noticed.

MR LAMBERT: I’m appearing for Dr Bath and he may be very glad to hear I have no intention of re-examining him.


MR LAMBERT: Thank you.

COMMISSIONER WHITE: Thank very much, Dr Bath, for your assistance to us yet again. We are most appreciative of that.

<THE WITNESS WITHDREW [5.03 pm]

COMMISSIONER WHITE: And I believe that we are going to start at 9 o’clock tomorrow, Mr Morrissey.

MR MORRISSEY: I’m instructed, Commissioners, that the 9 o’clock booking is not possible to proceed, and it therefore will be a 9.30 commencement.

COMMISSIONER WHITE: I am getting some conflicting instructions here. So - - -

MR MORRISSEY: I shall seek some non-conflicting ones, if I may. I’m firmly instructed 9.30, Commissioners.

COMMISSIONER WHITE: That’s good. I’m sure everyone is quite relieved. 9.30 tomorrow. Is that in closed or open court?

MR MORRISSEY: It’s a personal story, and it will be open court


5

10

15

20

25

30

35

40

45

COMMISSIONER WHITE: Open court. Thank you.

MATTER ADJOURNED at 5.14 pm UNTIL THURSDAY, 1 JUNE 2017


Index of Witness Events

MARNIE LEE COUCH, AFFIRMED P-4147EXAMINATION-IN-CHIEF BY MR MORRISSEY P-4147CROSS-EXAMINATION BY MR WOODROFFE P-4190CROSS-EXAMINATION BY MS GRAHAM P-4193

THE WITNESS WITHDREW P-4198

HOWARD IAN BATH, SWORN P-4199EXAMINATION-IN-CHIEF BY MR MORRISSEY P-4199CROSS-EXAMINATION BY MS GRAHAM P-4219CROSS-EXAMINATION BY MS GOODHAND P-4223CROSS-EXAMINATION BY MR LAWRENCE P-4226RE-EXAMINATION BY MR MORRISSEY P-4234

THE WITNESS WITHDREW P-4235

Index of Exhibits and MFIs

EXHIBIT #476 STATEMENT OF MARNIE LEE COUCH P-4148

EXHIBIT #477 PURCHASE HOME CARE PAYMENTS DOCUMENT

P-4184

EXHIBIT #469.009 TENDER BUNDLE INDEX 9, ANNUAL REPORT OF 2008 TO 2009

P-4199

EXHIBIT #469.010 ANNUAL REPORT FOR 2009 TO 2010 P-4200



EXHIBIT #469.178 ANNUAL REPORT FROM 2012 TO 2013 P-4200


EXHIBIT #469.001 NORTHERN TERRITORY COMMUNITY SERVICES HIGH RISK AUDIT EXECUTIVE SUMMRAY AND RECOMMENDATIONS OF NOVEMBER 2007

P-4201

EXHIBIT #469.002 REPORT INTO THE NORTHERN TERRITORY FAMILIES AND CHILDREN INTAKE AND RESPONSE PROCESSES OF 2009

P-4201

EXHIBIT #469.290 TENDER BUNDLE 290 P-4214

.ROYAL COMMISSION 31.5.17 P-4237©Commonwealth of Australia

5

Documents

TranscriptCreator - Web viewThe placement unit’s role and the out-of-home care unit’s role is to ensure they know where that child is placed and to ... I have lost the word