Public hearing 16: First Nations children, Virtual - Day 4

CHAIR:  Yes, good morning everybody who may be following these proceedings.  We commence with the acknowledgement of country and I invite Commissioner Mason to make that acknowledgement.

COMMISSIONER MASON:  Thank you, Chair.

We acknowledge the First Nations people as the original inhabitants of the lands on which this hearing is sitting.

Nganana tjukarurungku kalkuni Anangu kuwaripa tjara nyinantja tjuta, ngura nyangangka.

We recognise Meeanjin, Brisbane.

Nganana ngurkantananyi ngura Meeanjin nga Brisbane ta.

We recognise the country north and south of the Brisbane River, as the home of both the Turrbal and Jagera Nations.

Nganana ngurkantananyi karu panya Brisbane River nya alintjara munu ulparira Anangu nguraritja tjuta nyinantja munu kuwari nyinanyi Turrbul nga munu Jagera nya.

We pay respect to the Gadigal people of the Eora Nation.  Their land is where the City of Sydney is now located.

We also pay respect to the Wurundjeri people of the Kulin Nation, where the City of Melbourne is now located.

We pay deep respects to all Elders past, present and future and especially Elders, parents, young people and children with disability.

I would now like to read the First Nations content warning.  This hearing will include evidence that may bring about different responses for people.  It will include accounts of violence, abuse, neglect and exploitation of First Nations children with disability and their experiences, where child protection and systems across Australia.  First Nations viewers, please note that the evidence may describe trauma, including removal, and if the evidence raises concerns for you, please contact the National Counselling and Referral Service on 1800 421 468.  You can also contact Lifeline on 13 11 14, Beyond Blue on 1300 224 636 or your local Aboriginal Medical Services for social and emotional wellbeing support.

Thank you, Chair.

CHAIR:  Thank you very much, Commissioner Mason.

Yes, Mr Crowley.
 

MR CROWLEY:  Yes, Chair and Commissioners, this morning we will hear first evidence of "Ivy", who will provide evidence as a First Nations mother speaking of her experience as a mother of a young girl with complex disability needs in out of home care.  The evidence of Ivy will be dealt with by Ms Tarrago.  Ivy will be giving her evidence here in the Brisbane hearing room, Commissioners.  She will soon be asked to attend, but before we get to the evidence I just wanted to raise two matters.

Firstly, just to inform Commissioners and other parties and those following that the evidence of Ivy is being presented to the Commission as evidence of her experiences and her perspectives as a First Nations mother in relation to her and her daughter's experiences of out of home care and particularly her daughter "Megan" as a First Nations child with disability in out of home care.

Counsel Assisting will not be urging the Commission to make particular factual findings in respect of the evidence of Ivy and what she says about Megan.  That being said, Commissioners, Ms McMillan, Queen's Counsel who appears for the State of Queensland is present, and I understand that Ms McMillan wishes to raise some matters with the Commission before we commence the evidence of Ivy.

CHAIR:  Yes, thank you.  Ms McMillan.

MS MCMILLAN:  Thank you, Chair and Commissioners.  I'll be brief.  With regard to the evidence today, I understand that you have correspondence from Crown Law with you dated 20 and 21 September? 

CHAIR:  Yes, and I assume my colleagues have correspondence including a document which is headed Response to Queensland and that contains, I think, the issues that Queensland wishes to raise.

MS MCMILLAN:  Yes, thank you.  I'd also    

CHAIR:  I believe also, just to be clear, that there were 12 issues and then a number of other issues raised as to particular paragraphs of Ivy's statement.

MS MCMILLAN:  Yes.  That was in the second letter, Chair, of 21 September.

CHAIR:  Now.

MS MCMILLAN:  Now they refer to notices of proposed adverse findings which were served on us on 13 and 18 August.  Now, just chronologically, that was about a month before, we only received Ivy's statement last week, and in those notices it should be pointed out that at that time, it was raised that our client would call a witness in relation to it.  That was never sought further after that time, so whilst there is some comfort to hear what Senior Counsel has just said, we are somewhat confused that notices of possible adverse findings nonetheless remain there which  
relate to the Department of Child Safety, in short, Children's Health and also the foster parents of this young child.

Now, we are, with respect, somewhat confused about what the status then is if those notices remain in place.  They're not going to be withdrawn, so it places everyone in somewhat we say, a confusing and difficult position.  I would also ask    

CHAIR:  Can I just interpose, I haven't seen, or I don't have in front of me anyway that notice, but I would have thought on the basis of what Mr Crowley has just communicated that the notice has been superceded; if no findings are sought it's difficult to see how a notice of possible adverse findings can have any effect.  Mr Crowley may wish to confirm that, but it would seem to me that whatever was in the original notice is superceded by Mr Crowley's statement that he's just given.

MS MCMILLAN:  Thank you.  And perhaps this is one of the unfortunate things that has occurred in a number of hearings where we receive adverse findings prior to any evidence, so I'm not really sure where things stand.

CHAIR:  I agree with you that in an ideal world everybody, including Commissioners, should get statements well in advance of the hearing and --- it's a difficulty and it's a difficulty that I have to say is in part due to the sheer complexities of organising these hearings, so I'm not in the least critical of anybody preparing the hearings, but I understand that it can create a difficulty for parties who have been given leave to appear and indeed it does in a sense create a difficulty for Commissioners as well   

MS MCMILLAN:  Yes.

CHAIR:  --- because we have to deal with the evidence in a way that respects the parties' entitlement to procedural fairness and that therefore creates a limitation on what we're able to do with the evidence that we are receiving.

MS MCMILLAN:  Yes, Chair, and no point has been taken about the late material, but it's really these notices that come well before.  We've taken issue before with them.  Perhaps now is not the time to discuss the timing of them prior to any evidence, but I would ask the Chair and Commissioners to look at two documents, particularly an affidavit, and I will give you the reference numbers.

The first one is a child protection notification dated 27 August 2019.  The reference is QLD.0003.0045.2773.

CHAIR:  Do you want this brought up on the screen, and is it to be a public document?

MS MCMILLAN:  No.  We've asked     that's already included in the tender bundle.  The next document I'm about to refer to is not.  I don't seek that they be put up on the screen for largely the reason that Commissioner Mason has just mentioned, the  
sensitivity of issues related therein, and I'm conscious of making these submissions --- I don't want to descend into detail, being mindful of the sensitivity of some of these issues.  That affidavit is Rebecca Stain, 11 February 2021, QLD.    

CHAIR:  Is that S T A I N?

MS MCMILLAN:  Yes, it is, Chair.

CHAIR:  Thank you.

MS MCMILLAN:  QLD.0003.0045.7434.  That document, in particular, will give you, it was as I say February this year, but a good indication of where things currently stand.  So, I've had some discussions with both Mr Crowley and also Ms Tarrago.  I understand some matters will be led which may give us some comfort in terms of issues which we say     and we said this in the correspondence     inaccurate and at complete odds with documentary evidence.  So, I'm loathe to even seek to cross examine, I don't     but I would want to take instructions after we hear the evidence in chief.

CHAIR:  From what I understand, and I don't have obviously personal knowledge of this but it's been communicated, is that there may be a difficulty with cross examination in the sense of risk of re traumatising somebody, so there is a real issue there.  I fully understand the issues that you're raising.  They're not novel, I don't mean in relation to Queensland, but we've had this kind of issue arise previously.  The way in which it's been dealt with in the past has been that the evidence has been adduced, but with a clear understanding that no findings will be sought and that the evidence is disputed in material respect by whichever the represented party might be   

MS MCMILLAN:  Yes.

CHAIR:  --- so it might be Queensland, or it may be the Commonwealth or another State or agency, and I judge from what Mr Crowley has said that that is the basis upon which this evidence is to be adduced.

MS MCMILLAN:  Yes.

CHAIR:  When one reads Ivy's statement, it fairly, one could infer fairly readily that the State of Queensland and its agencies would not necessarily agree with the perceptions of Ivy, but in the light of what Mr Crowley has said, we won't be asked to make any findings, we won't make any findings, and the evidence will be received on the understanding that Queensland does dispute some of the factual matters and perhaps some quite important factual matters.

MS MCMILLAN:  Thank you, Chair.  We've also raised     and this is one of the unsatisfactory things     is that whilst no doubt a direction will be made for us to be able to put further evidence in, reputationally the damage done, for instance, to  
people like the foster carers is a significant issue we raise.

CHAIR:  The foster carers will not be identified, will they?

MS MCMILLAN:  No, they're not in material, but they've been served with an adverse notice.

CHAIR:  Have they?

MS MCMILLAN:  Yes.

CHAIR:  The foster carers?

MS MCMILLAN:  Yes, yes, yes.  Children's Health and the Department of Child Safety.  So you can imagine this is of some anxiety to the foster parents.

CHAIR:  I can, and I have to say I did not know that they had been served with such a notice.  Do you happen to know whether the foster parents have sought or obtained legal advice?

MS MCMILLAN:  I can tell you this, that at this stage we see no conflict in being able to take up any matters which would relate to them so no, they don't have separate representation   

CHAIR:  All right.

MS MCMILLAN:  --- and of course, this statement only came in last week, so    

CHAIR:  No, I understand.  I think we should proceed on the basis that first of all the identity of the foster parents will be protected.  Secondly, it is perfectly clear, unless Mr Crowley wishes to qualify or contradict what I'm saying, that no findings whatsoever will be sought in relation to the foster carers and that nothing will appear in any documentation from the Commission in a report of these proceedings that can be understood as adverse to the foster carers.

Now I'll ask Mr Crowley whether he's content or wishes to say anything against that, but for myself, I would expect that in the circumstances that have been outlined, I would not want the foster carers to consider themselves at risk of anything adverse being said against them as the result of the evidence being adduced.

MS MCMILLAN:  Thank you.

CHAIR:  Mr Crowley, are you content     I'm sorry, have you finished, Ms McMillan?

MS MCMILLAN:  I have indeed, Mr Chair.

 
CHAIR:  Mr Crowley, are you content with what I've outlined?

MR CROWLEY:  I am, and that is the position, Chair.  The short point I wanted to make is that the notices are sent out as part of the process of procedural fairness to alert parties potentially about the prospect that evidence may be adverse.  Not about the findings, and it's not an assumption that there would be any particular finding that would be made adverse to that matter.

CHAIR:  No, I understand that.  I think that we need to be a little bit careful about sending notices to individuals such as foster carers who may not, unlike a Queensland or a Commonwealth department, obviously, which would be extremely well informed about legal rights and entitlements, individuals in that position can get something of a shock when they receive a notice of that kind, so that's something that we may need to bear in mind for the future.

Just by way of analogy, I remember a long time ago delivering a judgment in a class action on representative proceedings in which it was proposed that legal notices would be sent out to numbers of people who were mature, shall I say, aged.  In the judgment I expressed concern about the impact that notices that are received by people who have no legal training, don't necessarily understand the significance of the notices, that we generally need to be very careful about how we approach those matters, but having said all of that, I don't think we need to take it any further today.

MR CROWLEY:  No, thank you, Chair.  That being so, Chair, then we can proceed with the evidence of Ivy.  As I said, Chair, the evidence will be led by Ms Tarrago, and Ivy will be giving her evidence here in person in the Brisbane hearing room, so we will just need to make those arrangements.

CHAIR:  Thank you, and I understand that the affirmation will be administered to Ivy through an associate at the hearing room.

MR CROWLEY:  Yes.

CHAIR:  Thank you.  Yes, Ms Tarrago.

MS TARRAGO:  If I could just have a moment for the witness to come into the room.

Chair, I believe we're ready.

CHAIR:  Yes.

"IVY", AFFIRMED

CHAIR:  Ivy, and you understand why I'm calling you "Ivy", thank you very much  
for coming to our Brisbane hearing room to give evidence today.  I'd just like to explain where everyone is because it's a moderately complex arrangement.  You have, in the same hearing room with you, Commissioner Mason.  Commissioner Galbally is joining the hearing participating in the hearing from Melbourne.  If she rapidly disappears, that's because the earthquake that occurred about an hour ago has resurfaced, so we hope there is no more earthquakes in Melbourne during the course of the day.  I am in Sydney, we are so far earthquake free, but of course one never knows, and Ms Tarrago is in the Brisbane hearing room and I will now ask her to ask you some questions.

Ivy, if at any time you need to take a short break, just let Ms Tarrago know and we'll arrange for that to be done.

IVY:  Okay, thank you.

EXAMINATION IN CHIEF BY MS TARRAGO

MS TARRAGO:  If I could draw your attention to the statement in Tender Bundle Part A at Tab 361, there's only 116 additional documents to Ivy's statement which can be located in Tender Bundle Part A Tabs 362 to 476 and at Tab 578.  I tender     I'll tender the statement in a moment, but I just wanted to draw the Commission's attention to the material.

You've made a 15 page statement that was dated 13 September 2021?

IVY:  Yes.

MS TARRAGO:  Are the contents of that statement true and correct to the best of your knowledge and belief?

IVY:  Yes, they are.

MS TARRAGO:  Chair, I tender the statement and ask that it be marked Exhibit 16.17.

CHAIR:  Yes, Ivy's statement will be admitted into evidence and given that marking, and I do that on the basis of the interchanges that have occurred this morning between Mr Crowley and myself and Ms McMillan and myself.

EXHIBIT #16.17   STATEMENT OF "IVY" DATED 13 SEPTEMBER 2021

MS TARRAGO:  Thank you, Chair.  I also tender the material into evidence, that's 116 additional documents, and ask that they be marked Exhibits 16.17.1 to  
16.17.116.

CHAIR:  Yes, the annexures or attachments to the statement of Ivy will be admitted into evidence and given the markings that Ms Tarrago has referred to, they will be admitted on the same basis as Ivy's statement.

EXHIBITS #16.17.1 TO #16.17.116    ANNEXURES TO WITNESS STATEMENT OF "IVY"

MS TARRAGO:  Thank you, Chair.  In tendering these materials I draw attention to the pseudonym direction which is CTH DNP 00099.  That is in place due to the identities of certain witnesses including Megan and Ivy.

CHAIR:  Yes, thank you.

MS TARRAGO:  Now, Ivy, you're a First Nations woman?

IVY:  Yes.

MS TARRAGO:  And, more specifically, a Palawa woman from Tasmania?

IVY:  That's right.

MS TARRAGO:  You're a mother of three children?

IVY:  Yes.

MS TARRAGO:  And your youngest child Megan has what you refer to in your statement as "umbrella diagnosis of cerebral palsy"?

IVY:  Yes.

MS TARRAGO:  And Megan's currently in the care of the Chief Executive?

IVY:  Yes.

MS TARRAGO:  Your two eldest children are currently residing with your mother in Tasmania?

IVY:  That's right.

MS TARRAGO:  They reside with her as part of a kinship care arrangement?

IVY:  Yes.

 
MS TARRAGO:  Ivy, could you please share with the Commissioners a little bit about Megan and who she is as a person?

IVY:  Yes.  Megan has just turned 6 and she's a funny outgoing little girl and makes everybody smile.

MS TARRAGO:  When was the last time that you were able to see Megan?

IVY:  About July.

MS TARRAGO:  July this year?

IVY:  Yes.

MS TARRAGO:  Just to get an understanding of Megan, as well, in 2015 you moved from Tasmania to Queensland?

IVY:  Yes.

MS TARRAGO:  At the time you were pregnant with Megan?

IVY:  That's right.

MS TARRAGO:  And you moved to the Gold Coast area with your two children, Megan's older two siblings and your then partner?

IVY:  Yes.

MS TARRAGO:  Megan was born in May 2015?

IVY:  Yes, at the Gold Coast Hospital.

MS TARRAGO:  When she was about 4 months old, there was an incident where her dad had attempted suicide?

IVY:  That's right.

MS TARRAGO:  And as a result he suffered an acquired brain injury?

IVY:  Yes.

MS TARRAGO:  Megan's dad currently resides in Tasmania and is cared for by his mother as a result of his disability?

IVY:  Yes.

MS TARRAGO:  Now, I'd like to talk about Megan and her diagnosis of her  
disability.  You were first alerted to an issue by Megan's daycare staff?

IVY:  Yes.

MS TARRAGO:  Could you tell the Commissioners a little bit about that?

IVY:  Sure.  Megan had her foot turning in a little bit and the daycare worker suggested it could be why Megan was delayed in her walking, and suggested I got some medical advice about it.

MS TARRAGO:  And you took Megan to the doctor?

IVY:  Yes.

MS TARRAGO:  And you received a referral?

IVY:  Yes, for the child development team.

MS TARRAGO:  Could you tell the Commissioners about your road and journey to getting a diagnosis for Megan?

IVY:  Well, we were referred to the child development team at Lady Cilento Hospital and that involved a few, maybe six appointments, where they did different tests and stuff like that, and around about the fifth appointment one of the lead doctors called us aside because it was taking a long time to do all the tests, and she called us aside to give us the umbrella diagnosis so that we'd be able to get some funding for treatment prior to getting diagnosed, because without the diagnosis we were unable to get any therapy and stuff.  So they gave us a piece of paper that just had a list of diagnoses and ticked "cerebral palsy", and explained that this was just an umbrella diagnosis until they were able to come up with the correct diagnosis, just to enable us to start getting some therapy going in the meantime.

MS TARRAGO:  That umbrella diagnosis as you referred to    

IVY:  Yes.

MS TARRAGO:      because there were multiple symptoms that couldn't be solely attributed to one diagnosis?

IVY:  Yes, I believe so.

MS TARRAGO:  What supports did you receive once you got the diagnosis for Megan?

IVY:  I was able to access the Better Start funding, and so we started going to conductive education.  I believe the wheelchair, and some seating.

 
MS TARRAGO:  Did you also seek some support from the Cerebral Palsy League?

IVY:  Yes, and the Cerebral Palsy League for physio, OT, occupational therapy, and speech therapy also.

MS TARRAGO:  Now I'd like to ask you some questions about Megan's removal.

IVY:  Mm hmm.

MS TARRAGO:  Megan was removed from your care in around June 2019?

IVY:  Yes, I believe so.

MS TARRAGO:  It was just after her fourth birthday?

IVY:  Yes.

MS TARRAGO:  Her removal occurred very shortly after you had organised her first NDIS plan?

IVY:  Yes.

MS TARRAGO:  When did her first NDIS plan come in place; do you remember?

IVY:  Sorry, I'm not exactly sure of the exact date.

MS TARRAGO:  That's okay.  Could you tell the Commissioners the process that you had to go through in order to get an NDIS plan for Megan?

IVY:  We worked with the Benevolent Society to set up the plan and get home visits from the Benevolent Society where we talked about Megan's needs and what therapies we wanted to do there.

MS TARRAGO:  I note you can't remember exactly when it happened, but is it possible that it was early in 2019, and that the NDIS package that was approved was around $25,000?

IVY:  Yes, that will be about correct.

MS TARRAGO:  Did you apply for an increase in her funding?

IVY:  Yes, I did.  The first package that we got didn't allow us to continue our conductive education and we didn't think it would be enough therapy.  I also wanted to do hydrotherapy and there was a few other things, so we appealed to get further funding.

MS TARRAGO:  Do you remember how much the appeal increased or decreased the  
package?

IVY:  I can't exactly remember.  I think it went up to over $100,000, because we were getting some help with feeding three hours a day and the hydrotherapy, extra chair.  It was quite a lot increase.

MS TARRAGO:  In your statement during this process where you had been applying and appealing the NDIS process, particularly paragraph 49 you talk about your experience where Megan was being weighed and a nurse had told you that she was underweight?

IVY:  Yes.

MS TARRAGO:  Can you share with the Commissioners that particular occasion?

IVY:  Yes, it was just before Megan's fourth birthday, we were at the Queensland Children's Hospital     I think this is a part of the child development kind of investigation     and a nurse come and took her from her pram and I noticed that she kind of looked down her nose at me after weighing her, and that's when I kind of asked her, "Is everything okay?" and she said that she was well underweight, and that was the first I'd been told about Megan's weight.  I had asked before, because --- I always thought     my other kids were quite chubby and she was like my skinniest, and I had mentioned it to doctors before, but never had     like, she'd had blood tests and stuff and they'd never come back with any news like that.

MS TARRAGO:  So at that point in time, you weren't aware whether the medical team thought that she was malnourished or anything?

IVY:  No, I wasn't.

MS TARRAGO:  In 2019, in June     again, whilst the NDIS appeal was ongoing    

IVY:  Mm hmm.

MS TARRAGO:      Megan was in hospital to have a peg tube inserted?

IVY:  Yes.

MS TARRAGO:  Did you receive any training around the peg tube and how it's to be used?

IVY:  Yes, we did.

MS TARRAGO:  Do you remember on how many occasions that might have been?

IVY:  I believe we had to do like 48 hours or something like that to take her home, I think it was.
 

MS TARRAGO:  Did your partner at the time also do the training?

IVY:  Yes.

MS TARRAGO:  Do you recall if there were ever any questions around attending the training from the medical team?

IVY:  Yes, there was     I think because my partner signed off first, he got     because I was home with the other two children, so I hadn't     I think he completed the 48 hours first and then, they said that I had to actually do it.  So, yeah, it was taking a bit longer.

MS TARRAGO:  In your statement you talk about an occasion of Megan pulling the peg tube out.

IVY:  Mm hmm.

MS TARRAGO:  Could you share with the Commissioners what happened?

IVY:  Sure.  We were having an appointment with Child Safety at my house and we were sitting out at the balcony and Megan was laying in the bed in the bedroom, and she wasn't getting our attention because we were talking to the Child Safety lady, Belinda.  And she pulled the tube out, and this was like getting onto about 6 o'clock at night.  And then she was quite upset afterwards, so I decided to do dinner and then, because we were just working on the oral feeds at the same time, mushing up her food, making sure she was having five good oral meals as well as the nasal feeds.  So after the Child Safety officer left and had the dinner, and Megan was getting tired, so I decided to get her ready for bed instead of dragging the three children up to the hospital, because I knew that she'd had the five good oral meals.  I thought it would be better to have the tube reinstalled the next day rather than taking three kids out in the night.

MS TARRAGO:  What happened the following day?

IVY:  Sorry, so I believe Megan was due to go to the school the next day, and I'd been speaking to the nurse at the school, so I was under the impression that she would be able to install the tube.  So I decided to get her off to school that day rather than her missing more school, because she'd been in hospital prior to that.  So I decided to take her to school without the tube in, thinking the nurse would reinstall it but she wasn't able to, so we had to wait until after school to take her to the hospital to have it installed.

MS TARRAGO:  In your statement, you talk about it's your feeling that this particular moment was one of the reasons why Megan was removed?

IVY:  Yes, I believe I read in Child Safety's paperwork that it had been 48 hours with  
the tube out, but it hadn't been that long.

MS TARRAGO:  Now, at the time there were also a few concerns that the Department had around your drug use at the time and domestic violence?

IVY:  Mm.

MS TARRAGO:  But only Megan was removed at that point in time?

IVY:  That's right.

MS TARRAGO:  And your two older children had remained with you at that stage?

IVY:  Yes.

MS TARRAGO:  And it's only been since 2020 that they've been in the placement?

IVY:  Yes.

MS TARRAGO:  Now, you were aware that Megan was in hospital for a period of time when she was removed?

IVY:  Yes.

MS TARRAGO:  Do you recall how long she was in hospital for?

IVY:  Around about two months, I think.

MS TARRAGO:  In your statement you say that you weren't aware that that was because the Department was looking for a suitable carer?

IVY:  No, I wasn't aware at the time.  We were doing like visits every three days up at the hospital and I thought they were just using that time to supervise me.

MS TARRAGO:  In late 2019 a suitable carer was found for Megan?

IVY:  Yes.

MS TARRAGO:  You say that they're kind people?

IVY:  Yes.

MS TARRAGO:  Around that time, the NDIS package had been increased?

IVY:  Yes.

MS TARRAGO:  In your statement you say it was around $130,000?
 

IVY:  Yes.

MS TARRAGO:  Were you able to participate in any of that NDIS package with Megan at the time?

IVY:  No.

MS TARRAGO:  Did you want to be part of that process?

IVY:  Yes, I really wanted to be a part of it.  That's one of the reasons why, with the three hours per day help with the feeding, I thought that could be used in my home to help with them with supervision, so they knew that she was being fed properly in the home, that's why I asked for it.

MS TARRAGO:  When Megan was in your care, did you ever have anyone really supporting you for her disability needs?

IVY:  Conductive Education, and Nancy was quite supportive, yeah, she just made suggestions and stuff.

MS TARRAGO:  Do you recall whether you were given an opportunity for a kinship placement for Megan?

IVY:  No, we weren't.

MS TARRAGO:  At the time did you experience any questions about your Aboriginality?

IVY:  Well, they did ask us and then they apparently asked my mum if it was true.

MS TARRAGO:  When you say "they asked us", what do you recall?

IVY:  Just if we were actually Aboriginal.

MS TARRAGO:  Are you aware if there are any cultural plans that are currently in place for Megan since she's been in the care of the Department?

IVY:  I'm not really aware of it, but I did ask for her to come to the NAIDOC celebrations and she wasn't able to due to COVID and I also asked for her to come to church and she hasn't been able to.

MS TARRAGO:  Now, as part of the time that there was some intervention by the Department, were you required to attend programs?

IVY:  Not in particular.

 
MS TARRAGO:  Do you remember if you attended a Triple P program?

IVY:  Yes, I've done eight units of the Triple P on line.

MS TARRAGO:  And what about Circle of Security program?

IVY:  I did     I suggested that I would do that, but Kummara stopped working with me, so.

MS TARRAGO:  Were you participating in any family led decision making process?

IVY:  Yes.

MS TARRAGO:  Can you tell the Commissioners a little bit about that.

IVY:  I believe we've had three or four family led decision meetings and usually I suggest all the things that we're going to do and afterwards, nothing really happens, and I feel like it took a long time for the meetings to occur, and I feel like it probably would have been better just for Child Safety to draw up the case plan that needed to happen.

MS TARRAGO:  Ivy, I'd like to ask some more questions about the NDIS    

IVY:  Mmm hmm.

MS TARRAGO:      and the package.  Now that Megan has been in out of home care, you've not been able to participate in her NDIS package?

IVY:  No, I haven't.

MS TARRAGO:  But you've since learnt that she has, in documentation, been listed as palliative?

IVY:  Yes.

MS TARRAGO:  What do you understand that to mean?

IVY:  I Googled it, it's a disability that she's not going to get better.

MS TARRAGO:  How do you feel about learning that?

IVY:  I was really upset, 'cause I wanted to do more rehabilitation with her and I just feel like palliative is just keeping her comfortable, whereas I really wanted to like work     like, get her to work more.

MS TARRAGO:  Recently you've been released from custody?
 

IVY:  Yes.

MS TARRAGO:  And you've been proactively seeking some supports to get your life back on track?

IVY:  Yes.

MS TARRAGO:  What kind of supports have you been engaging?

IVY:  I spent two months at Jessie Budby Rehab and I'm now doing the Amend Program which is through Anglicare, assisting mothers to end the need for drugs.  It's parent enhancement and, like, drug relapse prevention, yeah.

MS TARRAGO:  What do you hope for Megan's future?

IVY:  I would really like her to be back with the family and to do more rehabilitation, rather than just being made comfortable to sit there.  I feel like that she could do more communication with more speech therapy and with extra physio she could, like, try to get more active.

MS TARRAGO:  Would you like to make any recommendations to the Royal Commission?

IVY:  Yes.  I would like maybe for like more communication between Child Safety and the parents, 'cause I feel like I knew a lot about Megan's needs which was just really ignored and she was just kind of dumped to the foster carers as a little girl that couldn't walk or talk and they didn't really know a lot and we could have really helped ..... yeah.

MS TARRAGO:  In your statement, you talk about a recommendation that parents be involved in health decisions?

IVY:  Yeah, I think that's really important.

MS TARRAGO:  Would you like to share any particular thoughts that you have with the Commissioners?

IVY:  Like, for example, with the NDIS plan I was really shut out of that and so, a lot of funding went to waste.  So I would have liked to have been able to help plan out how to spend it better to make sure she got the most out of it.  And also, I was unable to go to hospital appointments, so that really makes it difficult to be able to plan for the NDIS as well as know what's going on.

MS TARRAGO:  Thank you, Ivy.  They're all the questions that I had.  Chair.

CHAIR:  Thank you very much, Ms Tarrago and thank you, Ivy, for your evidence.   
I'll just ask my colleagues the other Commissioners if they have any questions to ask you.  I'll ask first Commissioner Galbally, who is in Melbourne.

COMMISSIONER GALBALLY:  Thank you very much for your evidence, Ivy.  No questions, thank you.

CHAIR:  Thank you, and Commissioner Mason who as you know is in the Brisbane hearing room with you.

COMMISSIONER MASON:  Thank you Ivy for your evidence today.  I just had a question around the Cerebral Palsy Association here in Queensland.  Have you met other parents who have older children with cerebral palsy, or other First Nations children with cerebral palsy, as a way of seeing what Megan's future could look like?

IVY:  Yes, at the very beginning when we went to Cerebral CPL, I did get     I met one other parent with a daughter around the same age as Megan.  She had older children, as well, so it was a good way to yeah, see how she was coping.  It was pretty much the same.

COMMISSIONER MASON:  Do you think other First Nations people, being given access to these organisations in your home State is important that they are part of the team for you and for your family?

IVY:  I think that would be really helpful, yes.

COMMISSIONER MASON:  Thank you very much.

IVY:  That's okay.

CHAIR:  Ivy, thank you very much for coming to the Royal Commission to give evidence.  We appreciate your doing so, and we wish you well for the future.  Thank you very much.

IVY:  Thank you.

THE WITNESS WITHDREW

MS MCMILLAN:  Chair, can I just say I didn't have questions for the witness.

CHAIR:  Sorry?

MS MCMILLAN:  I didn't have questions for the witness.

CHAIR:  No, I assumed that you didn't.  Is that the position?

 
MS MCMILLAN:  That is the position, thank you Chair.

CHAIR:  I assumed that was the case based on our previous discussion.

Ms Tarrago, do we have a break now and if so, for how long?

MS TARRAGO:  It could be until 11.15 as scheduled.  It's currently 10.47 Brisbane time, but I would appreciate some time to have a break until 11.15.

CHAIR:  Okay.  We'll resume at 11.15, Australian Eastern Standard Time.  Thank you.

ADJOURNED    [10.48 AM]

RESUMED    [11.17 AM]

CHAIR:  Yes, thank you, Mr Crowley.  I should say it's one thing for an earthquake to happen in Melbourne, but I understand that the shocks were heard in Sydney.  That makes it quite serious.  We'll now carry on in any event.

MR CROWLEY:  Thank you, Chair.  Commissioners, we'll now be moving to the next focus point of this week's hearing, which is on Secure Care settings for First Nations children in out of home care.

Commissioners, we will next be hearing from a panel of speakers from the Aboriginal Legal Service of Western Australia.  Those on the panel will be Mr Peter Collins, Ms Alice Barter and Ms Sasha Greenoff.  The panel will be discussing their observations and from their experience in the Western Australian jurisdiction, the Secure Care framework and their experiences from working with First Nations children who've been placed in the Secure Care Centres, in particular the Kath French Secure Care Centre in Western Australia.

Commissioners, there are four relevant statements here.  Firstly, there is the statement of Mr Peter Collins, the Director of Legal Services of the Aboriginal Legal Service Western Australia.  That is to be found in the Tender Bundle Part C Tab 1, and I tender that statement, Chair, and ask that it be marked as Exhibit 16.18.

CHAIR:  Yes, the statement of Mr Collins will be admitted into evidence and given the marking of Exhibit 16.18.

EXHIBIT #16.18   STATEMENT OF MR PETER COLLINS DATED 15 SEPTEMBER 2021

 

MR CROWLEY:  There are four documents additional to that statement which are in the Tender Bundle Part C at tabs 101 to 104.  I tender those as well, Chair, and ask that they be marked 16.18.1 through 16.18.4.

EXHIBITS #16.18.1 TO #16.18.4   ANNEXURES TO STATEMENT OF MR PETER COLLINS

MR CROWLEY:  Secondly, we have then the statement of a Ms Alice Barter, who is Managing Lawyer of the Civil and Human Rights Unit of the Aboriginal Legal Service for Western Australia.  Ms Barter's statement is within the Tender Bundle Part C at tab 2, and I tender that statement and ask that it be marked as exhibit 16.19, Chair.

CHAIR:  Yes, the statement of Ms Barter will be admitted into evidence and will be Exhibit 16.19.

EXHIBIT #16.19   STATEMENT OF MS ALICE BARTER DATED 14 SEPTEMBER 2021

MR CROWLEY:  There are two documents produced with Ms Barter's statement, also in Tender Bundle Part C at tabs 3 and 4.  I tender those and ask they be marked 16.19.1 and 16.19.2, please.

CHAIR:  Yes, the two additional documents Mr Crowley has referred will be admitted into evidence and given the markings he has indicated.

EXHIBITS #16.19.1 TO 16.19.2   ANNEXURES TO STATEMENT OF MS ALICE BARTER

MR CROWLEY:  Now, the third member of our panel, Ms Sasha Greenoff, is the Diversion Officer of the Aboriginal Legal Service Western Australia.  Her statement is within the Tender Bundle Part C at tab 7.  I tender that statement and asked it be marked Exhibit 16.21.

EXHIBIT #16.21   WITNESS STATEMENT OF MS SASHA GREENOFF

MR CROWLEY:  Finally, there is a further statement which has been prepared by Ms Georgia Herford, the Care and Protection Lawyer of the Civil and Human Rights  
Unit of the Aboriginal Legal Service of Western Australia.  That is within Tender Bundle Part C at tab 5.  I tender that statement as well, Chair, and ask it be marked 16.20.

CHAIR:  That statement will also be admitted into evidence and given that marking.

EXHIBIT #16.20   WITNESS STATEMENT OF MS GEORGIA HERFORD DATED 14 SEPTEMBER 2021

MR CROWLEY:  There is a document produced with that tender bundle at tab 6 and if that might also be marked as an exhibit, as 16.20.1, please, Chair.

CHAIR:  Yes, thank you, that can be done and that will be given the exhibit number of 16.20.1, yes.

EXHIBIT #16.20.1   ANNEXURE TO STATEMENT OF MS GEORGIA HERFORD

MR CROWLEY:  Chair, there are some other materials that I will tender in due course in respect of the Secure Care evidence that we will hear, but I will deal with those at an appropriate time.  If we could now perhaps move to the evidence of our panel, each of whom are present and waiting on the screen.

CHAIR:  Yes, thank you very much, Mr Collins, Ms Barter and Ms Greenoff for coming to give evidence.  I understand that each of you wishes to take an oath.  I would ask you then please to follow the instructions of my associate who will administer the oath to you, thank you.

MR PETER COLLINS, SWORN

MS ALICE BARTER, SWORN

MS SASHA GREENOFF, SWORN

EXAMINATION IN CHIEF BY MR CROWLEY

MR CROWLEY:  If you could tell us what your positions are within the Aboriginal Legal Service of Western Australia and what your role involves?  If I could start,  
please, perhaps with you, Mr Collins.

MR COLLINS:  My name is Peter Collins, I'm the director of Legal Service at the Aboriginal Legal Service of Western Australia, ALSWA, or as we like to call ourselves.  I've been in that role since 2005, and I'm responsible for the professional supervision of all the lawyers and Aboriginal court officers working in ALSWA's legal practice.

MR CROWLEY:  Ms Barter, if you could please do the same and tell us about yourself and your position.

MS BARTER:  My name is Alice Barter, I'm the Managing Lawyer of the Civil Law and Human Rights Unit here at the Aboriginal Legal Service of WA.  We're based in the Perth head office, but we do outreach across the whole State.  We assist clients with police complaints all the way up to civil litigation in relation to police.  We do a lot of working around prisoner rights.  We assist clients with coronial investigations and inquests and we also help people with racial discrimination and we represent a lot of the kids who are in the care of the Department of Communities, and who are enmeshed in the criminal justice system, and who are experiencing difficulties at Banksia Hill Detention Centre.

MR CROWLEY:  Thank you.  Now, Ms Greenoff, if you could do likewise and introduce yourself and tell us what who you are what your role is?

MS GREENOFF:  Before we begin, I would like to acknowledge the traditional custodians of the lands upon which the ALS office stands, the Whadjuk Noongar people.  I would like to acknowledge and pay my respects to the continuing culture and contribution that our First Nations people make over the life of this region.

My name is Sasha Greenoff and I'm a proud Jaru woman from the Kimberley region of Western Australia, also a proud Jawoyn woman from the Katherine region of the Northern Territory.

My role at the Aboriginal Legal Service is a diversion officer for the Perth Metropolitan Region.  I'm also the Supervising Diversion Officer for the Youth Engagement Program in the Kimberley region.  I'm also the adult Bail Support Service Team Leader for the Perth Metropolitan Region and also the Kimberley Region.

I started work at the ALS in 2017.  My first role was as a Diversion Officer, but with both roles in the bail support and the Youth Engagement Program, we provide culturally appropriate support to our clients.

MR CROWLEY:  Yes, thank you for that acknowledgement and introduction.

Can I ask, please, perhaps starting with you, Mr Collins, this particular part of the public hearing is examining the Secure Care setting for children in out of home care,  
and in particular, within Western Australia the Kath French facility.  In your role as the Managing Director of the Legal Services, can you tell us please what your involvement and experience has been with the Secure Care facility in Western Australia?

MR COLLINS:  On a personal level, I haven't been to Kath French, which is the only Secure Care facility in Western Australia, and although I practice in criminal law, including appearing for children charged with criminal offences in children's courts, I haven't acted for a child who's been held in Secure Care at Kath French, so the evidence I'd give today would be based on the learnings that I've gleaned from other lawyers and Aboriginal court officers working at the ALS, and I'd seek to also speak to some of the more systematic issues in relation to this issue and child protection more generally in Western Australia.

MR CROWLEY:  Yes, thank you, Mr Collins, and in your role then as the Director, and from what you've just said, I take it that in your position, one of your concerns is with respect to policy and legislation, and how the operation of that type of facility might work in practice and how your service and the lawyers acting in your service represent clients who come into contact with that facility?

MR COLLINS:  That's correct.  Just to put it into some sort of context     and I'd ask the Commissioners to forgive me, because it's very difficult in order to try to provide a proper context to the situation in WA for us to exclusively confine our evidence today to Secure Care because so much of the system is overlapping and interconnected, especially in relation to criminal law and the child protection jurisdiction, but it's important, I think, to note that ALSWA provides a care and protection legal service to Aboriginal families and children across the State.  Our head office, as you know, is in Perth, but we have 11 regional offices across the State, and we try to provide care and protection services across all of Western Australia using four lawyers only.  So we've got four lawyers employed at ALSWA, all based in our Perth head office, who are trying to service all of WA, a geographical area greater than the size of western Europe.  So that perhaps gives some sense of the dimension of the issues that we face trying to provide those services to the Aboriginal community in Western Australia.

CHAIR:  Can I just interpose     I suppose the first point is we don't have a lot of forgiveness to give, but I don't think you really need forgiveness.  What we're interested in are the Terms of Reference of the Royal Commission which deal with violence abuse, neglect and exploitation of people with a disability, so translated into this context, that means what we're interested in is violence, neglect, abuse, exploitation against First Nations children and particularly, those who are in out of home care.  If, at some stage in your evidence, you would like to link what your observations, whether they relate to the Secure Care facility or not, to those Terms of Reference on the basis of your experience from a policy point of view, I'm sure my colleagues would welcome it, as would I.

MR COLLINS:  Thank you, Mr Chair.
 

MR CROWLEY: Thank you, Chair. Mr Collins, can I just follow then from your last answer about the context.  In your statement you have at paragraph 25 spoken about what you've described as the lived experience of children in care being depressingly predictable, and that you've given an overview in effect of what, from your experience and your service experience, might trace a general course of a life experience for a young person in the out of home care system, and particularly where that young person has a disability.  Could you just please perhaps just take us through that and identify for us what those relevant stages are that you encounter?

MR COLLINS:  In my experience it starts first with the education of these children.  By late primary school level, these children are starting to disengage from school either because they're truanting or they've been expelled or suspended from school.  They're almost certain to be at that stage     so I'm talking 9 or 10 years old     to be totally illiterate and innumerate.  A lot of these children stop going to school by the age of 10 or 11.  They then spend the time that they should be at school in the company of Aboriginal peers in similar circumstances.  They then start abusing alcohol and drugs, often starts with drinking alcohol and using cannabis.  In the modern era, that quickly progresses into the use of methamphetamine.  They then start offending.  So we're talking here about children between the ages of 11 and 13.

The offending is primarily for the purposes of funding their alcohol and drug addiction, and these children will be committing dishonesty offences such as burglaries, stealing, stealing of motor vehicles.  That, again, almost inevitably, quickly escalates into really serious offending, often physical violence, sexual violence, and often under the influence of alcohol and, more recently, methamphetamine.

By the ages of 15 and 16, these children would have spent quite lengthy periods of time on remand, in WA's juvenile detention centre, Banksia Hill Detention Centre in Perth, and then they transition into serving sentences of detention.

A significant number of these children are in the care of the Department of Child Protection and Family Services.  Many of them have disabilities, in particular FASD and other cognitive impairments, some diagnosed, some not.  And then, after spending multiple periods of time in Banksia Hill Detention Centre, either on remand or serving their sentences, these children then translate into adult offenders who spend very significant periods of their adult lives in jail.  The way I describe it is "they're lost in incarceration".

Now, I can give the Commissioners an example of this, and I think it's important to give real life examples of what I'm talking about.  I've been acting for an Aboriginal man from the Ngaanyatjarra lands, Central Desert region lands to the east of Kalgoorlie for around about 15 years.  Both his parents were petrol sniffers.  His mother was sniffing petrol when she was pregnant with him, and that was documented in various medical and other reports.  His mother passed away a couple of years ago as a consequence of a solvent abuse.  The client was born without his  
left kidney, probably due to his mother's petrol sniffing.  The client first sniffed petrol at the age of 3.  He was given petrol by his father.  He failed to thrive.  His height and weight remained below the third percentile from birth.  He was also subject to gross neglect.

Following his mother's death, his father continued to sniff petrol and was utterly unable to look after the client.  The father spent his time in and out of jail as well.  The child, the client was shunted between various relatives during his early childhood, across remote Aboriginal communities in the Ngaanyatjarra lands.  None of them, despite their best intentions, had the capacity to properly care for this child.

All the while, the then Department of Community Development, the now Department of Community Protection and Family Services, knew what was going on and sat on their hands.  He was under their watch before the age of 12 months and as I say, they did nothing.  They had concerns raised with them that the client may have been the victim of neglect or in danger, and was suffering from respiratory problems from the effects of sniffing petrol fumes.

At the age of 10, police were contacted the Department to advise them that they'd seen the client vomiting blood, and the notes recorded by Department officers say the following, that the client had extensive medical problems, has one kidney, is a substance abuser, petrol, paint and smokes cigarettes.  He is underweight and very small for his age.  He does not have a stable home life or reliable carers.  Therefore he does not receive regular or nourishing meals.

Despite all that, they did nothing.  Two months later he was taken back to the Department by police after police found him sniffing petrol.  In 2003, a Department officer said the following about the client:

He has a history of substance abuse, he has medical problems and he has ADHD.  He has welfare issues and he is without adult supervision or a carer in the community.

The client was 12 at the time of those observations.  The Department did nothing.  It took until when the client was 15 years of age before he was formally placed in the care of the Department.  By that stage, it was too late.  The die had been cast.  This client was offending relentlessly, committing burglaries, and ended up in juvenile detention, which is when I first started acting for him.

Since then, he has cycled in and out of juvenile detention and adult jail up until 2018 when I appeared for him in relation to a large of grievous bodily harm where he hit his aunt over the head with an iron bar in a fit of rage after no one would kick the football to him in a football game, and he went to adult jail.

The material at his sentencing plea was to the effect that no one wanted him.  No one wanted him.  The non Aboriginal community didn't want him for obvious reasons.  His traditional Aboriginal communities did not want him because he hadn't been  
through lore business, and he was considered a child in Aboriginal lore.  No one liked him in the jail because he was a complete nuisance, jumping on beds, using other prisoners' laundry powder, and on it went.  So this client is in no man's land.  He's an example of how the system fails Aboriginal people and he's not alone.

MR CROWLEY:  Thank you, Mr Collins.

Ms Barter, can I turn to you now and just perhaps ask you if you could tell us what your particular involvement and experience is in respect of the Secure Care facility in Western Australia and your role in that.

MS BARTER:  Yes, in my role, we assist teenage clients with complaints against the Department of Communities and complaints against the police and complaints against Banksia Hill Detention Centre.  A lot of our clients have got complaints against all three of those government bodies.  We've represented children for other reasons who've then found themselves in Kath French and assisted them.

I was also counsel at an inquest into the death of a young woman who we call "Child RM", and that inquest investigated the use of Kath French and some of the failings of department in that case.  Child RM was 17 when she died.

MR CROWLEY:  Can I ask, Ms Barter, have you been to the facility Kath French and have you seen clients there during the time that they've been staying in that facility?

MS BARTER:  My colleagues have seen clients directly at the centre.  I did a tour of the centre as part of that inquest with the coroner.  We were shown the rooms and we were introduced to the staff.  My perception of the facility was that it was not purpose built.  We were told it was built for a different purpose.  I can't remember what it was, but I think it may have been an adult mental health facility.  It's a very cold place, it's very stark.  There's not many soft furnishings or things like that.  The TVs are behind Perspex.  The staff, I think, try to make it more of a homely environment, but it is very, very cold, and it really reminds me and my colleagues of a detention centre.

It's surrounded by a fence and so the children cannot leave, despite being in quite beautiful bushland in the Perth hinterland, the kids who are there don't get to go out into the bush environment, they have to stay within the confines.  I think there's a basketball court and maybe a ping pong table, but not a lot of other recreational activities available to the children.

CHAIR:  Do you have any information available, or is there information available on how many children are in that facility at any given time?

MS BARTER:  I think it's up to six.

CHAIR:  Is there any information over a period of time of the proportion who are  
First Nations children?

MS BARTER:  Yes, I understand it's about 50 per cent, Chair.

CHAIR:  Do we have any information on the proportion who are First Nations children with disability?

MS BARTER:  Not to my hand, but anecdotally I would say that majority of the children who are in the Kath French Centre would be (inaudible) from a disability, particularly in relation to complex developmental trauma and intergenerational trauma.

CHAIR:  Yes, thank you.

MR CROWLEY:  Ms Barter, can you help us then, please, to understand what the criteria or the basis is for a young person to be admitted into the Kath French Centre?

MS BARTER:  Yes, there are two different pathways depending on whether the child is a protected child, which is a child who's the subject of a protection order, either time limited or an until 18 order or whether a child who's a provisionally protected child who's in provisional protection and care.

In both cases, the child can only go to the Kath French Centre if there is an immediate and substantial risk of the child causing significant harm to the child or another person, and there is no other suitable way to manage that risk and to ensure that the child receives the care the child needs.  That's under the Children and Communities Services Act 2004 (WA).

The pathways are if the child is under the care with an order, there's no external oversight.  The child can seek a review of that order and can seek a further review to the State Administrative Tribunal, but we're not aware of that happening very often.  If the child is in provisional care, then the Department must get an order from a magistrate, and that can be done before the child goes into the centre or it can be done within two days of the child going to the centre.

MR CROWLEY:  Now, in either of those different pathways, can you tell us, is the Aboriginal Legal Service or other lawyers that might be able to act, is there a notification system or notice given that there is going to be that type of application made or that a decision may be made?

MS BARTER:  No, no notification to lawyers, and as far as we're aware, no legal assistance is provided to any child who would like to review that decision, or to their families.  I think my colleague Ms Greenoff has some experience in being told about a child going to Kath French in advance of the time.

MR CROWLEY:  Yes, Ms Greenoff, can you tell us about that example?

 
MS GREENOFF:  Yes, so I had a young client aged 16 years old who was remanded at the Banksia Hill Detention Centre.  I called her case worker to let her know I was going up to visit her and she then asked on what bail options the Department had for this young child.  The Department then advised me they would be admitting her into the Secure Care facility, and asked me not to let her know that was going to happen when I went out to Banksia to visit her.

I advised to the case worker that I wasn't comfortable with not telling my client, as with all my clients I have a trusting relationship with them.  I advised the case worker that I'd call her back, so I ended the conversation and then I went to the speak to the managing family law solicitor at ALS, who had then written an email to the Department to advise that they needed to notify the young girl of their decision for admitting her into the Kath French Centre.

Within that afternoon before going up to Banksia Hill to see my client, the Department had let her know that she was going to be admitted into the Secure Care facility.  So when going to visit my client, my client was scared.  She was crying and she said to me she didn't want to go there.

MR CROWLEY:  Thank you.  We've spoken already, Ms Barter, you've mentioned in response to the Chair's question about what you understand of the proportions of children in the Kath French Centre who are First Nations children with disability, and you've given some examples of the type of disability.  What I'm interested to know from each of you, if you're able to contribute, what your experience has been and what your view is about First Nations children with disability in the Kath French facility, how that may impact upon those children, and in particular in terms of our focus here which is on violence abuse and exploitation of people with a disability.  Perhaps if you could comment on that.

MS GREENOFF:  Can I just clarify, I might have not been clear in my other answer    

MR CROWLEY:  Yes.

MS GREENOFF:      ALS doesn't get any notification of a child already in the Department.  So the child who is in provisional care where there is going to be a court hearing where a magistrate makes the order, the ALS and the family do get a .....

MR CROWLEY:  Yes, thank you.

CHAIR:  No, I understood that, I was just wondering whether there were any external sources of information about the children who are in that Secure Care facility.  As we've heard repeatedly in other hearings of the Royal Commission, some involving First Nations people, some not, the starting point is always data.  We need information, and I'm not in any way critical because you haven't had experience because you're not allowed into the place or you're not notified, but it is something  
that we ought to have one way or another.  Perhaps the onus is on us to make sure that we get that information.  When we have that information, we're then in a position to judge how best to acquire information and assess it in the light of the Terms of Reference.

MR CROWLEY:  Now, if I could just go back to each of you, the question that I raised before was about your views and your experiences, if you can share with us, about what impacts there are on First Nations children with disability going into that Secure Care setting, the Kath French facility.

MR COLLINS:  If I could start first with a quick brief point.

MR CROWLEY:  Yes.

MR COLLINS:  One of the big concerns for ALSWA is the children who go into Kath French can quickly be criminalised.  So you may have a situation where a child is the subject of a protection order.  An executive decision is to place them into Kath French.  So in other words, the catalyst for their detention in Kath French might not be the commission of a criminal offence.  However, once in Kath French, if they behave poorly, often the police are called almost as a first resort.  So if a child in Kath French smashes the television screen or pushes a worker, the police are frequently called, and the child will be charged with offences such as criminal damage and assault, and they land in court.

The point about that is, that can happen in any home with any teenager.  Parents confront challenging behaviours, but as we all know, it's comparatively rare, if a teenager breaks the TV remote or pushes their mother, that the police are called first of all, and, secondly, that criminal charges are deferred.  But our lawyers practicing in criminal law in the Children's Court come across this on a very regular basis, and then children are subject to the usual sentencing dispositions, and it can be a trigger for further offending and further immersing in the criminal justice system.

CHAIR:  Can I clarify something to make sure I understand it.  The two pathways that have been described whereby children might find themselves in Secure Care, both involve some kind of protection order being made before a decision by the CEO is made to put them into Secure Care; is that right?

MR COLLINS:  Yes.

CHAIR:  By definition as it were, or statutory definition, a child has to be in the care of the department one way or another before they get into Secure Care?

MR COLLINS:  That's my understanding, Mr Chair.

CHAIR:  Does that mean that in theory at least, immediately prior to being put into the secure facility, the child will be in out of home care of one kind or another?

 
MR COLLINS:  That's highly likely, yes.

CHAIR:  Well, if the child is in the care and protection of the CEO or the Department, they would have to be, would they not, in some form of out of home care?

MR COLLINS:  Yes.

CHAIR:  So the link between out of home care and the secure facility which, as I'm trying to understand, is that you start off with a child who's in the care of the Department in out of home care or should be in out of home care, and that's the gateway to getting into this secure facility?

MR COLLINS:  That's correct.

CHAIR:  So if we're talking about a child with disability, abuse and neglect can come in at a number of points through the life history you've just traced through the example you gave.  It can be the abuse and neglect the child may have suffered in their home environment, regrettably.  Then there's the question of what happens to them when they're in out of home care, which may or may not involve further abuse or neglect     that will depend on the circumstances     and what you're saying is that a child that goes into the secure facility is the subject of abuse or neglect because of the nature of the facility and the criminalisation of the child that takes place in that facility; is that a fair way of describing how you see it?

MR COLLINS:  It is.

CHAIR:  All right, thank you.

MR CROWLEY:  Thank you, Chair, and Mr Collins, in your statement you also make reference to concerns about the Secure Care facility and environment being punitive in nature as opposed to therapeutic.  Just explain what concern you and your lawyers have about that?

MR COLLINS:  Well, it has all the hallmarks of a jail.  You can't get out.  And the other really important issue for us at ALSWA is that children from all over the State can end up from Kath French.  So you may have a child from the Aboriginal community of Kalumburu which is at the very northeast tip of Western Australia, a long, long way, hundreds if not a thousand kilometres from the nearest regional town which will be Kununurra, who's then effectively shipped all that way down to Kath French, a traumatic exercise in and of itself, who then lands in Kath French and who will have no prospect whatsoever of any personal visits from family, it's just simply a bridge too far for them to get from the community to Perth, who may have intermittent contact via videolink or and with community and family at home.  So there's that double traumatisation, I suppose, which children from remote Western Australia and Aboriginal communities face by dint of being in the austere environment of a jail like facility in the form of Kath French.
 

MR CROWLEY:  Ms Greenoff, I'm interested if you could tell us, from your perspective and your experience, what sort of impact, if any, that type of removal from community and country might have for a First Nations child with disability going into the Secure Care facility at Kath French.

MS GREENOFF:  Another one of my clients who's 13 years of age, she was 13 years of age at the time of her admission into Secure Care.  She was under the care of the Department of Communities and she's got an order until she's 18 years old.  It is my understanding that the Department made the decision for her to be admitted into the Kath French Centre because her criminal activity had escalated, as they felt she was at risk of harm, as her court matters were in regards to driving a car.

I'd emailed the case manager, before my client's admission into the Kath French Centre, with my concerns of her being removed from a community in Kununurra where she was removed and she was placed into a safe place house here in Perth.  And my concerns were that her criminal activity had escalated in Perth since being in Perth being removed from her community in Kununurra.  She had expressed to me on very many occasions that she wanted to go home, and this was why her behaviour was the way that it was.

So the Department made an admission for her to go into the Kath French Centre, and her experience in the Kath French Centre, which she explained to me was, it was scary and not an appropriate place for children.  She felt alone.  There were concrete walls and a concrete bed with just a mattress, and a TV locked to the wall.  There was an instance where she smashed the TV because she was left in her room with no furniture for two hours, and she felt scared and alone.  The client said the experience at the centre was negative, there was no Aboriginal workers there.

The facility was not built for children, she expresses, but she did get to make calls back to her family in Kununurra.  She also said her little brother attended the centre before her and she said he's not the same today, he is more quiet after leaving there.

My client has also said after that, she received no further help from the Department.  After being released back into the community.

MR CROWLEY:  Yes, thank you Ms Greenoff.

Ms Barter, can I ask you, in terms of the rationale for the facility as we understand its purpose     and you've described it in your statement as being a "circuit breaker"     that a child in care who satisfies the criteria will be placed in the centre for a particular time period.  Can you just explain about those and what the circuit breaker rationale as you understand it is designed to do?

MS BARTER:  Yes, from my understanding, a lot of our clients are in residential group homes before they go to Kath French, and often due to their complex trauma profiles as well as mental health needs they can become dysregulated, so they can  
become upset and end up smashing things or getting involvement from the police, or they can have self harm episodes.  The Department will then remove them to the Kath French Centre.  From our point of view, though, the Kath French Centre seems to be something that's too little, too late, and that it's not an effective circuit breaker because the children are released after only 21 or 42 days with very little follow up, and the statistics from the Child RM inquest show that over 50 per cent of children have a further admission to the Kath French Centre.

Child RM had four admissions in there.  So, the idea is an intensive therapeutic support, but from our perspective, that therapeutic support needs to be brought in a lot earlier.  In fact, it needs to go back even further to family support and keeping these kids with their families in the first place.  A lot of our clients will abscond from the residential group homes because they don't feel safe there, and they're not happy there, and they will go back to their family members.  The Department calls this "self selected placements", and in occasions in relation to one of the case studies in my statement, the Department will ask the police to then take the child from the family back to the residential group home, and it can be those circumstances that then lead to a child ending up in the Kath French Centre.

MR CROWLEY:  You've just spoken about, amongst other things, the timeframes.  There is a 21 day initial time period or timeframe if a child in care is admitted into the Kath French facility, but that could be extended out to another 21 days to make 42 if that's thought appropriate.  That's as we understand it?

MS BARTER:  It's a maximum period of 21 days.  In our experience, most children are in there for 21 days from the beginning, and the extension is in relation to exceptional circumstances.  But we've seen it in relation to children who need further support and also, we've seen too many times that the Department have got nowhere else to put these kids.  We're told over and over again that they've got limited group homes, they've got limited placements for kids with complex needs and so they end up literally in the too hard basket.

MR CROWLEY:  Now, in your view and experience, is the 21 day timeframe or, in the exceptional case, the 42 days, for a child with complex disability needs entering into the facility, is that an adequate or sufficient time to enable therapeutic benefit and therapeutic treatment for a child?

MS BARTER:  I don't think it is long enough in one sense and the coroner in Child RM made a recommendation about looking at the timeframes.  On the other hand I'd be very reluctant to advocate for any longer timeframes, because of the concerns that we've raised and the fact that we do think there's huge concerns with the Kath French Centre, I'd be very reluctant to advocate for a longer time period.  What I'd advocate for would be front end support, so it's earlier on, earlier prevention, and also a step down approach where children can be in a therapeutic supported nature that doesn't have the involuntary nature of the Kath French Centre.

MR CROWLEY:  I'll come back to you about the step down transition, but I'm  
interested to ask Mr Collins and Ms Greenoff if you could tell us about, from your views, what you might see as being a better investment or a better focus rather than extending a timeframe for a stay at Kath French, what might be better done in terms of interventions and supports at the front end, the types of things that could be done?

MS GREENOFF:  First off, there should be intensive support for the family, whether that be the grandmother, the aunty, the mum.  There needs to be a wrap around support for the family.  These families are crying out for help with children.  I know, with one of the grandmas that I spoke to in regards to the 13 year old girl that I work with, she said, "I've been trying to ask the Department for help.  If they just give me help, I can look after her."

MR CROWLEY:  Now, in terms of for a child with complex disability needs, are you able to give some examples or indications of the type of help or support that in that type of scenario might be things that would assist the family and assist the child to deal with those needs?

MS BARTER:  Well I know that with the Youth Engagement Program that I work with, I have probably over six children that we have helped through the whole process of the NDIS.  So through the court process, there's an order of a neuropsych report done.  Then, once we get leave from the court to obtain a copy of that report, we take that into our own hands to then follow the process of NDIS.  We link them with NDIS, we take the family to the NDIS planning meeting.  I then take the family then, and the young person, to the therapist to start engaging to make her feel comfortable.  Then, from then on, we monitor and mentor through the process until the child is feeling comfortable with the supports that are put in place.  We not only put supports in place for the young child, we also put intensive supports in place for the family.  So we send referrals for the mum to receive intensive support from other service providers, and that's just only myself doing that for a whole family.

MR CROWLEY:  Ms Barter mentioned earlier from the inquest into that young girl that there was up to 50 per cent of children coming back into the facility.  I'm interested to know if you have experience or what your views are about what whether after a First Nations child with disability enters into Kath French, once the 21 days or the 42 day timeframe for their stay is finished and they are no longer there but placed elsewhere, is there appropriate, then, support and follow up to ensure that there wouldn't be a repeat return back to the facility?

MR COLLINS:  I think it's almost impossible to know, but if the analogous situation is juvenile detention.  Aboriginal children with a disability who end up in juvenile detention are almost absolute certainties to return.  There is no doubt about that.  And I think one of the challenges for Western Australia, but in particular for the Department of Child Protection and Family Services is that they've got to start listening to Aboriginal people, to Aboriginal families, to communities, to Aboriginal community controlled organisations like ours, because history tells us that the Department doesn't have the answers.  It just doesn't, and part of the problem is the Department doesn't listen to Aboriginal people.  So one of the possible areas of  
change could be, rather than having a Perth based facility to consider having these children, particularly those from regional and remote areas, being placed in the care of Aboriginal Elders.  But, as part of that, you need to capacity build for Aboriginal Elders and communities to look after these children, because self evidently their needs and their behaviours are incredibly complex.

But, in my experience, an Aboriginal child who has the support and assistance from people they know and respect is in a far better place than a child who lands in Kath French, and one of the learnings that I've gained through the work that Sasha has done with the Youth Engagement Program, which is a diversion program helping Aboriginal children involved in the Children's Court with criminal matters and our bail support service, which helps Aboriginal people first of all get bail and then comply with their bail conditions and attend court as required, is the importance of wraparound holistic one on one services which recognises individual differences.  I can give you a little example of some of the great work that it does.

Last week we had a client, a young woman, juvenile, with a young baby.  She had been charged with some very serious offences of violence involving a close family member.  The child wasn't in care, but was at serious risk of going into care.  A condition of the client's bail was that she have no contact with the alleged victim, the family member, but the child was in the care of the alleged victim.  So there was a complex process that needed to be negotiated in order to assist this woman to have her child back at her care, because if she didn't, she was at serious risk of self harm.  He was greatly concerned that she might take her own life.  So Sasha got involved, and a plan was developed for the client to go with the baby to a regional town in Western Australia.  Bail conditions were altered to facilitate that, and then Sasha and another one of our Aboriginal workers drove 400 kilometres at night time to take the client to other family members with the child.  And so the crisis is avoided.

Now, that's an intensive, wraparound, culturally secure approach to the situation, which avoided the serious prospect of either an escalation in violence by the client and further criminal charges or worse, somebody perhaps dying, and the risk of self harm or suicide on the part of the client.

So the importance of Aboriginal led approaches in this space can't be underestimated, and my strong view is I don't think Government get it, and I don't think the Department gets it.  They give lip service to it, but when you get down to the reality of the situation, they don't get it because the Aboriginal people in this State are so regularly ignored, sidelined, and removed from the picture, and therefore the solutions.

MR CROWLEY:  Ms Barter, can I come back to you now and just ask you if you could tell us a bit more about the issues as you see it, with respect to the step down and the transition from the Secure Care setting at Kath French.  What happens there, and is there something missing in the process?

MS BARTER:  Yes, as Mr Collins said, there needs to be a holistic wraparound  
service looking at all aspects of the child's life.  Not just their mental and physical health, but their engagement with services, their housing, their connection to family and services.  And so a step down facility where a child could go after the Kath French Centre could be somewhere where a child can go voluntarily, but with those wraparound support services, and then, with a plan in place for when they either stay there long term, or for when they then go back to a family placement or a residential group home.

What we see is when kids leave Kath French is that there's a lack of support and a lack of intervention in the form of mental health services.  That is partly because the Department of Communities doesn't assist with that.  It's partly because we've got problems with the Mental Health Service generally across our State.  But that continual care and that sort of intensive nature is what's needed.  I'm not sure of what sort of timing a step down approach would be, but I think the idea would be having a plan so the child is not just released from the Kath French Centre, sent back to the same environment where they were unsafe, scared, dysregulated, possibly offending, and the cycle continues, rather than actually breaking that cycle, setting up a plan, making sure they have the supports.  Like I said, that could be mental health supports, it could be physical health supports --- child RM needed a liver transplant at the age of 17 due to chronic alcohol abuse --- so kids who may not trust going to hospitals may want to engage with Aboriginal services not mainstream services.

We've had a lot of     we've seen that in the Child RM inquest and in other inquests in relation to deaths of young Aboriginal girls who've tried to seek help from health facilities and have been turned away and have not had the culturally appropriate support.  It needs to be Aboriginal led for Aboriginal kids, and it needs to be designed with the community and have input, preferably 100 per cent Aboriginal staff, and a lot of input from Elders and from the local community, which is difficult if that facility is in Perth and is catering to children across the whole State, but that's something that needs to be looked into, too, keeping kids closer to their country and to their families and their culture.

MR CROWLEY:  Ms Greenoff, can I ask you about that from your perspective and experience, the Kath French facility, is it a place which is culturally appropriate and culturally safe in terms of the Secure Care setting for First Nations children with disability?

MS GREENOFF:  No, it's not.

MR CROWLEY:  Why do you say that?

MS GREENOFF:  I say that because in my observation I was able to do a tour of the Kath French Centre with one of my work colleagues.  When I walked into the centre it was dark, cold, and there wasn't any Aboriginal workers that I could see there.  The children looked alone.  The colouring even on the walls was very dark.  The room setting was similar to that of the juvenile detention detention centre, and even the gates and the barbed wire they have reminded me of the detention centre.  There was  
no natural lighting, only in some areas.

MR CROWLEY:  Are you aware if there are any measures taken or services and supports provided to promote or to enable the connection with culture to be maintained for children during their stay there?

MS GREENOFF:  Where the Kath French Centre is located is in the hills of Perth.  Now, if you've got a     like my client who was 13 years old from Kununurra, her family weren't able to visit her.  She could make phone calls over the phone, but how about the children that go there from the Perth Metro Region, or just outside of Perth?  You won't be able to get public transport to the facility for the family to be able to go to visit.  And then especially with not having First Nations workers, they're already feeling alone and alienated without having that comfortable or understanding person that's in the facility.

MR CROWLEY:  Ms Barter, can I ask you about that?  In your statement you've talked about, from the inquest you've involved with, an issue about the Department employing a cultural therapeutic specialist.  And at the time, as I understand it, there wasn't a position for that particular staff member or specialist.  But that now may be the case.  Are you able to tell us what the position is now, and whether you have any knowledge or experience in its effectiveness?

MS BARTER:  Unfortunately I'm not actually aware of the current circumstances.  I know at the time of the inquest in 2020, the director of the Kath French Centre had put a business case forward to her bosses asking for a cultural therapeutic specialist to be employed at the Kath French Centre, and that had been going through the bureaucratic process.  The Coroner made a recommendation that that should be urgently reviewed and someone should be urgently hired for that role.  However, there's a response from the Minister to the Coroner, but we don't get notified of any further implementation so I'm not actually sure whether that happened.  And further we would say that, you would need more First Nations staff at that centre, and ideally, a high percentage of staff members being First Nations, or at least having someone from a First Nations background there at all times.  I'm not sure how much time the cultural specialist is going to spend there, but I think that was a bit of a good start and hopefully it has been implemented but unfortunately, sorry, I'm not sure.

MR CROWLEY:  Can I ask you Mr Collins, from your role and the service you were the director of, is consultation with ALSWA, is that something that has occurred in the implementation and the set up of the centre and the way in which things such as the recommendation for the cultural therapeutic specialist, has that happened?  Are your views sought about these matters?

MR COLLINS:  No, they're not.  ALSWA, to the best of my knowledge, wasn't consulted in any way at the time of the creation of Kath French, and changes that have been proposed that Alice has just mentioned, we're not involved in the discussion at all, unfortunately.

 
MR CROWLEY:  I just want to go to each of you now, perhaps.  You have in your statements referred to a number of matters about areas where change may be recommended, but I just want to go to each of you perhaps and if you could just identify and speak to one of those matters that you feel is an area where the Commission might focus its inquiry in terms of possible recommendations.  Can I start with you, perhaps, Ms Barter?

CHAIR:  Just before we get there, may I ask whether the members of the panel are familiar with the report that was completed in February 2019, the evaluation of a Kath French Secure Care Centre done apparently by Quantum Consulting Australia?

MS BARTER:  That was an exhibit in the Child RM inquest, but I haven't reviewed it more recently in preparation for this Royal Commission, apologies.

CHAIR:  That, on the face of it, looks like a rather detailed report that has quite a number of recommendations, 200 odd pages of the report, including a survey of the literature.  I was wondering whether the recommendations that are made in that report address the kinds of issues that you've been raising in your evidence today, because that would seem to be a starting point to determine whether the recommendations are good, adequate, excellent, not good, and work from there.  I'm wondering whether that is something you have given consideration to.

MS BARTER:  Yes, sorry, I'm not sure whether the review, the 2019 review is separate from Dr Kelly Thompson's 2018 Churchill Fellow paper called Creating    

CHAIR:  I don't know about the Churchill Fellowship paper, but what we have got in our documents is this 200 odd page report, and I don't know what its status is.  I don't know whether it's been made generally available.  That's what I'm wondering, because it's a very detailed report with recommendations based upon interviews and all sorts of things.  If it hasn't been made available to you well, it hasn't been made available     that's the answer, I suppose.  The version that I've got in the papers has that word "redacted" stamped on each page so it may be that this hasn't been publicly made available.  But what one can infer is that in 2019, a rather detailed report was prepared evaluating the Kath French Secure Care Centre, a number of recommendations, and that report as it happens does contain a good deal of statistical information about the children who've come into the centre over, at that stage, the seven years of its life from 2011 to 2018.  There is some statistical information in a statement that's been prepared by Ms Kalders, and presumably that will be tendered in evidence later and that gives us some statistical information during the whole of the 10 year life of the facility, but the information in that statement is rather limited and is not as detailed as that in the evaluation.  So, I'm not sure where we are on this.  Maybe Mr Crowley can help, or someone else can help.  Is this a document that's been prepared or is generally available, or what?

MR CROWLEY:  Yes, Chair, well, that document, the report recommendations will be matters that will be matters addressed with Ms Kalders when she gives evidence this afternoon.
 

CHAIR:  But is the answer to my question yes it's a public document, or no it's not?

MR CROWLEY:  I think that's so, but I'll need to check on that, Chair.

CHAIR:  At some stage I hope we night address this by using that report, which may or may not be an excellent report, I don't know.  But it seems that if you've got a recent report only two years old or a bit more, that would be the starting point to determine what needs to be done.

Now, I do notice that in the list of     another of my favourite words --- stakeholders that have been consulted, there doesn't seem to be any Aboriginal organisations that were consulted     that's appendix C     other than the Derbarl Yerrigan Health Service I assume, but that's something else to be considered.  All right.

MS BARTER:  If I could respond in relation to if it was not a public document, if it was provided to us as part of our preparation for the inquest.  There's a direction from the State Coroner of Western Australia that we can't use any of those materials for any other purpose other than preparing for the inquest, so it's not a public document, we don't have access to it.

CHAIR:  I see, so this review was not in fact made public?

MS BARTER:  Not that I'm aware of, I could be wrong.

CHAIR:  All right, well we'll no doubt find out in due course, but it does seem a trifle curious that we should be examining the way this centre works and we haven't got at least publicly available the foundation document for the review.  All right, no doubt all will be revealed.

MS FURNESS:  Chair, might I be able to assist in that regard.  My very learned junior has found a copy of that report on the Western Australian Parliamentary website.

CHAIR:  There we go.  Democracy is alive and well in Western Australia, apparently.

All right, well, let's continue, Mr Crowley.

Thank you very much for your diligent junior's work, Ms Furness.

MR CROWLEY:  Thank you, Chair.

Ms Barter, I was just concluding by asking each of you if you could identify for us any particular recommendation that you wanted to emphasise from what you have addressed already in your statements or other parts of your evidence.

 
MS BARTER:  Yes, as I said before, the Kath French Centre and any therapeutic centre can be too little, too late.  We need to look earlier on, and we need to look at the family supports because kids need to be with their families.  We see them going back to their families.  Child RM was going back to her mum and living on the streets so that she could be with her mum.  I think that's really important: kids are going to go back to their families anyway so we need to support families.  That support needs to be holistic, needs to be Aboriginal led, needs to be culturally appropriate and trauma informed, bearing in mind that the parents often have got intergenerational trauma and other trauma and complex needs themselves.

I think it's not particularly complicated.  There are a lot of organisations across WA, grassroots Aboriginal organisations who are designing their own solutions, and I think that the Government and that --- we non Aboriginal people need to listen to First Nations voices, First Nations families have got the solutions, and we need to make sure that they're funded and they're supported to then support their communities.

MR CROWLEY:  Yes, thank you.

Mr Collins, can I ask you if you have anything that you wish to add in terms of those types of recommendations?

MR COLLINS:  You said one point, can I make four little ones?  There's no doubt that Aboriginal people want to stop the removal of their kids into State care.  They want to stop their kids going into juvenile detention and they want to stop adults going into jail.  There's no doubt about that.  That's point one.

Point two, I'm strongly of the view that WA needs a truth telling Commission.

Point three, there is a dire need in Western Australia     and I'm completely nonplussed as to why it hasn't happened yet     there is a dire need for legislated for Aboriginal courts in the Western Australian justice system, and in this space an Aboriginal care and protection list.  Aboriginal led, Aboriginal solutions, which has as its primary focus capacity building and empowering Aboriginal families to properly care for their kids so they don't end up in care in the first place.

Fourthly, if I can refer to Mr Chair's comments at the start of our evidence in relation to data, I respectfully agree that data is incredibly important.  However, it's a vexed issue for an Aboriginal organisation like us.  We have all manner of data reporting requirements to our funding bodies which we have to comply with, and it can be a difficult exercise, at times close to impossible in some situations, to be able to acquire data in relation to, for example, the numbers of Aboriginal children going into care with disabilities and in turn ending up in places like Kath French.  The Department should have that data, and that data should be made available to organisations like ours for use in exercises like this.  Thank you.

MR CROWLEY:  Thank you, Mr Collins.
 

CHAIR:  Yes, I wasn't suggesting, Mr Collins, that it was your responsibility to collect the data, I was only wanting to know whether the data is available.

MR COLLINS:  And I didn't interpret your comments that way either, Mr Chair.

CHAIR:  Thank you.

MR CROWLEY:  Ms Greenoff, is there anything you wish to add in terms of those types of recommendations or any other matters you've addressed in your evidence?

MS GREENOFF:  The first matter I'd like to address is about the reports or the further therapeutic support after they've been released back into the community.  Going back to the 13 year old young girl that I worked with, after she came out of Kath French after 21 days, there was no further therapeutic support provided to her after she returned to her placement.  In a case planning meeting that I attended, it was raised that she needed to receive counselling to address her trauma needs, and I was asked to find culturally appropriate therapeutic support for her, and so was asked to speak to her, and encourage her to attend those therapeutic supports that I was to find.

I was advised by the case manager that they had received a psychological report from the Kath French Centre and in that report it contains details of her trauma.  I asked to obtain a copy of that report so I could understand her trauma needs, and I was advised I was not permitted to obtain that copy.  This is still the case today, six months later, and now, she's returned back to the detention centre at Banksia Hill.  That's one thing I'd like to address, and reply to that.

In conclusion, I'd just like to say First Nations children are being removed at high rates in Australia, and are not receiving the culturally appropriate support they require.  They are being removed from their families and communities and are being placed in institutions where their spirits are being diminished.  I understand how spirits can be diminished as my mother was forcibly removed from her mother at a young age and raised in an environment that diminished every part of her soul.  I have witnessed the pain and suffering this has caused her, so when I am dealing with my clients in situations where their souls have been diminished, I see the pain I see in my mother today, in them.

In my view, the Kath French Centre is not a therapeutic place for children to be held.  It's not appropriate and nor is it culturally appropriate.  It does not help with their trauma; if anything, it escalates their trauma because these children are feeling more traumatised whilst they're there.

It is in one of my recommendations, a culturally appropriate therapeutic centre for Aboriginal and Torres Strait Islander children to address not only their trauma, but to address the intergenerational trauma.  This should be First Nations designed and led, predominantly First Nations employees where possible, traditional healing  
techniques by the Elders, and combining other interventions with a decolonising approach as previous therapeutic approaches have not been effective with our First Nations children.

MR CROWLEY:  Yes, thank you, Ms Greenoff, for that evidence.

Chair, those are the questions that I have.

CHAIR:  Yes, thank you very much.  I'll just ask my colleagues whether they have any questions to put to the members of the panel today.

Commissioner Mason, do you have any questions to put?

QUESTIONS BY THE COMMISSION

COMMISSIONER MASON:  Yes, thank you, Chair.  I had a question about the Closing the Gap National Agreement, and you would all be aware of that document and its contents generally.  And it has, in the content of this National Agreement, details around four priority areas to progress reform in closing the gap and they cover these four reform areas: formal partnerships, shared decision making, embedding the community control sector, transforming government organisations and also, shared access to data and information at a regional level.  My question is, given the complexities that you've shared this morning, and we've looked at this one particular area of Secure Care and our interest in First Nations children with disability in the out of home care system, perhaps I might ask Mr Collins to answer this question about the trickle down approach which may happen with this Closing the Gap National Agreement, in that this particular area of Secure Care, the time it would take to trickle down this ambition to those children and their families and the change that's required.  What do you see as the steps that are needed for that to be escalated and to be progressed in a much quicker way, from your experience?

MR COLLINS:  It requires a willingness on the part of Government to embrace those messages in the Closing the Gap philosophy.  Because what we've found and I've found during my time at the ALS is, they've been countless reports, inquiries, commissions, you name it into the circumstances of Aboriginal people in Western Australia, and most of those inquiries and reports and so on are gathering dust on shelves.  And the best example of that is the Royal Commission recommendations into Aboriginal deaths in custody.  I daresay if you asked a recruit in the Police Academy today whether they can tell you one of the recommendations from that Royal Commission, they wouldn't be able to.  It's evaporated from view, in real terms.  So I think Government needs to embrace the notion that Aboriginal people are the original inhabitants of this country, and they have a rightful place within the community which is currently being denied, and that there's an urgent need to take up recommendations, aspirational things such as the Closing the Gap recommendations, and then support them practically, which involves money.  You've got to build  
capacity, you've got to listen to Aboriginal communities, Aboriginal community controlled organisations like ours, because as I said a moment ago, Government departments don't have the answers and the number of kids in out of home care in Western Australia is testament to that.  They've been an abject failure.  And they can tell you all they want about listening and improving things, but we know, on the ground, nothing has gotten better.

Before I gave my evidence today, I looked at the latest Bureau of Statistics data in relation to Aboriginal imprisonment, and it's the same as it was when I started at the ALS in 1995.  It hasn't improved.  Now, that's a scandalous situation, and the same applies with children in detention, Aboriginal kids in detention, and, I daresay, in the care system.  So we've made no improvements on that score in 25 years.

This State Government in Western Australia has talked about its KPIs in relation to Aboriginal people, improving Aboriginal wellbeing and reducing rates of Aboriginal imprisonment, and guess what?  That's fallen off the radar too because of COVID.  Now I get it that COVID's an important thing, but that needs to be front and centre of every single government decision that's made which impacts upon Aboriginal people, and every single law and policy that's been introduced.  How do we improve Aboriginal wellbeing?  Because I tell you what, locking kids up in Kath French does nothing for Aboriginal wellbeing.  We all know that.

COMMISSIONER MASON:  Thank you, Mr Collins.  I just also wanted to say, before I hand back to the Chair, that this National Agreement is the first time that all States and Territories are now parties to the agreement, along with peak Aboriginal organisations, including local government, and so we will watch with interest around the development and also the monitoring of targets and achievement of progress, because previous to this current agreement, States and Territories weren't party to the Closing the Gap addition.

Of course, as we're finding this week, the issues and concerns being faced by First Nations people with disability, particularly children, are not confined to one jurisdiction, so, really appreciate your time today.  Thank you.

MR COLLINS:  Thank you.

CHAIR:  Thank you, Commissioner Mason.

Commissioner Galbally, do you have any questions?

COMMISSIONER GALBALLY:  Look, I was very interested in some of the solutions proposed by Mr Collins and all of the panel members and particularly paragraph 32, the therapeutically focused Koori Aboriginal child protection list in the Magistrates Court in Victoria.  We then go on to look at the Community Justice reports, and we've heard from Ms Greenoff about the Aboriginal therapeutic wraparound holistic service, which sounds like it's working in some jurisdictions.  I just wondered if you'd want to comment on that further, and whether we could get as  
much information as possible?  We can look at that, but whether you'd want to comment on it yourselves about the results.

MR COLLINS:  Speaking bluntly, Aboriginal courts have been my hobbyhorse in this jurisdiction for over ten years, and I can't for the life of me understand why governments in Western Australia can't see the merit in them, because the proof's in the pudding.  If you look at what's happened in Victoria, Koori Courts have been in existence for over 15 years now, in Magistrates Court in Melbourne and suburban Melbourne and in regional Victoria where there are significant numbers of Koori people, it's in existence in the Victorian County Court, and it's now been created as a protection in care list operating, I think, out of Broadmeadows Magistrates' Court.  And it's so important that these courts are legislated for, that they're embedded in legislation because it means that they can't be abolished at the whim of Government.

And the problem we've got here is that we have a smattering of courts with that sort of model, but they're all just, their architecture is underpinned by a government decision.  So, they can be whisked away in a heartbeat, and most of them are very poorly resourced.  And I think one of the things that appeals to me about the Victorian model is the government has actually devoted resources to these courts so they work.  I've seen them in action, and they're an incredibly impressive mechanism, if only that Aboriginal people meaningfully engage in the process     and I'm talking here about community Elders, community members, and, in a criminal context, an Aboriginal accused.  That's completely missing here.  Western Australia courts are an appalling sausage factory.  I've been in courts as an advocate where you might have 120 Aboriginal people on the list, and you've got to plough through that court in one day because the magistrate flies back to another court on circuit the following day.  That's not justice.  That's not justice where I come from, and frankly, it wouldn't be allowed in any part of Australia by non Aboriginal people.  They get away with it because Aboriginal people traditionally don't complain, they're very stoic, and they cop what comes their way, but it shouldn't be the case     likewise when it comes to the Aboriginal Community Justice reports.  Again, the Victorians have led the way there.  Our counterparts in Victoria, the Victorian Aboriginal Legal Service, have secured funding to develop these reports.  I read in a report in sentence in the Supreme Court where an Aboriginal man was sentenced in relation to a charge of manslaughter, that a Community Report was before Her Honour Judge Jane Dickson, and she commented how important it was for her to have material before her which spoke to some of the intergenerational and systematic issues which had a direct impact on the life experience of the person she was sentencing.

Over here we have pre sentence reports, which form an important part of the sentencing process for Aboriginal people in the criminal jurisdiction and similar type reports are generated for protection and care proceedings.  They fail Aboriginal people.  They are unremittingly bleak and negative.  Invariably they're done by a non Aboriginal person who's trying their best, and all those sort of things, who's never had a relationship with the Aboriginal person they're reporting upon, and for Aboriginal clients who don't speak English as a first language, interpreters are never used.  So, these reports are damning: they send people to jail.  They land kids in care.   
And it needs to change.  We need to have reports that are generated by Aboriginal people who have     who understand the nuances, who understand the cultural subtleties, who actually can present a perspective of the Aboriginal person and their community to a court, because they're so important.

They've done it in Canada with (inaudible) reports as well.  We need it to happen here, because things won't change.  People will continue     kids will continue to go to care, people will go to juvenile detention, people will go to jail.  Nothing will change.

COMMISSIONER GALBALLY:  Thank you.

CHAIR:  Was there anything further that you wanted to ask, Commissioner Galbally?

COMMISSIONER GALBALLY:  No, I guess it was also the therapeutic wraparound.  That sounds really important and as well as a centre, I was wondering it about being a service that's out in regional and remote Australia, too?

MR COLLINS:  That's a very good question, if you don't mind me saying, Commissioner.

CHAIR:  If you don't mind answering briefly, because we've got a time problem.

MR COLLINS:  I will.  The Bail Support Service has been established in Broome, run through our Broome ALS office, and the Youth Engagement Program has also been established in Broome, but there's nowhere else in regional WA and there's a strong need for it to be rolled out statewide, Commissioner.

CHAIR:  Thank you very much.  Now, I'll just inquire whether there are any questions to be asked by other representatives, starting with Western Australia.  Do we have any questions?

MR BYDDER:  Chair, for the reasons I have discussed with Mr Crowley, I won't be asking any questions.

CHAIR:  Thank you very much.  I assume no other party wishes to ask any questions of the panel which has just given evidence.  In the absence of anybody leaping up, I'll assume that the answer is they don't, in which case, thank you very much for coming to the Royal Commission to give evidence.  We appreciate both the written statements that you have provided, the thought that has gone into them, and the oral evidence that you have given today.  Thank you very much.

MR COLLINS:  Thank you.

MS GREENOFF:  Thank you.

 
MS BARTER:  Thank you.

THE WITNESSES WITHDREW

CHAIR:  When should we resume, giving people enough time to nourish themselves and otherwise refresh themselves?

MR CROWLEY:  If we could have 1.45 resumption Eastern Time, Chair.

CHAIR:  All right, we will do that.  We will resume at 1.45 Australian Eastern Standard Time.  Thank you.

ADJOURNED    [12.49 PM]

RESUMED    [1.46 PM]

CHAIR:  Yes, Mr Crowley.

MR POWER:  Good afternoon, Chair    

CHAIR:  Sorry, Mr Power.

MR POWER:  This afternoon we'll hear from Ms Astrid Kalders, the Executive Director of Specialised care and Accomodation with the Department of Communities, Western Australia.  Ms Kalders will provide evidence in relation to the operation and administration of Secure Care framework in Western Australia within the context of the Kath French Secure Care Centre.  Commissioners, you will find a copy of Ms Kalders's statement in Tender Bundle Part C, Tab 8.  I ask to tender this statement into evidence and that it be admitted as Exhibit 16.22.

CHAIR:  Yes, the statement to which you've just referred can be admitted into evidence and be given the designation Exhibit 16.22.

EXHIBIT #16.22   STATEMENT OF MS ASTRID SOPHIE LOUISE THYRA KALDERS DATED 20 AUGUST 2021

MR POWER:  There are also 42 additional documents to this statement.  Those materials are at Tender Bundle Part C, Tabs 9 to 50.  I ask to tender those annexures into evidence and be marked as Exhibits 16.22.1 to 16.22.42.

 
CHAIR:  Yes, those additional documents will also be admitted into evidence with the markings of Exhibits 16.22.1 to 16.22.42.  Yes.

EXHIBITS #16.22.1 TO 16.22.42   ADDITIONAL DOCUMENTS TO STATEMENT OF MS ASTRID SOPHIE LOUISE THYRA KALDERS

MR POWER:  Chair, Ms Kalders appears before the Commission and I ask that she be sworn or affirmed.

CHAIR:  Ms Kalders, thank you very much for coming to the Royal Commission to give evidence.  I understand that you will take an affirmation, and I will ask you to follow the instructions of my associate who will administer the affirmation to you.

MS ASTRID SOPHIE LOUISE THYRA KALDERS, AFFIRMED

CHAIR:  Thank you, Ms Kalders.  Now, Mr Power will ask you some questions.

EXAMINATION IN CHIEF BY MR POWER

MR POWER:  Ms Kalders, could you tell the Commission your full name and your occupation?

MS KALDERS:  Yes, good afternoon.  Thank you, and can I start with an acknowledgement to the traditional custodians of the lands on which we meet from and appear from today, the Whadjuk Noongar Boodjar people, and pay my respects to Elders past and present, and pay my respects to all Aboriginal people who are listening today and are part of this Royal Commission.

My name is Astrid Sophie Louise Thyra Kalders, and I'm an Executive Director in the Department of Communities.  My directorate is the specialised care and accommodation service area, which provides the department's 24 7 Metro based residential services.  We have a range of facilities for our children in care.  We have the Kath French Secure Care Centre.  We have a range of services, supported community living services for adults with disability.  We have a small number of services for crisis and emergency for people with disability, and we also have the Disability Justice service, which includes the Bennett Brook Justice Centre, and a range of other allied health services that add into those services.  That's part of my responsibility at this time.

MR POWER:  Thank you, Ms Kalders.  Is it correct that the statement which has been tendered into evidence is a statement by you explaining the legislative  
framework under which a Secure Care arrangement can be made for children, and the operation of the Kath French Secure Care Facility?

MS KALDERS:  It is.

MR POWER:  Now just to establish the broad framework first, is it correct that the relevant Act is Children and Community Services Act 2004 (WA)?

MS KALDERS:  Yes, it is.

MR POWER:  In your statement you've abbreviated that as the CCS Act?

MS KALDERS:  Yes, it is.

MR POWER:  Now, in terms of giving evidence, if you could ensure that you keep a relatively even pace so the Auslan interpreters can keep up, and for the benefit of all of us, if you use an acronym     as is understandable     if you could perhaps explain the acronym the first time you use it.

If we can begin at the beginning, what is  Secure Care in the context of the Western Australian Act?

MS KALDERS:  The Secure Care placement is a legislative framework that enables us to place a child in Secure Care where we have concerns of immediate and substantial risk to a child causing significant harm to themselves or another person, and there are no other ways to manage that risk and to ensure that the child receives the care necessary.  This is an option of last resort and is intended within the legislative framework to be for a period of time that enables stabilisation and, if you like, regulation of a child in the point of developing their own emotional regulation, managing the immediate concerns, and that the children who come to Kath French are only those children that are in either a protection order, or that there is an interim protection order.

MR POWER:  To come back to what you noted at the start, I think you were paraphrasing just slightly, but what you said about the two preconditions of immediate and substantial risk to the child causing significant harm to the child or another person and that there is no other suitable way to manage that risk and ensure that the child receives the care the child needs     that's a legislative requirement before such a placement can be made?

MS KALDERS:  Yes, it is.

MR POWER:  All right.  You mentioned the children who are potentially for whom such an order can be made, does a child need to be under an existing order before an order under section 88C of the CCS Act can be made?

MS KALDERS:  Yes, they do.
 

MR POWER:  If we can go to the pathways by which a child can enter that system     is Kath French Centre the only Centre in WA that fulfils that legislative role?

MS KALDERS:  Yes, it is.

MR POWER:  A shorthand to going into that Secure Care system, I'll probably refer to it as "entering the Kath French Centre", what are the pathways by which a child can enter the Kath French Centre?

MS KALDERS:  The pathway for referral is that the district will become very concerned, so their case manager in the district that the child belongs to will be concerned about a child's presentation and will seek to make a referral to the Kath French management team.  That process is often a process of initial consultation.  There is a written referral process that accompanies the referral.  The Kath French management team and the district will discuss the placement and discuss the kind of concerns that they've had and particularly, whether they meet the legislative framework.  There's also a requirement, if the child is Aboriginal, that there's consultation with the District Aboriginal Practice Leader, and with any specialist that might have been working with the child, some of the psychologists that may have been working with the child, so that by the time the referral is finalised and it's negotiated and discussed, there may be a period of backwards and forwards around the referral.

The referral is then reviewed by Kath French, who then make a recommendation to the delegated executive director who can make that approval.  So that is part of one of my responsibilities and so, referrals will come to me at which point then there'll be further discussion with the Kath French team around the suitability of this referral, and sometimes we agree and sometimes we disagree, because we have a     we're very cautious because this needs to be an option of last resort and, of course, risk is not always a perfect science, so we have a debate about how immediate are the concerns.

We also make sure that the child meets the age range, which is 12 to 17, unless there are very strong exceptional circumstances.  Whether there are issues around the child coming off country, there's a lot of discussion around whether this then is the most appropriate option and making sure that this isn't about a placement option, this is really about managing that immediate concern and risk.

MR POWER:  In your statement at paragraphs 11 to 17 you map out this process, but if I can just perhaps go through it briefly.

The CEO is the person who has the statutory power under the CCS Act to make a Secure Care arrangement, but you note that the CEO has delegated this power to the three executive directors in community services.  Now, you're one of those directors and as you've indicated you're one of the people who makes these decisions as the  
delegate for the CEO; is that correct?

MS KALDERS:  That's correct.

MR POWER:  Do you make the majority of those decisions, or is it shared relatively evenly between the three executive directors to whom it's been delegated?

MS KALDERS:  I make most of those decisions.  I can explain why that's the case, if that helps?

MR POWER:  Yes, thank you.

MS KALDERS:  Part of that process is that one of the executive directors is responsible for all of the service delivery, so his teams are the teams that refer.  The other executive director who was here yesterday, Glenn Mace, operates the Statewide.  He then can act     because between the district and Kath French, the third executive director is able to operate to review any reconsiderations.  So a child or a family member is able to say no, they don't want to be in Kath French, and so that leaves the third person to be that executive director able to do that reconsideration.  If any of us are on leave, it means any of the other executive directors are step into those roles and we can move them around.  Does that make sense?

MR POWER:  Yes, and we'll come to the review process in a moment.  What you're saying is that you make the majority of the primary decisions, the other two directors are empowered to make review decisions as needed?

MS KALDERS:  Yes.

MR POWER:  You mentioned that there is a recommended age group, that's 12 to 17 years, unless there were what is described in your statement as "extenuating circumstances"; is that a legislative requirement or is that a policy decision by the Department to have that age range?

MS KALDERS:  That's a legislative requirement.

MR POWER:  All right.  In paragraph 13 of your statement you also refer to the Children's Court of Western Australia may make an interim order.  Can you explain how the court becomes involved in these decisions?

MS KALDERS:  So, if a child is on an interim order, a referral will come to me and I can     all I can do is approve whether they are admitted.  Because of the immediate risk, we admit the child to make sure that that immediate risk is covered, and then within a 48 hour period the application has to be made to the Children's Court, and the court will then confirm whether they agree with that decision.  That court will also determine the duration of the placement, noting that it can't be more than 21 days.
 

CHAIR:  What's an interim order?

MS KALDERS:  So, that's an order     an interim protection order is where there hasn't yet been a time limited or "until 18" order put in place.  So that's an interim protection.  Often at that point in time there are still child safety investigations ongoing, and there may be a lot of work happening with the families to look to whether they can be reunified or whether there's actually a substantive risk present.

CHAIR:  Does it happen that an interim protection order is made contemporaneously with the child being placed in Secure Care?

MS KALDERS:  The interim order usually precedes the referral.

CHAIR:  Yes, thank you.

MR POWER:  In terms of understanding this, if a child is on a protection order, the CEO or the CEO's delegates can make an order to place a child into the Kath French Centre; is that correct?

MS KALDERS:  That's correct.

MR POWER:  If a child or a young person is not yet under any order from the Department, there can be a stepped process where one, an application is made to the Children's Court for an interim order and then, the child can be placed in the Kath French Centre but only by way of a court order; is that correct?

MS KALDERS:  It's not quite correct, Mr Power.  A child has to be on an interim order for the referral to be made, because if a child's not in any kind of care of the CEO that's not the purpose of Kath French.  So, legislatively, the children have to be on some form of protection order, either interim or time limited.  Then, those children are eligible for consideration if there are concerns.

MR POWER:  Okay, but could it be almost simultaneous, that is, an application for an interim order is made because some emergent situation has occurred, and then the Department considers that the circumstances under 88C of the CCS Act are satisfied such that almost immediately there's a decision made to place the child in the Kath French Centre?

MS KALDERS:  It can occur.  It's not that common.  We're also very clear that the reason for bringing a child into interim care isn't to enable the placement   

MR POWER:  All right.

MS KALDERS:      as part of that referral process, where some of those discussions occur, but you're right, there may well be concerns that would meet the legislative threshold and there's already a process in place that a child is going to be placed on  
an interim order.  Then, like I say, the referral is made and the child is placed at Kath French, and then it goes back to the court.  It may be that if those processes happen at the same time, the court could make that decision for a child on an interim order.

MR POWER:  All right.  How does Secure Care in Western Australia differ from residential care?

MS KALDERS:  I guess the key consideration is to look at the legislative framework and also, to understand that the Kath French is a secure unit.  So when we say "secure" it is a locked unit.  Our residential care houses, the children can leave at any time, they're not locked houses.  We have a range of residential care options in WA.  The ones I mentioned that I'm responsible for is managed by departmental staff, so we still have a range of facilities where our departmental staff manage children in small groups of four.  We have contracted services.  We have a large amount of community service organisations who run family group homes.  We also have a range of other out of home care funded placements and foster care arrangements and so forth, so there's a continuum of service.

But the key distinction between residential care and our Kath French Secure Care is the fact that it's secure.  There are some commonalities, is it worth talking about if you're interested, and me explaining some of the therapeutic frameworks that we use across both to develop staff?  Is that useful?

MR POWER:  We might come to that in a moment.  So the critical difference is that if you're in the Kath French Secure Care Facility, you, as a child or as a young person, you're not free to leave at all.  Now, in a residential care facility, I take it that there are some restrictions placed on children's ability to leave, say, in the middle of the night?

MS KALDERS:  No more than a normal household would take.  Particularly older children if they choose to, they can leave, if they wish to, from our residential care houses.

CHAIR:  How many residential care houses are there in Western Australia?

MS KALDERS:  The department manages     I have 15 in the Metro, we've got nine in the regions, they're the ones still managed by the Department.  And I can't remember exactly how many, because it varies a little bit what's happening with the contracted arrangement.  There are many more managed by community service organisations, um, I can get the number for you, but it's in the proximity of around 40, but I wouldn't like to cite that number    

CHAIR:  You can provide that if you don't mind, in due course.  Are all of the children in residence at these Centres children who are in the care and control of the Department?

MS KALDERS:  Yes.
 

CHAIR:  What determines whether a child is sent to a residential Centre as distinct from being placed with a family?

MS KALDERS:  These are family group homes, so they aren't Centres or hostels in that sense.  They are houses where we have four children.  The determination is often based on the need.  Like I say, we have a continuum of placement options for children where we have children with families, where families are able to manage the children.  Where the complexity starts increasing we often find that families aren't able to cope with children.  It often happens in the older age group, our Metro residential children are mostly in that teenage years, that same 12 to 17 and sometimes, we also have     two of those houses are also crisis transitional, where we may have a crisis situation at a child family placement, or placement where a community service organisation has broken down, so they come into one of our residential group homes.

CHAIR:  Are there any statistics available on the proportion of children in the residential homes who are Aboriginal?

MS KALDERS:  Yes, we can get you that.  I haven't got that at my fingertips at the moment.

CHAIR:  That's all right.  Is there data available on the proportion numbers who have disability and what categories of disability there might be?

MS KALDERS:  We do have stats on whether the children have a disability.  This is evidence that was tendered by Michelle Andrews for Hearing number 8     I'm just checking     and there are stats in there.  We use a definition that's in our legislation around what is a disability, and so we don't    

CHAIR:  It's all right, I'm just wanting to know whether there is data available on the residents of these residential group homes concerning their disability and what that disability is.  If the answer is yes we'll be able to get hold of the data, I assume.

MS KALDERS:  You will.

CHAIR:  All right, thank you very much.

COMMISSIONER GALBALLY:  Can I just ask a question of clarification?  These group homes aren't the same as community residential units used by the disability sector, are they?  These are different, so that the issue of severity of disability would be a question I'd like to get an answer to at some point, and if there's a relationship to community residential units which are disability group homes.

MS KALDERS:  They are a distinctly different group.  The group homes I'm discussing here are for our children in care.  They aren't the disability group homes that operate.
 

COMMISSIONER GALBALLY:  Do children in care go into the administration if they're disabled; do you have a relationship with them?

MS KALDERS:  They can from time to time, but we do have children with particularly complex trauma presentations and psychosocial issues that are in our children in care.

CHAIR:  Do I take it it's difficult to find foster carers in Western Australia for children who are in care?

MS KALDERS:  It's an increasing challenge, and I think it's something that we've been looking at     you will have heard from Glenn and Mel yesterday that we have a range of agencies that provide some of our out of home care and foster services.  We also have foster carers that we engage ourselves, and I think it's an increasing challenge, yes.

CHAIR:  Is the Department's general preference for a child who is in care by virtue of an order, either interim or longer term, is the preference to have that child placed with foster carers, or is the Department neutral?  Or what?

MS KALDERS:  Our preference is to place the child with family carers.  So particularly for our Aboriginal children, we work hard to find family placements for children and then depending on the child, we also have significant other, so they are people who the child may know who are significant other carers, and then we have foster carers who would not be known to a child.  So our preference is always to keep the child with people that they know and who are, you know, assessed as being safe.

CHAIR:  But you also operate in accordance with the principles for placement of Aboriginal children?

MS KALDERS:  We do indeed.

CHAIR:  By the way, just as a matter of interest, I noticed that in Western Australia the preferred term seems to be "Aboriginal" whereas elsewhere it's First Nations, is there any particular reason for that?

MS KALDERS:  That's on advice from our Aboriginal people.

CHAIR:  Is it?  Okay.

MR POWER:  So we were discussing the legislative basis by which a child or young person can enter the Kath French Centre.  In other jurisdictions, there are similar models but, for example, in New South Wales, Secure Care orders are made by the Supreme Court with the equivalent of your department able to make application on urgent basis.  Do you see any disadvantages of a judicial oversight in terms of  
making Secure Care orders of the type that are made presently on an administrative basis?

MS KALDERS:  Our model was based on consultation with other models.  So the Victorian model had been in existence, as had the New South Wales model.  At the time of establishing, they looked at those options and one of the feedback that we got, particularly from Victoria, was that there are challenges in keeping clear the child and protection matters as distinct from other matters that may be before the court.  So the preference at the time of setting up the legislation was to keep that focus and enable the Department to make that clarity of decision, so that the focus is on the care and protection matters.

More recently, we've had some examples where we continue to see that there are benefits to us being very cautious in our approach around the placement of a child in Secure Care.  In discussions with Victoria, for example, and this is anecdotal discussion, they continue to express some of the challenges, where some of the children who may be sent by the court, the clarity of their need may not be as clear as we're able to retain around the immediacy of that significant risk.

We've also had some recent examples where courts have sought to make Kath French a bail condition, which we have, of course, opposed because that is an exclusion criteria to have a child that the matters are criminal.  And again, sometimes the Mental Health Services wish to discharge a child, but only if they can come to Secure Care, which we are very clear that we're not in a position to do when a child needs to be able to be discharged to the community.  So we see that having control of that decision making helps us navigate that space and remain clear about the purpose and intent of the legislation.

CHAIR:  And remain clear of the courts?

MS KALDERS:  The courts are able to review the decision if a child seeks to have consideration.  And the interim orders are also seen by the court.

CHAIR:  By the tribunal, isn't it?

MS KALDERS:  The tribunal, yes, sorry.  The courts are able to review interim decisions, and mostly they agree with the decisions that we've made.

MR POWER:  Ms Kalders, there was a lot bound up in that, but I want to perhaps go to that last issue first which is the review.  Now, this is dealt with at paragraphs 41 to 43 of your statement, and as you've noted, it presently is an administrative decision of the Department which places a child or young person in the Kath French Centre.  You note that under the Act, an application can be made for the reconsideration of a Secure Care decision, and that that reconsideration is made by a different executive director than the one who made the decision.  You then note that if the applicant is aggrieved by the outcome of the reconsideration, he or she may apply to the State Administrative Tribunal for review of that decision.  The maximum period for which  
a child or a young person can be placed in the Kath French Centre in terms of at least the first order is 21 days.  Firstly, how long does it take for a reconsideration of an initial decision to be made?

MS KALDERS:  A reconsideration is usually made within 24 hours of a working day.

MR POWER:  Right, and the reconsideration, does that involve a discussion between the executive directors, or is it based on essentially a clean file being placed before the other executive director for a decision?

MS KALDERS:  It's the latter.  They receive a clean file.  They review the referral and any comments that the child has raised or the family member or whoever is seeking reconsideration.

MR POWER:  Yes, and I should have said you've noted that under the Act it can be the child, a parent of the child, the child's carer or any other person the CEO considers has a direct and significant interest.

MS KALDERS:  That's right.

MR POWER:  Western Australia may be more fortunate than other places, but it would be the case, wouldn't it, that the State Administrative Tribunal is very unlikely to be able to hear a review of an administrative decision of the Department within 21 days; is that your experience?

MS KALDERS:  No, our experience is that they hear them very quickly.  It's usually a matter of days when we get a hearing for a reconsideration.

MR POWER:  Yes.  The Supreme Court in New South Wales has a parens patriae, Latin tag, P A R E N S, P A T R I A E, jurisdiction    

CHAIR:  So does the Supreme Court of Western Australia and every State court in Australia.

MR POWER:  Yes, and Chair, that's what I was about to say.  By virtue of being a Superior Court of Record, the Western Australian Supreme Court would have that jurisdiction as well; do you know whether there are any applications made to the Supreme Court in that context?

MS KALDERS:  My understanding     and I can't comment completely, I'm still relatively new in WA and in this role     that there has not been a parens patriae application to the Supreme Court at this time.

MR POWER:  All right, and in terms of the review proceedings, is there any funding made available by the Department to any child or parent who wishes to review the decision by going to the WA Administrative Tribunal?
 

MS KALDERS:  The child receives Legal Aid and is represented by a Legal Aid lawyer at the hearing    

MR POWER:  Sorry, the hearing of the    

MS KALDERS:  The tribunal.

MR POWER:  Okay, and are you aware of where that funding comes from?  Is that a funding to Legal Aid that comes out of its general resources, or is there a source of funding from your Department to Legal Aid for this type of hearing?

MS KALDERS:  I understand it comes out of their general resources.  I'm unaware of any direct funding that we do to Legal Aid.

MR POWER:  If there were direct funding, would you be able to take that on notice and let us know if there is any direct funding for that?

MS KALDERS:  Will do.

MR POWER:  All right.  We heard earlier in evidence this morning that the Kath French facility can contain a maximum of six children at any one time.

MS KALDERS:  That's correct.

MR POWER:  Do you think that six is enough?  Is there a need in the State of Western Australia for that number to be greater than six?

MS KALDERS:  There are times when we have     sorry?

CHAIR:  Sorry, carry on.

MS KALDERS:  There are times when we have had six.  On the whole in the last year when I've been responsible for the Centre, there has only been a couple of times when we have been full, but on the whole we aren't full.  This week we've had two children; tomorrow that will go down to one unless we get new referrals.  So, at this point in time we don't see a demand for extension.

MR POWER:  So if you have six in the facility and an urgent case comes in, given the nature of the criteria, is it the case that that new intake would be given priority and essentially the most ready to leave within Kath French would be urgently moved out into a residential care facility?

MS KALDERS:  There are two parts to your question    

MR POWER:  Yes.

 
MS KALDERS:      if I can take it as two parts.  One is yes, we would look at the children that were there, how close they were to their dates of discharge.  We would also look at the criteria, as we do with all referrals.  We make sure that there aren't alternative options for placement.  I also want to note that not all children return or come from a residential care place or return to a residential care place.  Children come from a range of different placements in a referral.  They can be in a foster placement and they can return to that.  They can be in a therapeutic high needs placement.  They can be     some of our children come from mental health facilities and sometimes because of their presentation have to be discharged back to a mental health service.  Some of our children come from Banksia Hill Detention Centre.

MR POWER:  We've I suppose dealt with the numbers in Kath French and in short, you think that six is sufficient for the State's needs?

MS KALDERS:  At this time, noting that we wish to keep very clear around the criteria for admission, and that minimising the time that a child's liberty is being removed while they're in that locked facility.

MR POWER:  There is initially 21 days, which can be extended for up to 42 days, so two lots of 21.  Is that time sufficient, in your experience?

MS KALDERS:  Each child is unique.  The children that come to Kath French vary significantly in their presentation.  We have     around about 60 per cent of the children who have come to Kath French over the last 10 years or so that the Centre has been open come once, which tells us that that's sufficient for the majority of children.  Some children come back to us, which tells us that sometimes it's that they needed to go back to the community and they were stable at a point in time.  We find that on the whole we don't try to go to the maximum time, we go to what's necessary for the child, so it may not be the full 21 days.  Some very complex cases, of course, we look at, and there's a lot of planning around transition.  But we may look     because some children become psychiatrically unwell while they're at the Centre.  So all of those things can occur.  Each child is unique.  It's very difficult to say whether there's an average formula for the children.

MR POWER:  All right.  Can I take you to paragraph 44 of your statement, because you deal there with the numbers of children who are in the Kath French Centre over the last 10 years, and that is the full 10 years of its operation up until June of this year; is that correct?

MS KALDERS:  That's correct.

MR POWER:  It's May to June, so we have one month beyond 10 years.  Now, the totals which are on the right hand side are 78 with a disability and 217 without a disability which is 295 children in total.  Is that a number of admissions that might only be, say, 200 children, but a proportion of them have entered twice, or is that 295 children who may have, in fact, entered more frequently into Kath French?

 
MS KALDERS:  I understand this to be the admissions.

CHAIR:  I'm not sure you're right.  If you go to paragraph 2.6.2 of the 2019 review, it gives you frequency of admissions 219 children over 7 years, and then it breaks up the numbers that have had more than one admission, so you've got 131 with one admission, 46 with two, 19 with three.  Since there's an average of 30 children each year going in, 7 plus from 10 leaves 3, that would give you about 90 in the three years and that's where you get 295, so I suspect they're actually individual children, not admissions.

MS KALDERS:  I stand corrected.

CHAIR:  I may be wrong, but that's the way it looks to me.

MS KALDERS:  I stand corrected, Chair, and I do note that we have said this is the number of children.

CHAIR:  Right.  How do you know which ones have disability and which ones don't?  How is that determined?

MS KALDERS:  We use the legislative definition.  Their assessment has usually been made by the time the referral is made.  It's made by the child protection worker, based on our criteria that's in our legislation, which is in section 79 of the Children and Community Services Act.

CHAIR:  Sorry, what are the qualifications of the child protection worker who's making the assessment, for example, of cognitive impairment, intellectual disability, autism or whatever?

MS KALDERS:  There can be a range of sources.  Some of it may be from assessment that have come with the child.  A number of our children have NDIS plans, so we have information from those.  A number of children, of course, are in the process of assessment during the time by the time they are referred.  So that would be made by, you know, a determination of a range of sources of information.

CHAIR:  What if those range of sources is not available?  Presumably the case officer wouldn't have the expertise to determine whether a child has got a particular intellectual disability or cognitive impairment.  Would that person have that ability?

MS KALDERS:  On the whole they wouldn't make that judgment unless there was clear evidence that a disability existed.

CHAIR:  That's the point.  If there isn't clear evidence because there hasn't been a diagnosis, then that would understate the extent of disability, wouldn't it?

MS KALDERS:  Potentially.

 
CHAIR:  Yes, okay.

MR POWER:  On that point, we heard evidence on Monday from Dr Webster.  Dr Webster is based in the Northern Territory, but paragraph 109 of your statement, I realise you most likely haven't reviewed it reads:

A recent study at Banksia Hill Detention Centre in Western Australia (The Banksia Hill Study) found that 89 per cent of young offenders have a severe neurodevelopmental [disorder], and 36 per cent were diagnosed with [Foetal Alcohol Syndrome Disorder].  This is the highest prevalence of neurodevelopmental development in a custodial context to have been found in the world.

Now the Banksia Hill study that Dr Webster was referring to is footnoted in your statement, but it is a study where the lead author was Carol Bower and it's titled "Foetal Alcohol Syndrome Disorder and Youth Justice: A prevalent Study among Young Children Sentenced to Detention in Western Australia."  In terms of what's noted at paragraph 44 of your statement and linking back to what the Chair has asked, it's very unlikely that those rates of disability are a very significant understatement of the degree of the percentage of children with disability.  Would you agree with that?

MS KALDERS:  I wouldn't have any evidence to go either way on that.  This is the information we have around what is noted in our case files, and what is presented for the children that have come in, noting that sometimes the information has both changed over the years, and also the criteria that the WA Disability Services Commission definition of "disability" changed under the NDIS definition.  So I appreciate that definitions change over time, and information that the case worker has.  I wouldn't know what percentage of under or overrepresentation this might be.

MR POWER:  In answer to the Chair's question you said it's an underrepresentation, but     okay.  A very similar group of people are going to be in Banksia Hill Detention Centre as are in the Kath French Centre; wouldn't that be correct?

MS KALDERS:  There is some overlap.

MR POWER:  In fact, people are in the Banksia Hill Detention Centre because they've committed or are alleged to have committed criminal offences.  But they are not necessarily fitting the criteria for being in Secure Care which, if you've noted, "an immediate and substantial risk to the child causing significant harm to the child or another person."

So that first criteria is that there is an immediate risk of the child causing harm to themselves or others.

MS KALDERS:  Yes.

 
MR POWER:  That's correct, isn't it?

MS KALDERS:  Yes, with the exclusion that if it's only harm to others, and it presents as criminality is one of our exclusion criteria.

MR POWER:  Right, but because of that first criteria, that would indicate that there is something significantly wrong, going wrong in that child's life that's causing them to act in that way?

MS KALDERS:  Yes.

MR POWER:  And in the second part of the criteria is that there is no other suitable way to manage that risk and ensure the child receives the care the child needs.  Yes?

MS KALDERS:  Yes.

MR POWER:  Given those criteria, you would expect, wouldn't you, that degree of cognitive problems that would be likely to be present in the Kath French Centre population is going to be at least as high as that in the Banksia Hill Detention Centre; would you agree?

MS KALDERS:  There's not a total overlap of populations, but there is indication that that could be     there are some children who move between both Kath French and Banksia Hill Detention Centre.

MR POWER:  If I understand your answer correctly, the figures that are in paragraph 44 are essentially drawn from, well, what's recorded on their file with regard to disability at the time they enter the Kath French Centre; is that correct?

MS KALDERS:  That's correct.

MR POWER:  Do you think, given the criteria for entry, that it would be important to have a multidisciplinary assessment of children entering the Centre, or at least for the opportunity for that to be done, unless it's not going to be     unless there's some potential for harm to the child?

MS KALDERS:  I'm not sure I understand your question, Mr Power.

MR POWER:  Premise one is that the test that has to be applied before a child can enter into the Kath French Centre.

MS KALDERS:  Yes.

MR POWER:  Given that's the case, and given the knowledge of what the study at the Banksia Hill Detention Centre showed, do you agree that unless there is a contrary indication, that a child should receive a multidisciplinary assessment whilst the opportunity exists in the Kath French Centre to determine whether a disability  
exists?

MS KALDERS:  The completion of a multidisciplinary assessment, particularly for neurodevelopmental issues or FASD, is time consuming and it takes a period of time.  For a child to be able to be assessed in that manner     and I draw on some of my experience in my previous roles, in my professional qualifications     a child needs to be stable and able to participate in what can be quite lengthy assessments and interviews.  While some of our children may have that already on file, we wouldn't be in a position to do that immediately before or during the referral process because we're dealing with a child who is presenting with immediate and substantial risk, so we wouldn't do it at the point of entry.

Completing it while at Kath French, for some children we're able to do that because they are stable enough and we can either use our internal unit, we have a neural development assessment team that can, if the child is stable, potentially do that, or, we can start that process with external providers.  Again, that process for multidisciplinary assessments is a lengthy process, and it requires the child to be in a place where they can participate, otherwise their assessment is going to show pretty significant underperformance.

MR POWER:  Okay.

CHAIR:  Sorry to interrupt.  Recommendation 1 of the 2019 Review recommended, if not already undertaken, that a comprehensive assessment of children admitted to the secure facility be undertaking comprising screening for particular conditions, eg, intellectual disability, depression, anxiety, and a comprehensive biomedical, psycho     I assume psychological     mental state examination and screening for mood disorders and social peer staff interactions assessment, and educational functioning needs.  Has that been done?

MS KALDERS:  We're doing a range of those services, however, a neurodevelopmental assessment is a significantly more complex assessment than screens for depression and anxiety, which we have introduced.  We have introduced the Welltree Wellbeing framework that assesses a number of those factors which we're also using as part of our evaluation framework.  But completing a multidisciplinary neural developmental assessment is a much more complex process and task and it requires    

CHAIR:  My question was whether the recommendation has been implemented.

MS KALDERS:  Yes, it has.

CHAIR:  It says that in the document, and then when you look at the information, it says there was a pilot of the Welltree Wellbeing Outcomes Framework to support ongoing assessment, as pilot.  Then a business case was presented for funding a psychiatrist, but no psychiatrist has been found.  How is then the recommendation being implemented?
 

MS KALDERS:  We're using the resources we've got to assess children where we can.  Our challenge to obtain a psychiatrist, we have implemented the Welltree Wellbeing Framework as part of the regular processes now.  We have funding for a psychiatrist.  We do have a psychiatrist who is able to do telephone consults but we are unable to find a psychiatrist who's prepared to come up to the Centre on a regular basis in person, so we have worked very actively.  We have quite a shortage of child psychiatrists in WA.  We've approached quite a lot of them and unfortunately, we haven't yet been unable to have one who is prepared to come and attend in person.

CHAIR:  All right, well when a child gets admitted, how does the process work as far as screening for intellectual disability, depression, anxiety, mood disorders and so on?  Who does that?  How does it work?

MS KALDERS:  We have a range of     we have a health team who do assess the child on admission.  We use a lot of observational measures.  We have a senior psychologist on site who provides consults.  Again, we use a screening process rather than full assessment, but we aren't always able to complete all of those assessments.  It depends on the child's presentation, and we track some of those behavioural indicators that help us provide some of that assessment.

CHAIR:  How have things changed since before 2019?

MS KALDERS:  We've sought to have greater     we were very hopeful to get a psychiatrist, so unfortunately we haven't been able to do that, so while we continue to have our consultation, we do have our health team there on three days a week, where we can make sure the children are assessed, or bring them in as necessary.  We continue to look at using our Welltree Wellbeing model which enables us to screen for a range of those issues on intake, and we also do that on placement.  So, it's an ongoing piece of work to improve how we provide assessment.  We're also talking to other providers that we enable access at all possible, because a number of the children come with NDIS plans, so we make sure that their providers can access and come on site.

CHAIR:  Do you think it's a bit of a stretch to say that recommendation one has been completed, which is what the actions completed document says?

MS KALDERS:  We've implemented the screening.  They aren't full assessments.  They are screening assessments, Chair.

MR POWER:  So, if there isn't the capability to conduct the full multidisciplinary assessment, is it not the case that given the criteria for entry, that that child or young person should be flagged, the Department file should be flagged to say, once the child is in a good position to benefit fully from such an assessment, it should occur because they've reached such a crisis point that they've been put in the Kath French Centre?  Do you agree that's something that should be the default position?

 
MS KALDERS:  It depends on the presentation and the needs of the individual child.

MR POWER:  Can I just stop you there?  You remember the test that to put the child into this situation, as you've said, it's a measure of last resort, so don't you think that the default position should be that the Department says, "This is a child in our care, we need to ensure that the multidisciplinary assessment is conducted."  Do you agree with that?

MS KALDERS:  I tend to see it as a much more individualised process, that some children, when they present at serious self harm, that their needs are met within     you know, we work closely with our Mental Health Service to see that they've got a psychiatric assessment.  They don't all present with the need for full multidisciplinary assessments, and sometimes you can overassess children unnecessarily, but looking to provide assessment is always beneficial, but it's     assessing every child in a multidisciplinary way may not be necessary.  It is also, at times, a challenge to access some of the multidisciplinary assessments, depending on what the needs and presentation of a child is.

MR POWER:  All right.  Well, to return back to paragraph 44 of your statement where the numbers are set out, now I think we've established it's 295 individual children.  How many presentations were there?  That is, how many child days in total are there?  And you may not have that to hand, but would you be able to provide that?  That is, how many times each of those 295 children went to Kath French, and whether     I imagine it's possible     the number of total child days which would provide an average of time spent by a child in the Kath French Centre.

MS KALDERS:  I can take you roughly through the repeat presentations, but I'll have to get on notice the number of days that a child had been in care.

MR POWER:  It would be beneficial to have that, but also whether children who did have a disability mark in their file were more likely to be returned to the Kath French Centre.  Because what we have now is the 295 children who entered the Kath French Centre, but we don't know     and we have the percentage marked with a disability or without a disability, but we don't know how frequently or how long each of those groups stayed on average, and how much more likely one or other group were to be required to re attend.  Would your statistics be able to break that down?

MS KALDERS:  We shall try and provide you that statistic.  I can tell you about a group of children who returned on many occasions.

MR POWER:  Yes.

MS KALDERS:  We have a small look at the 11 children who were the most frequent returned children, and the profile of those children tended to be a greater number of female children.  They were less likely to be Aboriginal, were a slightly older group than on average, so they're more likely to be in the 15, given that probably accounts for the repeat presentations, and we had a look at     again, it's a  
very small number     at their NDIS reports, whether they had an NDIS plan, and that was actually less than the overall percentage of children with disability.

MR POWER:  All right, so if you were able to provide what data you can and breakdown that you can, that would be appreciated.

We're now at 2.45, Chair.  There was a break planned for 15 minutes at this point before Ms Kalders returns for the second hour of her evidence.  Is it a convenient time to take a break, Chair, until perhaps 3 pm?

CHAIR:  Yes, certainly.  We'll do that and resume at 3 pm.  Thank you.

ADJOURNED    [2.47 PM]

RESUMED    [3.00 PM]

CHAIR:  Before we continue, as you remember on Monday, I said that this is the International Week of the Deaf and Australia's National Week of Deaf People.  The theme for today, I'm informed, is "Sign Language for All Deaf Learners".  It is appropriate to mention that, since we have the services of magnificent interpreters who operate under conditions of extreme stress and rapidity constantly and do a fabulous job.

Thank you to our interpreters and let us acknowledge the theme of today, "Sign Language for All Deaf Learners".  Yes, Mr Power.

MR POWER:  Ms Kalders, the Kath French Centre is meant to be a therapeutic place.  That's correct?

MS KALDERS:  We provide therapeutic care services, we do yes, Mr Power.

MR POWER:  When a child or a young person arrives at the Kath French Centre, what information do you have about any disability they may have?

MS KALDERS:  The staff have access to all of the file for child protection.  There's quite a significant amount of information already in the referral, but they can access all of the same information that the child protection worker may have.

MR POWER:  All right.  Is that file electronic or is that file a papered file?

MS KALDERS:  Electronic.

MR POWER:  Is there a procedure that's followed, on intake into the Kath French Centre, to determine whether the person has a disability?
 

MS KALDERS:  That assessment comes already with the child.  This is an assessment made prior to the child arriving.

MR POWER:  And that is, if it's recorded on the Department's file?

MS KALDERS:  Yes.

MR POWER:  You would acknowledge, wouldn't you, that children may have disabilities that are not recorded on the Department's file?

MS KALDERS:  Yes.

MR POWER:  Now, because of the high threshold of entering into the Kath French system or the Kath French Secure Care Facility, what steps are taken to determine, at that point, whether the child has an unrecognised or undiagnosed or at least a disability that's not recorded on the Department's file?

MS KALDERS:  The immediate concerns when a child arrives at Kath French is keeping the child safe and stabilising the child.  The information we obtain while a child is in the Centre through a close observation, the work of the staff there, the health Centre staff, as well as observations recorded and discussed at the management team, may well indicate that there is information that needs to be sought, and further assessment needs to occur, and through some of our screening tools that may also be highlighted.  But in the initial days, it's really stabilising a child and making sure that they're safe, dealing with the immediate risk that brought them to Kath French around often their self harm or their current presentation or behaviour.

MR POWER:  All right, but if the stay at the Kath French Centre is to be therapeutic, surely you have to know what the problem is?

MS KALDERS:  Can I just explain the language of "therapeutic" that we use to describe the Centre, which is around the therapeutic care services.  Our children in Kath French aren't in     don't receive like therapy sessions as in individual therapy with specialists.  They don't all receive that.  Some of them may, but the model is around therapeutic care services.  So, this is     our staff in Kath French are trained in the sanctuary model, which creates a therapeutic milieu or therapeutic community in which the children operate, as well as our therapeutic crisis intervention.  So, our staff are trained to work very closely to understand the child, understand what might be driving those behaviours, and to be able to develop a relationship and an interaction that enables them to learn how to regulate their emotions, how to understand some of their emotional states, understand some of their at times explosive behaviours, so that therapeutic care isn't necessarily, we don't run therapy, group therapy or a lot of individual counselling services.  From time to time they are brought in, but it isn't     it doesn't provide like you might think about a rehab Centre, or a Centre, for example, if you were treating eating disorders.  It doesn't provide that  
kind of therapy.  It is around therapeutic care services.

CHAIR:  Does that mean that it's not part of the therapeutic milieu to correctly diagnose whatever conditions the child may be experiencing, nor is it part of the therapeutic milieu to treat that underlying condition; rather, the therapeutic milieu means attempting behaviour modification?

MS KALDERS:  It attempts developing the child's understanding.  It's not around behaviour modification.  It's getting alongside the child, helping them co regulate, understand those immediate emotions.  Where we identify further assessment is required, then that is flagged and we may, if a child is stable and able to participate in further assessments, we may bring that into the Centre, or make a recommendation with a case manager that that needs to occur following their placement at the Centre.

CHAIR:  Is the process you've just described, accurately described itself as therapeutic?  Is that a correct use of the term, do you think?

MS KALDERS:  The term that occurs in out of home care and in the literature around our sanctuary model is described as a therapeutic care service, and that is used throughout the residential care services that we provide and that's how the models are described by the universities from which we have received these models and worked with these models of service delivery to children.  We do have, like I say, the presence of psychologists and at Kath French our senior psychologists to guide what the staff do, so it's helping the staff understand, and understand what might be happening for the child.

CHAIR:  Has any university been involved in the processes that are employed at the Centre?

MS KALDERS:  The therapeutic crisis intervention is a model that we are registered for through Cornell University, and we retrain our staff on that on a regularly 2 yearly basis.  The sentry model, again    

CHAIR:  Cornell has published something, has it    

MS KALDERS:  Yes.

CHAIR:      that you have adopted?  That's in Ithaca, New York.  Rather depressed when last time I was there.  All right.

MR POWER:  Just to understand, if somebody presents in a way that leads to a concern that they may have a cognitive disability or may have a hearing loss, what happens in the Kath French Centre?

MS KALDERS:  If that was new information    

MR POWER:  Yes.
 

MS KALDERS:      we would then seek to court with the case manager, noting that the case manager has the primary responsibility for the child even when they're at Kath French and we would seek to have the child referred for an assessment.  Whether that can occur in the timeframe of the 21 days, and whether the child is, as I indicated before, stable enough to undertake an assessment.  The nursing staff may do a screen, but if we had concerns that there was for example, a hearing loss, we would certainly seek to have an assessment completed in line with the case manager.

MR POWER:  Do your files reflect what percentage of children or young people entering the Kath French Centre, that is the 295 over the last 10 years, what percentage of them were noted to be in need of some form of assessment during their stay in the Kath French Centre?  Do you have any percentage?

MS KALDERS:  No, I'm sorry, I don't.  That would be in case notes and potentially reflected in the discharge plan that's written that would go with the child.  So I don't have any information on new assessments identified while at Kath French.

MR POWER:  Is it something that could be obtained from the data?

MS KALDERS:  That might be very tricky.  We can look, but I suspect that it's not identified in a way, because it would be embedded in the case notes rather than in something that's a searchable item, because like I say, some assessments might be in progress, some assessments would be newly identified.  We can certainly look to see if we have that information, but I doubt that we do    

MR POWER:  Okay, so if you could determine whether you do or if you don't, but do you think it would be valuable to have a stand alone part of the file which reflects their time at Kath French so that there can be some sort of validation about whether this intervention     that is, involuntary confinement     has resulted in benefits to an individual child?  Do you think that would be important?

MS KALDERS:  I do, and that is part of the implementation of our evaluation framework and our Welltree Wellbeing assessment, which has a number of domains that checks anxiety and depression, and checks the child at the beginning and at the end of the placement.  So the 295 children that we have had through the Centre till June this year, they are on a separate     we are tracking those children, but we don't have good data on all of those children, hence our implementation of improved data so we can do exactly that, because we do need to understand how effective it is, and for which children it's more effective than maybe for other presentations.

MR POWER:  If I understand that correctly, in more recent times you are doing that process of identifying what interventions occurred at the Kath French Centre and you're going to track those children into the future; is that correct?

MS KALDERS:  Yes, we are.

 
MR POWER:  So in answer to the earlier question, it may be that there isn't data for the full 295, but there may be data in more recent times?

MS KALDERS:  Yes, and like I say, we're in the process of implementing that framework.  We have it, and we need to build some better ways to capture some of that data in a way that's more searchable, so that is a work in progress, Mr Power.

MR POWER:  All right.  If I can just return briefly back to timeframes, have you had the opportunity to review Dr Kelly Thompson's statement?

MS KALDERS:  I have read it, yes.

MR POWER:  A suggestion that she raises is that there may be circumstances where a longer period in Secure Care of up to six months albeit she contemplates a purpose built Centre being developed.  Do you consider that     extensions up to six months if the other thing that Dr Thompson contemplates     that is a purpose built Centre was in place     would be beneficial, or do you not agree with that?

MS KALDERS:  My caution is around whether you are proposing a secure Centre for six months, which I would be very cautious about making such a recommendation versus a period of time that is secure with a wider range of options that may prevent children coming to Kath French and assist children leaving Kath French.  So this concept of a step up, step down model.  Whether that needs to be build by the department of communities, or whether we tap into what is being developed around mental health services and around the wider sector.  If I could comment on some of those new developments that are being proposed in WA that sees Kath French as part of the wider services available to young people, if that's of interest to you, Mr Power?

MR POWER:  Because of time I might move on, if I may, but you are certainly welcome through your counsel to provide any further information by way of an addendum.  I wanted to move onto the issue of First Nations children and cultural safety.

Now, returning back to paragraph 44 of your statement, you'll see that of the 295 children in total, 155 of those     that is 48 plus 107     are First Nations children.  So, it's slightly over half of all the children.  Now that's obviously not representative of WA's general population, is it?

MS KALDERS:  No.  It is representative of our children in care, unfortunately.

MR POWER:  Okay.  Because more than half the children in the Kath French Centre are First Nations, you would agree that it's very important that the Kath French Centre be culturally safe?

MS KALDERS:  Yes.

 
MR POWER:  Also, a significant proportion of those 155 children have come from remote communities, not from the Perth suburbs?

MS KALDERS:  Some children do come from off country, yes.

MR POWER:  At paragraph 53 of your statement on page 9, you deal with where Kath French is, and you note that it has been used for a number of purposes, including a government run reformatory for adolescent boys as a work farm, which closed in 1984, and other earlier institutions such as the Padbury Boys' Farm School, and you note:

Many Aboriginal Children were sent to these institutions and a number have recorded their traumatic and abusive experiences.

You go on to note that the records of the Kath French Centre reflect:

A number of Aboriginal children that have come to Secure Care have expressed negative spiritual experiences, usually in their rooms, usually from the children that are from other areas of the State.

You then go on to say you invited a local Noongar Elder to reassure those First Nations children that they're welcome onto land, using translators when required, and that a smoking ceremony every four years, or as indicated in response to the spiritual concern of the children.

Firstly, just as a broad consideration, in a perfect world the Kath French Centre wouldn't be on a place that had that sort of history, would it?

MS KALDERS:  I would agree with you.

MR POWER:  In evidence from the ALS, the Aboriginal Legal Service of WA this morning, part of what was said was the importance of First Nations involvement.  Has any consideration been given to a facility like Kath French being established in either or both the far north or the far south of WA, and secondly, whether there's any contemplation that an Aboriginal controlled organisation could be funded to run a "remote area Kath French", and I realise that's two questions, but is that something that's in the contemplation of the Department?

MS KALDERS:  We haven't discussed building another Centre or having another Centre.  Part of the challenge in placing a service like Kath French in our more remote area would be attracting workforce.  We have significant challenges in our specialist workforce in Perth at the moment, particularly in recent times with the impact of closed borders, and we haven't as yet talked about having a Kath French secure Centre run by an ACCHO.  We have looked at quite an number of other services that are ACCHO led.

MR POWER:  Hopefully COVID will pass.  Is it something where an  
Aboriginal controlled community organisation would be first in line should a Kath French type Centre or a step up or a step down, as you've discussed to be built, is that something that is in the contemplation of the Department?

MS KALDERS:  We currently don't have any plans to build another facility at this point in time.  We are looking very closely.  We have an ACCHO strategy that we are working very actively with our community and our Aboriginal community to increase the number of ACCHOs providing services across all our services, both our business services and our out of home care services.

MR POWER:  Another observation made by the Aboriginal Legal Service this morning was that ALS saw children in the Kath French Centre being charged with criminal offences for their conduct whilst in the Kath French Centre.  Are you aware of that?

MS KALDERS:  In the last five years we understand there has been one instance where a child was charged for criminal damage.  It was a very exceptional circumstance and it was a number of years ago, but certainly we managed most of the behaviour within the Centre and with our staff and with that supportive therapeutic care, and that we try not to have children charged for things that happen at the Centre or even in our residential care.

CHAIR:  Can I just come back to the question Mr Power asked a little while ago about as I recall it, a step down approach.  Recommendation 8 from that 2019 review recommended additional high support placement be made available to facilitate a staged or step down approach for selected young people exiting Secure Care.  Has anything been done by way of implementation of that recommendation?

MS KALDERS:  Yes, Chair.  We are doing work at the moment around expanding our out of home care contracting, so that's part of it.  So, we want to have a greater flexibility and range for the children at the end of children coming into Kath French and who will leave Kath French and what we're loosely describing as a "Complex Care Framework".  Currently we have therapeutic high needs, but what we want to do is have a greater flexibility.

In the absence of having that as part of our suite of contracted services, they're about to go out for contracting, so there's work being done in preparation for that, we have responded to individual children.  So in the last few years we've had three or four children to which we've designed an individualised program.  Sometimes, I think in one case we outsourced this, and other times we've set up a house where we've got our trained staff that work on a sort of a 2:1 with a child and provide that more intensive placement in order to     over time, we hope that intensity can decrease.  We've also had some examples where we have a mix of our residential care workers and a mix of our social trainers from our disability houses have trained together and become co support workers in that model.  So, they bring the disability knowledge and the child protection knowledge for a child.  We've had some instances where we've got very complex children with disability as well as care and protection needs  
and a range of other needs in that mix, as well.

CHAIR:  Yes, thank you.  It might be helpful to put this in context.  I think we've established that the secure facility has about 30 separate children each year admitted to it, on average?

MS KALDERS:  On average, yes.

CHAIR:  On average.  How many children are in care at any given time and how many of those are Aboriginal children?

MS KALDERS:  In total, WA children in care?

CHAIR:  Yes.

MS KALDERS:  I can get you the latest numbers.  There was about 5,500.  I think we're sitting at about 5,300 or 400.  I can get you the precise numbers.  I don't have that in front of me.

CHAIR:  It was 2,029 at 20 June 2018 of whom 2,760 were Aboriginals.  Presumably the figures have gone up by 4, 5, 6 or 7 per cent.  So we're talking here about 30 children out of a population of 5,000 and some.

MS KALDERS:  Roughly 5,000.

CHAIR:  I see.

MS KALDERS:  So it is a very, very extreme end.  This is the most complex of our children, Chair.

CHAIR:  I can see that.

MR POWER:  As you've just said, these are the most complex of children in care.  It would be surprising, wouldn't it be, that only about 50 per cent of them had a disability of some sort?  You'd agree?

MS KALDERS:  I don't think our figures show that we have 50 per cent ---

MR POWER:  Sorry.

MS KALDERS:  --- I think it's around 26 per cent, which is higher than the statistics we have on our children in care generally.  This is probably twice as high as our general rate of children with disability across children in care.

MR POWER:  Yes, but given it's the most complex end, it would surprise you that it would be that end, wouldn't it?

 
MS KALDERS:  It depends on your definition of "disability".  Children come with a range of behaviours, and I'm aware that the Royal Commission has made a very broad definition of "psychosocial".  Our definition is somewhat narrower, so it does depend on that definition.  Certainly all our children that present to us do have significant trauma histories and significant needs across the spectrum.  They come with potential     some of them have already got significant psychiatric diagnosis, some of them don't, so that range of need is present in the children.

MR POWER:  In the assessment and admission of children into the Kath French Centre, there is a role to be played by an Aboriginal Practice Leader.  Now, what role does that person play with regard to the Kath French Centre?

MS KALDERS:  We have a slightly different title for our newly appointed Aboriginal support worker, our cultural therapeutic support worker was appointed in June/July this year.  His role is really important on all our case planning team, and our engagement processes with the children, and most importantly, of course, when children are off country, that person is connecting back to the Aboriginal practice leaders in the district and connecting back to family.  That person is also, we are very excited is building some of the cultural knowledge around the children.

We've also repeated, and he's brought in some Elders to restart and relay our cultural practice.  So we had a smoking ceremony in August.  We see some real development in that role as that person becomes really enmeshed in all the practice and building the capability, but we don't see that person operating in isolation, that we have a team of     all our districts have now two Aboriginal practice leaders, and the role of our therapeutic cultural support worker is working with those Aboriginal practice leaders, also both at referral, but most importantly throughout the time the child is there, and in transition planning.  Because, of course, that's the most important part about where the child is going and what the child then needs, but meeting some of those cultural connections, also connecting us to Elders both locally and potentially across the State as is dependent on where the child has come from.

MR POWER:  All right, to break that up, is the person you're referring to here is somebody in the Kath French Centre?

MS KALDERS:  Yes.

MR POWER:  Are they employed full time or part time?

MS KALDERS:  Full time.

MR POWER:  Okay.  Then, if I understand it correctly, in terms of the decision of a First Nations child entering into the Kath French Centre, that is the Department placing them in the Kath French Centre, consultation is made with a person whose title is District Aboriginal Practice Leader?

MS KALDERS:  That's correct, yes.
 

MR POWER:  Now, is that done in all cases where it's a First Nations child?

MS KALDERS:  Yes, that's a requirement.

MR POWER:  In relation to that, what input do they have in terms of that decision?

MS KALDERS:  Part of the decision, of course, is making sure that their cultural needs continue to be met while they're at Kath French, but also when we're making decisions about bringing a child off country, their knowledge and expertise is really important about whether this is in the best interests of a child, whether there are other alternative placements that might be made locally, or whether there are any other alternative services.  So, it's, you know, a multi team approach making those decisions, and for Aboriginal children, an Aboriginal Practice Leader in the district is really essential.  Then, of course, that's part of that consultation when the team are looking at the referral, the therapeutic cultural support worker is part of that Kath French case management team that are looking at those referrals.

MR POWER:  When an application comes across your desk as the delegated decision maker, where a child is identified as being First Nations, in all cases is there a section of that form which states what that District Aboriginal Practice Leader has said about the application?

MS KALDERS:  May not be as explicit as exactly what they said.  It's certainly part of the narrative in that referral around what the cultural issues are.  There is a cultural needs section.  It doesn't necessarily quote    

MR POWER:  Sorry, I just want to understand this.  When you were giving the description earlier, it sounded as if the District Aboriginal Practice Leader would have been consulted about whether it was in the best interests of the child, whether it was culturally safe, and whether there were other options in an Aboriginal setting.  Would you agree that that would play a very important part in deciding whether someone should be removed, particularly from a remote area and being brought to Kath French?

MS KALDERS:  Yes, and that's relayed in the referral.

MR POWER:  Right, but then you said that it wouldn't be as direct, it may not be as direct as what that person had said.  Why would that be needed to be mediated by some other person within the Department?  Why couldn't that be directly stated as what this District Aboriginal Practice Leader had said about those issues?

MS KALDERS:  Sometimes it was quoted more directly.  I'm just trying to     I haven't got a referral form in front of me to look at, you know, like sometimes     because they're written collectively by the District, how that's conveyed.  But that information we look at and discuss.

 
MR POWER:  Right.  Is there any reason why that section, which is about getting that input from the District Aboriginal Practice Leader, is there any reason why it shouldn't be directly from that person?

MS KALDERS:  No, not at all.

MR POWER:  All right, and is it something that the Department thinks it should work towards to have that as a free standing part of the form so that you as the decision maker have an unmediated opinion from that person?

MS KALDERS:  Like I say, there is a section on cultural needs.  How much it's direct verbatim quote from the Aboriginal Practice Leader varies a little bit, but it's something probably we should look to strengthen.

MR POWER:  All right.  Because that person is at least seeking to speak to the cultural needs and the cultural safety of that child within the community of which that person forms part?

MS KALDERS:  Yes.

MR POWER:  In terms of the physical structure of Kath French, it doesn't look that different from a youth detention Centre, does it?

MS KALDERS:  It is a fairly stark building.  Like I say, the building, as you've noted, is not purpose built.  It is a concrete building and it is quite stark, yes.

MR POWER:  Do you know what percentage of children who enter the Kath French Centre have previously been held in juvenile detention Centres?

MS KALDERS:  I don't, off the top of my head.  I have a funny feeling it's in the evaluation report and I can't remember what that percentage is at this time, sorry.

MR POWER:  All right, if it's possible if that can be taken on notice, and is it something that would be recorded in the intake?

CHAIR:  I'm here to help.  If you look at Table 2 4 of that report, you will see that the living arrangement before a child entered the Secure Care, 39 of the 418 over the 10 year period came from detention, and when they were released, 11 went back into detention.  I'm not quite sure how that squares with the principle that they have to be in care before they can be sent to the safe or secure Centre, because if they're in detention presumably they're not in care, are they?

MS KALDERS:  Oh yes, we have children in care who are at Banksia Hill Detention Centre, Chair.

CHAIR:  You've got about a four a year on that, no a bit more.  Five a year that come in from detention.
 

MR POWER:  That's coming in from detention, but other children presumably have got detention in their life history but they may not have come direct from detention.  Do you know whether that figure would be available?  That is, how many children, whether they've not come direct from detention, but have a custodial history behind them before they enter the Kath French Centre?  Do you know whether the figures for the Department would show that?

MS KALDERS:  I notice the chair is looking through the evaluation report.  I think some of this can be difficult to obtain noting, of course, that children come into care they may previously have had exposures to Banksia, so the data wouldn't be complete, and I'm not sure how easy it is to search that data.  I know that we looked at the sample in Kath French.  Again, I can take that on notice to see whether we have that information.

MR POWER:  Linked to the Chair's question about these children who are coming directly from custody into the Kath French Centre, how does that occur?  Is it that they've reached the end of their sentence, or they've been released on bail, but the Department considers that they are a risk under the test and then puts them into Kath French, that's what's happening?

MS KALDERS:  That's correct.  So a referral can be made if a child     often it's been because they've been in Banksia Hill for a short period.  There have been real concerns before they went to the Banksia and the concerns around risky behaviour have continued whilst they were at Banksia.  So therefore they may meet that criteria, and we would admit them in.  We do have a very clear test, and we make sure that it isn't for further detention, it is because we consider that at that point in time, there is the immediate and substantial risk.

MR POWER:  You said that the Department is strongly opposed to essentially a court or a mental health tribunal making a precondition of release, whether on bail or on some other order, that they go to the Kath French Centre.  Now, I bear in mind that it is the Department's decision as to whether someone goes in or not, but why is it an issue?  It's not the court making a decision they go into the Kath French Centre, it would be the Department.  But why is it a problem for a court or a mental health tribunal to say "We've run out of options, but if they were put in the Kath French Centre, we'll allow them to be released from custody"?  Why is that a problem?

MS KALDERS:  We see that as a conflict between the criminality and the test of whether a child is safe to be in the community, versus the legislative threshold around admission to Kath French, and when I was talking about the mental health, it was about mental health services, not necessarily a mental health tribunal.  But where a child needs to be discharged and is seen fit to live in the community, then we can make an assessment about placement at Kath French.  If a child still has health needs or mental health needs, we need to make sure that they are stabilised before we could admit to Kath French, because we aren't a service     it's not a detention Centre, and we aren't a mental health service, so we aren't able to have a child who has very high  
levels of health needs, or acute psychiatric needs that need mental health services.

MR POWER:  Let's put aside the mental health side for the moment.  A child who is in the Kath French Centre, is it correct that they may be on bail for criminal offences, that's not a disqualifying feature?

MS KALDERS:  No.

MR POWER:  So if a child is being held a youth detention Centre and an approach was made to the Department to say that 21 days would be a circuit breaker and the court has determined that after, whatever period of time the Department deems suitable to be held in the Kath French Centre, the person will be released on bail to return to X place.  Why is that an issue?  That doesn't prevent the Department from expressing its discretion.  Why is that circumstance a disqualifying feature?

MS KALDERS:  If the only presentation is that a child presents with criminality or risk to others, that is not the criteria for admission to Kath French.  So, there are separate criteria.  If a child presents a risk generally to the community then it's up to the criminal court to determine whether that child can be released on bail.  For us, we then, if a child     if the court then says yes, the child is going to get bail, we will then make a determination if a child meets our criteria, because we have ongoing concerns or we have a new concern that there is immediate risk of substantial harm to the child, to the child themselves.  So that's how some children can come from Banksia.

MR POWER:  You would understand, I assume, that bail orders are often made on a provisional basis.  Bail is granted on the condition that a person surrenders their passport.  Bail is made on the condition that they live at an approved rehabilitation Centre for a period of time.  So bail could be made conditional upon being placed at the Kath French Centre.  Now, if that condition is not met, the child stays in custody, but why is it an automatic bar that that possibility is removed for a child who is in custody?

CHAIR:  I think, Mr Power, the answer to your question is in the policy on children entering Secure Care.  If you look at page 3 of that document which is behind tab 41 at volume 2 of the tender bundle, we see that there are a number of grounds upon which it is not appropriate to place a child in Secure Care.  The fourth of those grounds says:

For punitive purposes or as an alternative option for children remanded in custody.

I would read that as preventing the admission of a child into Secure Care as a condition of the granting of bail.  I may be wrong, but that's the way it reads to me.

MR POWER:  And that's a policy decision, is that correct, Ms Kalders?

 
MS KALDERS:  Yes.

MR POWER:  And that policy could be changed?

MS KALDERS:  Yes, I just need to consult whether it's also in legislation, but as     it's currently a policy.  And partly because we see the care and protection needs of the child being separate to their risk of criminal behaviour which is the decision by a criminal court.

MR POWER:  Yes, but the test under the Act is immediate and substantial risk of a child causing significant harm to the child or another person.  So the two things can be concurrent.

MS KALDERS:  If the child presents only as a risk to others, that is not reason for admission.  That is part of our     we believe the child then falls in the space of risk of criminality.

MR POWER:  Is it correct that on occasion, there are grants of bail made by a judicial officer with a condition that a child be placed at Kath French for the period of time that the Department considers appropriate, but the Department refuses to act upon, it simply refuses to deal with that so the child remains in custody?

MS KALDERS:  In the situations that we've faced, we have negotiated with the court that that is not a condition of bail.

MR POWER:  No, but I'm suggesting there are cases where a court has made such a bail order, and the Department, in its role as the carer of the child, has refused to sign the bail undertaking and act upon that.  I think    

MS KALDERS:  We haven't had that situation arise, Mr Power.

MR POWER:  Right.  I note the time.  I just have a couple more questions.

In terms of facilitating visits and connections to culture, if a First Nations child is brought from a remote area, what provisions are made, whilst the child is at Kath French for 21 days or 42 days, to have contact with either their parents or their kin or siblings?  What steps are taken?

MS KALDERS:  First and foremost, that's something we seek to address in the referral, both how contact is going to be maintained as well as part of our transition planning so that's part of what happens while they're at Kath French.

MR POWER:  I apologise, I want to make clear, my question is about while they're at Kath French.  What steps are taken whilst they're at Kath French?

MS KALDERS:  So again, the team work closely with the district to make sure that the child is connected to family, or to carers and/or carers depending on who's  
significant for the child.  Children are able to receive visits, but one of the things we have found with COVID is it has become harder, and of course if a child is off country, noting the size of our geography, every endeavour is made to connect with family, and part of our therapeutic cultural support worker is to ensure that that is happening throughout the time the child is in Kath French.

MR POWER:  With respect, that's very general.  What I'm asking is if someone is from the remote north or the remote south, what steps are taken to ensure that that 21 days, that the child is in Kath French that they have contact with their family or other significant kin?

MS KALDERS:  So    

MR POWER:  Are we talking videolinks, are we talking some sort of funding arrangements for the family to visit?

MS KALDERS:  We would do phone calls or videolinks depending on what the family have.  Either can be arranged.  We have a videoconferencing facility where a child can contact back to District, the family can come in.  Often enough it's phone calls that children make to family.

MR POWER:  It's not infrequent, is it, that this small, most complex group that end up in Kath French, are, by the time they're reached there, estranged from their family, possibly living on the streets?

MS KALDERS:  Some children are.

MR POWER:  Yes.

MS KALDERS:  But a number of children still do have carers and wider family that they are connected to.

MR POWER:  Yes, exactly, but the point I'm making is that in those cases, wouldn't it be very important to have that physical reconnection, where possible, between the child and their family?  That is, bringing their family physically to the Kath French Centre?

MS KALDERS:  Where family are able to, we facilitate that and family do regularly visit.  Usually when I'm there some child is having a family visit, but we are a very large State, and enabling that can be quite difficult.  If family are there     and of course with COVID we've had periods of time where people couldn't travel within the State, and where we can facilitate that, we do.

MR POWER:  Do you facilitate that by providing financial support for the family to come and visit their child in the Kath French Centre?

MS KALDERS:  I'm not aware that we have a specific fund, but again, that's  
something that's negotiated with the district and depending on the needs, depending on the connections that are able to be facilitated in that short period of time.

CHAIR:  Do these same issues arise with respect to Aboriginal children from remote areas that may be taken into care one way or another and placed outside their home country?

MS KALDERS:  We work very closely and facilitate funding for travel back to country.  It's part of something that we regularly do.

CHAIR:  My point is, this is not something that's unique to the Secure Care Centre, it's something that applies to Aboriginal children in care, presumably across the State within many different circumstances?

MS KALDERS:  It does, Chair.  It's the timeframe that sometimes makes that difficult.

CHAIR:  Yes, sure.

MR POWER:  Three weeks is not a short amount of time for a child, particularly if they've been estranged from their family.  Do you think the Department should make it a priority to have a physical unification of the family if that's possible?

MS KALDERS:  Some of our families live very remotely, so even travelling to a regional Centre can be challenging.

MR POWER:  Do you think there should be specific funding available for that to occur, including meeting accommodation costs in Perth?

MS KALDERS:  We do have funding available for family.

MR POWER:  How frequently have you observed, or how frequently has the Department seen physical reunification of children and families from remote regions in the Kath French Centre?

MS KALDERS:  I can't give you that figure     noting, of course, that it depends on which part of the     you know, where the child is as part of concerns about safety for the child, as well.

MR POWER:  Yes.

MS KALDERS:  I can't give you the number of children from remote families, but I can tell you that family do regularly visit.

MR POWER:  Thank you, Chair.  I note the time and that's all the questions I have.

CHAIR:  Thank you very much.  I'll ask my colleagues whether they have any  
questions.  First, Commissioner Galbally, do you have any questions of Ms Kalders?

QUESTIONS BY THE COMMISSION

COMMISSIONER GALBALLY:  I'd be really interested to receive the detail of the step down material and the new initiatives that you spoke about in relationship to mental health services for youth.  Thank you.

MS KALDERS:  We can provide that.

COMMISSIONER GALBALLY:  Thank you.

CHAIR:  Thank you.  Commissioner Mason, do you have any questions of Ms Kalders?

COMMISSIONER MASON:  Yes, thank you.

Thank you for your evidence this afternoon.  Just a couple of questions.  I was interested in the therapeutic care services, the sanctuary model you mentioned around Cornell University.  Just interested in relation to First Nations experts providing feedback on that model, in terms of appropriateness for First Nations children in that type of environment.

MS KALDERS:  Just to clarify Commissioner, the Cornell model is the therapeutic crisis intervention, so there's two models that work side by side.  The sanctuary model provides us a framework and our practice tools and the way we engage and attempt to de escalate crisis with children is the model that's developed by Cornell.  I'm not aware of any specific validation with Aboriginal children from an Aboriginal perspective.  We do use both these models in our residential care and we work closely with our Aboriginal practice leaders to ensure that the application of those models takes into consideration the cultural aspects of children and part of that engagement.  Because the framework is quite high level and really encourages the connection to the child and, of course, cultural connection is such an important part in strengthening cultural identity.  So, that's an important aspect.  We have in the actual application, but I'm not aware of any cultural research that's been done on those models.

COMMISSIONER MASON:  Who would be, in your view, the appropriate experts to do it?  For example, First Nations psychologists or psychiatrists or social workers     who would be appropriate to do that research?

MS KALDERS:  All of those people, Commissioner, depending on which aspect they're looking at and we certainly do send our staff off to training where it's available.  Like, a number of our, particularly our specialist practitioners and our cultural support worker undertake Tracy Westerman's Aboriginal Mental Health  
Training, so we seek to connect those concepts and models within our practice.

COMMISSIONER MASON:  Thank you.  Just a last question, Chair.

Mr Power, in his questions to you, talked about cultural safety, and I was interested in your statement at 53 talking about the history of the facility there in Perth, and particularly, the connection with Sister Kate's in Parkerville.  Can you explain to me what that relationship was?  It says:

The Centre was built on land that was originally connected to Sister Kate's Parkerville site.

Do you know that history?

MS KALDERS:  I don't know it very well.  There is a wider history.  I understand there was potentially ..... I'm not quite sure what the word is, but a location where it may have involved Stolen Generation children.  That's an older history.  You have the information there, but there is, as it says, a history for people who have had negative experiences on that site and in that building.

COMMISSIONER MASON:  Yes, I was interested, because that particular paragraph is loaded with cultural significance, psychological significance, and that last sentence says:

The Centre conducts a 'Smoking Ceremony' a minimum of every four years or as indicated in response to spiritual concern from the children.

To me, that would see a definition to me of a cultural location which is unsafe for children in high levels of trauma, and it has a reputation because you've got Elders involved in smoking and it's ongoing.

MS KALDERS:  Yes.

COMMISSIONER MASON:  And what are the concerns about that history, but also the way the history is now interplaying with children and another generation of children that are in out of home care?  Is that something which is of concern to the Department and particularly to those that work there in the Centre with the children?

MS KALDERS:  I think it's an ongoing dialogue, particularly for our Aboriginal people that we have working there and seeking that advice about how we manage that.

COMMISSIONER MASON:  Any plans of moving?  Mr Power was talking about different sites, but even that place, with all of that history, because there is significant trauma with all of the previous iterations of institutions there on that particular place in Perth.

 
MS KALDERS:  I take what you're saying onboard, Commissioner.  We don't at this point in time have a specific plan.  We are certainly     it's part of a prioritisation around different homes that may need rebuild, but it is certainly, I think it's an important point that I shall take on note, as well.  So, thank you.

COMMISSIONER MASON:  I'm originally from Western Australia and was born in Perth and grew up in Kalgoorlie, and as I read that section there, it just reminded me of an example     if we used a similar example, Rottnest Island, Aboriginal people being taken there in the 21st century as a new institution for incarceration, we know the history of Rottnest Island so we know there is history and we need to move away from it.  But thank you very much for your response.

MS KALDERS:  Thank you.

CHAIR:  Ms Kalders, thank you for your evidence, I'll just inquire.

Mr Bydder, your position is the same; I take it you don't have any questions for Ms Kalders?

MR BYDDER:  That's correct, thank you.  There are a number of matters taken on notice.  Mr Power referred to an addendum, those are matters that will be considered.

CHAIR:  Yes, I think the best course for that is for there to be consultation between the counsel so that the information that is needed can be refined and made specific, and then responses can be provided on notice within a reasonable timeframe.  Thank you.

I take it then that no other counsel or representative has any questions of Ms Kalders, and on that basis, thank you, Ms Kalders for your evidence.  Thank you for coming to the Royal Commission and for your statement.  We appreciate your assistance.  Thank you.

MS KALDERS:  Thank you, Chair.

THE WITNESS WITHDREW

CHAIR:  We adjourn until 10 am tomorrow.  Perhaps before we do that, Mr Crowley might give us a little preview of tomorrow.

MR CROWLEY:  Yes, thank you, Chair.  Tomorrow we will have in the morning a continuation of the focus of the Secure Care and the Kath French service from the WA perspective with Dr Kelly Thompson, the Assistant Director of the Kath French Secure Care Centre, giving evidence.

We will then be shifting focus to the Northern Territory, and we'll have evidence  
from Mr Nick Espie from the North Australian Aboriginal Justice Agency, following which we will then have Ms Jeanette Kerr from the Northern Territory, Department of Territory Families giving evidence on behalf of the NT Government.

CHAIR:  Yes, thank you very much.  Each of those witnesses has provided a statement?

MR CROWLEY:  They have.

CHAIR:  All right, thank you.  We'll adjourn then until 10 am tomorrow, Australian Eastern Standard Time.

HEARING ADJOURNED AT 4.00 PM UNTIL THURSDAY, 23 SEPTEMBER 2021 AT 10.00 AM