Public hearing 16: First Nations children, Virtual - Day 3

CHAIR:  Good morning, everyone.  This is the third day of this hearing.  We shall commence, as always with Commissioner Mason making an Acknowledgement of Country.

COMMISSIONER MASON:  Thank you, Chair.

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

Tjukarurungku kalkuni Anangu kuwaripa tjara nyinantja tjuta, ngura nyangangka.

We recognise Meanjin, Brisbane.

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 and young people with disability.

I'd 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 people with disability.  It will also include references to First Nations people who are deceased.  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, for First Nations viewers, 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:  Thank you, Chair.  Commissioners, this morning we will be  
hearing the evidence of Leah, who is the legal guardian of Connor.  Connor is a 7 year old First Nations boy with complex disabilities.  Before becoming Connor's guardian, with the support of Connor's family, Leah was Connor's respite carer and then foster carer.  Leah will tell us about her experiences and about Connor's experiences in out of home care in Western Australia.  Commissioners, a copy of Leah's statement is within Tender Bundle Part A at Tab 156.  I tender that statement and ask that it be marked as Exhibit 16.12.

CHAIR:  Yes, Leah's statement will be admitted into evidence and given the marking of Exhibit 16.12.

EXHIBIT #16.12   WITNESS STATEMENT OF "LEAH"

MR CROWLEY:  Together with the statement, there are 249 documents relevant to this particular case study of Connor.  They are within the Tender Bundle Part A at tabs 157 to 333, and tabs 486 to 557.  I tender that material as well, Chair, and ask that it be given the exhibit markings 16.12.1 to 16.12.249.

EXHIBITS #16.12.1 TO 16.12.249   DOCUMENTS RELEVANT TO CASE STUDY OF "CONNOR"

MR CROWLEY:  In respect of the evidence and the documents that I've referred to, Chair, can I draw attention to the pseudonym direction which has been made, which is the marking CTH DNP 00099 in relation to the identities of certain persons, including Leah and Connor, as well as the other persons we will hear about --- Dylan, Abigail and Matilda.

CHAIR:  Yes, thank you.

Leah, thank you very much for coming to the Commission to give your evidence today.  I understand that you wish to take an affirmation, and if you would be good enough to follow the instructions of my associate, he will administer the affirmation to you.  Thank you.

"LEAH", AFFIRMED

CHAIR:  Just to explain where everybody is, because it is a little complicated.  Commissioner Galbally is participating in the hearing from Melbourne.  Can you hear us?

LEAH:  Yes, very well, thank you.
 

CHAIR:  Fine.  Commissioner Galbally is participating in the hearing from Melbourne, and you should be able to see her on the screen.  Commissioner Mason is participating in the hearing from our Brisbane hearing room.  I am participating from our Sydney hearing room and Mr Crowley, who will ask you some questions, is also in the Brisbane hearing room.  So I'll now ask Mr Crowley to ask you some questions, thank you.

EXAMINATION IN CHIEF BY Mr Crowley

MR CROWLEY:  Thank you, Chair.

Good morning, Leah, can you hear and see me okay?

LEAH:  Yes, thank you.

MR CROWLEY:  Leah, could you start off, please, by telling us a bit about yourself, who you are and where you live?

LEAH:  I am a 38 year old non First Nations woman.  I live in Perth, Western Australia, with my husband, our two boys and our daughter.

MR CROWLEY:  Now, your two boys, you are referring there to Connor and Dylan?

LEAH:  Yes, that's correct.  Connor and Dylan came to us via the out of home care system and I am now their legal guardian.

MR CROWLEY:  You became the legal guardian through an order made for what's referred to as a special guardianship order?

LEAH:  Yes, that's correct, I made an application to the Perth Children's Court for that order to be made, with the support of maternal and paternal family.  Ultimately, that order was granted by the court.

MR CROWLEY:  That was in June of 2019?

LEAH:  Yes, 4 June 2019.

MR CROWLEY:  Now, the two boys, Connor and Dylan, they're First Nations boys?

LEAH:  Yes, they are.

MR CROWLEY:  Can you tell us first of all a bit about their backgrounds in terms of what you know of their cultural backgrounds?
 

LEAH:  Yes, so our boys are Whadjuk Noongar and have family ties to Yamatji(?) and Ballardong country.

MR CROWLEY:  Now, I want to ask you in particular about Connor.  Connor is the older of the two boys?

LEAH:  Yes, that's correct, he's 7 and a half.

MR CROWLEY:  And Dylan is his younger brother?

LEAH:  Yes, he has just turned 5.

MR CROWLEY:  If I can ask you some more about Connor and how you first came to be involved in Connor's life.  Just tell us a little bit about him, what sort of boy is he?

LEAH:  He's a good boy.  He's a very sweet child.  He loves to play outside with a ball all day.  We have to drag him in sometimes if it's too hot in summer.  He's a happy kid.  He just likes to play outside all day.  He'll make up games.  He's the ring leader of the kids and they have a really wonderful time playing outside together.  He really enjoys his football, and swimming lessons, and basketball, cricket.  Anything ball sport related and he's in love.

MR CROWLEY:  Now, in your statement you have referred to Connor having complex disability needs.  Could you just tell us about those needs please and how that is accommodated with Connor living with you?

LEAH:  Yes, so Connor has a diagnosis of Foetal Alcohol Spectrum Disorder, Autism Spectrum Disorder level 2, ADHD, PTSD, IED, intermittent explosive disorder.  He also has a mild/moderate bilateral conductive hearing loss, and an auditory processing disorder.  His needs are very complex, given the number of diagnoses that he has and the way they interplay with each other.

MR CROWLEY:  Just tell us if you could then, in terms of Connor's behaviour and his day to day functioning and how he lives his life with you at home, just tell us about that?

LEAH:  Yes, so Connor can't be left unsupervised, really, at any point in time.  That is both in him completing care tasks and his normal daily living tasks, but also in his interactions with the other children in the house.  He has an NDIS support worker that helps us out during the week and on the weekends, and that enables Connor to access the community and attend family events.  We try very hard not to     or to make sure that there's always two adults at any time with Connor, and that is so we can manage his behaviours and the safety of the other children in the house.  But also, so that we can make sure he's safe.  He's particularly impulsive and will run out in front of cars, will climb to the highest point of any structure or playground, and  
engages in some considerable risk taking activity.  Those behaviours are reflected at school, at sports.  It's not something that we just experience at home.  So he has very considerable needs.  He cannot be left unsupervised whatsoever.

MR CROWLEY:  Now Leah, you've spoken a little bit about Connor's family.  You have, over your time in your involvement with Connor and Dylan, been in contact regularly with the family?

LEAH:  Yes, that's correct.  We enjoy a good relationship with the family.  It was our view that when we made the application for the guardianship order, not only would we become the legal guardians of the boys, but we would also be inviting another family into our lives, and we are very proud that we have naturalised and normal relationships and contact with the family.  We see them for Mother's Day and Father's Day.  We invite them to the kids' football games and football wind ups.  We have barbecues and catch ups in the park where we put on some food and everyone comes down.  In that way, we try to encourage interactions that you would have in any family.

MR CROWLEY:  In particular, you've over time, been involved with and formed a close relationship with Connor and Dylan's nan; that's Abigail?

LEAH:  Yes, that's correct.  She is an incredibly powerful and strong woman, and she's a great leader of the family and absolutely adores the boys, and we have a wonderful relationship with her, and I'm very glad that the kids are able to have the time that they can with her.

MR CROWLEY:  And as well, you've also had contact with Connor and Dylan's other siblings, as well?

LEAH:  Yes, that's correct.  The boys go to one facilitated contact visit a month with their sister Matilda, who is still in care, and then at our other family catch ups, we have all of the other siblings come along too, as well as cousins and aunts and uncles and grandpas and anyone that wants to come down is welcome.

MR CROWLEY:  Now, the older siblings, are they now over 18?

LEAH:  Three of them are.  One of them is not.  One of them I still understand is in the care of child protection, but is living with the children's mother at the moment.

MR CROWLEY:  That's separate to Matilda that you spoke about?

LEAH:  Yes, that's correct.

MR CROWLEY:  Now I want to ask you if you could tell us a little bit, Leah, about first of all how you became a foster carer and why you became a foster carer.

LEAH:  I became a foster carer, because I experienced trauma in my own childhood  
and got to a point within my life where I realised I was doing okay, I had a job, I had a house, I had been to uni, and I felt I could give back to the community and to children who had perhaps had some adverse experiences in their life.  I applied to become a respite carer at the time, because I was working full time as a solicitor in the city.  In that journey, I found out that good, reliable and respite carers are desperately needed within the system and that was a role that I could fulfil, and so I started caring for Connor originally as a respite carer to support his nana who he was living with at the time.

MR CROWLEY:  Now at that stage when you became a respite carer, it was the case that Connor was under the care of the Department, under an order at that stage, but was placed with his nan?

LEAH:  Yes, that is correct.

MR CROWLEY:  And when you first applied for and became a respite carer, there was an agency that was involved that would facilitate your placements and your work as a carer.  Could you just tell us about the agency and how they are involved between care and the Department?

LEAH:  Yes, so I was officially a departmental carer, but you register either with the department or an agency in Western Australia.  I made the decision to register with Wanslea Family Services, and that meant that they managed me as a carer, my training, my annual review, and they would be contacted by the Department when they needed placements, and I would get a child information form saying that there was this child who had this background and needed this type of care, was I available?  And so I only ever liaised and emailed with the Wanslea staff members and social workers and then, they would pass my communications onto the Department of Child Protection and decisions would be made from there.

MR CROWLEY:  In turn, did it flow the other way     the Department would go to Wanslea and then Wanslea would communicate to you?

LEAH:  Yes, that's correct.  So I was not permitted to have any direct contact with the Department for child protection, save that when I began caring for Connor in a full time capacity, the Department would attend his care planning meetings.

MR CROWLEY:  Now, I just want to ask you about when you first started in the role as a respite carer with Wanslea.  What sort of training and introduction did you receive?

LEAH:  For respite care specifically there was no training, but in order to be approved as a foster carer, I did complete a roughly 20 hour course with the Foster Care Association of Western Australia.  The assessment process was quite extensive.  I had an employee that was doing the assessment that went to my home on several occasions.  We went through all my background and history and how I would look after kids.  They put scenarios to you where things     obviously things, examples of  
things that have happened to children in care and you're asked how you would respond to that situation, and they assess you against various carer competencies to determine if you're suitable to be approved as an a carer.  Then as an ongoing basis, I was required to do 12 hours of formal training a year, and those training courses are offered by the Department of Child Protection and everyone, every carer in the State is invited to attend those training sessions.

MR CROWLEY:  Now, you ultimately became the foster carer and subsequently the guardian of Connor and Dylan, two First Nations boys.  Was it your original intention to just be a carer for First Nations boys or non First Nations children?

LEAH:  No, not at all.  I was open minded about who I cared for.  I was happy to care for whatever child needed a home.

MR CROWLEY:  In terms of the cultural training and instruction, was there anything provided in terms of First Nations culture, as part of that initial training either as a respite or a foster carer?

LEAH:  There was, but it was extremely limited.  I honestly can't even recall the specific details.  I do know that I did one 2 hour course which was "titled Caring for Aboriginal Children", and that was run by run of the Aboriginal practice leaders at the Armadale district here in Perth.  But other than that, it was a process where I had to do my own research, teach myself, make my own inquiries, develop the relationship with the boys' family, particularly nanna, and find out the relevant cultural information for the boys.

MR CROWLEY:  What about any training or instruction about caring for the children with disability needs?

LEAH:  None whatsoever, in my recollection.  I did attend some courses on children with trauma, and I attended one course that was called Therapeutic Crisis Intervention which was quite     I think it was a 2 day course.  But specifically about disabilities and how to access the NDIS, how to work with therapists, how to do an individual education plan for a child, no, none of that whatsoever.  That was all self taught and through my own learning.

MR CROWLEY:  When you first became involved with Wanslea to be a carer, did you identify or agree that you would be able to look after children with disability needs?

LEAH:  I remember specifically stating that I would only care for a child with a mild disability simply, because I didn't feel that I had the expertise or experience or training to be able to properly care for a disabled child.  I certainly never, ever intended to end up where we are.

MR CROWLEY:  Can I ask you Leah about Connor and the supports and things he has in place now.  One of the things he does is art therapy?
 

LEAH:  Yes, that's correct.  He has a lovely art therapist who sees him every Tuesday afternoon, and he loves going to spend time with her, and they explore lots of different mediums.  He's really enjoying face paint and painting on his arms and legs.  She is really open minded and lets him pour materials and mix sand and play with slime and paint and create masks, and she really lets him lead the session, and I feel that that's quite valuable for him.

MR CROWLEY:  For the purposes of this hearing, I understand that through Connor's art therapist, he's prepared some artwork?

LEAH:  Yes, that's correct.  He's prepared three pieces.

MR CROWLEY:  Commissioners, there are some paintings that Connor has made for this hearing.  They are located in the Tender Bundle Part A at Tab 334.  There's a recording of the artworks, and could they be marked as Exhibit 16.13, Chair?

CHAIR:  Yes, that can be done.

EXHIBIT #16.13   RECORDING OF "CONNOR'S" ARTWORK

MR CROWLEY:  If we could have that recording of the artworks played, please.

[VIDEORECORDING PLAYED]

[VIDEO RECORDING ENDED]

CHAIR:  Can we go through them once more, would you mind?

MR CROWLEY:  Yes, Chair.  If we could just have them displayed again, please?

[VIDEORECORDING PLAYED]

[VIDEORECORDING ENDED]

CHAIR:  Thank you.

MR CROWLEY:  Leah, those artworks, they were prepared by Connor recently with his art therapist?
 

LEAH:  Yes, that's correct.

MR CROWLEY:  What sort of experience or value does Connor get out of doing the art therapy?

LEAH:  I think it's a really safe way to explore how he feels about himself in this world, being a First Nations child and having a disability and having to function and operate in a world which doesn't necessarily align with the way he sees things.

MR CROWLEY:  Now, I want to ask you about how you first came to meet with Connor.  When he first came to you officially as a respite carer.

LEAH:  I remember, I was asked to pick Connor up from the daycare centre he was attending at the time and I went into the daycare, I had no idea where I was going, I explained who I was and what I was there for, and one of the educators took me through to the babies' room and Connor was sitting there on the floor playing with some toys, and I said hello to him, and he looked up at me with this beautiful big beaming smile, and I picked him up and I took his bag and his things.  I had no     I'd asked some questions from the educators about his routine and his preferences, and I took him home and that was the first evening we had together.

MR CROWLEY:  Now, at this stage you were providing respite for Nan?

LEAH:  Yes, I was providing fortnightly respite for Nan, So typically, I would pick Connor up on Friday afternoon from daycare each fortnight and have him over the weekend and either return him to Nanna on the Sunday afternoon, or return him back to get daycare on the Monday morning.

MR CROWLEY:  How old was Connor at the time when you first started caring for him?

LEAH:  He was about 15 months old.

MR CROWLEY:  When you started performing that respite role, apart from what you've told us about asking about his routine and other things, what sort of information did you receive from Wanslea or the Department about Connor?

LEAH:  There was a child information form which had information about Connor, but it was extremely basic.  It was some of the reasons of why he'd entered into care.  A little bit of medical information, a little bit of information about his sisters, but that was it.  There was no substantive information.

MR CROWLEY:  Over time, providing the respite care for Connor and for his nan, that then progressed to you becoming a carer, a foster carer of Connor?

LEAH:  Yes, that's correct.  It became more and more obvious over the years, from  
the March through to the December, that Nanna needed more support.  So, she was caring at that time for Connor and his two older sisters.  Nanna wasn't getting the support that I felt she needed to be able to maintain caring for those kids.  She was quite unwell herself, elderly.  She didn't drive, it was very difficult for her to get to the supermarket, or get the kids to a doctor's appointment.  In fact, the older sister used to walk Connor up to daycare each day in a pram, because Nanna was unable to even get him to the daycare centre and so, towards the end of the year in the December, Nanna asked if I would have Connor for a week long stay to give her a proper break, and it was after that stay that I had the request to care for Connor on a full time basis.

MR CROWLEY:  Once you became his full time carer, were you provided at that point with any further information or details about Connor?

LEAH:  There was a care plan meeting within two weeks of him coming into my care.  I remember that when I was asked to care for Connor full time, it was agreed that there would be a slow transition to him coming into my care.  So, on the Thursday I was asked to care for him full time.  This was 21 January 2016, and then on 22 January 2016, a Friday morning, I had the call to say "There won't be a transition for Connor into your care, can you please collect him from daycare this afternoon and keep him?"  And so, whilst I was set up for respite care, I wasn't set up for full time care, so I raced around to buy clothes and toys and food and everything so that I was set up to care for him.  So then we have a care plan     at the time that I accepted caring for Connor full time, I was told that he would be reunified with his mother by Christmas that year, that is December 2016, and so I would only be providing care for him for an 11, 12 month period.  When we then had our care plan meeting not less than two weeks later which was attended by both the Wanslea and the Department of Child Protection staff, I was very plainly told by the team leader at the time that Connor would not be reunified with his mother, and he would not be going to any other family, and he would be remaining in care full time.

MR CROWLEY:  What did you understand at that stage that meant for your role as being the foster carer of Connor?

LEAH:  Well, I was really put on the spot to accept caring for him full time on an ongoing basis without much more information as to the whys and hows of anything.  But I knew immediately that I did not want him to be subject to the system, that I did not want him bouncing around places, that I wanted him to have an opportunity of stability and routine and predictability and love, and I decided to give him that opportunity, and so I said yes to caring for him on an ongoing basis.

MR CROWLEY:  Now, you mentioned about the care planning meeting, the initial one that was attended by yourself, the department and Wanslea.  In the initial meeting and leading up to that time, were you provided with any particular information about any specific health issues for Connor?

LEAH:  I don't remember specifically.  It was always a process where I     in these  
meetings you'd get a little bit of information from here, someone would make a comment there, and I would try and put together the story and the history of what had happened.  I did understand at some point that Connor had come into care for medical neglect originally, but I can't tell you it was that time.  I don't believe I got anything particularly extra information wise at that point.

MR CROWLEY:  What about in terms of any cultural plan or information?

LEAH:  That was always extremely limited.  There was a part of the care plan     the care plan covered educational, recreational, medical, cultural, legal.  There was a section where we would cover off each topic, and I would always ask for more cultural information, and the information that was provided was always extremely basic.  You know, for example, Connor will maintain cultural connections by having visits with his family, but there was never anything substantive that I could use to do research or ensure that he was connected in other ways to his culture.

MR CROWLEY:  What did you do about that?

LEAH:  I asked at every meeting, and I would regularly ask the Wanslea staff to ask the departmental staff if there was any further documentation.  In each district, there is one or two Aboriginal practice leaders, they're called APLs, and I would ask constantly for an APL to attend the care plan meetings, and I think maybe two or three times over three years did we have an APL attend a meeting.  I knew that there should have been a proper cultural plan prepared for Connor, and there was a policy that said as much that I had read on the departmental website, but it wasn't until I filed for the special guardianship order, and included in my affidavit that there'd been no cultural plan for Connor, that, soon enough, a lengthy and significant document appeared, which has since proven to be very helpful.

MR CROWLEY:  Before you had that document, how did you find out more to connect Connor with his culture and his ancestry?

LEAH:  Primarily, I spoke with his family because they are the correct people to give a carer cultural guidance.  I also completed a course at Curtin University about Noongar language and culture.  I connected Connor with a colleague of mine, who is a proud Noongar lawyer, to act as a mentor to him.  I also approached Wanslea about setting up a resource library for all Indigenous kids in care, and ultimately, they accepted my proposal and we worked together to set up a resource library with significant volumes of books, puzzles and games, dolls, all sorts of things from different Indigenous cultures, so that carers could come into the library once a month and meet with Elders who would guide them on what was appropriate for the child in their care, so that in that way, kids not only Connor but other children in care, also had access to these resources.

MR CROWLEY:  I want to ask you in particular about a matter that you referred to in your statement.  You commence at paragraph 58 of your statement talking about Connor's hearing, and issues that presented with Connor's ears, and later finding out  
about hearing loss.  Just tell us about that, please, how it was that you came to know about it and appreciate that there was issues with hearing loss for Connor?

LEAH:  Yes, I did understand that he had ENT issues.  I had taken Connor for grommets and adenoid surgery whilst I was still his respite carer.  I understood he would have regular ENT appointments at what was then Princess Margaret Hospital, in the outpatient clinic there, and I knew that he had a history of chronic ear infections, and that he needed very rapid medical treatment for that if he ever had any signs and symptoms of ear infections.

MR CROWLEY:  When you first became the foster carer of Connor, did you receive information, or were you told that he had any hearing loss issue, or had been assessed and diagnosed with any hearing loss issues?

LEAH:  No.  I     absolutely not.  I recall that it not being until almost two years later that I found out that Connor had a hearing loss, and that the hearing loss was significant enough that he should have been aided and receiving therapy.

MR CROWLEY:  You say about two years later.  What age was Connor when you found that out?

LEAH:  He was almost 4, so it was in the December.  He was 4 in the January and this was in the December, so he would have been 3 years, 11 months old.

MR CROWLEY:  At that time was he attending daycare or kindy?

LEAH:  He was attending daycare at that point in time, and they had had some concerns about his behaviour, which I had put down to him being a 3 year old boy, having lots of energy, preferring to play outside rather than sit and listen to a book being read to him.  Now I probably understand that he couldn't hear particularly well and that those environments would have been quite a sensory overload for him.

MR CROWLEY:  You mentioned about finding out about Connor having some hearing loss.  How did that happen?

LEAH:  So, I would take him for the appointments at the children's hospital every three months or so, and we would see whichever Ear, Nose and Throat surgeon was on the list that day.  There was never any continuity of care, and whilst I would take him for the appointment and have a conversation with the doctor, the report would be provided back to the Department about what the treatment plan was and what the findings were.  And I was never privy to that information, a copy was never given to me, it was never annexed to a care plan meeting, and so I would then send an email to Wanslea to kind of explain what had happened, but it was always very limited because I wasn't the legal guardian and so the doctors wouldn't give me all of the information.

But in the December of 2017, just before Connor started school, I had an ENT who  
was a lot more open with me and said to me, "Well, we need to think about what we're going to do now that Connor is starting school next year about his hearing loss. " I remember saying, "What do you mean?"  He said, "Well, this hearing loss", and he showed me some of the audiograms which were on file that showed a mild/moderate hearing loss that fluctuated over time, and he explained conductive hearing loss and how that worked, and the deficits that Connor would have been experiencing.  And I remember being quite shocked because I had never appreciated that there was this issue up until that point in time, or that Connor would need any support going into school.  No plans had been made or no accommodations had been made for him going into school the next year, and so from there, I set on the path of finding the best paediatric audiologist to take Connor to find out what supports and options were available for him, because, all of a sudden, I had an appreciation of what we were dealing with.

MR CROWLEY:  Now, before this time, though, you talked about being in care plan meetings or meetings with Wanslea and the Department, and you knew that there was the regular ENT clinic and check ups that he would go to, as well as having some other issues with recurring ear infections.  You were aware of those things, but did you know at those stages that there was this issue with respect to hearing loss?

LEAH:  No, I don't recall that I was aware at any earlier point in time, and certainly it was never put to me that the hearing loss would impair his function day to day and his ability to participate in school and daycare and the like.

MR CROWLEY:  What about his speech and language development?  Had you noticed anything at home about that?

LEAH:  His speech and language was delayed when he came into my care.  However, before I started work as a lawyer I had worked overseas teaching English as a second language to Italian children, and so, I employed the techniques that I had been using with those children with Connor, and with the one to one attention and care that he was getting, his language had improved considerably.  But I now understand that just --- when someone speaks to you isn't a whole assessment of their ability to communicate in speech and language, it's about their receptive language, their ability to recall instructions and information.  It's not just simply the way they speak.

MR CROWLEY:  You talked about going and getting some further opinion or assessment of Connor and his hearing, and what might be done about that.  What was the result of those further inquiries and opinion?

LEAH:  As a result of the appointment with Australian Hearing, Connor was provided with a bone conductor aid, which is a device on a headband that sits on the mastoid bone behind his ear and it vibrates with sound input, which means that the sound can travel through the bones equally to his ears and reach his cochlea nerve.

MR CROWLEY:  Is that something that Connor still uses?
 

LEAH:  Yes, he still uses his hearing aid at all waking hours, and we have regular appointments with Australian Hearing about his device and to test his hearing.

MR CROWLEY:  Now, are there any other supports or accommodations that have been used to assist Connor with his hearing in the education setting at school?

LEAH:  Now he also has what's called an FM device, which is he wears a receiver around his neck and the teacher wears a lanyard with a microphone and that bluetooths directly to his hearing aid, so if she is facing the blackboard and away from him, he can hear exactly what she's saying because that sound is transmitted straight to his hearing aid.

MR CROWLEY:  Those type of supports, before you found occupant about the hearing loss by speaking to the doctor at the ENT clinic, had you had any discussion about these types of supports or things being needed as Connor was approaching school age?

LEAH:  Absolutely none whatsoever, and everything only came about from my research and my inquiry and my advocacy.  There was nothing that the Department or Wanslea ever did to provide resources or support for Connor.

MR CROWLEY:  In your statement, you also, at paragraphs 70 and 71, you speak about finding out that Connor was positive for MRSA, which is a skin condition.  Could you just tell us about how that came about?

LEAH:  Again, that came about completely by accident.  At one of the appointments I had for Connor at the hospital, I noticed that there was a microbiology alert sticker on his file, and so I asked the doctor what that meant and what the ramifications of that were, and it was that point that I was explained that Connor had MRSA, and that I should take care in making sure that any cuts and wounds and grazes were covered with antiseptic and a Band Aid, because if the bug gets into your blood system from a wound it can cause sepsis, and that his sheets and towels and what have you would need to be washed separately with hot water to make sure that there was no transmission to other people within the household.

MR CROWLEY:  Before finding that out at the hospital, had there been any information provided to you through Wanslea or the department about the MRSA?

LEAH:  None whatsoever.

MR CROWLEY:  Now, can I ask you then, you mentioned earlier about Connor being at daycare and then coming up towards school age.  Can you tell us what was starting to become apparent with respect to his behaviour and his ability to adjust in those environments?

LEAH:  He was having some difficulty at daycare, as I said earlier, and there had  
been some reports back from the daycare staff about his lack of emotional regulation, about his tendency towards being aggressive and hurting the other children, but at that point I hadn't really put two and two together.  The behaviours didn't really manifest in the extreme way until he commenced kindergarten and it was at that point that it became very apparent that we were dealing with significant behavioural issues and concerns.

MR CROWLEY:  Now, one of the things you also speak about in your statement is through Telethon speech and hearing, being able to access the Chatterbox Program and supports through that service.  Can you just tell us about that; how that was provided and how you came to know of that service?

LEAH:  Yes, so when I found out that Connor had a hearing loss that would impair his ability to function in the world, I researched what programs and support services were available and I found out about the Telethon program.  I made inquiries with them and made an appointment to tour their facility.  They have an absolutely wonderful school set up here in Perth and I ultimately, with the permission of the department, they agreed to enrol Connor in the Telethon Chatterbox Program.  They run a program for hearing impaired children and then a program also for speech and language delayed children.  But Connor was in the hearing program.  That afforded him a kindy class on a Friday.  A very small class, six to eight children, almost a one to one ratio with the staff, where he had a teacher of the deaf, a teaching assistant, an occupational therapist, a speech therapist, all in the room with the children on a Friday.  They had access to an incredible gym, and they had a very targeted and specific program that was catered to their needs but to make sure that any issues they were overcoming     any issues that they had because of their hearing impairment could be overcome in an environment where they were safe and really supported by teachers who truly understood how a child with hearing impairment learns and functions in a classroom, and through that, we also had one to one speech therapy and one to one occupational therapy every week.

MR CROWLEY:  Now, that program and the Chatterbox daycare or kindy that you talked about, was that something that was available or could be available by the time that Connor was to enter the primary school system?

LEAH:  They enrol babies into that program.  He could have been going to that for two years previously.  Yes, anyone with a hearing loss and a child can enrol in that program, but because he was only attending kindy at school three days a week, it meant that he could also attend that kindy an additional day a week and have the experience of a mainstream kindy as well as the supportive program on a Friday.

MR CROWLEY:  Once Connor was accessing that program through Telethon, did you notice any difference in his abilities, and his classroom behaviours?

LEAH:  His behaviours were extreme in all settings.  He really, really struggled to participate in the environment.  He would be extremely aggressive and violent.  He'd kick, punch, spit, turn over desks, throw furniture.  He would try and run away and  
get out of the gates.  But in the Telethon program they were far better able to manage his behavioural issues.  They had much less children in the class and so were able to give him the one to one time, were able to separate him where they needed to and give him that opportunity to regulate his emotions.  They were absolutely brilliant.  I couldn't fault them.  They worked so hard as a multidisciplinary team to support Connor the best way they could.  They undertook their own research on trauma, and issues that they could provide him with as much support as possible.

MR CROWLEY:  Now, earlier I asked you about Connor being in the program.  What I was actually asking you about was as he went through and was becoming older and getting to school age, was that program going to continue?

LEAH:  Yes, sorry.  Yes, so once you finish the kindy program at Telethon Chatterbox, they replicate that same support and service with a teacher of the deaf, the occupational therapist and the speech therapist in various schools throughout the Metro area, and it's called a Telethon Outpost program.  So the children are technically enrolled with Telethon as their primary school, but they attend at the campus of the school that's closest to their house.  They attend a mainstream class but they have a teacher of the deaf who is there to support the Telethon outpost students.  They only take a maximum of 10 Outpost students per school, and so there's a teaching assistant, a teacher of the deaf, the OT and the speechy there to support the child in their schooling in the later years, and that service can be different, it was explained to me that in high school, they'll often have the teacher's assistant as a notetaker.  They're not necessarily there, like they would be in the younger years, really co learning with the child.  They also upskill the teaching staff so that the main teaching staff have a better understanding of working with children with a hearing loss.  They also sit with the team and the parents to prepare the individual education plans, and so in that way, any     you know, the child is as supported as best they possibly can be to attend a mainstream school, but have all of their needs catered for.

MR CROWLEY:  By the time Connor was going to be entering into the school proper, was that something that you sought for Connor to be able to access the Telethon outpost?

LEAH:  Desperately.  I desperately wanted him to have that opportunity, because we knew that he continued to have significant behavioural issues, and we knew that he would need considerable support to be able to attend and function and engage at school, and at that point in time it was all I wanted for him.

MR CROWLEY:  Now, what was the options, or what was being done at that stage for the enrolment of Connor in a school of that type?

LEAH:  I was asking and requesting that the department provide permission and financial support for him to attend a Telethon outpost school.  I met with the Telethon Outpost principal on a number of occasions.  He would come into the Chatterbox program on a Friday, meet with the other children, pretty much all of the  
children in the other class were going on to a Telethon Outpost school.  I toured the school that I felt was most appropriate for Connor to attend as an outpost student, and I made inquiries with the school about any discounts that would be possible for Connor to attend the school.  I spoke again with the principal of Telethon Outpost who arranged a scholarship which would, in part, cover Connor's fees of attending the school.  But ultimately, permission to attend the school that I thought was most appropriate was not granted by the Department.

MR CROWLEY:  Now, the school that you're talking about, the one that you considered to be most appropriate, why did you think it was going to be the most appropriate school for Connor?

LEAH:  Yes, so I thought Aquinas College would be the most appropriate school.  They had     it was a K to 12 school so Connor would have been able to attend right through to high school.  One of the things he really struggles with is different environments and transitions, and I thought in that way he would have a smoother transition to high school.  They also had an absolutely incredible Indigenous program, something else, something which I haven't seen replicated in another school here in Perth.  There was a full time Aboriginal teaching assistant who was there just for the welfare and pastoral needs of the Indigenous students.  They have wonderful cultural opportunities.  The kids go out bush the week before school starts so they can get away from the rat race of the city and connect to their culture and their country before they come back and settle in for the school year.  They have an Indigenous dance troupe, a group of boys who perform at schools and other ceremonial events.  In Perth they have Elders connected to the school, and I thought it was a brilliant opportunity, because not only would Connor have this Telethon outpost program and be able to attend in a mainstream school, he would also have this wonderful culturally rich environment that would support him throughout the entirety of his school journey.

CHAIR:  Can you just explain a little more?  I have been reading your statement, how the outpost system works and what's the interaction with mainstream schools?  How does that operate in practice?

LEAH:  So, they're technically enrolled in the Telethon Outpost school and their principal is the principal from Telethon Outpost and in that way, Telethon get funding from the State Government from the specialised placements, and that is how Telethon, and also through their donations and fundraising, are able to fund the teachers of the deaf and OT and speechies to attend and support the children at the school.  Then, the children physically attend at the outpost school.  There's about 10 of them in Perth, but the Telethon staff are co located at the school and have their own room to be able to do the speech therapy and OT and the teacher of the deaf visits the different children, the 10 different outpost children in the school throughout the day to support them.  That's how it works from a logistics.  So you pay the school fees, but if they are transitioning from the Chatterbox Program to the School Outpost program, Telethon don't charge any fees for that.

 
CHAIR:  Let's assume there's a child who would be post kindergarten, year 2, let's say.  I'm just trying to understand where the child goes at any given time.  Does the child go to an outpost school and then to spend some time at a mainstream school, or is the outpost school regarded as the mainstream school?  How does it work?

LEAH:  No, they attend the mainstream school everyday, but the outpost staff and teachers are there at the school already to support them.  So it's as if they go off to school normally everyday, but they have this specialised support that's already there at the school as part of the normal set up and teachers to support them, as well.

CHAIR:  So Aquinas that you wanted Connor to go to would be a mainstream school?

LEAH:  That's correct.

CHAIR:  And the students at Aquinas, are they a mixture of kids with disability and without disability or all with disability?

LEAH:  No, a general normal school, so there would be a range of all different types of students from different backgrounds, and some with disability, some without.  It's a normal private school, it's just that one of the services that they offer to students is this opportunity to attend as an outpost student if they have a hearing impairment, so that they have the additional supports on top of what they would get in a normal classroom.

CHAIR:  Thank you.

MR CROWLEY:  Thank you, Chair.

Leah, you mentioned about there being a scholarship and in your statement you talk about a discount, as well.  What was the proposal if Connor was to go to Aquinas?

LEAH:  There was a $7,500 scholarship offered by the Knights of the Southern Cross, and when I spoke with the Dean of Development at Aquinas I explained to him that I was caring for Connor, but also by that stage his younger brother Dylan, and I said that I felt it would be more appropriate for the boys to go to school together, and he said that the discount that they would offer Connor would also be given to Dylan so that the boys could attend school together as siblings normally would.

MR CROWLEY:  So there was a scholarship separate to the discount that the school might offer?

LEAH:  Correct.

MR CROWLEY:  Now, you refer to in your statement another outpost school, Mel Maria, that was within contemplation at that stage.  Can you tell us why you  
preferred Aquinas over Mel Maria?

LEAH:  Mel Maria was geographically a further distance from our home, and already driving to Aquinas every day was going to be quite a considerable undertaking, and I felt that the extra distance really made it almost impossible for Connor to attend Mel Maria.  In addition, Mel Maria was only a K to 7, it was only a primary school, and so there would be that transition of new friends, new teachers, new campus, new facilities, which I felt was not appropriate for Connor and wouldn't be as supportive as Aquinas.  Also, they had no Indigenous program at all, and so none of his cultural needs would be supported at Mel Maria.

MR CROWLEY:  Ultimately, what happened with the proposal that you were requesting for consideration for Aquinas?

LEAH:  We were on holiday at one point and we had a phone call one morning to say that the department had approved for Connor to attend Aquinas and     as a Telethon Outpost student, and we were absolutely thrilled, because we knew it would be the most supportive environment.  By that stage Connor had been asked to leave kindy because his behaviours were so extreme, and so we were very careful to consider what environment would be supportive for him in the future, because we'd already had one failed school experience.

But ultimately, the Department rescinded that offer and Connor was not granted permission to attend Aquinas College --- or any Telethon Outpost program.

MR CROWLEY:  And you go on to describe in your statement that he ended up being enrolled in the local primary school instead, where he commenced his schooling.

LEAH:  He was enrolled in a local primary school with nothing and no one and no EA and no teacher of the deaf and no support and no OT coming to the school, with no speech therapy coming to the school.  He was in a general classroom with 30 children and one teacher, and one education assistant and unfortunately, the teacher that year was very young and inexperienced, and she had very little ability to manage his behaviours, and he spent most of that year in the garden outside playing with a football and growing vegetables.

MR CROWLEY:  Has Connor stayed at that school?

LEAH:  He has stayed at that school because we have no other option now.  He doesn't fit the criteria for a language development school, he doesn't fit the criteria for the autism specific schools because he has co morbid diagnoses.  He doesn't fit the criteria for an educational support centre because he's working at standard, and I've not been able to get him into any Telethon Outpost program since losing the opportunity of the scholarship with Aquinas.

MR CROWLEY:  Can I just ask you this, Leah: was the explanation ever provided to  
you about the rescinding of the decision to go to Aquinas?

LEAH:  No, none whatsoever.

MR CROWLEY:  Chair, I note that it's just after 11 now.  Is that an appropriate time for a short break?

CHAIR:  Yes, certainly.  It's now 11.10 Eastern Standard Time.  Shall we adjourn until 11.30 and then resume?

MR CROWLEY:  Could we make it slightly earlier, 11.25 if we could, thank you, Chair?

CHAIR:  We will regard the negotiations as leading to resuming at 11.25.

Thank you, Leah.  We will resume then.

LEAH:  Thank you.

ADJOURNED    [11.10 AM]

RESUMED    [11.26 AM]

CHAIR:  Yes, Mr Crowley.

MR CROWLEY:  Thank you, Chair.

Leah, I want to ask you now about the FASD diagnosis that you mentioned earlier for Connor, how that came about and also, whether before that was obtained, whether there'd been any other assessments and diagnoses of Connor.  Perhaps if you can tell us first of all at what point there was first any assessment and diagnosis done in respect of Connor as he was presenting with various behavioural issues and other issues?

LEAH:  So, in February 2018 when he commenced kindy, that was when all of the behaviours and issues started to become very apparent.  At that point there'd been no assessments, diagnoses, what have you.  Connor saw a psychologist through the Telethon Chatterbox program that he was participating in at the time, as well as someone who was privately engaged by the Department, who both suggested there was underlying organic issues which needed to be explored.  So, in conjunction with the considerable issues we were having at school and the suggestions for other assessments to be done, I understood at that point that there had been maternal alcohol use by Connor's mother while she was pregnant with him, and I spoke to Connor's GP about Foetal Alcohol Spectrum Disorder, and he thought that he should  
be assessed for FASD and that it was reasonably likely that he probably had FASD, and that may have been a cause of some of his behaviours.  So it was on 16 May 2018 that the GP wrote a referral for Connor to be assessed by the PATCHES clinic here in Perth by Dr James Fitzpatrick.  But the department refused to allow him to be assessed for FASD.

Following that, Juanita Scudds who was the psychologist at the time also wrote a supporting letter saying that Connor ought to be assessed for FASD by the PATCHES clinic.  That was also denied by the Department for Child Protection.

MR CROWLEY:  Can I just ask you, you've said that each of those things, the GP referral and Dr Scudds's recommendation were not acted upon or were denied.  Were you given reasons as to why that was at the time?

LEAH:  No, I was not.

MR CROWLEY:  What happened after that, then?

LEAH:  After that, Connor was expelled or asked to leave the kindy that he was in at the time, the mainstream kindy.  He was still attending the Telethon outpost on the Friday.  There were no other arrangements made for his schooling by the Department.  He was sent back to daycare for the remainder of term 3 and for all of term 4 that year.  I was agitating with the department that his behaviours were so considerable that he was expelled or asked to leave the school that he was enrolled at the time, and in my opinion, that was a pretty significant thing to occur for a child in kindergarten, and I wanted him to be assessed for FASD because I felt it was most likely from the research I had done and from what the professionals were saying to me that he had FASD, and I was hopeful that that would then afford him more support at school and the community access to the NDIS, better understanding about his needs, targeted therapies.  But despite all of my efforts, the Department wouldn't allow it.

MR CROWLEY:  You mention in your statement that there was an assessment that was done by Dr Do?

LEAH:  Yes.  Ultimately the department agreed for an educational neuropsychologist to perform an assessment on Connor, and we went along for those two appointments, and she produced a report with various recommendations, and she stated in her report that she did not think he had FASD.

MR CROWLEY:  Now, after that report had been provided, did you get a copy of it?

LEAH:  Eventually I got a copy of the report, yes.  I was concerned about her stating in the report that she didn't think Connor had FASD, because she didn't assess any of his facial features like a paediatrician would.  She was not a paediatrician, and she didn't assess him against the six domains which are required to be assessed for a true FASD assessment to occur, and so I felt that she had been dismissive of something  
that was potentially still a very live issue.

MR CROWLEY:  Did you take this up with the department?

LEAH:  Yes, absolutely.  I continued to request that he be assessed for FASD by the PATCHES clinic.  They provide an incredible service here in Perth.  James Fitzpatrick the paediatrician has done considerable research into FASD.  He's an expert and I knew that Connor would be properly assessed, and that we would have a clear answer yes or no if he had FASD, if he had the opportunity of an appointment with James Fitzpatrick.

MR CROWLEY:  Why was it important for you and for Connor to get that assessment as to whether in fact he did have FASD?

LEAH:  It was critical, because it would then open the door to NDIS support and funding.  It would allow us to ensure that the speech therapy and occupational therapy and psychology that we were doing for Connor would be properly targeted to any deficits and strengths that he had, and it would also mean that in the school environment proper accommodations would be put in place, because rather than there being no diagnosis that entitled him to support or accommodations, we would in fact, have something which would be beneficial.

MR CROWLEY:  From the assessment done by Dr Do, there was an assessment of post traumatic stress disorder.  Now, was that something which would enable those types of supports and measures, particularly in the school environment?

LEAH:  No, the report was virtually useless, if I can be as bold as to say that, because in order to have schools plus funding through the Education Department for further support, any diagnosis of PTSD must come from a child psychiatrist, and she was not a child psychiatrist and could not provide the requisite report which would enable him to access the funding.  So the process of the months long assessments and waiting for reports and meetings with her was a complete waste of time.

MR CROWLEY:  Now, you've said that you continued to seek from the Department the assessment for FASD through PATCHES; did that come about?

LEAH:  It only came about once I applied for the guardianship order to the Children's Court, and I raised the matter before a magistrate in the court who indicated to the Department that Connor ought to be assessed for FASD, and the magistrate said that if the Department didn't take steps to have him assessed, that he would invite me to make an interim application to the court and he would make a finding that Connor ought to be assessed for FASD.  That happened on a Monday or Tuesday in court, and by the Friday we were in the PATCHES clinic being assessed by James Fitzpatrick.

MR CROWLEY:  After that assessment, there was a confirmation of the diagnosis of FASD?
 

LEAH:  That is correct.  Connor has two facial features and a diagnosis of Foetal Alcohol Syndrome Disorder, and also a diagnosis of Intermittent Explosive Disorder from that assessment.

MR CROWLEY:  As a result of those diagnoses, what was then able to be done, or was done for Connor?

LEAH:  It then meant we could put in an access request to the NDIS.  It also meant that we could give explanations to the school about what was going on, and the school were able to do research and attend training courses for children with FASD so that they could better support his needs at school.  We were also able to understand the specific impairments that arise as a result of FASD so that we can make sure the way in which we were parenting Connor and the way that therapies were directed at him were targeted to his areas of need.

MR CROWLEY:  What about with respect to other treatments such as medication?  Was there anything that those diagnoses impact upon with respect to medications that might be recommended?

LEAH:  Yes.  It isn't simply that a diagnosis of FASD equals medication, but what it does do is start you on the journey of being able to trial different medications, and certainly the use of some medications without an appropriate diagnosis is considered a which will restraint and a restrictive practice.  So it was very important that     for the full medical options to be open to Connor, that he had an appropriate diagnosis so that we could access the medications to support him to function in the community.

MR CROWLEY:  You mentioned about getting the NDIS funding that that would be open; were you able to pursue that?

LEAH:  Yes, because FASD is a lifelong neurological impairment it meant that we met the access request for NDIS and we continue to have yearly plans and supports put in place for Connor.

MR CROWLEY:  What about in the classroom, in school?  What was then able to be done as a result of those assessments by PATCHES clinic?

LEAH:  The teachers were able to do further training on FASD and become FASD aware, and they were also able to truly appreciate what was going on for Connor and how he might be best supported in the classroom?

MR CROWLEY:  And has that happened, in your view, that he's been able to be better supported?

LEAH:  As a result of his diagnoses now he has funding for an assistant full time.  So, he has about two thirds of that is funded directly by the Education Department and his school top up the balance so that he has a full time aide with him while he's  
at school.

MR CROWLEY:  And does that make a difference?

LEAH:  Absolutely, it's critical.  He wouldn't be able to engage in school without it.  There can be no doubt of that.

MR CROWLEY:  What about outside of school?  The diagnosis of FASD in particular, has that assisted with being able to access other supports and services outside of the school system?

LEAH:  Yes, absolutely, because we now have funding for an NDIS support worker who accompanies [Connor] to football, accompanies [Connor] to his one to one swimming lessons    

CHAIR:  I think just note that the reference should be to Connor.

LEAH:  Sorry.

CHAIR:  That's quite all right, just so the transcript can be amended.

MR CROWLEY:  Thank you, Chair.

LEAH:  Sorry.  It affords Connor the opportunity to participate in the community and go to events with us as a family and go to the museum and go to NAIDOC days and other community things.  Even going to football.  Football wind up, we have the support now of a trained person to assist.  It means also when my partner is away at work     he does shift work and can be away for lengthy periods of time     there's an extra adult in the house to support Connor with his homework, with his daily care tasks, to help him regulate his emotions, and to be able to support us as a family to maintain our caring role for Connor.

MR CROWLEY:  You talked about the court proceeding and the application that you brought for the special guardianship.  Why did you bring that application?

LEAH:  I had been thinking about it for some time because it was readily apparent to me that the Department were not following what I thought were the best interests of Connor, and that was deeply concerning to me.  I also ultimately had a call from Connor's mother saying that she had been told that they were going to remove Connor and his little brother Dylan from my care, and move them to a paternal uncle that they had never met or had any contact with.  She was horrified that this might happen, and she felt that they had similar issues to the reasons why Connor and Dylan were in care and that it would be an environment that was not suitable for the children and that was really the thing that pushed me to have final conversations and discussions with the family about our options, and they were very supportive.  Nanna talks about how she wanted the children away from welfare and having nothing to do with them, and ultimately I then made the application to the court for the special  
guardianship order.

MR CROWLEY:  Now, the Department, you say, in your statement, they initially opposed the application for the special guardianship order.  Was it explained to you, or did you understand at the time the reasons why the Department was opposing initially?

LEAH:  The reasons changed at every appearance we had before the magistrate, so sometimes they were going to find a family member, sometimes it was that it was unsuitable for the children to be cared for by a non First Nations person.  They raised concerns about my conduct as a carer.  These were all dismissed by the magistrate very quickly.  It didn't seem to me like they really had a clear case theory or decision about what they were doing.  They were just wanting to oppose the application at all costs.

MR CROWLEY:  Now, from your point of view, as a non First Nations person what consideration did you give about taking the two boys and being their guardian of the two young First Nations boys?

LEAH:  It was something that was very concerning to me.  My view is that children should be supported to remain in their family of origin at all points, and where that's not possible, they should be placed with family members or members of their immediate community who can properly support their cultural needs.  But unfortunately there wasn't a family member or someone from the boys' kinship group who was available to care for them and I, by that stage, knew that Connor was going to have some really significant needs, and I felt that with my relationship with the family and my ability to advocate for Connor, that although it was a significant undertaking to care for two Indigenous children, that was probably in their best interest.

MR CROWLEY:  You've talked about Dylan and having the care of Dylan as well.  Does Dylan have any disability needs?

LEAH:  No, he does not.

MR CROWLEY:  Since you've had the special guardianship order made and you now have the legal guardianship of the boys, what's been the continuing nature of the relationship with the boys' family and their culture?

LEAH:  It's been, as I said earlier, more natural, because previously all contact had to be approved and decided by the Department.  Safety plans had to be put in place.  I had to report who had attended and what had been said and what had gone on, but now it's just normal.  You know, Nanna calls in, Mum calls on the phone to talk to the kids.  Some of the siblings call from time to time.  We have our family catch ups.  It's enabled us to have, for the children to have a normal relationship, as normal as can be in the circumstances, with their family.

 
MR CROWLEY:  Earlier you spoke about the nature of the agency in the care arrangement has the agency been the intermediary between yourself and the Department.  Are you able to tell us, were there, from your perspective as the carer of the boys     and Connor in particular     were there particular issues and difficulties with the nature of that 3 way relationship?

LEAH:  It was quite difficult, because I had no direct relationship with the Department so I never had a measure of what exactly was being told to them or what exactly they were saying to Wanslea.  I often would have to convince the Wanslea social worker first that something was possible, or it was a good idea.  Even, for example, permission to travel within the State or outside of the State with the kids, I would first have to satisfy the Wanslea social worker who would then send an email to the Department's social worker, and then a decision would be made whether we could go down south for a couple of nights.  Everything was protracted and lengthy.

MR CROWLEY:  What about with respect to healthcare, or those types of things?

LEAH:  It was difficult because there wasn't that detail, that level of detail necessarily that was passed on so that decisions could be made, and the Department staff weren't attending appointments until right at the very end, so they weren't hearing anything firsthand, they were reliant on what I said and I didn't know if what I was saying was actually being passed on.  And then everyone would have their own views about what was right and what wasn't, and I felt it was quite difficult having to deal with the different layers of Wanslea and then the Department.

MR CROWLEY:  How do you feel that that impacted upon decisions about the care and the planning for Connor and Dylan?

LEAH:  I think it made everything just take so much longer and I think the triangulation didn't help in the ultimate breakdown of the relationship between the Department and myself because there was so much back and forth and so much triangulation.  Wanslea were meant to be there to support me as the carer and I felt wholly unsupported by them at all points in time.  They were very careful of how they communicated with the Department, because they had their own contract with them and so they wouldn't advocate or say anything risky or anything that might upset anyone at the Department.  So it was really me at all times that had to push for everything to get supports or assessments for Connor.

MR CROWLEY:  I want to ask you now Leah about some matters you've referred to in your statement about some recommendations for change.  At the end of your statement from paragraph 238 onwards you've set out a number of things that you suggest or recommend that the Commission might consider.  Can I ask you about some of those?  First of all, can I ask you then about what you've said about the medical assessments and referrals?  If you can just explain what you recommend about that, and why.

LEAH:  I just think that the Department should follow medical advice.  We had clear  
recommendations by the GP and the psychologist that Connor should be assessed for FASD and instead, he was not assessed for another 12 months until we got before the court.  It's pretty simple, really.  Doctors are constrained by their own ethical obligations and professional conduct obligations, therefore, they should be trusted.  It was always a significant concern to me that social workers within the Department who have a 4 year social work degree were making medical decisions with no medical expertise.

MR CROWLEY:  In terms of the recommendations that you've set out there then, you recommend that case workers making those types of decisions should be following the medical recommendations and advice provided?

LEAH:  Yes, it's very simple, really.

MR CROWLEY:  Does that include recommendations and advice that might be obtained from a private practitioner, or a practitioner that's arranged by the carer?

LEAH:  Unfortunately, the public waitlist can be very long, two or three years to see a paediatrician, to get onto the ENT waitlist, and in those circumstances, I think accessing private providers is, you know, in the best interests of a child.  Childhood is fleeting and they need these treatment and services as soon as possible, particularly if there're going to be interventions recommended as a result of those assessments.  I have a concern about some of the providers that the Department uses, but otherwise yes, private services will often be much quicker for children in care.

MR CROWLEY:  When you say you "have a concern about some of the providers the Department uses", what do you mean by that?

LEAH:  I had heard on the grapevine and in gossip amongst carers that the Department use preferred providers to obtain basically the diagnosis or decision they want from a doctor, as opposed to obtaining and instructing someone completely independent and impartial, and that was ultimately our experience with Connor.

MR CROWLEY:  Another recommendation that you have set out in your statement is about independent oversight.  If you can just explain what you're talking about there in that recommendation, and why.

LEAH:  There's no mechanism to appeal a decision made by the Department outside of the Department, and I think that means there the complete lack of accountability in practice because there's no one reviewing the decisions that are made.  They're a law unto themselves.  And it was only because we were before a magistrate and in legal proceedings in the Children's Court that I had any ability to obtain the FASD assessment for Connor.  It was one of the recommendations that came out of the Royal Commission into Childhood Sexual Abuse as well, that there be independent oversight for child protection departments in each State.

MR CROWLEY:  The final thing I wanted to ask you about in your  
recommendations that you've set out, at paragraph 256 onwards you talk about training and funding for the agency, departmental and agency staff.  When you're talking about agency staff there, are you talking about the staff of a service like Wanslea?

LEAH:  Yes, that's correct.

MR CROWLEY:  And you say, in particular, training on the importance of early intervention.  What sort of things are you talking about there?

LEAH:  There seemed to be this culture of denial of assessment, "Oh, he doesn't need this", "We're going to label the child", "This is not in his best interest", all the while the days and months are passing and the opportunities for intervention and support were passing.  There was no understanding that time was of the essence and we needed to ensure that, you know, services were provided to Connor as a matter of urgency.  And so I thought, if the social workers and departmental and agency workers have a better understanding of the critical importance of early intervention, then perhaps there would be more support for having diagnoses or certainly support therapies and intervention much earlier along.

MR CROWLEY:  You also say in that section of your statement that you would like to see better training for case workers and social workers about disability support and awareness, and also accurate diagnosis and support.  Why do you think those things are recommendations that should be followed?

LEAH:  Because I think a child has a right to being diagnosed if they have a disability and for accommodations and support to be put in place, and again, if there is better understanding and awareness about disability needs and diagnoses, then my hope would be that other children don't experience the same situation as Connor.

MR CROWLEY:  Now, I just want to ask you this: the Department no longer has the care of Connor and Dylan, they're with you and you're the legal guardian.  Looking ahead, could you tell us what you hope and wish for Connor?  What you see and hope for his future?

LEAH:  I hope that we're able to continue to support him and maintain caring for him, but that might not always be the case.  He has some extreme behaviours and has very complex care needs and I feel, unfortunately, like the Department have washed their hands of us and, of course, that's partly the intention of a guardianship order because we are the carers, but there's nothing that they do to support him in any way.  But I hope that Connor is happy.  I hope he has the opportunity to engage at school and have a meaningful life, and to be proud and strong of his culture.  And to know that we did everything to support him, and that he deserved better, and I just want him to be happy.

MR CROWLEY:  Yes, thank you, Leah.

 
Chair, those are the questions that I have.

CHAIR:  Leah, thank you very much.  If it's all right with you, I'll ask my colleagues whether they have any questions for you.  Is that okay?

LEAH:  Yes, thank you.

CHAIR:  I'll ask Commissioner Mason first.  Do you have any questions, Commissioner Mason, to ask of Leah?

QUESTIONS BY THE COMMISSION

COMMISSIONER MASON:  Yes, thank you, Chair.

Leah, I just want to say thank you for your evidence today, and also for your service to the First Nations community there in Perth, and your empathy and your emotional intelligence in connecting the two boys in your care, continuing with the community there, the Noongar community.  I want to say thank you for that.

I had a question about the Aboriginal and Torres Strait Islander Child Placement Principle, and you've mentioned that principle in the statement.  Your statement does show the time when the two boys were in the care of their nanna and you gave some really sensitive and careful insight into the struggles that Nanna had in supporting the children, financially, even in terms of practical support that she needed at the time.  And so, you saw that, but you were also there providing in the first instance respite care, so you were behind closed doors in a sense, you were seeing how that family were doing their best as kinship carers and you being a respite carer, and then that relationship developed and changed.

I just briefly want to hear from you about your reflections on this Aboriginal and Torres Strait Islander Child Placement Principle and this paramount principle of prevention and keeping children with their family growing up in culture, but also redressing the causes of those child protection interventions and what you saw with Nanna and the family.  What needs to happen to ensure the idea or the principle of the Aboriginal and Torres Strait Islander Child Placement Principle is realised in the lives of Aboriginal and Torres Strait Islander people and Noongar people there in WA?  Just your general reflections.

LEAH:  Absolutely.  I think there needs to be a lot more support for families, often it's the nannas and grandmothers and aunties who are asked to care for these children, and as I said, they have often their own health issues and they often have a trauma background themselves and so are fighting through that intergenerational trauma and their own experience of trauma and their own poor health to try and care for these children with little or no support, and I could see that it was not because the boys' nanna did not want to care for them or did not absolutely love them and worship the  
ground they walked on, she simply needed some really basic supports to be able to car for them, and I had suggested because she had a difficulty getting to the shops and didn't have a care, that they arrange a Coles delivery for her every week of some food basics.  Ask her what she uses every week.  I had suggested that they get a cleaner in once a fortnight to help her with the bathrooms and the floors so that some of the heavier cleaning could be done by someone else and I think it's a real shame, because there's a wonderful missed opportunity to keep these children with their family which should be our goal and our ultimate priority by putting just some basic support services in place.

COMMISSIONER MASON:  The second question I wanted to ask you is your experiences in getting that final diagnosis around FASD, but also around his hearing with Connor.  If he'd stayed with his family, his kinship family, do you think that he would have taken a very different experience, given your obvious capability and experience and knowledge of systems in advocating and understanding complex information?  Do you think that he would have had a very different experience and he would have now been in a place today very different to where he may have been if he'd stayed with kin, in your experience?

LEAH:  Yes, I do unfortunately think that he would have had a very different experience, because to me, it was plainly evident that the Department weren't going to support Connor in the way that he needed and my overwhelming sense of injustice in this whole process is that if myself as a privileged, white, educated woman, had to battle and fight so hard the way that I did to get these supports for Connor which he deserved and has every right to, I felt that it would be virtually impossible for anyone else to achieve what I did, and that has always weighed very heavily on me because for Connor it was the luck of the draw.  It was the luck that I walked into that daycare room that Friday afternoon and first picked him up, and it was me and not someone else, and but for that, his life could be entirely different and it should not come down to luck.  It should come down to us, as a country, looking after our children in the best way that we possibly can.

COMMISSIONER MASON:  Thank you, Leah.

LEAH:  Thank you.

CHAIR:  Yes, thank you.  Commissioner Galbally, do you have any questions of Leah?

COMMISSIONER GALBALLY:  I'd also like to thank you so much for your evidence today, Leah.

I'm trying to grapple with the role for Wanslea and whether not having them at all, you having a direct relationship with the Department, might have been easier, because you're saying they weren't advocating for you and they weren't supporting you.  So they weren't offering support for a carer, so I'm trying to understand what you think their role was and whether not having them at all might have been better.
 

LEAH:  Yes, in hindsight, ironically I signed up to be a carer with Wanslea because they promoted themselves on having extra support for carers and having a 24 hour phone line and being more able to support you in your caring journey.  Ultimately, that was not my experience at all; in the east coast they have a model where the agencies have decision making capacity and power, so they can making the case planning decisions like the Department does.  In the comet case we had a small trial here of that which was run through Wanslea Family Services, which I understand was quite a successful trial.  But yes, ultimately the way it is set up in Western Australia at the moment is that the intermediary does not work.  In my experience, it does not work, it makes things far more difficult and it would have been much easier for Wanslea to have not been a part of the picture, or alternatively for them to have that decision making power.

COMMISSIONER GALBALLY:  Just to confirm, you received no support for your role as a carer, is my understanding?  No support for you.

LEAH:  Support in that     there is a family support worker.  They have about 20 carers on their books that they have to look after.  She would occasionally send me a text message to check in.  She would bring books from the library to meetings, but there was     I had to fight for everything.  I couldn't get a babysitter, I couldn't get respite.  I was treated really poorly because they felt like I was so oppositional and demanding of what I wanted for Connor, and I admit that I was, I continued to follow the medical recommendations and say that he has not been assessed.  I don't detract from that at all, but no     and there was certainly no emotional support     no.  They just     very cynical, I feel they're more worried about preserving their contractual relationship with the Department than doing what was in the best interest of Connor or myself.

COMMISSIONER GALBALLY:  So the natural role of a carer or a parent for that matter in advocating for the best for their child, that was not thought of as an appropriate role for you?  That was seen as oppositional rather than you fighting for the best interest of Connor?

LEAH:  Correct, and I was formally put under review by Wanslea Family Services because of that, and that is covered in my statement.  As a carer, you have to maintain four competencies to maintain your carer registration.  One of those competencies is working co operatively with the Department and agency, and my advocacy was determined by Wanslea Family Services to not be working co operatively with them or the Department, and I was formally put under review by them for that, which was extremely distressing to me, because I had never been disciplined or fired or anything.  I maintain a reputation within the legal community here in Perth and I felt that that was extremely unjust and self serving.

COMMISSIONER GALBALLY:  Yes.  It also shows a very limited view of the role of the carer/parent figure.  My last question is, do you know whether the Department received expert advice as to the best educational pathway for Connor in rejecting  
Telethon and Aquinas College?

LEAH:  Yes, perhaps Lincoln may be able to assist here because I'd like to say what I'd like to say, but I don't know if I'm permitted to.  Through    

CHAIR:  I suggest that just for the moment you just answer Commissioner Galbally's question, and if during our luncheon adjournment there's some advice you need from Lincoln as to what you would like to say, that might be the best way to go.

LEAH:  Yes, so ultimately the Department did receive advice that Connor should have been enrolled in the Telethon Outpost program, or in a language development centre though he was not eligible for enrolment in the language development centre.  But they requested that the doctor, Dr Tien Do that did that report, that she amend her report to remove that recommendation from the report, and so the copy of the report that I was ultimately given was a redacted and amended version, and so her true recommendation was not given to me and I only found out about the true report and her true recommendation through this Royal Commission process.

COMMISSIONER GALBALLY:  Thank you, thank you.

CHAIR:  Leah, can we draw upon your legal expertise?  Can you just explain to us what a special guardianship order is under Western Australian law?

LEAH:  Yes, certainly.  A special guardian order, it is still a care and protection order, so it is described as "Care and Protection (Special Guardian)".  What that means is that I have legal guardianship and parental responsibility for the boys and all of their decision making, medical, education, travel.  The Department are not involved at all.  I maintain all of their family relationships, their cultural learning, everything completely.  The only thing is that the Department are obliged by the Act and the regulations to continue to pay us the foster care subsidy each fortnight, but other than that we have no interaction with them.

CHAIR:  Thank you.  Just to correct what I think might be a typographical error, in paragraph 200 of your statement you say you filed the request for Connor to be a participant in the NDIS in December 2019, I assume that should be "December 2018", shouldn't it?

LEAH:  Yes, that's correct, sorry.

CHAIR:  I want to make sure I've got the chronology.  You say in paragraph 199 that the Department resisted your attempts to apply for Connor to become a participant in the NDIS.  Did you get any statement of reasons, or any explanation as to why they were resisting what would seem to be something a) obvious, and b) manifestly in Connor's interest?

LEAH:  It doesn't work like that.  As a carer, you're kept in the dark.  You're told that information often can't be shared with you, and so no, I didn't get specific reasoning  
about that.  You don't get specific reasoning about a lot of things.  We often call ourselves "glorified babysitters", and I remember specifically that NDIS issue came up over a couple of care plan meetings and I couldn't understand it either because I kept explaining to the Department that then the NDIS would pay the therapy bills and they would not have to pay them, and it was much better for everyone involved for him to have access to the NDIS.

CHAIR:  I take it from your statement that the fact that Connor now does receive support from the NDIS, it has made an enormous difference?

LEAH:  Enormous.  He has access to one to one football lessons with a coach on a Monday afternoon.  He has access to one to one swimming lessons.  He does speech therapy, occupational therapy.  He has his art therapist/psychologist.  He has a support worker that's able to help us 15 to 20 hours a week.  We're able to send him on camps that are funded by the NDIS.  We have assistive technology funds which funds things like particular headphones that will work with his hearing aids, sensory items and devices.  It's considerable.

CHAIR:  Great.  What sort of football is he interested in, which code?

LEAH:  No, AFL.  He's a mad Eagles fan.

CHAIR:  Is he?  Is he going to go to the grand final even if it doesn't involve the Eagles?

LEAH:  We tried very hard to get tickets, but unfortunately no, we haven't got any.

CHAIR:  Yes, well there's been an injustice because the Swans should be playing, but anyway, that's another issue!

I think, Leah, you do have a legal representative.  I don't think we've had your legal representative announce an appearance.  Is there an appearance on behalf?  There you go.

MS O'CONNOR:  Yes, I've got appearance, Commissioner.  My name is O'Connor and I do seek leave to appear as counsel.

CHAIR:  That's all right, you've got that leave, I just don't think we had an announcement.

MS O'CONNOR:  Thank you.

CHAIR:  Do you wish to ask any questions of Leah?

MS O'CONNOR:  No, the only issues that I wanted to cover relate to the recommendations, and there's one topic that she touches lightly in her statement, I'm wondering if I might just take her to that, and that relates to the internal advocacy  
and recommendations she might make about that.

RE EXAMINATION BY MS O'CONNOR

MS O'CONNOR:  Leah, you talked about the fact that there was an internal advocate within the Department and your view that that didn't work.  Can you explain to the Commissioners why you say that it didn't work and what recommendations you might make should there be some other form of ensuring that foster families like you have someone to go to?  You've talked about the appeal process but could you just address that issue?

LEAH:  Yes, there is an advocate for children in care who is someone employed by the Department, and they are meant to be that intermediary person that you can contact in situations like ours.  I did feel like they heard my story and my concerns, but ultimately, that led to nothing, because they still had to go back to the district and speak to the case workers that were there, and it was still ultimately the case workers and team leaders that had the decision making power, and so, a process that should have worked in a perfect world in this situation didn't because they don't have the power to make any decisions or recommendations.  That can still be overturned or determined by the case workers and team leaders themselves.

MS O'CONNOR:  Would you like to see a process, whether it's an office or a person established outside the Department who can then assist people who are perhaps     you talked about your high skill level, but other people in your position so they can then have access to information and processes and utilise that?

LEAH:  Absolutely.  A completely independent person that could be contacted at first instance and also, you know, cultural informed and sensitive service so that they can go and meet with families and kinship carers and not just foster carers so that if there are concerns about the way things are being managed by the Department, there is someone that carers can approach.

MS O'CONNOR:  Just finally, you made some comments earlier in your evidence about the coincidental finding out from time to time about medical information, and the failure to actually learn medical information, and I think you said a moment ago it's this Royal Commission which has actually led you to learning some things.  Would you like to see recommendations about people in your position, so that's each time you were, first of all, a respite carer, then a foster parent and now the guardian.  Would you like to see recommendations about release of medical information to people in your position of the children that you're caring for and for other people in your position?

LEAH:  Again, once again, something very simple could be put in place like medical issues, document, and that document could be prepared by the case worker and provided to any new carer and updated every 6 or 12 months or as issues arise, so  
that when you are taking a child into your care, you have a clear document that sets out any medical issues or concerns, what is being done, when the next appointment might be, and anything as a carer that you should be doing to support the child in the interim.

MS O'CONNOR:  Finally, this is my final question: you've explained to the Commission about the difficulties that Connor has in regulating his conduct and his day to day behaviours; do you envisage a time that he gets older and bigger that he might need to be in an environment that doesn't have other children in it?

LEAH:  Yes, unfortunately that is something we've had to consider, and it's absolutely horrifying and would be heartbreaking and would destroy us, but there are other children in our house and we have to be very conscious of our ability to care for Connor and how we can keep everyone in the house safe.  We have duties and obligations to the other children.

I have spoken to the Department about this, and they told me that if we ever had to face the horrific decision of putting Connor back into the foster care system, that they would take his younger brother Dylan who's been with us since 6 days old, and insist that the brothers be kept together even if that was not in Dylan's best interest, and the thought of that was absolutely horrifying.  Dylan has never experienced any trauma.  He has lived in a house, very stable house and home with caregivers and all his medical needs and other needs being met.  He's a lovely kid.  He has wonderful relationships with his school community, and to think that a child who has never experienced trauma or knows trauma would be removed from his mum and dad, and his carers, and the open and ready access he has to his biological family, and put into the system, was so distressing to me that we really feel like we have no choice but to best manage Connor for as long as we can.

MS O'CONNOR:  When was that conversation had with you?  Do you remember who it was that you had that conversation?

LEAH:  That conversation was with the District Director of the Mirrabooka office Peter Tulip and a case worker appointed to the family at the time, Caley Anne Wilkie, and that was as recently as April 2020.

MS O'CONNOR:  Thank you.  I have got no further questions.

CHAIR:  I am relieved to see, Ms O'Connor, that the term "final" has the same meaning in Western Australia as it does in the eastern states.

MS O'CONNOR:  I'm actually from South Australia, so I'm used to it.

CHAIR:  There you go, that explains it!

MS O'CONNOR:  Final and final, thank you.

 
CHAIR:  Mr Bydder, I take it you're here.  Do you have any questions you wish to put to Leah on behalf of the State of WA?

MR BYDDER:  Chair, I had a discussion with Mr Crowley yesterday afternoon.  For the reasons I've discussed with Mr Crowley, we won't be putting questions to Leah.

CHAIR:  Thank you very much.

Leah, I am conscious you have spent a lot of time giving evidence.  It's not an easy thing to do.  We're very grateful to you for the extremely detailed and careful statement you've provided, and as Commissioners Mason and Galbally have said, we're very grateful to you for your evidence today and the contributions you've made to the Royal Commission, so thank you very much indeed.

LEAH:  Thank you.

THE WITNESS WITHDREW

CHAIR:  Mr Crowley, we've run over time a little, and that's the fault clearly of the other Commissioners that we've run over time --- it's nothing to do with me!  What should we now do?

MR CROWLEY:  Chair, could we have the hour please?  Could we resume at 1.20 Eastern Time?

CHAIR:  1.20 Eastern Time.  We will resume at 1.20 Eastern Time and then we'll be taking evidence, as I understand it, from Mr Mace and Ms Samuels.  We'll resume at 1.20 Eastern Standard Time.  Thank you.

ADJOURNED    [12.23 PM]

RESUMED    [1.22 PM]

CHAIR:  We will get underway.  Mr Crowley, just before we re commence, having regard especially, but not only to the evidence that we heard this morning, it's appropriate to note that this week is the International Week of the Deaf and Australia's National Week of Deaf People.  The theme for 2021 is Celebrating Thriving Deaf Communities.  The celebration is a week long celebration of people who are deaf and the deaf Australian community, and it's an opportunity to celebrate the deaf community, their language, culture and history, raise community awareness of deafness, and recognise the achievements of the deaf community.  As it happens, the theme for today     there's a separate theme for each day of the week     the  
theme for today, 21 September is Sustainable Deaf Leadership and it's appropriate to mention that, of course, we have Commissioner Alastair McEwin AM who is a deaf person and is a Commissioner on this Commission, and he of course is a leader in the Australian deaf community.

Thank you, Mr Crowley.

MR CROWLEY:  Thank you, Chair.  Commissioners, this afternoon we will first be hearing evidence from Mr Glenn Mace and Ms Melanie Samuels from the Western Australian Department of Communities.  Mr Mace is the Executive Director with the Department and Ms Samuels is the District Director.  They will both give evidence together with respect to the case study of Connor and the evidence that we've heard from Leah about Connor.

Chair and Commissioners, there's a copy of the statement of Mr Mace within the Tender Bundle Part A at Tab 335.  I tender that statement and ask that it be marked as Exhibit 16.14.

CHAIR:  That statement will be tendered into evidence and given that marking, thank you.

EXHIBIT #16.14   WITNESS STATEMENT OF MR GLENN MACE

MR CROWLEY:  There are then 20 additional documents which are referred to and annexed with the statement with Mr Mace, and they are within the Tender Bundle Part A at Tabs 558 to 557.  I tender those as well and ask that they be marked Exhibits 16.14.1 through to 16.14.20.

CHAIR:  Yes, the documents that you have referred to will be admitted into evidence and given the markings that you have identified, thank you.

EXHIBITS #14.14.1 TO 16.14.20   ANNEXURES TO WITNESS STATEMENT OF MR GLENN MACE

MR CROWLEY:  In respect of Ms Samuels, there is a statement that she has produced which is in the Tender Bundle Part A at tab 336, I tender that statement as well and ask it be marked Exhibit 16.15, please.

CHAIR:  Yes, that will be admitted into evidence and given that marking as well.

EXHIBIT #16.15   WITNESS STATEMENT OF MS MELANIE LYNN SAMUELS
 

MR CROWLEY:  Again, Chair and Commissioners, the pseudonym direction in place in respect of the identities of certain witnesses including Leah and Connor and Dylan, Abigail and Matilda, again I draw attention to that direction which applies to the evidence here.  There will be documents, Chair and Commissioners, that will be referred to and which will be brought up on the screen, but it will be done in a way that they'll be brought up for the witnesses, the Commissioners and the parties to see only, and they'll be referred to in a way which maintains the pseudonym direction.

CHAIR:  Yes, thank you.

MR CROWLEY:  Can we have each of the witnesses available on the screen, please.

CHAIR:  Thank you, Mr Mace and Ms Samuels, for coming to the Royal Commission to give evidence.  I understand that Mr Mace, you will take the affirmation and Ms Samuels, you're to take an oath.  We'll start with Mr Mace.  If you'll be good enough to follow the instructions of my associate, he will administer the affirmation to you.

MR GLENN MACE, AFFIRMED

CHAIR:  Ms Samuels, if you would follow the instructions of my associate, he will administer the oath to you.  Thank you.

MS MELANIE LYNN SAMUELS, SWORN

CHAIR:  Thank you very much.  To explain where everybody is, it's a little complicated, we have Commissioner Galbally who is joining the Royal Commission hearing in Melbourne.  Commissioner Mason is participating in the hearing from our Brisbane hearing room.  I am in the Sydney hearing room of the Royal Commission, Mr Crowley who will ask you some questions is also in the Brisbane hearing room, and I'll now ask Mr Crowley to ask you some questions.  Thank you.

EXAMINATION IN CHIEF BY MR CROWLEY SC

MR CROWLEY:  Thank you, Chair.

Mr Mace and Ms Samuels, I might ask you first of all if you could introduce yourselves and tell us what your current positions and roles are within the Department?  Mr Mace, if I could start with you?
 

MR MACE:  Yes, thank you.

If I may, I would like to start by acknowledging the Traditional Owners of the land on which we are meeting here today.  We're just up from the Derbal Yerrigan and I'd like to pay my respects to Elders past, present and those emerging.

The current role that I hold in the Department of Communities is the Executive Director for Statewide Sservices, so it is a service delivery focussed division that manages service delivery programs of work.  Since we     since the Machinery of Government reforms in Western Australia, we saw the joining up of a number of prior legacy departments, what was previously the Disability Commission, the Department For Child Protection and Housing to be the large ones that came together.  Obviously, a number of those had service delivery functions, and the roles that I am responsible for are really those programs of work that are led centrally from Perth, but have a statewide reach and remit.

MR CROWLEY:  Yes, thank you, Mr Mace.

Ms Samuels, if you could just likewise introduce yourself and explain what your position is with the department?

MS SAMUELS:  Thank you, yes, my name is Melanie Samuels.  I also would like to acknowledge that we're giving evidence on Whadjuk Nyungar Boodjar and pay my respects to Elders past, present and emerging.

My role is as the District Director where Connor's case was managed.

MR CROWLEY:  Thank you.  As I'm asking the questions, please feel free to answer, whichever of you feels is more appropriate.  I might direct a question to one of you, but it may be that the other of you is the person who's best placed to answer, so please feel free to do so.

Can I start first of all perhaps just by asking you, Mr Mace, the Department of Communities as you've described, within the Department now is the delivery of the service for child protection services?

MR MACE:  Yes, indeed.

MR CROWLEY:  Does it still go by a unit description of "Child Protection Services", or something similar?

MR MACE:  It does, yes.

MR CROWLEY:  Now, the relevant legislation that applies, can you just tell us what the legislation that governs the child protection services in Western Australia is?

 
MR MACE:  The Children and Community Services Act 2004.

MR CROWLEY:  And under the Act, it's the case that where a child comes under the protection or the care of the Department, they are under the care of the CEO of the Department?

MR MACE:  That is correct.

MR CROWLEY:  And the legislation fundamentally requires the paramount consideration to be to act in the best interests of the child?

MR MACE:  Indeed.

MR CROWLEY:  Following from that overarching legislation, there are a number, I take it, of different policies or guidelines within the Department and within child protection and family services that would operate?

MR MACE:  Yes.

MR CROWLEY:  One of those is to be found within the child protection case work manual, which is produced from time to time?

MR MACE:  Yes, indeed.

MR CROWLEY:  That's a written guide or policy document which goes through various versions or iterations as it's updated over time?

MR MACE:  Yes, correct.

MR CROWLEY:  And the policy documents are separated into various subject or chapters according to particular functions or roles of the service that's delivered?

MR MACE:  Yes, that's right.

MR CROWLEY:  So we have, for example, a separate chapter on disability or children with disability, or a chapter on education, and so on?

MR MACE:  Yes, that's right.

MR CROWLEY:  And the case workers and team leaders and those within the child protection family service unit, they are to follow and be guided by those policies    

MR MACE:  Yes, that's right.

MR CROWLEY:      in their decision making.  Now, can I ask you, again Mr Mace, but Ms Samuels if it's you who is best placed to answer this: within the child protection family service unit, could you just give us an explanation or an overview,  
please, of the hierarchy or the structure as we would see it?  You've talked about you being in the role of a district manager or a district level, Ms Samuels; what is the hierarchy as we would see it from bottom up?

MS SAMUELS:  From bottom up?

MR CROWLEY:  Yes.

MS SAMUELS:  So there is case workers who report to team leaders, and then the team leaders would either report to the assistant district director, or they would report to myself as district director.  We also have a number of specialist staff who are people like Aboriginal practice leaders, senior practice development officers, education officers, district psychologists, and they would all report either to myself or to the Assistant District Director.  We also have family support officers who are really, really critical people, and they are also the people who transport children to and from contact visits or assist with transporting of children, if they need to go to medical appointments, et cetera.

MR CROWLEY:  So, if we're talking about     let's use Connor's case     the district office level, is that the local level at which case workers manage and carry out the service?

MS SAMUELS:  Yes, that's right.

MR CROWLEY:  And in your role, you are the district manager for that particular office?

MS SAMUELS:  Yes, I'm the district director.

MR CROWLEY:  Yes, thank you.  And then from there, I take it there's a number of different districts throughout the State, what's the next level up in the hierarchy where they feed into?

MS SAMUELS:  So, the Machinery of Government, there was a position called the Regional Executive Director, that is my line manager, and the Regional Executive Director is responsible for their region, and they may have a number of districts that report to them.  And then the next level up will be the Executive Director, which is Glenn's area, so there's a number of executive directors at that level, and they then report up to either an Assistant Director General or a Deputy Director General, who then reports up to the Director General of Department of Communities.

MR CROWLEY:  Thank you.  Now, just dealing within the position of the case worker, I just want to get an understanding if we could please about the level of authority or decision making authority of the case workers.  In an individual case for a child in care, is it the case worker who makes the decision about placement?

MS SAMUELS:  No, it's not.  So, there's a number of people who are involved in  
decisions around the placement of a child.  So, the case manager is the person who is responsible for managing the case, but they would also be talking with the placement officer.  So each team has     the team leader has a number of case managers that report to them, but also a placement officer who manages the care arrangements.  That's both for foster carers as well as family carers, and so they     the case manager rarely, if ever, makes a decision on their own.  They are generally always consulting with their team leader, and their team leader knows that they can also consult with other specialist staff in the district, including the Assistant District Director and myself as District Director.

MR CROWLEY:  Yes.

MS SAMUELS:  There are also times where matters can be quite complex, and so we do have a specialist child protection unit based in our central office and we can also consult with them, and that's very useful in complex matters to have people who oversee all the districts and can offer advice, because they're dealing with a lot of our stakeholders as well, so they're good people to talk to when we have complex matters and they have various functions.  So certainly in Connor's case the Principal Education Officer was also consulted, and they're based in the specialist child protection unit.

MR CROWLEY:  So who is it that signs off on a placement decision?

MS SAMUELS:  Generally, depending on what the placement decision is, it can either be the team leader, or if it's a significant placement move, it will be either the Assistant District Director or the District Director.

MR CROWLEY:  What about the care planning?  Is that something that the case worker or the case manager is responsible for developing and implementing?

MS SAMUELS:  Yes, so the case manager will basically gather all of the information, if you're referring to our annual care planning formal process which is a legislative process.  Then, they would collect all of the information and then, that care plan, annual care plan would be shared either by a team leader     generally we try to encourage a team leader other than the team leader that is managing the case.  At times we do bring in someone like a senior practice development officer or a Aboriginal practice leader who may actually chair the care plan, and that is to ensure that there is a bit of arm's length decision making around what's happening for the child.  So, the case manager prepares the documents, but those care plans are chaired usually by someone who is a senior worker.

MR CROWLEY:  What about decisions about health assessments?  Is that something a case worker or case manager makes?

MS SAMUELS:  Health assessments are done in conjunction with the team leader, so that the case manager would not be making those decisions about health assessments on their own.
 

MR CROWLEY:  What about referrals or recommendations from health practitioners?  Are they matters which are actioned at the case manager or case worker level, or do they also go up to consult with the team leader?

MS SAMUELS:  Again, they do consult with the team leader, and depending on the advice that we get from the medical professional, we may also consult with the District Psychologist, or the Chief Psychologist depending on what's been recommended.

MR MACE:  I might just add that we've recently had an additional process added in there around the decision making of assessments, and that is, our Minister for Child Protection here in Western Australia made a commitment that we would provide outcomes of our decision to foster carers where the request has come from a foster carer within 20 days, and that the rationale for that decision would be signed off by the district director.  That is a relatively recent enhancement to our practice.

MR CROWLEY:  Yes, thank you.  Now, were each of you able to listen into and follow the evidence given by Leah before?

MR MACE:  In part.

MS SAMUELS:  Yes, in part.

MR CROWLEY:  I might raise some of the matters that Leah spoke of with you as we go through your evidence, but one of the things that she spoke of was the arrangement in her role as a foster carer through an agency, Wanslea agency, in her case.  Where that exists     that arrangement where the agent is the intermediary between the Department and the carer     Leah spoke about there being no direct line of communication between the carer and the Department, and the difficulties that presented with information sharing and decision making.  Is it the case that that is a matter that the Department has considered within its practice and policy of how it operates, using the agency?

MR MACE:  Yes, it is.  I did     I was able to hear that part of Leah's statement this morning, and I certainly heard her expressing her frustrations at how she saw that playing out for her and Connor.  Some of that, some of that, I think, went to who was the decision maker and who was able to make a decision.  And we have heard, we have heard from foster carers that they believe that there's an opportunity for us to streamline some of that decision making so that workers within the Department, workers within the community sector organisations and foster carers, are clear about the kind of delegation and responsibilities and who's able to approve particular requests.

Now, last month here in Western Australia, the Foster Care Refresh Project was tabled in Parliament.  The Foster Care Refresh Project was about an 18 month consultation process in partnership with the Foster Care Association in Western  
Australia, the Children     Commission --- and Young People, and the Children and Family Alliance.  And its intention was to talk to foster carers about their views of the service system, the things that they are of the view that work well, those aspects that they think are difficult to navigate, and indeed some suggestions about how we might all move forward together to address some of those difficulties.  One of the commitments that we've made out of that is to create a resource for foster carers, staff and community sector organisations that clearly shows who's responsible for decision making, and I would note that our South Australian colleagues have developed something very similar called "Who Can Say OK".  So, we have certainly heard from foster carers that there are some things that we can do to improve decision making and communication.

CHAIR:  I see from paragraph 8 of your statement you say that:

Wanslea is a non government organisation which contracts with the Department to provide foster care services.

Are all foster care services provided through non government organisations that have a contract with the Department, or there other mechanisms for foster care services to be provided?

MR MACE:  In Western Australia, we have a combination of accommodation options that are both delivered and provided by the community sector organisations, as well as our own in house service and foster carers.  I would say it would probably be about a 20 80 split, as in 20 per cent community sector organisations.

CHAIR:  When you say you have your own, you are talking about foster care service providers, are you?

MR MACE:  No, we have     the Department of Communities Child Protection has its own foster carers, as well.

CHAIR:  What does that mean?

MR MACE:  It means that we advertise and recruit and approve general foster carers, ie carers outside of family, and support those foster carers to look after foster children.

CHAIR:  All right.  If I'm interested in becoming a foster carer in Western Australia, I have a choice, do I, as to whether I go to an organisation such as Wanslea, or I go directly to the Department?

MR MACE:  Yes, that's correct.

CHAIR:  Now, Leah gave evidence about, as you say, the frustration she encountered in having to deal with the Department through Wanslea.  If she had applied directly to the Department and been approved by the Department, would the  
position have been any different?

MR MACE:  Well, she would have had, she would have had a more direct line of communication to Connor's case manager; that is so.

CHAIR:  What, then, is the advantage to interposing an NGO like Wanslea between the Department and service provider?

MR MACE:  I mean, I think the, the advantage that the community sector organisations would offer was that they were able to find a more enhanced service in terms of supports for foster carers.  It also means that because of the size and scale of Western Australia having a number of different providers in the marketplace, means that we're collectively better able to tap into people who are willing to become foster carers through, if you like, our (inaudible).

CHAIR:  Is the role of an NGO such as Wanslea inconsistent with a particular foster care provider having that same direct line of communication with the Department as a foster carer who is approved directly by the Department?

MR MACE:  Sorry, would you mind repeating the question?

CHAIR:  Yes.  Leah's frustration was because she had to go through Wanslea in order to get a response from the Department to requests or suggestions that she was making.  You've said that if a person who wishes to become a foster carer is approved by the Department, then that foster carer will have a more direct line of communication with the Department.  My question is: is there anything to prevent an arrangement being made whereby a foster carer approved by Wanslea could have an equally direct line of communication with the relevant Department decision maker?

MR MACE:  I think this probably goes to how those services are contracted, and at the moment the way those services are contracted are that the community sector organisation like Wanslea is responsible for supporting their particular foster carers.

CHAIR:  Yes, that's the position at the moment, but is there anything to prevent different contractual arrangements being entered into?  I understand the point about NGOs or community organisations being able to reach foster carers in ways that may be difficult for the Department to achieve, but would it be feasible, or has any thought been given to the role of the community sector being modified so that foster carers can have that direct line of communication with the Department, which, if what Leah has said is correct --- and you may have a different view about it I don't know --- but would seem to address one of the problems with which Leah was concerned?

MS SAMUELS:  May I just make a couple of points?  The first one is that how a foster carer becomes a foster carer is often a planned decision and they choose between whether they wish to be a carer with the Department or with an agency.  We have had, in recent years, several carers who have been with a non government  
agency or a community sector organisation transition to become departmental carers.  They're individual choices.  I think that the agencies like Wanslea offer additional support, but that might attract a particular foster carer to go with that kind of arrangement.  They may not wish to have a lot of contact with the Department and that's why they choose to go with a community sector organisation, so it's an individual choice.  But we have had some carers, foster carers who have transitioned from an agency like Wanslea directly to the Department, because we actually do our best to provide support to foster carers as best as we can and try to develop that working relationship with them as much as possible.  I should point out that I've only been the District Director     I wasn't the District Director at the time of Connor's case, but I have been since October of 2020 and in the time that I've been there, I've actually met with several foster carer where they have raised concerns.  I've met with family carers, because if they do have a concern then we want to be able to address their concerns, and if they need to speak with me, then I do my best to make myself available, because we want to be able to address whatever pressures or concerns that they might have around the care of the child that they have with them.

CHAIR:  And you mean that that is something that is available to a foster carer who is a part of or one of the NGO's foster carers?

MS SAMUELS:  Yeah, so the foster carer through the agency     and there was in Connor's case regular meetings between the agency and the Department and the carer, so that those conversations around what's needed can be discussed, and, you know, in the main, I think that that works.  I would acknowledge that there's sometimes a time lag, because there is an additional party to kind of communicate with.

CHAIR:  All right, I'll let Mr Crowley pursue that if he wishes, but just to be clear about it, your position is that it was always open to Leah if she wished, to transition from being an approved foster carer through Wanslea, to become an approved foster carer directly with the Department?

MS SAMUELS:  That's an option that people have, yes.

CHAIR:  Would she have had to go through a separate accreditation procedure, or could she carry her certificate or whatever it is with her?

MS SAMUELS:  No, we have people come across from an agency to the Department.

CHAIR:  Thank you, Mr Crowley.

MR CROWLEY:  Thank you, Chair.  Now, in that arrangement in Leah's case, it's correct, isn't it, that information wouldn't come directly from the Department to Leah     the policy was that it would go to Wanslea and then Wanslea would communicate to Leah?

 
MR MACE:  Yes, that's correct.

MR CROWLEY:  And vice versa, it was policy that Leah should communicate with Wanslea who would then communicate with the Department?

MR MACE:  Yes, correct.

MR CROWLEY:  In terms of the meetings you've spoken about, Ms Samuels, there might be meetings or there would be meetings that would be arranged, whether there be a care or a plan meeting which would be attended at by the carer     Leah     and the Wanslea representative, and one or more Department representatives might also attend at that meeting?

MS SAMUELS:  Yes, that's correct.

MR CROWLEY:  And in that way, there might be information coming in that meeting from the Department to the carer, or carer to the Department?

MS SAMUELS:  Yes.

MR CROWLEY:  Apart from that conduit and that process, there wasn't any way for a carer to communicate with the Department unless they took the initiative and did it themselves?

MS SAMUELS:  My understanding is there are times when Leah did make contact with the Department directly.

MR CROWLEY:  For the purposes of giving your evidence to the Commission, you've each had a look at documents and file materials relating to Connor's case?

MR MACE:  Yes.

MS SAMUELS:  Yes.

MR CROWLEY:  I want to bring up a document on the screen for you.  Now, this document is being shown for you to see and for the parties and for the Commissioners to see, but as I noted earlier about the pseudonym direction in place, I will take you to certain parts of it, but just be aware that it's not being publicly shown on the screen for people following the Commission's evidence at this stage.  Can we bring up please the document, the tab number 196.  I'm not sure if we can bring it up that way, or whether we need the full    

CHAIR:  Mr Crowley, that sounded deceptively simple and I'm not sure that deceptive simplistic necessarily works.

MR CROWLEY:  I'll give the full reference.

 
CHAIR:  Yes, I think we might have to, unfortunately.

MR CROWLEY:  WAN.9999.0001.0518.

Mr Mace and Ms Samuels, you can see that on the screen?

MS SAMUELS:  Yes.

MR CROWLEY:  It's a document that's one of the records about an initial placement plan for Connor?

MR MACE:  Yes.

MR CROWLEY:  A Wanslea document.

MR MACE:  Yes.

MR CROWLEY:  This one relates to initial placement, an initial recording of the initial placement of Connor?

MR MACE:  Yes.

MR CROWLEY:  Could we just go down please on this first page.  Just stop there, thanks.

You'll see that there's a box there about agreed placement length and it's got details there about this being a long term placement and reunification decision to be made at the end of February but unlikely at this stage or highly unlikely at this stage?

MR MACE:  Yes.

MR CROWLEY:  Is this a document, are you able to say, is this a document being created and prepared by Wanslea?

MS SAMUELS:  Yes, it's prepared by Wanslea.

MR CROWLEY:  And is it prepared by Wanslea as a record which is then provided to the Department for the Department's file as well?

MS SAMUELS:  Yes.

MR CROWLEY:  If we go down the page please, over the page there's a section there on health, can we go to that, please?

As part of the initial placement information in this meeting, or this placement plan, there's information there about Connor's health, service providers and other things are noted, and then there's a section, if we go down, about health issues.  Do you see  
that, each of you?

MR MACE:  Yes.

MS SAMUELS:  Yes.

MR CROWLEY:  Now, what's noted there you'll see in the bottom section there's a record of ENT issues and chest infections and coughs, and it's designated that the carer, Leah, will arrange the appointments with the Aboriginal child health specialist in relation to the management of that ENT issue and chest infections.

Now, there's no information that was provided at this stage here about there having previously been identified any hearing loss, is there?

MS SAMUELS:  No.

MR MACE:  Not in this document.

MR CROWLEY:  If you look down further on this document, the next paragraph refers to a referral to an audiologist appointment in response to a low ear pressure in the left ear, but nothing about there being any identified hearing loss at this stage.

MR MACE:  Yes.

MR CROWLEY:  Can I ask you, if we can just go over the page please, you'll see top of the next page it then goes on to deal with other aspects of health, but there's no further information about any other conditions or matters relating to the health concerns for Connor.

Now, this document that we see here, you heard Leah's evidence that when she first took on the role of foster carer     not respite carer but foster carer     in January 2016 of Connor, that she wasn't provided with much by way of health information and no serious health issues were raised with her.  Do you recall that?

MS SAMUELS:  Yes.

MR CROWLEY:  Is this the extent of the information communicated to the carer as you understand it?

MS SAMUELS:  No.  I don't know the date of this document, if I could have a look at the date.

MR CROWLEY:  Go to the top on page 1, thanks.

CHAIR:  The date is on the last page, isn't it     3 February 2016.

MR CROWLEY:  If we could just go to the back page, please?
 

MS SAMUELS:  Yes, so there was actually, as I referred to earlier, there are annual care planning meetings.  So in addition to these Wanslea meetings there are also care plan meetings, and at the care plan meeting that is where there is full detail around the children's needs across the eight dimensions.  That includes health, education, legal matters, social and family relationships and so on.  So, there was information that was provided to Leah, even though she was a respite carer originally.  People are invited to come to those annual care planning meetings so everyone who is around the child has the information that they need about the child based on what the Department has at that moment in time.

MR CROWLEY:  But at this stage, you understand that Leah had become the foster carer, not respite carer but foster carer from 22 January 2016?

MS SAMUELS:  Yes.

MR CROWLEY:  And there's no record of any further care plan meeting happening between that date and this meeting record?

MS SAMUELS:  There is a care planning meeting in 2016, as well.

MR CROWLEY:  Yes, but I didn't ask you about whether there was one in 2016 between the date that she became the foster carer in this meeting that's recorded.  You're not aware of there being any care plan meeting record where information was passed between those two events?

MS SAMUELS:  I believe there was a meeting in January or February of 2016, so that may well have been before this.

CHAIR:  According to Mr Mace's statement in paragraph 30 there was a care plan meeting which is eight days before the date of placement, and paragraph 30 goes on to say the next one was on 16 January 2017, so it appears that between the 22 January 2016 and the end of the year, there were no care plan meetings if paragraph 30 of Mr Mace's statement accurately records all plan meetings that took place.

MR MACE:  Those records of when the care plan meetings took place is correct.

MR CROWLEY:  Could we bring up another document then, please, which is WA.0010.0009.0042.  That document, you'll see it's headed Culture and Identity Plan.  You heard Leah's evidence where she spoke about requesting a cultural plan.  Mr Mace and Ms Samuels?

MR MACE:  Yes.

MS SAMUELS:  Yes.

MR CROWLEY:  Thank you, and there is a policy within the Department     I will  
just call it "the Department"     to produce a cultural plan for First Nations children that are in care, isn't there?

MS SAMUELS:  Yes.

MR CROWLEY:  That's to be produced within a short timeframe after they enter into care, isn't it?

MS SAMUELS:  Yes, this Culture and Identity Plan document that's on the screen is part of the annual care plan, so it's one of the dimensions that is included as part of the care plan.

MR CROWLEY:  This is not the cultural plan document that I've just been speaking about, this is a separate document, isn't it?

MS SAMUELS:  Yes, this Culture and Identity Plan is part of the care plan, but there is a cultural plan, as well.

MR CROWLEY:  If we just go down in this document, the Culture and Identity Plan, we keep following it down, you'll see on the first page there's a reference to a cultural grouping or country that Connor identifies with    

MR MACE:  Yes.

MR CROWLEY:      and if we go over the page, there are some details there about what the Culture and Identity Plan is for Connor.  The other document that I asked you about and the document that Ms Leah was speaking about, that document is a more complete research type of report about the particular child in care, and their connection to their culture, isn't it?

MS SAMUELS:  Yes.

MR CROWLEY:  That document is ordinarily prepared by one of the Aboriginal practice leaders, or in consultation with the Aboriginal practice leader?

MS SAMUELS:  Yes, it is.

MR CROWLEY:  In this case there was no cultural plan of that type that was prepared until November of 2018, was there?

MS SAMUELS:  In practice, what happens is that the cultural plan is being developed over time.  So I would refer to it and others would refer to it as a "living document", that the Aboriginal practice leader is working with the case management team to develop, and when a child enters care, we have some information, and then as we continue on with the case management, we develop that information further by speaking with family and getting additional information to populate the cultural plan.  In Western Australia, through the legislative, through the consultation around the  
Children and Community Services Act 2004 that Glenn referenced earlier, there has been legislative amendments and there's a Bill before Parliament at the moment, which evaluates the importance of cultural support planning, and it means that when an application is made, a care and protection application is made to the Perth Children's Court, the child protection workers will also need to submit the cultural support plan, and that's in recognition of the importance of culture for children entering care, and so that means that cultural support plan will continue to have priority over the life of the time that the child is in care and outline the needs of that child, the need that that child has, particularly in relation to the child placement principles.

CHAIR:  I think the question you were asked was "Was the first cultural plan for Connor developed only in November 2018?"  I take it that's a reference to the cultural plan that bears that date that is actually at tab 5 of one of the many folders we have.  Is your answer that there was a cultural plan devised for Connor earlier than November 2018?

MS SAMUELS:  Yes, but it's not as detailed as the one in 2018.

MR CROWLEY:  But Ms Samuels, Connor entered into care on 5 December 2014.  It is correct, isn't it, that the cultural plan document was not produced and provided to the carer until November 2018?

MS SAMUELS:  That is correct.

MR CROWLEY:  And nothing of that cultural plan that you say was a living document, no documentation about it was provided earlier before that, was it?

MS SAMUELS:  Not to the carer at that point, no.

MR CROWLEY:  Now, could we go then please, if we could take down that document and will could I bring up please the document WA.0010.0005.0310, which is at tab 167.  If I could zoom in on that one, please?

You'll see there's a letter on the screen from the Aboriginal Ambulatory Care Coordination Unit?

MS SAMUELS:  Yes.

MR CROWLEY:  It's a letter 27 February 2015 following a clinic on 25 February 2015.  If we just go down there, please, you'll see that it's got three issues referred there: recurrent skin sores, otitis media and anaemia.  And then it sets out information about the review of Connor, amongst other things.  If we just go down in that document, please you'll see there's a reference there in the first paragraph down to MRSA skin lesions.

MR MACE:  Yes.
 

MR CROWLEY:  Following up from an admission the previous year.  Further down the page there's some further information about, or further report about presentations with MRSA skin lesions, or skin sores.

MR MACE:  Yes.

MR CROWLEY:  Now, this document comes to the Department as part of its records, doesn't it?

MS SAMUELS:  Yes.

MR CROWLEY:  And Leah's evidence you heard earlier was that she was not told by anyone about Connor being MRSA positive until she discovered by chance at the hospital one day, seeing a sticker on a file.  It is the case, isn't it, that no information was given to her by the Department or through Wanslea to notify her as the carer that Connor was MRSA positive?

MS SAMUELS:  Again, that was discussed in the care plan, where it was talked about and my understanding is that Leah was present at that care plan.

MR CROWLEY:  When?

MS SAMUELS:  And the MRSA skin lesions were discussed.

MR CROWLEY:  When?

MS SAMUELS:  That was in 2016.

MR CROWLEY:  Could we have a date, please?

MS SAMUELS:  Am I able to provide that?

MR CROWLEY:  You can, if any response to any of those matters you don't have immediately before you, then you can do that in due course, but you say your recollection is some time in when?

MS SAMUELS:  2016.

MR CROWLEY:  In a care plan meeting between a Department representative, Wanslea and the carer?

MS SAMUELS:  Yes.

MR CROWLEY:  And is this verbal information that's passed over?

MS SAMUELS:  It's documented under the health section in the care plan.
 

MR CROWLEY:  Does the carer get a copy of that care plan?

MS SAMUELS:  Everyone who attends the care plan is entitled to a copy.

MR CROWLEY:  But do they get given one?

MS SAMUELS:  Generally the practice is yes, that they do    

MR CROWLEY:  Is that something    

MS SAMUELS:  There may be times where some information is redacted for confidentiality.

MR CROWLEY:  By who, the Department?

MS SAMUELS:  By the Department, yes.

MR CROWLEY:  So who makes the decision to provide that document to the carer?  Is it Wanslea, or the Department?

MS SAMUELS:  Generally it's the Department.

MR CROWLEY:  And does the carer have to request it to get a copy?

MS SAMUELS:  Generally we provide that, if they haven't received a copy, then we do provide it for them.

MR CROWLEY:  So there's a meeting held and then after that, a meeting note is prepared, the case plan document is prepared, and then it's somehow provided to the carer; is that what you say?

MS SAMUELS:  Yes, it's distributed.  So we would     the Department would have gone through Wanslea to provide that document.

MR CROWLEY:  Could we then please    

CHAIR:  Just so I'm clear about your evidence, Ms Samuels, are you saying that the information concerning this health condition was conveyed to Leah at a care plan meeting in 2016?

MS SAMUELS:  Yes.

CHAIR:  But there was no care plan meeting in 2016, we've already established that, other than 14 January when she wasn't the carer?

MS SAMUELS:  But she was a respite carer at that time.
 

CHAIR:  So you're saying that she was told this in the meeting of 14 January; is that your evidence?

MS SAMUELS:  Yes, I will double check the date, but there is definitely     I have read in the review of the documents, I definitely did read that there was a     the MRSA condition was noted in a care plan, and it may well have been 2015 or 2016, but that's why I will double check the dates, but it was documented in the care plan, and that that information was shared with Wanslea and my understanding was that Leah was at that care plan.

CHAIR:  All right, well as Mr Crowley has indicated, if there is documentation that supports that it would be very helpful to have it.

MR CROWLEY:  Just in terms of that particular condition, we're talking here about a potentially transmissible skin infection.  Is that all that is done is to provide some information at a care meeting for the person who's the carer?  Is there more that the Department would do to inform them and tell them how that might be managed?

MS SAMUELS:  Yes, it would be conversation about the     whatever the condition is, we would always discuss that with the people who are caring for the child.

MR CROWLEY:  So the case worker at the meeting would discuss this?

MS SAMUELS:  Yes, and generally     obviously I wasn't at that care plan     but when it comes to medical advice, we would make sure that the medical advice is communicated to the carer and, at times and often and in Connor's case, the carer would attend the medical appointment so they can hear directly from the medical practitioner about what is recommended.

MR CROWLEY:  Could we just keep going down in this document please on the screen, just over the page, if we could go down the bottom to the plan.  You'll see that the information that's set out there about the plan, that's what's proposed there, this information is going back to the Department.  What does the Department then do to communicate back to the carers about what's planned? Does the carer get a copy of this report?  Is that something that's routinely done or is there information provided by the Department through the agency, by the Department back to the carer?

MS SAMUELS:  The information is generally shared back to the agency to share with the carer.

MR CROWLEY:  If we just go up a little bit so we can see the bottom part.  You'll see under "Impression" there, Dr Sherrard has set out that he has bilateral otitis media which needs monitoring and he says, given the family history of deafness, he needs formal audiology testing.

From your review of the records, that was not something that was passed onto Leah  
when she became the carer, was it?

MS SAMUELS:  I can't recall at this point.

MR CROWLEY:  If we could just take that one down, please, and if we could bring up the document this is at IND.00098.0006.0016, which is at tab 486 and if we could just zoom in on that one, please.  If you just have a look at that document, you'll see that there is an audiology clinic examination document in respect of Connor, which has noted on the right hand side on the audiometry findings mild hearing loss, moderate hearing loss, a bracket between the two and a tick.

CHAIR:  Perhaps, Mr Crowley, we should just be clear about the date.  It seems to bear a date of 24 June 2015, but it's also got a stamp "Mirrabooka 27 August 2015", so perhaps that could be clarified one way or another.

MR CROWLEY:  Yes, so the stamp document, Ms Samuels, that's a stamp to indicate incoming receipt at the District Office?

MS SAMUELS:  That's correct.

MR CROWLEY:  For the Department's recordkeeping.  And this being a document with the stamp or the date 24 June 2015 relating to a review by the Clinical Professor Coates.  That's right?

MS SAMUELS:  Yes.

MR MACE:  Yes.

MR CROWLEY:  If we go down please to the next page and just zoom out a little bit, you'll see attached to this document the second page has State Child Development Centre Paediatric Hearing Assessment document, which has an earlier in time stamp document of 5 June 2015, the Mirrabooka stamp   

MS SAMUELS:  Yes.

MR CROWLEY:  --- and a date seen of 29 May 2015 for an assessment of Connor.

Now, the way in which you understand from the records was that there had been this assessment done, which the summary of results which we see here, the 29 May assessment, which showed hearing thresholds outside the normal range and then middle ear pathology being noted, and it was recommended that there be a medical opinion was recommended, and a review.

MS SAMUELS:  Yes.

MR CROWLEY:  And this document then forms the basis of the referral to Professor Coates's assessment that we saw on the previous page.
 

MS SAMUELS:  Yes.

MR CROWLEY:  Now these documents and this information, these things weren't provided to Leah when she became the carer, were they?

MS SAMUELS:  No.

MR CROWLEY:  And she wasn't told of these matters, that there had been these particular findings about the hearing loss and hearing thresholds being measured outside the normal range, was she?

MS SAMUELS:  It's a difficult question, because there was information shared around Connor's hearing loss, but the specifics of that are not documented, but I know, I understand that she wasn't provided with this particular report.

MR CROWLEY:  But from what you're saying, though, is it at best she would have been provided with some second hand information at a meeting where the information that the Department had in record form may have been relayed to her by a case worker?

MS SAMUELS:  Yes.

MR CROWLEY:  You'd accept, though, wouldn't you that's not a satisfactory way of dealing with an issue such as a mild to moderate hearing loss for a child in care?

MS SAMUELS:  Yes, I would agree.

MR CROWLEY:  Now, in terms of the evidence that Leah gave earlier that by the time Connor was getting towards his school age there was no plan and no supports that had been arranged in any of the care planning for things that might assist him when he came to school, from your review of the records that is the case, isn't it?  That there was nothing that had been put in train before Leah commenced getting a second opinion?

MS SAMUELS:  The Department had progressed with supports for Connor.  Not all of that was, from what I can gather, was communicated with Leah.  But there were actions in place to arrange supports for him and they, I think probably what hasn't come through is that there are many internal conversations that happen in a district around the care of a child, and that not all of that is communicated in detail with the carer.

MR CROWLEY:  But specifically, there was no plan and no arrangement at that stage when she obtained the second opinions     and we're talking here about in December 2017     for Connor to get a hearing aid to assist him at school, or the FM receiver that would assist him when he went to school?  The Department hadn't arranged either of those things, had it?
 

MS SAMUELS:  No.

MR CROWLEY:  Could we take that one down, please and could we go to the document tab 164, but the full reference is WA.0010.0010.0310.  Could we just go down the page, please?  You'll see this is a document which has a date of 12 December 2014, but it's a document you understand which was in respect of the original care order arrangements that were being sought in respect of Connor?

MR MACE:  Yes.

MR CROWLEY:  If we could go down please to     there's a paragraph 20     just keep going over the page, thanks.  You'll see there paragraph 20, just the first line.  This, as you understand it, was amongst the information being provided by the Department for the purposes of seeking to substantiate concerns that were held at the time about the care of Connor, amongst others.

MS SAMUELS:  Yes.

MR CROWLEY:  And you accept, don't you, that this was information that from the time that Connor came into care was known to the Department?

MS SAMUELS:  Yes.

MR MACE:  Yes.

MR CROWLEY:  This would be, you'd accept, information that would be highly relevant for medical practitioners and specialists who might later be considering assessments and diagnoses in respect of Connor to know that information?

MS SAMUELS:  Agreed.

MR CROWLEY:  Do you accept that that information wasn't conveyed by the Department to any of the specialists or health practitioners that it sought assessments from in the years that followed?

MS SAMUELS:  When we seek a medical assessment, we do provide the information about what brought the child into care.

MR CROWLEY:  But that particular information?

MS SAMUELS:  Yes, would be provided to the medical practitioner.

MR CROWLEY:  Are you saying that that particular information that I just took you to on the screen was provided?

MS SAMUELS:  I would have to     in terms of provided to who?
 

MR CROWLEY:  Well, let's say, for example, someone like Dr Do who was later engaged to provide an assessment, a functional capacity assessment?

MS SAMUELS:  Yes, I could go back     I don't have it in front of me, but I could go back and have a look at the terms of reference that were provided to Dr Do around the nature of the assessment that was being sought for the assessment the doctor was doing.

MR CROWLEY:  That particular information, though, you'd accept that that would be highly relevant to any assessment that might be made, and the need for an assessment with respect to Foetal Alcohol Syndrome Disorder?

MS SAMUELS:  Yes, I do.

MR CROWLEY:  Can I take that one down please, and could we go now, please, to the document, to tab 245.  It's WA.00.10.0012.0036.  You're aware from your review of the file materials that the Department had received quite a deal of information about Connor's behaviour and about him having difficulties regulating his behaviour in various contexts.

MR MACE:  Yes.

MR CROWLEY:  Particularly within the school environment?

MR MACE:  Yes.

MS SAMUELS:  Yes.

MR CROWLEY:  The document that we have here, which has got the date 16 April 2018 from Melissa Nicholls, psychologist at Telethon.  If we go down, you'll see the third and fourth paragraphs refer to some issues about behaviour within the school environment and what might be beneficial to provide some support, which is ongoing psychology input.  Then there's a recommendation for a psychologist, Ms Scudds    

MS SAMUELS:  Yes.

MR CROWLEY:      who might provide those services.  Now, you're aware that was eventually arranged that Ms Scudds would provide that service?

MR MACE:  Yes.

MR CROWLEY:  If we could take that one down, please, and could we bring up the document at tab 251, which is the reference WAN.9999.0001.0183.  You'll see that one is a letter addressed to the Department, 16 May 2018 from Dr Walawski, and he has notified the Department that he's completed a referral for Connor to be assessed at PATCHES for possible Foetal Alcohol Syndrome Disorder or global  
developmental delay.  Mr Mace, in your statement, if we could go please to paragraph 63,     you say:

The Department relies upon the advice of medical professionals regarding what early interventions and supports should be provided to children in care.

Does that extend to the Department acting upon the advice and recommendations of medical practitioners?

MR MACE:  Yes.

MR CROWLEY:  In a case such as this where the child in care is being seen by a private practitioner GP, it doesn't make any difference, does it, whether they're seen by the family GP or the private practitioner, or the public service?

MR MACE:  No.

MR CROWLEY:  If a recommendation came from one of those health professionals, it would be treated in the same way, wouldn't it?

MR MACE:  Yes.

MR CROWLEY:  Now, here where there is a reference in a letter to the Department, informs the Department about the reference for PATCHES to do the foetal alcohol --- for an assessment for Foetal Alcohol Syndrome Disorder, you would expect, wouldn't you, that that would then be actioned and followed through by the Department?

MR MACE:  I think what we understood at this particular time was that there were certainly aspects of Connor's presentation and, if you like, cognitive functioning that required further examination.  I think when we received this information, we consulted with our psychologist and there was a conversation around at this particular point in time in Connor's time in care and what information we were seeking that we thought was going to be most helpful in setting up care arrangements in the short term.  We felt that a functional assessment that is broader than FASD was going to be most helpful in the short term.  We certainly didn't have a view that at no point in time should we consider a FASD assessment.  It is more a case that we wanted to go broader before we narrowed the focus.

CHAIR:  Sorry to interrupt, but I'm told that there is some typing going on somewhere with a microphone not on mute, so whoever is typing, would they be good enough to ensure that they're on mute so that the sound quality is not affected.  Thank you.

MR CROWLEY:  Thank you, Chair.  Could we bring up now the document at tab 257 which is WA.0010.0012.0048.  Could we just zoom in on that one, please.  You'll see this one is 13 June 2018, so about a month after the previous referral letter  
that we had on the screen.

MR MACE:  Yes.

MR CROWLEY:  It's from Ms Olsen to Ms Nigro, Laura Nigro, which, as we read it, Ms Olsen is the case worker and Ms Nigro is the district psychologist; is that her position?  If we just go down, you'll see that Ms Olsen writes:

..... I have attached some documents in relation to Connor's behaviour.

And notes:

The carer has in the recent past requested a referral to an assessment with PATCHES in relation to her worry that Connor may have FASD .....

And then goes on to say but today she was talking about a referral to (inaudible) to assess if he has generalised anxiety.

At this stage, of course, we just saw that the Department had the referral letter from Dr Walawski referring to the PATCHES assessment.  So you accept that what we see here, it's not just the carer who was the one who was requesting it, it was on the recommendation, the referral by the doctor?

MR MACE:  Yes.

MR CROWLEY:  This email that we see, this is part of what you've just referred to earlier Mr Mace isn't it, of seeking some further information or raising the matter for some consideration by the other people within the service as to whether there should be this assessment.

MR MACE:  Yes, that's right.

MR CROWLEY:  Now, could we just take that one down and could we bring up please the document at tab 260, which is WA.0010.0012.0002.  If we could just zoom in on that one, now I mentioned earlier about Ms Scudds having provided or been recommended to provide the counselling, and we have a letter here from Ms Scudds, 28 June 2018, to Dr Walawski about Connor, and you'll see that she refers to having provided three sessions.

If we keep going down the page to the fifth paragraph, you'll see that Ms Scudds has recorded that she has expressed concerns and that Connor's not yet able to engage in the one on one therapy and then goes on to say that she feels:

Time and money is best spent exploring issues underlying these behaviours.

Then she goes on to talk about PATCHES.

 
MR MACE:  Yes.

MR CROWLEY:  You'll see that she says at the bottom, PATCHES run multidisciplinary clinics for diagnosis for not just FASD but a whole range of other issues.  This is a recommendation from the counselling psychologist recommending PATCHES's assessment for any one of those conditions.  You agree?

MR MACE:  Yes.

CHAIR:  Mr Mace, I notice in your statement you refer to this letter from     I assume it's Ms Scudds     in paragraph 72.  You don't make any reference to the documents we've just looked at, namely the email of 13 June and the document from Dr Walawski, both of which found their way to the Department.  Is there any reason why those documents don't figure in the chronology?

MR MACE:  Not that I can     not that I can recall, or I'm aware.

CHAIR:  Because it does seem that there's a mounting body of evidence to suggest that qualified people are suggesting pretty strongly that there should be an investigation of whether the child had Foetal Alcohol Syndrome.

MR BYDDER:  I'm sorry to interrupt, Chair, but the question that you've asked, with respect, appears to proceed upon a mistaken premise.  If I can take you to paragraph 73 of Mr Mace's statement, Chair, there is a reference to the email of 13 June 2018.

CHAIR:  Yes, all right, fair enough, but there's not to Dr Walawski, his reference of 16 May, as far as I can see.  If it's not there, it's not there.

MR CROWLEY:  If we could just go then to, if we could take that document down and bring up the one at tab 263, which is WA.0010.0012.0142.  This is an email chain, so if we could go to the back end first and face it through forward so we can follow the chain and just zoom in on the bottom, please.  You'll see at the bottom end there is an email from Ms Jacinta Taylor.  According to the signature box she was the Acting Advocate for Children in Care.  That's the office that Leah spoke about earlier as being the child advocate, or the advocate within the department.

MS SAMUELS:  Yes.

MR CROWLEY:  We go up, you'll see that she's written to Stephen Cohen, and if you can help us, Stephen Cohen's position at this time?

MR MACE:  He's the Chief Psychologist.

MR CROWLEY:  You'll see that Ms Taylor has noted about wanting the referral to PATCHES, that his carer has made contact wanting the referral for FASD and global delay, and that she then has attached some of the emails from the doctor and teacher, and is seeking advice whether that's the best option.
 

MR MACE:  Yes.

MR CROWLEY:  If we keep going up over the page, please, as we go up through the document we see Mr Cohen's response on 3 July, and he has expressed reluctance to look at a single focussed assessment, and indicates that functional capacity assessment is what he's more thinking, and then sets out some reasons for that, if we follow them down.

Then, if we keep going back up the document, please, further up to the next email, we then have Ms Taylor on 4 July writing to Peter Tulip.  Now, Mr Tulip at this stage, what was his position?

MR MACE:  He was the assistant district director.

MR CROWLEY:  So he would be within the Mirrabooka district?

MR MACE:  Yes.

MR CROWLEY:  And cc'ing it to Mr Cohen, and you'll see that Ms Taylor has again set out that she's seeking some advice on the health planning?

MR MACE:  Yes.

MR CROWLEY:  And again repeats those matters.  You'll see at point 4 that one of the things that she notes is that:

Leah has advised that the District has taken 9 weeks to consider the assessment and during this time Connor's behaviour has continued to deteriorate at school and his opportunities to learn along with his peers is being disrupted.

Then she refers to having sought the advice of Mr Cohen.

Can we go up then in the document to the next one in time, please, from Mr Tulip.  You'll see that he's then sent on to others.  Now, I take it that people there     Sally Sibbald and Kharan Olsen are the team leader and case worker or case manager for Connor's case?

MS SAMUELS:  Yes.

MR CROWLEY:      seeking advice.  And Mr Tulip says, seeking advice and says:

I am aware this is not the first time this carer has contacted child advocate.

You accept, though, don't you that is the role of the child advocate in part?

MS SAMUELS:  Yes.
 

MR MACE:  Yes.

MR CROWLEY:  Then, as we go up, we then have a response that's given from Ms Olsen, and she's talking about wanting to have a meeting amongst various people.  She's been delayed, but then she says:

There has been many documents forwarded, the first being a recommendation for a PATCHES assessment for FASD.  The focus then became a request for an assessment with CAMHS as the carer seems to be looking for whatever will qualify [Connor] for an EA in class [and] offer the most support for [Connor].

Now, just in relation to that part of this email chain, if it is the case that there would be a support or funding that might be available to support a child in care with disability, that is a matter which is within the Department's responsibility and obligation to progress, isn't it?

MR MACE:  Yes.

MR CROWLEY:  It certainly wouldn't be any negative matter that would be taken into account, the fact that a carer had raised the issue, even repeatedly, would it not?  In fact, it should have nothing to do with whether there should or should not be a decision made about whether there might be a request for funding or an assessment which might be used for funding     the fact that the carer had raised this again?

MR MACE:  Yes, that's right.

CHAIR:  Could you explain, please, why Mr Cohen, who I assume is a psychologist, is in the position to determine that a functional capacity assessment would be more beneficial to a child for whom a number of apparently qualified people have indicated ought to be assessed for Foetal Alcohol Syndrome?  Where is Mr Cohen's expertise to make that kind of judgment?

MR MACE:  I don't think that there was any doubt or question that we needed further assessment of Connor's functional cognitive functioning.  I think that was well accepted by the case management team.  I think     and as I said earlier     I don't think it was that the FASD was ruled out entirely, but I think the team felt that the functional capacity assessment was more likely to give us pointers to what was going to be most helpful for Connor    

CHAIR:  My question is: how did Mr Cohen, or anybody else other than medical practitioners, have the expertise to make that judgment?  If you look at Mr Cohen's email of 3 July, you will see that the second paragraph says:

Given the child's age and the documentation provided I would be reluctant to look at a [single focus assessment].

 
Single focus assessment is the Foetal Alcohol Syndrome, read in context.  So Mr Cohen, fairly reading this document, is saying "Let's go for an FCA rather than an assessment for Foetal Alcohol Syndrome."  One could accept quite readily that a functional capacity assessment might be a good thing to do; Why was it inconsistent or incompatible with having a review, as had been suggested to determine whether the child was someone with Foetal Alcohol Syndrome?

MR MACE:  I can't comment on that.

CHAIR:  Well, I'm inviting you to comment.  If you can't, all right.

MR MACE:  I do note some of the earlier submissions at Hearing 8 by Dr Tracy Westerman that highlighted some of the concerns around FASD assessments, that they aren't necessarily the magic wand that everyone thinks they are.  And that there needs to be careful consideration around the ages, stages and development of the child at that particular time when embarking on that assessment, and particularly, the cultural considerations.  I also understand that the FASD assessment is quite intensive and hard going for particularly young children to participate in.

CHAIR:  And quite expensive?

MR MACE:  That's not     that's not an issue.  What I would say is that we approve FASD assessments all the time, so, I think it's important that it is heard that we don't have an automatic aversion to FASD assessments.  We believe that there is a time and place for them, and at this particular time, we thought that the functional capacity assessment was most likely to give us the information that we needed to set Connor up for his start at school.

CHAIR:  I want to be clear, I'm not diminishing the expertise of psychologists.  I've had one in my family, but it's a question of the sphere of expertise and whether a particular approach is necessarily to be exclusive instead of some other approach, and what you've said about the regularity of having Foetal Alcohol Syndrome assessments rather suggests that this was a pretty good case for having exactly that.  Anyway, I think we've explored it, unless there's something else you wish to add.

MR MACE:  The only thing that I would add is that the issues raised by Dr Westerman, we share those within the Department, so it is with caution and when the time is right for a young person that we would commence, we would commission a FASD assessment.

CHAIR:  So you're cautious, but you do them all the time?

MR MACE:  Yes, and that's about assessing what's right for the particular child at that time.

CHAIR:  Mr Crowley, I understand that you would like to continue with Mr Mace and Ms Samuel and for myself, I'm perfectly content with that.  Does that mean we  
should have a short break?  I'm conscious that we've been going for some time and I don't want Mr Mace or Ms Samuels to be overly taxed, so shall we have a short break and then continue?

MR CROWLEY:  Yes, thank you, Chair.

CHAIR:  Would 15 minutes be appropriate?

MR CROWLEY:  Yes, please.

CHAIR:  We'll adjourn for 15 minutes and resume then at 3.15 Eastern Standard Time.  Thank you.

ADJOURNED    [3.01 PM]

RESUMED    [3.15 PM]

CHAIR:  Yes, Mr Crowley.

MR CROWLEY:  Thank you, Chair.  Now, could we bring up another document, please, it's at tab 306, WAN.9999.0001.0340.  If I could just have that on my screen so I can see it, please?

Mr Mace and Ms Samuels, can you see that okay at your end?

MS SAMUELS:  Yes.

MR MACE:  Yes.

MR CROWLEY:  This document now, we have, it's got a received date there of 17 January 2019, but it has a clinic date reference of 11 September 2018.  Do you see that on the left hand side, just where the dot is?  And it's a document from the Child and Adolescent Health Service addressed to the Department.

Now, if we go down in this document, you'll see it's got "Reason for Assessment" there, and the letter sets out what's happened there about the carer contacting the service about escalating challenging behaviours and emotional dysregulation, which had culminated in Connor being expelled from kindergarten or exiting from kindergarten.  Just in terms of the timing of the events, you're familiar, I take it, from the Department's records about that event with Connor not being permitted to continue with his school and having to go back to the daycare?

MR MACE:  Yes.

 
MS SAMUELS:  Yes.

MR CROWLEY:  Now, if we go down, please, onto page 3 and just scroll through, you'll see there's a section there about behaviour, and setting out the information about the reported significant escalation of the challenging behaviours.

Then if we go over to the next page, please, and if we could just zoom in on there, please, you'll see there's a reference in the third paragraph to the psychometric testing by clinical neuropsychologist Dr Do.  That's testing the assessment and report that Leah referred to earlier today in her evidence, and that's the functional capacity assessment, isn't it, the FCA that's been referred to in the previous email chain?

MR MACE:  Yes, that's right.

MR CROWLEY:  Could we just go over to the next page, please and if we can zoom in on the final part under "Impression and Plan", you'll see that third line down under that "Impression and Plan heading:

Connor's symptoms are suggestive of a number of potentially co existing diagnoses, including attachment disorder, PTSD, FASD, ADHD and neurodevelopmental trauma .....

The doctor goes on to say:

On the basis of this, Connor may be eligible for Schools Plus Funding, however, this would require formal assessment by a Child Psychiatrist to establish an ICD 10 diagnosis.

Just help us if you could, Schools Plus funding     what is that?

MR MACE:  It enables schools to employ additional classroom assistance.

MR CROWLEY:  Like an education aide?

MR MACE:  It could be a number of supports, but that would be     that's the most common.

MR CROWLEY:  Who provides that funding?

MS SAMUELS:  Through the schools.

MR MACE:  Through the school, the Education Department.

MR CROWLEY:  The Education Department.

MR MACE:  Yes.

 
MR CROWLEY:  In terms of a child in care, where the possibility of Schools Plus funding through the Education Department might be available, what's the Department's role and responsibility there?

MS SAMUELS:  So the case worker would provide the documents.  There's a form to be completed, often there's attachments of medical advice to the school to see if the child is eligible for that funding, and the education officer usually plays a critical role in preparing that documentation to be considered by the school.

MR CROWLEY:  I see, so the school has to make the application, but the Department would facilitate providing the documentation to enable it?

MR MACE:  Yes.

MR CROWLEY:  And does the Department have the responsibility and role of identifying when those types of supports and funding might be suitable for a particular child?

MS SAMUELS:  Yes, it's usually either the school or the Department might raise it as an option, and depending on the child's behaviours or what the child's experiencing, and so it's usually one or both would suggest, you know, applying for Skills Plus funding.

MR CROWLEY:  Within the Department, who's making the decision about progressing the application?

MS SAMUELS:  As I said before, it's a case management team decision, so there would be an education officer, the case manager, the team leader who would be part of those conversations.  And the team leader would ultimately make that decision.

MR CROWLEY:  If we could take that one down, please, and if we could bring up the document at tab 286, which is WA.0010.0012.0313.  You'll see there's an email chain there, which commences at the top with from Tien Do, 12 October 2018 to various Departmental team leaders and case officers and others about the functional capacity assessment report for Connor.  If we just scroll down, please, if we could, and read this email chain back to front again.

Just going back over to the next page please, so we can see     bottom of page 2 of the email chain and it goes over onto 3, you'll see from Sandra Fahey     is that a team leader within the District Office?

MS SAMUELS:  Yes, she is.

MR CROWLEY:  Sending on 10 August 2018 to Tien Do and others an email about the functional capacity assessment report on Connor.  You'll see there's a discussion there about the preparation of the report.  On page 3, just in the second paragraph on page 3 you'll see where it says:
 

Regarding the final report on Connor, the school and carer would like a copy of the report.

She goes on to say:

We would like to review the report before it is passed on to any other party such as the school and carer just to ensure we are ok with any historical information that is contained (and which might have been helpful to know about in arriving at conclusions).  We will be happy to fund a report.....

If we go to page 2 and follow up the email chain, you'll see that Dr Do has replied on 14 August to that email:

That's not a problem regarding a report for the school.

Then says:

Maybe we can arrange a meeting for feedback review.

If we go back, there's an acknowledgement from Ms Fahey on 15 August at the bottom of page 1, beginning of page 2 and right back at the top of page 1 you'll see the latest in time and the start of the email chain as we read it backwards is the 12 October 2018 email from Dr Do back to Ms Fahey and others.  You'll see that Dr Do refers to the returning of the report, the apology for the delay returning the report from its assessment in August and September, and then again asks about scheduling a time for the feedback to review the results.

And if you could also let me know if you would like an alternative report with minimal background information for Leah/Wanslea [the agency], and for future school purposes.

Now, at the bottom, the second last paragraph there you'll see that Dr Do says:

Given the findings, Connor would benefit from placement in either an LDC .....

Now, an LDC, is that a language development program     can you help us with that?

MR MACE:  I think it's (inaudible)    

MS SAMUELS:  Language development.

MR CROWLEY:  And she goes on to say:

..... or the Telethon speech and hearing outpost program, happy to discuss this at the conference.

MS S 
AMUELS:  Yes.

MR CROWLEY:  That's the program that Leah spoke about this morning?

MS SAMUELS:  Yes.

MR CROWLEY:  If we could take that one down, please, and if we could bring up    

CHAIR:  Are you going to ask any further questions about this?

MR CROWLEY:  Not about that particular email chain, Chair.  Did you have a question, we could bring it back up?

CHAIR:  I'm just wondering, because it seems to link in with the concern expressed by Leah with different versions of Dr Do's report.

MR CROWLEY:  Yes, I'm going to that one now.

CHAIR:  All right, okay.

MR CROWLEY:  Could we now bring up please, the document at tab 285, which is WA.0010.0011.0067_A.  That's A for alpha.  That is a copy of a version of the report by Dr Do, you understand?

MR MACE:  Yes.

MR CROWLEY:  This one, if we just scroll down to the end of it so we can see its date, please, and you'll see this one is signed off 11 October 2018 at the end?

MR MACE:  Yes.

MR CROWLEY:  You'll see it's got page 10 of 10 in the top right there.  Could we go, please, to page 6 of 10.  If we could zoom out a little bit so we can see the page, and scroll down, please, to the bottom section.  You'll see that Dr Do has in that section second from the bottom paragraph:

Overall findings from the neuropsychological assessment ..... suggestive of neurodevelopmental disorder .....

Then in the paragraph underneath, Dr Do notes:

A query of whether Connor's profile is consistent with a Foetal Alcohol Spectrum Disorder.  FASD was raised in the interview.  It is my opinion that Connor's cognitive and language presentation is not reflective of FASD .....

It goes on to identify other factors which may explain that.  This was not a report or  
an assessment that was commissioned by the Department to assess Connor for FASD, was it?

MS SAMUELS:  No, it was a functional capacity assessment.

MR CROWLEY:  And as far as you are aware, Dr Do is not a person who was qualified to conduct an assessment for FASD?

MS SAMUELS:  That's correct.

MR CROWLEY:  Dr Do was looking at the functional capacity assessment as tasked?

MS SAMUELS:  Yes.

MR CROWLEY:  Can we go then to page 8 of 10, and you'll see there's a section on recommendations and I wonder if we could zoom in on that a little bit, please.  The first dot point there, you'll see that Dr Do speaks about enrolment in a school with a particular environment, and then says:

Thus, follow up with recommendations regarding placement for Connor at the Telethon speech and hearing outpost school for the reminder of 2018 and/or start of 2019 is strongly recommended.

Then goes on to talk about how that would cater for Connor's complex needs?

MR MACE:  Yes.

MR CROWLEY:  And then has some other options if that can't be achieved?

MR MACE:  Yes.

MR CROWLEY:  I want to take that one down and if we could bring up the document at tab 290, which is WA.0010.0009.0146.

CHAIR:  While that's being brought up, I don't want to pre empt any question you want to ask, but there's a fairly obvious question that you may be intending to ask, but I'll ask it anyway.  How is it that Dr Do came to be expressing a view about whether Connor's profile was consistent with Foetal Alcohol Spectrum Disorder when you accept that he's not qualified to make such an assessment?

MS SAMUELS:  I can't comment on that.

CHAIR:  Sorry?

MS SAMUELS:  Sorry, I can't comment on why Dr Do made that note in the report.

 
MR CROWLEY:  Could we then    

CHAIR:  Before we leave that, does it suggest that someone asked Dr Do to do exactly that?

MS SAMUELS:  Not that I'm aware of.  I think earlier I made reference to being able to provide the Royal Commission with the terms of reference that we use to --- in this case we asked for a functional capacity assessment and the terms of reference of that goes to Dr Do and that's what they assess, so we can provide that.

CHAIR:  I assume there are only two possibilities.  One is that the terms of reference of Dr Do asked him to do something that he's not qualified to do, or alternatively, Dr Do took it upon himself to do it.  They're the only two possibilities, aren't they?

MS SAMUELS:  Yes.

CHAIR:  Well, it will help us to know which one, because I for one would be interested to know if it be the fact, why the Department would ask Dr Do to address something that you accept he wasn't qualified to address, given the issues that had arisen about the possibility of Foetal Alcohol Syndrome being present in Connor.  So maybe you could take that on notice and let us have some more information about it.

I apologise, Mr Crowley, if I've intruded on what you intended to ask, but before we left that document I wanted to ask that.

MR CROWLEY:  You've saved me, Chair.

CHAIR:  All right.

MR CROWLEY:  Could we then go in this document, please, just to the back bottom page, please, so we can just get the date.

Now, you'll see this is Dr Do with the date now for the report of 8 November 2018, and this one you'll see summary report has page 7 of 7.  If we go back to page 6, please, of the report, just go back one more page, thanks.  You'll see there's a section there on the recommendations.  This is on page 5 of 7.  The first dot point you'll see:

[Connor] would benefit from enrolment in a school that provides a developmentally based approach, stimulating curriculum.....

And, goes on to talk about the SSEN:S, but Telethon is gone.  Do you know why that is?

MR MACE:  I don't know why that particular recommendation, part of the recommendation was changed.  I do know that though it's not there in this version, it didn't change the referral outcome.

 
MR CROWLEY:  Well, this version that we're looking at, you know don't you, that this was the version that was prepared to go to the carer, don't you?

MR MACE:  Yes.

MR CROWLEY:  And to Wanslea, following on from the earlier emails that we just looked at?

MR MACE:  Yes.

MR CROWLEY:  And those particular recommendations about Telethon being strongly recommended have been omitted from this report at the Department's request, haven't they?

MS SAMUELS:  I don't     I can't comment on whether the Department requested the Telethon reference to be omitted.  That's not my information.  My understanding from the case is that the Telethon speech and hearing outpost recommendation was still progressed by the Department, it was still followed through and there was work done to progress those referrals, including funding for the Telethon speech and hearing outpost school.

MR CROWLEY:  So, what is your information about why it's not in the report?

MS SAMUELS:  My understanding generally is that sometimes there's information that is not     and I'm not sure if that's the case here, but sometimes there's confidential information in a report that needs to be     we're not able to share with people, and so sometimes there are two versions    

MR CROWLEY:  That wouldn't be this?

MS SAMUELS:  No, and so I couldn't explain why Dr Do had those two different recommendations, but nevertheless, the Department did receive both of the reports and still progressed through with the recommendation about the Telethon speech and hearing outpost school.

MR CROWLEY:  If we just go back up please to the top of page 4, the paragraph about the query about FASD remains in this version of the report with the view expressed by Dr Do, but stated as an opinion that Connor's cognitive and language presentation is not reflective of FASD, but again reflects other factors.  Was there a discussion that you're aware of between the Department and Dr Do requesting that that opinion be expressed in those reports?

MS SAMUELS:  Not that I'm aware of.  It may be that Leah may have raised it during the course of the functional capacity assessment, because you know when children go for these sorts of assessments, we do encourage carers or the person who has day to day observation and care of the child to help the clinician or the practitioner undertake the assessment.
 

MR CROWLEY:  Could we take that one down, please, and could we bring up the document at tab 402, which is WA.0010.0009.0172.  That is headed "Comprehensive Health Assessment", you referred earlier Ms Samuels to a referral document for a health assessment; is that what this document is?

CHAIR:  Do you mean is it one generally, or is it one specific to Connor?

MR CROWLEY:  The general format of this document.

MS SAMUELS:  This is a healthcare planning assessment referral, but we have different ones for private practitioners which has a chain of reference.

MR CROWLEY:  Over the page, you'll see there's a referral, the information about the referral set out about Connor.  Keep going, please over to the next page.  We keep going through, over the page and to the next one, please.  You'll see there is a section there for the health assessment provided to complete, and this one you'll see where it has significant finding     if we can just go to the bottom so we can see the date.  This is Dr Walawski, 7 January 2019.

CHAIR:  So, this is after Dr Do's report has been provided, so we've moved ahead to January 2019.

MR CROWLEY:  If we just go back up the page to the significant findings you'll see Dr Walawski has written:

Nothing significant new.
?  diagnosis of PTSD     suggested by neuropsych however needs formal psychiatric assessment.

You understand that's a reference to Dr Do, the neuropsych having assessed Connor?

MR MACE:  Yes.

MR CROWLEY:  Then there's a referral section where Dr Walawski has suggested referral for clarification of the PTSD diagnosis, and then if we keep going down, you understand, don't you, from your review of the records that what had happened with Dr Do's report is that because the opinion was expressed by the neuropsychologist Dr Do in that report, it did not qualify or enable an application for the Schools Plus funding to be made to the school to enable Connor to get support?  That's right?

MR MACE:  In its own right, that's right, correct.

MR CROWLEY:  And what the school had come back to say in effect was that "Dr Do as a neuropsychologist doesn't enable us to make the application, we need to have a psychiatric, a psychiatrist has to give that opinion about PTSD to enable any funding through the Schools Plus funding program."  This is a referral then that's  
come from Dr Walawski, you understand, suggesting referral to a psychiatrist for confirmation or otherwise of that PTSD diagnosis, which amongst other things would enable that application for funding to be made?

MR MACE:  Yes.

MR CROWLEY:  If I could take that one down, please.

CHAIR:  I'm sorry, can I just come back to something that I want to    

MR CROWLEY:  Yes, Chair.

CHAIR:      get your responses to.  If you go to the document WA.0010.0012.0313; that's the email chain.  If we can bring that up.  Looking at the third page, this is the reason that is given for two separate reports to be prepared by Dr Do.  First complete paragraph:

We would like to review the report before it is passed on to any other party such as school and carer just to ensure we are ok with any historical information that is contained .....

So that's the rationale for having two separate reports.  Then, when we go to the two separate reports that are prepared, as we have seen, the report that was provided, the edited report, if you like, removed the reference, as we've analysed, to Telethon speech and hearing and the outpost school and so on.  That's not just altering historical information, is it?

MS SAMUELS:  No, and that's why I was saying earlier that the historical information that the team leader refers to is usually the confidential information about the family of origin, that we generally don't share because it's confidential, but that's, that's not necessarily what transpired in the two versions of the report.

But from the Department's request, it was just to make sure that no family of origin, historical information that shouldn't be shared was contained in the report.  That was the request, but I can't    

CHAIR:  Sorry, what was it about the reference to the TSH outpost school as being an appropriate placement that was inappropriate to communicate to the carer or, for that matter, to Connor's family?

MS SAMUELS:  I don't know, and that's why     it wasn't something that the Department asked to be removed, from my understanding, and the Department still progressed with that    

CHAIR:  I understand what you've said about that, and there are issues concerning the timing of that progression.  I just want to put to you, so if there is material that bears on this, on one view of this material it's open to conclude that there was a  
specific request to remove this because they didn't want it to come to the attention of the carer.  So, if there's something that negates that inference, then by all means bring it to our attention.

Sorry, again, Mr Crowley.  Please continue.

MR CROWLEY:  Thank you, Chair.  Could we now please bring up the document at tab 303 which is WA.0010.0010.0496.  I'm not sure if that's the right document.  That ended in 0496, the last one, at tab 303.

It's WA.0010.0010.0486.  Could we just again go to the back end of this email chain and if we go to the bottom up, please, just over the page?  At the bottom email there which has got the date 19 December 2018 and it's got a Department of Education heading, et cetera, that email, do you understand that that is a document which relates to an application for the Schools Plus funding in respect of Connor?

MS SAMUELS:  Yes.

MR CROWLEY:  If we go to the one above it, you'll see that there's a document there     27 December     from the school principal asking if there are some audiology reports that could be sent through, or any other information.

MR MACE:  Yes.

MR CROWLEY:  Then, if we keep following up and over the page, you'll see that carer Leah has sent through a further email on 28 December and, again as we follow through above that, if we could get the date, thanks.  There's an email from Fran Davies on 3 January 2019.  As we follow that one down, addressed to Leah, we go back over the page, we see that, in a large block paragraph which commences:

With regard to the trauma diagnosis.....

And it goes on to explain that the current diagnosis from Dr Tien Do does not meet the eligibility criteria.

That's the point that I raised with you earlier about the opinion in that functional capacity assessment report, did not provide the basis for supporting the application for Schools Plus funding.  That's right?  I'm sorry, I couldn't hear.  Do you agree with that?

I think you might be on mute there, Ms Samuels, I can't hear you.

MR MACE:  Is that better?

MR CROWLEY:  Yes, thank you.

CHAIR:  Is Ms Fahey still with the Department or has she left?
 

MS SAMUELS:  She is still with the Department.

CHAIR:  So Ms Fahey would know a lot about this, wouldn't she?

MS SAMUELS:  She would.

CHAIR:  Have you consulted with her?

MS SAMUELS:  Yes.

MR CROWLEY:

..... would only be eligible if one of the psychiatrists diagnosed one of the conditions necessary for ED funding.

If we go to the next page and zoom in on the bottom of page 3, you'll see there's an email there from Kharan, that's Ms Olsen, the case worker from the Department which commences, "Hi Fran", and goes on to say in that second paragraph:

The Department is not looking into a psychiatrist for Connor at this time.....

And asks whether they have a copy of Dr Do's functional capacity assessment.  If we just keep on going back up the page then, you'll see that the email chain continues, now including the case manager or the worker from Wanslea in the email chain.

Then, if we keep on going up, please, if we go to the centre of this email, please, just over the page, right at the bottom Ms Olsen sending to Ms Fahey, that's internally within the Department, the email of 4 January, the bottom of page 1 and going over the page.

Now, this email chain that we're looking at, you'd accept that this is, amongst other things, a discussion about what to do with respect to whether there should be a psychiatrist assessment done to enable the application for Schools Plus funding to go ahead.

MR MACE:  Yes.

MR CROWLEY:  Was there an assessment that was done for a psychiatric assessment following these recommendations and requests?

MR MACE:  We referred to Dr Shub to complete that assessment.

MR CROWLEY:  Dr Shub.

MR MACE:  Yes.

 
MR CROWLEY:  Can we bring up WA.0010.0010.0493, and if we could just go to the back and move up from there, please?  So, the bottom email you'll see from the case manager or the person at Wanslea to the Department case worker and others and it's attaching that assessment report which is the one we looked at earlier from Dr Walawski.  You agree with that?

MR MACE:  Yes.

MR CROWLEY:  Just go up the page, please.  You'll see that next email up, same date 10 January is from Ms Olsen to Ms Fahey, the team leader.  That's right?

MS SAMUELS:  Yes.

MR CROWLEY:  Then, if we keep going up, over the next page, we then have bottom email, Ms Fahey to Roley Bayman and Ian Allen, cc others.  Who was Roley Bayman?

MS SAMUELS:  Roley Bayman was the District Manager in Mirrabooka and the lawyer in the Department.

MR CROWLEY:  This is in the context at this stage of the special guardianship application being afoot?

MS SAMUELS:  Yes.

MR CROWLEY:  Then you'll see that Ms Fahey says in that email:

In addition to my concerns raised yesterday with Ian Allen.  I am very concerned regarding the email below.

It then goes on to express a view about:

..... hold some view about Connor being "over assessed" ..... the Department have not made a decision as to the appropriateness of a psychiatric assessment.

It then says:

The department are currently in the process of making a decision in consultation with a medical professional and psychologist.

Now, at this stage, nothing further had been done to action the requests and recommendations for a FASD assessment, had it?

MR MACE:  No.

MR CROWLEY:  You'll see that Mr Bayman has given a response on 10 January  
and in part at the end of that, he goes on to say:

Also I feel strongly that through Ian Allen we need to brief the Children's Sep Rep .....

That's the separate representative in the court proceedings:

..... to ensure there is a clear and balanced understanding of the case plan position and processes, as opposed to the uncoordinated activities of the carer orchestrating her own agenda both with various professionals and the Sep Rep.

Are you able to understand what is said there about the carer having her own agenda?

MS SAMUELS:  I couldn't comment on that.

CHAIR:  Did you ask Ms Fahey?

MS SAMUELS:  My understanding from Ms Fahey is that there was a lot of requests for various assessments for Connor, and that the Department was trying to, I guess, find a way forward.  We need to have a case plan and we also need to be able to have a rationale for decision making.  So, there was a lot of, I guess, different opinions about what would be best, how to sequence the assessments that the team leader felt at that time, and so I think that my understanding from speaking with Ms Fahey, is that she was trying to make a plan, a considered plan for Connor, but she was getting bombarded with lots of various opinions and pressure around what was actually best, and that that communication was coming from Leah and, you know, other, other people around the child, you know, including our own internal departmental advice.

CHAIR:  To take Mr Crowley's question a little further, the only agenda that Leah was pursuing was the best interest of Connor as she saw them, wasn't it?

MS SAMUELS:  Yes, I think     you know, having reviewed the file, I think she was acting in what she believed was in the best interest of Connor.  That's not unknown that     we have many people who are involved in a child's care plan and they all have the child's best interest at heart, but they might have different ideas about how best to achieve that.

CHAIR:  Yes, but you don't describe them as "orchestrating their own agenda", do you, unless there's some degree of hostility to the involvement of that person.  This email has the air of hostility, doesn't it?  Hostility to Leah.  It's the only way you can read it, isn't it?

MS SAMUELS:  I'm not able to comment on    

CHAIR:  I would have thought you can comment, it's just a question of reading the email and drawing the pretty obvious inference; if you think that inference is not available, please tell us.
 

MS SAMUELS:  I think the inference can be made, but I don't     it's not something that I can conclude.

MR CROWLEY:  Could we take that one down please and bring up WA.0010.0011.0059.  I've just got a couple more Ms Samuels and Mr Mace.  If we can just zoom in on that one please.  It's another email chain and can we go down to the bottom; backwards again.  You'll see the bottom one, there's an email from the carer Leah on 6 March talking about the care plan appeal is the subject.  You understand from the Department's records that Leah lodged an appeal about the care plan in respect of Connor and that's what this email chain relates to?

MR MACE:  Yes.

MS SAMUELS:  Yes.

MR CROWLEY:  If we go up, you'll see it's forwarded on then from Ms Olsen to the team leader Ms Fahey on 7 March.  Do you see that?

MR MACE:  Yes.

MR CROWLEY:  Then keep going back up.  Then we have on the next page going backwards     page 4     we then have Ms Fahey on 8 March to Mr Tulip and others, and in part, the reference is there to Leah putting in the care plan appeal and reference is made to Aquinas there, being the Aquinas College that Leah referred to in her evidence earlier today.

MR MACE:  Yes.

MR CROWLEY:  Understand that?

MR MACE:  Yes.

MS SAMUELS:  Yes.

MR CROWLEY:  Then, keep going back up in the email chain please.  We've got it forwarded onto another person, Charlie Garuccio.  Can you help us with who that person is?

MS SAMUELS:  Charlie is a senior consultant, so he oversees a number of district psychologists.

MR CROWLEY:  Keep going up the chain, please, we've got then Mr Garuccio to Ms Nigro on 11 March and then you'll see that he says:

Can you read the attachment and especially the part where the carer says she was denied assessment by PATCHES.
 

Now, at this stage that was the position, that nothing had happened further about referral and progressing the assessment by PATCHES, had it?

MS SAMUELS:  Not at that point.

MR CROWLEY:  Then, keep going up the page, please.  We have Ms Nigro's response, and if we just go to the top header so we can see the start of her email.  12 March, and there's a reasonably lengthy response there.  If we go down the page, you'll see just stop it there, you'll see in the second paragraph that Ms Nigro is talking about:

I wrote to Stephen.....

Now, that's the Chief Psychologist that you referred to earlier?

MR MACE:  Cohen, Mr Stephen Cohen.

MR CROWLEY:  If we keep going down, Ms Nigro documents what she says has been the progress of the matter.  Then, over to page 2, please.  Can we just go right to the top, please?  Zoom in on the top paragraph, you'll see that Ms Nigro says:

My understanding was that the aim of the FASD assessment was to gain some support for Connor.  I recall having a conversation with Stephen (I apologise but I cannot find any notes about this) that in the last few years, there is an increase in FASD diagnosis, and this is becoming almost like a 'default' to explain or identify problematic behaviours.

Now, you told us earlier Mr Mace that the Department regularly refers on children in care for FASD assessments.  Doesn't that statement by the psychologist indicate that there is some aversion to sending children in care for assessment for FASD?

MR MACE:  I think it does demonstrate that there was caution about doing that, automatically without the consideration of a range of factors.

MR CROWLEY:  But you accept, don't you, that it's a recognised disability?

MR MACE:  Absolutely.

MR CROWLEY:  And a condition which the Department should act upon when medical advice and opinion expresses concern about the likely presence of that condition?

MR MACE:  Yes.

MR CROWLEY:  And that there should be assessments done when that is indicated by those professionals?
 

MR MACE:  Yes.

MR CROWLEY:  If we could take that one down.  We have two more to go to, if we could please.  Could we bring up the document at tab 316 which is WA.0010.0008.0175.  That document you'll see is a cover letter there for Dr Danny Shub, child, adolescent and adult psychiatrist, that's the Dr Shub you referred to earlier, Mr Mace?

MR MACE:  Yes, that's right.

MR CROWLEY:  There's a cover letter 8 March 2019 from Ms Olsen:

Thank you for referring to Connor for psychiatric assessment.....

And attaches the management plan.  If we could just go over the page, we see that the management plan is there with the assessment date of 6 March 2019 and keep going down the page, please, and over to the next one.  You'll see under the "Diagnosis and psychiatric formulation" that Dr Shub confirms significant chronic Post Traumatic Stress Disorder, also meets diagnostic criteria for ADHD    

MR MACE:  Yes.

MR CROWLEY:

..... which is of significant severity and requires treatment in its own right.

Given reports of antenatal toxin exposure, and his presentation, it is also likely that Connor meets diagnostic criteria for Foetal Alcohol Spectrum Disorder.

MR MACE:  Yes.

MR CROWLEY:  Following this report and this case management plan report, the Department still did not refer Connor on for a FASD assessment at this stage, did they?

MR MACE:  No.

MR CROWLEY:  Why?

MR MACE:  I don't know.

MR CROWLEY:  We take that one down, please, and could I now have document at tab 324, which is WA.0010.0011.0033.  If we could just zoom in on that one, please.  It's an email from Ms Olsen, a case worker    

MR MACE:  Yes.
 

MR CROWLEY:      on 7 May 2019 to PATCHES.

MR MACE:  Yes.

MR CROWLEY:  And cc'ing it to Ms Nigro, Ms Fahey and addressing it to one of the practitioners at PATCHES, asking for an urgent FASD assessment for Connor.

MR MACE:  Yes.

MR CROWLEY:  You'll see as we go down that Ms Olsen says:

In March 2019 the boy was assessed by Dr Danny Shub who gave him a diagnosis of Post Traumatic Stress Disorder and severe ADHD ..... also expressed a view that FASD was likely .....

She goes on to say:

Child protection does not have on file any formal medical records that can prove or disprove antenatal toxin exposure.

Now, you recall earlier today I took you to the document that initiated the original order that was made to have Connor taken into care, where a case manager, case worker provided evidence that that was what information was held by the Department.  Remember that?

MR MACE:  Yes.

MR CROWLEY:  Had the Department done anything to seek out further information to obtain records, or obtain further information to verify that at any stage before this letter, this email?

MS SAMUELS:  Not that I'm aware of.

MR CROWLEY:  If you go down the email    

CHAIR:  Sorry, just before you leave that, I notice that the language is "any formal medical records" and what is being put to you are the contents of an affidavit, which clearly indicate that there is at least a serious possibility, plausible conclusion that there was antenatal toxin exposure.  But another document that Mr Crowley took you to was that of 16 May 2018 from Dr Walawski to the Department, which says:

It is highly likely that Connor was exposed to substances both illegal and illicit and an accurate diagnosis is fundamental in planning future treatment.

And he talks about having Connor assessed for possible Foetal Alcohol Syndrome.  So at the moment I find it a little bit difficult how someone could say based on the  
records that there was nothing to indicate one way or another antenatal toxin exposure.

MR CROWLEY:  Just going back down in the email, you'll see that the next line goes on to say:

The boy's carer believes that the FASD assessment is warranted.

Now, of course, that view may have been expressed by Leah, but the Department knew that it wasn't just Leah the carer who believed this.  There was medical opinion and recommendation that the Department had already on file for months supporting that and recommending and referring Connor for that assessment.  You accept that?

MR MACE:  Yes.

MS SAMUELS:  Yes.

MR CROWLEY:  And you accept that the Department did not progress that until what we see in this email, the magistrate made a comment in the court proceedings?

MR MACE:  Yes.

MR CROWLEY:  And do you accept that action only happened then because the magistrate made some adverse comment in the court proceedings about the Department failing to do what it should have done?

MR MACE:  At that particular time, yes.

MR CROWLEY:  Well, the particular time being here, the references for the magistrate saying something on 6 May 2019, but the Department had earlier, dating back to the previous year, had been receiving recommendations from medical practitioners about the need to consider a FASD assessment.

MS SAMUELS:  Yes.

MR CROWLEY:  So, it's not just at that time, it's over, dating back to when those referrals and recommendations were being received by the Department, isn't it?

MR MACE:  Yes.

MS SAMUELS:  It is, but can I just also add that the team leader was concerned about the number of assessments that Connor was experiencing because there was lots of paediatric reviews that he was also attending as well, and so it was around, you know, pacing out assessments so that the best information could be obtained.  I don't dispute the evidence around the recommendations for FASD assessment, but my understanding from the team leader was that there was still a sense that there was     that there was time to be able to complete these assessments and that they  
were just looking for a sequenced way of being able to do that, because there was not just this one request around a FASD assessment, there were lots of assessments and appointments that Connor had.

MR CROWLEY:  But, of course, one of those assessments and appointments was to attend upon Dr Do for the functional capacity assessment, notwithstanding that before that time the Department had received other medical opinion that a FASD assessment was warranted?

MS SAMUELS:  Yes, I accept that.

CHAIR:  Mr Mace and then Ms Samuels, could you help us with the consequences of a child being diagnosed with Foetal Alcohol Syndrome?  What does that mean for the child in terms of the child's health, wellbeing, future?

MR MACE:  Well, my understanding is that the FASD assessment can open up doors to other funding sources.

CHAIR:  No, no, consequences for the child that an accurate diagnosis of Foetal Alcohol Syndrome     the child is not going to seek money for himself or herself.  I want to know, what your understanding is of a diagnosis?  What does it mean for a child to have that diagnosis?  What are the consequences for the child?

MR MACE:  Well, FASD is a complex condition and shares many similar traits with other neurodisabilities, so FASD     you know, the cognitive impairment that is experienced for a child with FASD, you can see and observe similar behaviours and challenges with children with other cognitive impairments.

CHAIR:  All right, I'm not sure that answers my question, but    

MR MACE:  Which impacts on their ability to manage relationships, concentrate at school, that kind of thing    

CHAIR:  Sorry?

MR MACE:      manage impulse control.

MS SAMUELS:  The FASD assessment can assist in terms of understanding how a carer might be able to care for the child.  It gives information around how the child processes information and what can be helpful for their learning and for their regulation, self regulation.

CHAIR:  Thank you.

Yes, Mr Crowley.

MR CROWLEY:  Thank you, Chair.  Those were the questions that I had for  
Ms Samuels and Mr Mace.

CHAIR:  All right, thank you.  I see the time, but nonetheless I'll ask my colleagues, since I've asked quite a few questions, whether they have any questions that they wish to ask of Mr Mace and Ms Samuels.

First I'll ask Commissioner Galbally, do you have any questions that you'd like to ask?

QUESTIONS BY THE COMMISSION

COMMISSIONER GALBALLY:  Yes, I'd like to follow up, Foster Care Refresh procedure, to ask you if you could send in the detail, timeline and achievement and KPIs, because I'm asking that because of the sort of     the power imbalance and the lack of acceptance of carer advocacy that I picked up.  I gather that's addressed in that refresh plan, and I'd really like to see the details if that's possible.  Especially about implementation.

MR MACE:  Yes, yes.  Well, given that the project was tabled last month, we've now moved into, if you like, the roadmap for implementation    

COMMISSIONER GALBALLY:  Right.

MR MACE:      and how we design those responses with and for foster carers.

COMMISSIONER GALBALLY:  Yes, and to keep their understandable role as an advocate really protected would be something I would be looking for.

My second question was about something that Leah said right at the end, that if things get really tough and Connor is moved, then she was told that Dylan would be removed, as well and how distressing that was.  I wondered     maybe not now, but I'd like some follow up on that comment, to hear is that correct, and did she understand correctly?  And why would the Department do such a thing?  So if that could be followed up, please.

MS SAMUELS:  I am happy to follow up on that, but I can say that that isn't correct, because any decision around a child either entering care or changing a placement, we look at the information available at the time and consult with many people.  So, my understanding is that that was not what was communicated at that time.  Mr Tulip still works at the Department, and my understanding from him is that's not what was communicated.

COMMISSIONER GALBALLY:  Well, I'd like a formal response to that, if that's possible.

 
CHAIR:  I think we'll have to put that in the hands of Mr Crowley to formulate a request for information that addresses Commissioner Galbally's concern.

COMMISSIONER GALBALLY:  Thank you.  That's it, thank you.

CHAIR:  Thank you.

Commissioner Mason, do you have any questions?

COMMISSIONER MASON:  No, thank you, Chair.

CHAIR:  Thank you very much.  Now, I assume from what we've been told before that there's nobody who wishes to ask Mr Mace or Ms Samuels any further questions, and specifically there's nobody from Western Australia who wishes to ask any questions?

MR BYDDER:  That's not the case, Chair.  We do have some questions we'd like to ask, if we may.

CHAIR:  You do have some questions?

MR BYDDER:  We do.

CHAIR:  How long are you going to take?

MR BYDDER:  I expect to be brief, Chair, in the Western Australian sense of the word.  That's what was said earlier.

CHAIR:  Yes, that's what troubles me!  Yes, all right, go ahead.

RE EXAMINATION BY MR BYDDER

MR BYDDER:  Thank you, Chair.

If I can go to the subject of hearing and can I ask that bundle document number 488 be put up.

CHAIR:  Something is going wrong with the sound, I'm not quite sure why.

MR BYDDER:  I'm sorry, Chair, can you hear me now?

CHAIR:  I can, I hope everybody else can.  Yes, go ahead, please.

MR BYDDER:  If I can ask for the document 488, tab 488 to be put up.  It's WAN.9999.0001.0097.  If we could just go down to the bottom half of the page.
 

Mr Mace and Ms Samuels, was Connor regularly seen for a paediatric review?

MS SAMUELS:  Yes, he was.

MR MACE:  Yes.

MR BYDDER:  Did that involve audiology consultations?

MS SAMUELS:  Yes, it did.

MR BYDDER:  Would you agree this is an email from Leah dated 16 February 2016?

MR MACE:  Yes.

MR BYDDER:  If you look down there, do you see in number 2:

Audiology     his hearing is normal.  There are a couple of sounds he missed, but apparently this is typical with kids as they are distracted etc.

MS SAMUELS:  Yes.

MR MACE:  Yes.

MR BYDDER:  [Redacted], is she with Wanslea or the Department?

MS SAMUELS:  With Wanslea.

MR BYDDER:  If I could ask for tab 209 to now be brought up, please?

CHAIR:  You'll need to give the reference, I think.

MR BYDDER:  I'm sorry, Chair.  The reference is WA.0010.0005.0126.  If we could go to the second page of that, this is an individual placement plan recording a meeting on 2 November 2016.  Could we just go to the first page again, please?  Do you see there a record of who's present just under "Meeting date"?

MS SAMUELS:  Yes.

MR BYDDER:  Would you agree that Leah was present along with representatives of the Department and of Wanslea?

MS SAMUELS:  Yes.

MR BYDDER:  Could we just go to the second page, please?  You'll see under "Health" if we could go down to the bottom third, thank you.  You'll see there that in  
the fifth dot point:

Connor had grommets which have now fallen out.  PMH ENT clinic appointment in September revealed no hearing issues.  Connor has had no ear infections.  Grommets do not need replacing.  Review appointment due in 6 months .....

Do you see that?

MS SAMUELS:  Yes.

MR BYDDER:  That was information also available to Leah, to Wanslea and to the Department    

MS SAMUELS:  That's correct.

MR BYDDER:      in relation to Connor's hearing?

MS SAMUELS:  Yes.

MR BYDDER:  We then move to the review that's referred to in that document.  If I could ask please for tab 212, that's document number WA.0010.0005.0341, if that could be put up, please?

That's an email, would you agree, from [redacted] of Wanslea to the relevant case manager at the Department?

MS SAMUELS:  Yes.

MR BYDDER:  Dated 8 December 2016?

MS SAMUELS:  Yes.

MR BYDDER:  You see there that as of that date, that's referring to an ENT department on 29 November at Princess Margaret Hospital.  Do you agree with that?

MS SAMUELS:  That's correct.

MR BYDDER:  Under ENT review do you see there:

ENT review     Both grommets have come out, do not need replacing at this stage.  Hearing tested and no concerns raise.

Do you agree with that?

MS SAMUELS:  Yes.

 
MR BYDDER:  Can I ask for WA.0010.0006.0240?  If we can just blow up the middle of that page, please.  Thank you.  Do you agree that that's a record of a meeting that took place on 18 April 2017?

MR MACE:  Yes.

MS SAMUELS:  Yes.

MR BYDDER:  And that again Leah was present at that meeting?

MR MACE:  Yes.

MR BYDDER:  Together with representatives of the Department and of Wanslea?

MS SAMUELS:  That's correct.

MR BYDDER:  Could we go to the second page of that document, please, and if we could blow up to the fourth dot point, please?  Thank you.  Now, you'll see there that there's a record of again regular 3 monthly reviews at Princess Margaret Hospital ENT clinic:

..... no current ear infections.  It has been identified that Connor has a partially perforated eardrum, caused by historical ear infection.  Due to this Connor has a slight impairment in his L side hearing, however this will not affect Connor's development in the meantime.

MS SAMUELS:  Yes.

MR BYDDER:  That was the information available to everyone present at that meeting as of 18 April 2017?

MS SAMUELS:  Yes, that's correct.

MR BYDDER:  Is it the case that until --- I think it was December 2017 when an until an assessment identified a more substantial hearing issue for Connor, that reflected the information that was available to the Department?

MS SAMUELS:  Yes, that's correct.

MR BYDDER:  And where there was a recommendation in relation to Connor being seen or assessed by a doctor in relation to his hearing or any other Allied Health service, was that followed by the Department?

MS SAMUELS:  Yes, it was.

MR BYDDER:  Fine, thank you.  If we can turn to the question of FASD, it was put to you by Mr Crowley, I think, Mr Mace, that assessment for FASD should be done  
whenever they are recommended by an appropriately qualified person and you appeared to accept that proposition.  Is it your evidence that if a recommendation is made by a general practitioner, for example, or one of the other persons who have been identified in this case, that that should inevitably result in the Department ordering a FASD assessment?

MR MACE:  I think, I think the question would fall before us and still is.  It's a matter of the timing of when that assessment occurs, and whether, with other things that are going on in the child's life and their particular age and stages of development, whether that is the assessment that is going to provide information people need immediately to organise care and support for that child and foster carer.

MR BYDDER:  You were also asked Mr Mace, why it was that the FASD assessment was not arranged for Connor before it was finally the subject of comment by a magistrate in 2019.  I think your answer was that you didn't know.  Can I take you to paragraphs 95 and 96 of your statement, if you can just read those for a moment.  Just for the benefit of those who don't have it onscreen, what you say there is that:

Following Dr Shub's diagnosis, [Connor] was able to receive Schools Plus funding for an EA.  This occurred by 15 March 2019.

In light of the further supports obtained by [Connor] following the FCA by Dr Do and the psychiatric review by Dr Shub, the Department did not consider a FASD assessment to be necessary.

Do you maintain that evidence as the reason why a FASD assessment wasn't organised earlier?

MR MACE:  Yes.

MR BYDDER:  If it please the Royal Commission, I have no further questions.

CHAIR:  Thank you.  Now, I see stirrings from South Australia, actually.

MS O'CONNOR:  I am actually in Perth, Commissioner.

CHAIR:  I am referring to your state of origin according to your evidence.  Do you have questions you want to ask?

MS O'CONNOR:  I do, but they won't take long.  I'm aware of what time it is over there.

CHAIR:  If you could make them as brief as possible, that would be good, thank you.

CROSS EXAMINATION BY MS O'CONNOR
 

MS O'CONNOR:  I will.

Mr Mace, I want to ask you some questions about the questions you were asked about the hearing test.  You read in Leah's statement and in her evidence today that in December 2017 she attended at the Princess Margaret Hospital and was shown some historical audiograms that showed that Connor had hearing difficulties; do you remember that evidence?

MR MACE:  Yes, I do.

MS O'CONNOR:  So it's not true, is it, when you say today in answer to your own counsel's questions, that there was no alert to the Department before December 2017 about hearing problems, it was just that's when Leah first found out about it; would you agree with that?

MR MACE:  Yes.  I think     well, I think the information that we'd had was that some of the hearing loss was, and the degree of hearing loss was intermittent and, at times, seasonal depending on colds and coughs, and being congested.  So it, I think it was probably the case that we could see the things, it was something that fluctuated, and it wasn't necessarily     at that point hadn't been diagnosed as a permanent loss.

MS O'CONNOR:  Well, that's not what the doctor has told Leah, is it, because what she's reported at paragraph 62 is that the specialist said to her:

....."we need to think about Connor's hearing loss, now he's going to kindergarten next year where he's going to have to sit on the mat and listen to the teacher."

Then she goes on to tell the Commission:

The specialist then showed me audiogram charts showing that Connor had hearing loss and talked about possibly needing to get a hearing aid for him.

You'd agree that what Leah is telling the Commission is not that she's been told by the expert that there's a seasonal issue, or an episodic issue, but that there's a hearing loss and the need for equipment.  Do you agree with that?

MR MACE:  I think once we got to that point in time that was the advice that was coming forward.

MS O'CONNOR:  So the evidence then, the evidence today, that it wasn't until December 2017, can't be accurate, because this is the historical showing of audiograms; do you agree with that?

MR MACE:  Yes, the historical showings of audiograms, yes.
 

MS O'CONNOR:  And those audiograms should have told the Department, first of all, of the need to tell the carer that the child has got a hearing problem, and, secondly, to involve the carer in the decision making about that     that's her complaint, is it not?

MR MACE:  Indeed that is her complaint, yes.

MS O'CONNOR:  And that's reasonable, isn't it?

MR MACE:  It is reasonable, but ---

MS O'CONNOR:  The second thing I want to ask    

MR CROWLEY:  Sorry, Mr Mace hadn't finished his answer.

MS O'CONNOR:  Sorry, I didn't hear that.

Sorry, Mr Mace, did you want to say something else?

MR MACE:  Leah was an active, a proactive carer, and was involved and attended these appointments, and as the diagnosis of Connor's hearing became clearer, it was then necessary for there to be different interventions to be able to respond to that.

MS O'CONNOR:  Thank you.  Have you finished now?

MR MACE:  Yes.

MS O'CONNOR:  The complaint that Leah made this morning in relation to this issue and the other issues about behavioural issues was that she wasn't kept in the information loop.  So, those documents that your lawyer just took you to, where she's involved in meetings and she tells the meeting her view, would you agree that's because she hadn't had the benefit of the expert material before those meetings?

MR MACE:  As in the audiogram, I would accept that.

MS O'CONNOR:  Well, all right     sorry.

MR MACE:  But Leah was privy to information about the ongoing ENT and, early on, the seasonal hearing loss, and how the treatment of that and the diagnosis unfolded as time progressed.

MS O'CONNOR:  Right.  Well, the other issue I want to talk to you then about is the issue of the failure to get the FASD assessment, and as your counsel pointed out just a moment ago, you provide us with your version of that at paragraphs 95 and 96; have you got that in front of you, your statement?

 
MR MACE:  Yes.

MS O'CONNOR:  You've agreed, however, with questioning from the Commissioner, that the reliance on Dr Do was inappropriate because Dr Do did not have the required expertise; would you agree with that?

MR MACE:  Yes, that's right.

MS O'CONNOR:  And would you agree that what Connor had to go through in relation to the assessment by Dr Do was one of the processes that the Department had required Connor to go through?  That was an assessment required by the Department when Leah had been asking for a FASD assessment; would you agree with that?

MR MACE:  Yes.

MS O'CONNOR:  And Dr Do's assessment     and I think, for the Commissioners' sake, I think Dr Do is actually a female     Dr Do required Connor to attend for three separate sessions to conduct her process, did she not?

MR MACE:  I'm not sure how many sessions.  I think it was three, yes.

MS O'CONNOR:  Three.  You'd agree that the PATCHES assessment, which eventually happened a year following the initial recommendation by a doctor, was a multidisciplinary assessment with a number of practitioners?  Would you agree with that?

MR MACE:  Yes, I believe that to be the case.

MS O'CONNOR:  And it did involve a diagnosis of FASD, did it not?

MR MACE:  Yes.

MS O'CONNOR:  Now, FASD is a condition that affects a child's development, both physical and cognitively in the womb because of the ingestion of alcohol by the mother; is that right?

MR MACE:  That's my understanding, yes.

MS O'CONNOR:  One flag for whether a child may or may not be at risk of FASD is a history given by the mother during pregnancy of the ingestion of alcohol; is that right?

MR MACE:  Yes.

MS O'CONNOR:  Did you know that when the PATCHES' assessment happened, the information obtained by the PATCHES' assessment was simply to ring the birth  
mother and simply ask her what alcohol she'd consumed during pregnancy?

MR MACE:  No, I'm not aware that that's the process that they follow.

MS O'CONNOR:  Well, are you aware that, in fact, the mother had said openly when first spoken to     and at this stage Connor was 5     that the mother openly said that she drank, she imagined, about a cask of wine plus some spirits each day during the pregnancy?  Were you aware of that?

MR MACE:  No.

MS O'CONNOR:  You see, there would have also been available to the Department once you took over the care of Connor, the antenatal file of the mother, would there not, for Connor's time before he was born?

MR MACE:  That would be on the health records, wouldn't it?

MS SAMUELS:  Yes, we don't systematically get a copy of the mother's health records.

MS O'CONNOR:  If you had concern about whether a child's behaviour was a result of ingestion by the mother of significant alcohol during her term, you would want to get that material, wouldn't you, to see what had been noted; if she ever attended prenatal clinics, you'd want to know what that said, would you not?

MR MACE:  Yes.

MS O'CONNOR:  And you'd want to provide that, even if it was on a basis of someone not having the right expertise, but you'd certainly want to provide that history to someone like Dr Do, wouldn't you?

MS SAMUELS:  Yes.

MR MACE:  Yes.

MS O'CONNOR:  You know, do you not in your skills that you're required to practice and the system that you've worked under, that the sooner you get a diagnosis of FASD, the better the outcome for providing treatment to a child can be, do you not?

MR MACE:  Yes.

MS O'CONNOR:  You know that it's not just a case of the FASD assessment then obtaining for Connor some further support at school because he ticked a box under "disability", you know that that's not the only benefit of getting that diagnosis, don't you?

 
MR MACE:  That's right.  There are certainly broader benefits to knowing.

MS O'CONNOR:  And you know that you were first alerted to Connor having at least environmental, very serious environmental problems when he was 9 to 10 months old and he and his siblings were in hospital, don't you, that's when your Department first looked at him?

MR MACE:  Yes.

MS O'CONNOR:  And you knew by then, because of the application made for the birth mother not to provide the care, that it was a very significantly damaged and traumatic environment that he'd been living in during his first few months of life, don't you?

MR MACE:  Yes.

MS O'CONNOR:  There'd been over 150 notifications about that home environment, had there not?

MR MACE:  Yes.

MS O'CONNOR:  And they include abuse of alcohol and drugs in that home, did they not?

MR MACE:  Yes.

MS O'CONNOR:  And you knew that, in fact, when the mother was pregnant with Dylan, that she'd also been consuming alcohol, didn't you?

MS SAMUELS:  Yes, we know that she had been using alcohol.

MS O'CONNOR:  That was one of the reasons why the child was removed, was flagged that the child would be removed from her before birth and actually removed from her and placed in Leah's care, wasn't it?  Abuse of illicit and alcohol substances.

MR MACE:  Yes.

MS O'CONNOR:  And the opposition to the mother     sorry to Leah     in relation to that cluster of evidence that you were taken to earlier, that started before Dr Do did her assessment and ended with the magistrate telling the Department to do a FASD assessment, that also related to your office's opposition to her making a guardianship application, did it not?

MS SAMUELS:  My understanding was that there wasn't an opposition to the SGO application.  Within the Department's practice manual, part of the policy is before an SGO application is made for the child to be residing with the carer for a period of two years, so as to establish family contact, because that is one of the conditions that  
should be part of the SGO, the special guardianship order, and so I acknowledge that Leah has done an exceptional job in keeping those connections and family connections for Connor and Dylan.  That isn't the case with all applications, so we     usually the recommended advice is that the Department continue to facilitate contact for up to a period of two years before an SGO application is made and that can be by the carer or by the Department.  The Department did not     the Department was not supportive of the application.  The Department was requesting some further time before the application was made.

MS O'CONNOR:  Didn't the Department receive a copy of the application made by Leah in September 2018?

MS SAMUELS:  Yes.

MS O'CONNOR:  And didn't the Department then have the matter in court and criticise Leah in relation to the care that she'd been providing to the children, and particularly to Connor?

MS SAMUELS:  I'm not aware of that.

MS O'CONNOR:  Did you not read Leah's statement wherein she tells the court that she was being criticised wherein the magistrate said "If she was an unsuitable person, you would have removed her children"?  Don't you remember reading that in her statement?

MS SAMUELS:  The reference made was in relation to Wanslea looking at a carer review.  That was not the Department, that was Wanslea.  So I have read Leah's statement, but that wasn't the Department being critical of Leah.

MS O'CONNOR:  And it's the case, is it not, that 6 May 2019, the matter's in court, you're told to do a FASD assessment     well not "told", but there's a strong recommendation from the bench that a FASD assessment is to occur     the referral then occurs on 9 May, and on 10 May Connor is seen for the PATCHES assessment.  That's the history?

MS SAMUELS:  Yes.

MS O'CONNOR:  Then on 28 May 2019, the report says that Connor has FASD.  Diagnosed him with it.

MS SAMUELS:  Yes.

MS O'CONNOR:  Then, on 4 June, you contact, or your Department contacts Leah and says you're no longer going to oppose her application for guardianship; is that right?

MS SAMUELS:  I believe there was that communication, yes.
 

MS O'CONNOR:  So about six days after she receives, or everyone received the report indicating that Connor has FASD and a cluster of other problems including an intermittent explosive disorder, which also had gone undiagnosed before that; is that correct?

MS SAMUELS:  That's correct.

MS O'CONNOR:  And it's not just the impact in relation to the way in which Connor can then be treated in relation to that condition --- which I think you both agree the earlier the treatment starts the better --- but it also means that he now has open to him a rich service in relation to the kind of support he can get under NDIS; is that correct?

MS SAMUELS:  That's correct, yes.

MS O'CONNOR:  And before that, it wouldn't have cost the Department anything to apply for and obtain NDIS funding for Connor, would it not?

MS SAMUELS:  No, except that the roll out in Western Australia for NDIS was later, I think, than other states and territories.

MS O'CONNOR:  But in relation to the costing, was it ever a concern of the Department that the PATCHES costing was going to be too much for the Department to consider as an option?

MS SAMUELS:  No, the cost was not an issue.

MS O'CONNOR:  Right, and in relation to the report of Dr Do, did you have to write like we would if we were requesting a report, a covering letter with the issues that you wanted the doctor to cover and what you want the report to say?

MS SAMUELS:  Yes, that's correct.

MS O'CONNOR:  Where is that covering letter?

MS SAMUELS:  I think that's the reference I made earlier about the terms of reference that we would provide.

MS O'CONNOR:  So it's just the terms of reference, it's not a separate document?

MS SAMUELS:  It is a separate document, but it's the terms of reference of what we've requested to have assessed.

MS O'CONNOR:  That's what I meant     there's not another document that is a letter just simply saying what you want the doctor to do, in terms of     it's just the terms of reference is the only information that Dr Do would have received; is that right?
 

MS SAMUELS:  I would have to take that on notice about what the actual document was, but I know that there is a document that we always provide to a practitioner and it may be a cover letter, but it's usually a form and or both and that is provided to the practitioner to outline what is to be assessed.

MS O'CONNOR:  And in relation to the NDIS, the roll out in Western Australia is a little slower than the rest of the country, is that correct?

MS SAMUELS:  That's right.

MS O'CONNOR:  But you had a State system in place.

MS SAMUELS:  Yes.

MR MACE:  Yes.

MS O'CONNOR:  So the State system could have been accessed?

MR MACE:  Yes.

MS O'CONNOR:  Do you have any    

CHAIR:  Ms O'Connor    

MS O'CONNOR:  I just have one more question.

CHAIR:  --- I know we're on South Australian time    

MS O'CONNOR:  I've got one more question.

CHAIR:      but I'm conscious that we have got a lot of people who are working overtime, as it were, and the rest have some other meetings that were going to take place here.  Can we bring this to a halt?

MS O'CONNOR:  I'll just have one more question, I'll ask one more question in relation to records.

Systematically you understand that Leah complains about the fact that there was a lack of information about Connor's medical conditions, about his pre time with her history that might have affected the way she provided care to him.  Does the Department have ongoing concerns about the ability of its Department to provide to carers, respite carers and foster parents, information about a child's background that might assist them in providing the kind of care that a specific child might need?

MS SAMUELS:  All the information that's relevant to the carer, we would provide.  And the only, I guess, exception on that is where some of those reports might contain  
confidential information about the biological family that we might not be able to share, but generally in terms of medical information, we would provide that to the carer, because it's important that they have that information.

MS O'CONNOR:  Thank you, I've got no further questions.

CHAIR:  Thank you very much.

Thank you, Mr Mace and Ms Samuels, for coming to give evidence to the Commission.  We appreciate the assistance that you have provided.  I'm sorry that you've been kept in the notional witness box for so long.

THE WITNESSES WITHDREW

CHAIR:  We'll now adjourn, but just before we do, could we ascertain what documents are relevant for tomorrow, Mr Crowley, so that the Commissioners know what we should be having a look at overnight?

MR CROWLEY:  Yes, Chair.  Tomorrow we have planned the evidence in relation to the "Megan" case study, the evidence of "Ivy".  We then will have the Western Australian Secure Care case study, which will commence with the panel evidence of the Western Australian Aboriginal Legal Service witnesses, Mr Collins, Ms Barter and Ms Herford.  Following that, there will then be the Western Australian Department of Communities witness Ms Kalders, who will give evidence in the afternoon.

CHAIR:  Are there statements that relate to either of these witnesses?

MR CROWLEY:  Statements for each of those witnesses, Chair.

CHAIR:  Sorry, I didn't hear that?

MR CROWLEY:  There are statements for each.

CHAIR:  There are.  What we will do is if OSA would be good enough to liaise with each of the Commissioners, just to make sure we know where those statements are if we haven't read them already, that would be helpful.

Thank you very much, we'll adjourn until 10 o'clock Australian Eastern Standard Time tomorrow.  Thank you.

HEARING ADJOURNED AT 4.58 PM AEST UNTIL WEDNESDAY, 22 SEPTEMBER 2021 AT 10.00 AM AEST