Public Hearing 8 Brisbane - Day 3

CHAIR:  Good morning.  I shall ask Commissioner Mason to perform the Acknowledgement of Country.

COMMISSIONER MASON:  Thank you, Chair.

We acknowledge the First People as the original inhabitants of the lands on which this hearing is sitting.  [Ngaanyatjarra language spoken]  We recognise [Ngaanyatjarra language spoken] Brisbane. [Ngaanyatjarra language spoken].  We recognise the Country, North and South.  The Brisbane River as the home of the Turrbal and Jagera nations.  [Ngaanyatjarra language spoken] and we pay respect to the Gadigal people of the Eora Nation.  Their land is where the City of Sydney is now located.

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

I would now like to read a 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 parents with disability and their experiences with child protection systems across Australia.

First Nations viewers, please note that the evidence will describe removal and if the evidence raises concerns for you, please contact the National Counselling and Referral Service on 1800 421 468.  You can also contact Lifeline on 13 11 14, Beyond Blue on 1300 224 636, or your local Aboriginal Medical Services for Social and Emotional Wellbeing Support.

Thank you, Chair.

CHAIR:  Thank you, Commissioner Mason.

Yes, Mr Crowley.

MR CROWLEY:  Thank you, Chair.  The first witness we have this morning is "Kate".  She will be giving evidence by audiovisual link from NSW.

CHAIR:  Thank you.

Good morning, Kate.  Would you be good enough please to follow the instructions of Commissioner Atkinson's associate who will administer the affirmation to you.  Thank you very much.

MS "KATE", AFFIRMED

 

MS KATE:  Yes.

CHAIR:  Thank you very much.  Thank you for appearing today.  Now Mr Crowley will ask you some questions.

EXAMINATION IN CHIEF BY MR CROWLEY

MR CROWLEY:  Kate, can you see and hear me okay?

KATE:  Yes.

MR CROWLEY:  All right.

Kate, just before I start, you have made a statement for the Royal Commission?

KATE:  Yes I have.

MR CROWLEY:  That is a statement, a 12 page statement of 23 November 2020?

MS KATE:  Yes.

MR CROWLEY:  And are the contents of that statement true and correct to the best of your knowledge and belief?

MS KATE:  Yes.

MR CROWLEY:  Chair, the statement is in Tender Bundle part A volume 1 at Tabb 23.  I tender the statement and ask that it be admitted as Exhibit 8.10.

CHAIR:  Thank you. Yes, that can be done.

EXHIBIT #8.10   STATEMENT OF MS "KATE"

MR CROWLEY:  There is some associated documents with the statement which are also in part A of the Tender Bundle at tabs 2 to 22.  They are the subject of a non publication direction made on 18 November.  I tender that material and ask that it be exhibited as Exhibits 8.10.1 to 8.10.9, please.

CHAIR:  Yes, that too can be done.

EXHIBITS #8.1.1 TO #8.1.21   ANNEXURES TO STATEMENT OF "KATE"
 

MR CROWLEY:  Kate, I want to ask you some questions to start off with about yourself.  You are a First Nations woman from NSW?

MS KATE:  Yes.

MR CROWLEY:  And you identify as Aboriginal?

MS KATE:  Yep.

MR CROWLEY:  And you are a mother of four children?

MS KATE:  Yeah, that is correct.

MR CROWLEY:  Now it is the case that you have the care of your youngest child but your three other children were removed when they were young by the Department?

MS KATE:  Yes, that is correct.

MR CROWLEY:  And that all happened during times when you were either a teenager or in your early 20s?

MS KATE:  Yep.

MR CROWLEY:  I want to ask you, Kate, about when and how you came to be aware that you had an intellectual disability.  You have spoken about that in your statement.  Could you tell us please when you first became aware or found out about that?

MS KATE:  I think it was   I think it was in my late teens but I'm not 100% sure.

MR CROWLEY:  Now can you tell us where or who you spoke to about that when you were in your teens?

MS KATE:  I went to a hospital and they did statements like, like, assessments and stuff on me.

MR CROWLEY:  And through those assessments were you told that there were various diagnoses made, including a mild intellectual disability as well as ADHD, borderline Asperger’s and autism?

MS KATE:  Yes.

MR CROWLEY:  Could you tell us, Kate, when you were growing up until you found out about these diagnoses, did you feel any of those things that you later came  
to be aware of, did you feel that they affected you, or were issues for you when you were younger?

MS KATE:  Yeah, especially in schooling.

MR CROWLEY:  And how was it an issue at school?

MS KATE:  Just affecting my behaviour and learning.

MR CROWLEY:  I will come back to ask you some more about school, but just going back to when you were first born, you stayed for a time, you say, in your statement, with your mum as a premature baby?

KATE:  Yes.  Yes.

MR CROWLEY:  And then, not long after you got home, it was just you and your mum for a period of time.  Dad wasn't there?

MS KATE:  Yeah, I have never met dad except for when I was 16 years of age.

MR CROWLEY:  And then you said in your statement that it was about when you were around 2 and a half years old that you were placed into foster care?

MS KATE:  Yes, that is correct.

MR CROWLEY:  And since that time have you kept in contact with your biological mum?

MS KATE:  Yeah, but the relationship is not too good.

MR CROWLEY:  Your foster mum, though ....

MS KATE:  It can be a love hate relationship.

MR CROWLEY:  I see.  But that is not the case with your foster mum, though?

MS KATE:  No.  I still got contact with her.  And basically call her Mum because she was the one that raised me.

MR CROWLEY:  And you describe in your statement about how you became a ward of the State from when you were very young through until you were 18 years?

MR CROWLEY:  Yes.

MR CROWLEY:  And was it the case that for most of that time you stayed with your mum, foster mum?

 
MS KATE:  I stayed with her up until about 16.

MR CROWLEY:  Okay.  Your foster mum, she is a respected Aunty and member of the Aboriginal community?

MS KATE:  Yeah, that is correct.

MR CROWLEY:  If you want, I want you to tell us about what it was like growing up in the house with your foster mum?

MS KATE:  It was all right, I guess.  Very crowded with heaps of kids coming in and out, but I guess that is expected when you are a foster parent.

MR CROWLEY:  Yeah.  Just tell us about the heaps of kids coming in and out.  Were there other foster siblings there during the time when you were growing up, including your own brothers and sisters?

MS KATE:  Yeah, there was, a few foster siblings and two of my biological siblings.

MR CROWLEY:  And because of that make up of the house, you were able to grow up with a big Aboriginal family surrounding you until you were at least 16?

MS KATE:  Yeah.

MR CROWLEY:  Now, I asked you earlier about your Aboriginal identity.  Growing up in the house with your foster mum, it is the case that you always knew that you were Aboriginal?

MS KATE:  There was comments made when I was first put into care by my biological mother, saying that we were not Aboriginal so why would we be put in an Aboriginal placement.  And ever since me being in that placement, I have always identified as Aboriginal.  And she still, to this day, says that my children aren't Aboriginal but they are going to an Aboriginal school.

MR CROWLEY:  You have also explained in your statement though that your mother herself identified as Aboriginal even though she said some of those things?

MS KATE:  Yeah, yes.

MR CROWLEY:  It is the case, Kate, that for you, because you were removed from your mum's care when you were so young, you are still not sure which side of the family your Aboriginality comes from?

MS KATE:  Yeah, I'm not sure.

MR CROWLEY:  But nevertheless you identify as Aboriginal and that is a proud part of who you are today?
 

MS KATE:  Yes.  Because I grew up in an Aboriginal family I've always identified as Aboriginal and so will my children.

MR CROWLEY:  Yes.  You mention about school being a bit difficult earlier on, Kate.  I want to ask you about that now.  If you could tell us about what school was like for you.

MS KATE:  Overwhelming.

MR CROWLEY:  When you were in primary school, were you in the mainstream school?

MS KATE:  I was in a mainstream primary school, up until I think about Year 5 or Year 6, then I got changed to public schools into a special needs school.  But while I was at the mainstream school, I was also in and out of the support unit at that school.

MR CROWLEY:  You said earlier that it was a bit difficult for you.  Learning was difficult?

MS KATE:  Yeah, learning, basically keeping focused, really.  And the attachment between me and my foster parents was a bit difficult and always, you know, it was a challenge to get into school, and also get on the school bus because I had some stuff going on on the school bus.

MR CROWLEY:  When you say "Some stuff going on" you have described that in your statement?

MS KATE:  Yes, I was sexual assaulted by another student at school.

MR CROWLEY:  Did that happen in primary school?

MS KATE:  Primary school all the way through into high school.  When I brought it up with people, they didn't believe me.  Until I spoke to like school counsellors and then they brought it up.

MR CROWLEY:  During this time, of course, you were still in that position as a ward of the State as you described earlier?

MS KATE:  Yes.

MR CROWLEY:  Was that something that you spoke to your caseworkers about?

MS KATE:  No.  My foster mum did but they did not like take it into consideration or anything like that.  All they could do was take me off the bus and get a support, like a support transport where they come to my front door and pick me up and drop me back home.
 

MR CROWLEY:  Now, Kate, after you finished your primary school and went to high school, can you tell us about what year you got to in high school?

MS KATE:  Well, I finished Year 12 but I did Year 12 from home.  But I went up until the start of Year 11, because I was pregnant and the school told me not to come back because they were worried that something might happen.  Then they gave me the choice of doing my Year 12 certificate from home.

MR CROWLEY:  You managed to complete that?

MS KATE:  Yes.

MR CROWLEY:  And you describe in your statement that that is one of your proudest achievements?

MS KATE:  Yeah, it is, because I wanted to show my children that, you know, I had finished school and, you know, I want my kids to follow my steps of going through and finishing their HSC.

MR CROWLEY:  Now, your ex partner who became the father of your first child, you had met him when you were a young teenager at a camp?

MS KATE:  Yeah.

MR CROWLEY:  And that was a camp for foster kids, a foster care camp?

MS KATE:  Yes, that is correct.  I think I was about 13 or 14.

MR CROWLEY:  And you sort of lost contact with him, but some years later you then again met up?  That is when the relationship commenced?

MS KATE:  Yes.

MR CROWLEY:  You talked about being pregnant with your first child at school.  How old were you then, Kate?

MS KATE:  I was 17.

MR CROWLEY:  How were you doing at school up until that time in high school?

MS KATE:  It was still a struggle.  I always had behaviour issues.  Running out of classrooms, running away from school because I always wanted to be at   like I always wanted to be with my foster mum, so I would always run away and get on the train and go to her work, and then the school would ring her and say that I have run away from school, they would have the police looking for me, and everything.

 
MR CROWLEY:  You said earlier, Kate, that you stayed with your foster mum until you were 16?

MS KATE:  Yes.

MR CROWLEY:  But it was about 17 when you were pregnant with your first child?

MS KATE:  Yes.

MR CROWLEY:  Tell us about what happened in between from moving out from your foster mum's place and where you went.

MS KATE:  First of all I was in and out of refuges, and then my caseworker got me a house through a service which is in Sydney.  And they got me like a little unit which was just a one bedroom unit.  I was there for about, I think, eight, nine months, then that burnt down.  And my ex partner was actually stuck in the house fire when the gas heater exploded.

MR CROWLEY:  Yeah, I will come to ask you about that some more, Kate, in a minute.  In that time when you were living in that unit and you were pregnant and trying to cope with school, how did you feel at that time about where you were at that point in your life?

MS KATE:  I felt alone because I did not really have any, like, family to call on.  And at the time, like, just like I was in the unit, I had lost contact with my foster mum.  And basically I was trying to get in contact with her to try to ask for help, like, because I had no guidance of, like, cooking or, you know, washing clothes or anything.  I was just used to my foster mum doing everything for me.  And basically I had to learn myself, really.  And then once I had my first baby, I basically got back in contact with her through Facebook and told her.

MR CROWLEY:  You talked about your ex partner, the father of your first child, he also was the father of your second child that you later had?

MS KATE:  Yeah.

MR CROWLEY:  Could you tell us what the relationship was like with your ex partner?

MS KATE:  Abusive.

MR CROWLEY:  He would abuse you?

MS KATE:  Yeah, very violent.

MR CROWLEY:  How often would that happen, Kate?

 
MS KATE:  Every day.

MR CROWLEY:  Did you have anyone to go to?

MS KATE:  No.  There was heaps of AVOs in place as well, and that still did not stop him.

MR CROWLEY:  Did you ever leave?

MS KATE:  No, because I was scared to.

MR CROWLEY:  How long did that relationship go on for, Kate?

MS KATE:  About eight years.  Six, or   yeah, six to eight years.

MR CROWLEY:  And is that how the relationship was through that whole time?

MS KATE:  Yeah.

MR CROWLEY:  We want to ask you some more now about when your first child was born.  You talked a moment ago about in the time when you were living in the unit that there was an explosion there.  Now this happened when you were late in your pregnancy with your first child?

MS KATE:  Yeah.

MR CROWLEY:  How far along were you?

MS KATE:  I was probably about 36 to 38 weeks.

MR CROWLEY:  You were not there ---

MS KATE:  I was almost ready to have her.

MR CROWLEY:  Kate, I was just going to ask you, you were not there at the time when that happened, but your partner was home when the explosion happened?

MS KATE:  Yeah, I was up the road doing grocery shopping.  Came home, and the whole street was covered in fire brigade, police, ambulance.

MR CROWLEY:  And the unit that you lived in, what happened to it?

MS KATE:  The gas heater exploded.

MR CROWLEY:  At the time, was everything that you had in the unit at the time that the gas heater exploded?

 
MS KATE:  Yup.

MR CROWLEY:  What happened with all those things?

MS KATE:  They burnt.

MR CROWLEY:  One of the things that you say in your statement you were very sad about was that your high school certificate was destroyed in the fire?

MS KATE:  Yeah, like, all my schooling stuff, like all my reports, and certificates, my birth certificate, everything was in the house when it burnt down and I basically got left with just the clothes on my back. 

MR CROWLEY:  Your partner, he was injured quite seriously in that fire?

MS KATE:  Yes.

MR CROWLEY:  And did he end up in hospital for a time?

MS KATE:  He was in hospital for about, I think, six months, I think it was.  It was a long time. 

MR CROWLEY:  What about you?  What happened with you after the house had burnt?  Where did you go?

MS KATE:  I went down to his foster mum's for a bit while I was going in and out of the hospital.

MR CROWLEY:  How much later was it that you had your first child?

MS KATE:  I think about a month later.  Yeah.

MR CROWLEY:  At the time you had your baby, Kate, did you have a house or a home to live in?

MS KATE:  No.  I was living with friends.

MR CROWLEY:  Can you just tell us what happened then when you did have the baby, you ended up having someone from the Department, someone from DOCS came to speak to you?

MS KATE:  Yeah, they rang me, like the DOCS helpline rang me and said that I was not leaving the hospital with the baby, until DOCS would come in and speak to me.  And then we had a meeting where there was like a safety plan put in place because I had all services involved, so they let me take the baby home.  And then six weeks later they got a report saying that she had a cold and stuff, then they came in and told me I had to take her to the hospital, and they came up to the hospital and basically  
said she was coming into care because I couldn't look after her.

MR CROWLEY:  At the time you had your baby, were you still a ward of the State?

MS KATE:  Yeah.

MR CROWLEY:  We talked earlier about your diagnosis of intellectual disability and some other conditions.  Were they things that the Department knew about?

MS KATE:  Yeah, they were well aware of it.

MR CROWLEY:  During the time that you had your first baby you spoke about services and things.  Were there any specific services to help you with looking after the baby and looking after your mental health and your condition?

MS KATE:  No.  There was only a service, that would come in, and they were called Healthy for Life, and they would come in and basically weigh the baby and check her and make sure that I was doing everything right.  But because I did not have a steriliser, because I was always, like told to do the sterilising of the bottles on the pot, because I did not have a steriliser, they basically said, "Well that wasn't good enough, you don't have bottles or anything out for her".

MR CROWLEY:  After leaving the hospital with your baby, during that time before they took her into care, where were you staying?

MS KATE:  Out at a friend's house.

MR CROWLEY:  And did you apply for public housing to see if you could secure another place to stay?

MS KATE:  I was on the list for housing property.  But I didn't get a house through them until she was about 9 months old, 10 months.  And then from that time like she was taken off me and we, like, was doing supervised contact and stuff like that.  I ended up getting put into a supported accommodation place for Mums. Basically they came and took like basically brought her with me to that place.  And we had to stay there.  But halfway through me staying there, I got offered a property through Housing, and I was worried about losing that house and going back onto the list, so I chose to leave the supported accommodation facility with my baby and live at the property that I got given, but then DOCS came in and said it was not good enough, that I had to stay there for 12 months, and then I was able to leave.

And then I said to them that I was worried about paying double rent, and having no money to survive on.  Because at the supported accommodation facility you had to pay rent as well as pay for your own food, because it was just like a little villa and you had someone watching you.  But I felt that the Department, when they put me in there, that they set me up to fail with my child.

 
MR CROWLEY:  Let me ask you about that, Kate.  When you were staying in that villa in the accommodation there   

MS KATE:  Yup.

MR CROWLEY:  --- were there supports and things like that being provided for you?

MS KATE:  No, there was nothing.  They basically put me in there, told me I had to stay there for 12 months, then I could leave after 12 months.  And they told me that while I was staying there I would have had mental health workers and everyone else come and see me, but I had nothing.  I was not even allowed family members to come over and, like, have dinner or whatever with me.  I had to sit in the villa with just me and my child by myself with no communication.  They took my phone off me and everything, and basically I was just on my own.

And when I   like in the mornings when I was there, we would have to participate in a group for three hours, and, like, my child went to like a daycare where they look after the kids on the   like on the site of supported accommodation facility.  All the mums that were there would have to participate in this group.  And because I always had that trouble with learning and, you know, like sitting in big groups, I basically went into really bad anxiety, and I basically ran out of there and said have, "I'm not doing it, I'm not doing it".  And I even asked them if I could do the groups with just me and the person running the group.  And that way I could just focus on what I was doing, and I explained to them how I could not learn with other people around, that it was just like one on one, and they said, "That is not an option".

Then they had a meeting with DOCS, and DOCS, through the whole thing, they were going, "Yeah, you are doing everything right, you are doing everything right.  Like, there are no concerns whatsoever".  Then a couple of days later they came in and said, "Oh, your mental health is really bad, we are taking your child", and they would take her off me then put her into like an emergency placement, then come back, put her back with me, and then like --- basically playing pass the parcel with the poor kid.

MR CROWLEY:  You spoke earlier, Kate, about when you moved, you made the decision to move out of that place into the housing that had been found for you.

MS KATE:  Yes.

MR CROWLEY:  It was around that time that the Department ended up taking your child back into care?

MS KATE:  Yeah.

MR CROWLEY:  When you moved out of the place you were at into the new house, did you know that that was going to happen?
 

MS KATE:  No.

MR CROWLEY:  You speak about in your statement about the Department telling you that you had broken the agreement that you had with them about staying for the 12 months at the other place?

MS KATE:  Yeah.  That is because I was scared of losing my Department of Housing property, because I was told that if you don't take one house, then you go right to the bottom of the list.

MR CROWLEY:  Did you explain that to the Department?

MS KATE:  Yeah, and they said that they were going to speak to the accommodation facility and see what we could do about doing half payments so I was not left with no money, and I said "Well, it is not an option because at the end of the day, if my stuff is in that house and nobody is there, my house will get broken into".

MR CROWLEY:  Kate, after that, you were in the new place, you talk about in your statement that you and your ex partner then fell pregnant with your second child?

MS KATE:  Yes.

MR CROWLEY:  And that was at a time when there was still some action going on with your first child with the Department wanting intervention ---

MS KATE:  Yeah.

MR CROWLEY:  --- orders in place ---

MS KATE:  There were also court proceedings still going.

MR CROWLEY:  Yes.  When you fell pregnant with your second child, you got in contact with IDRS?

MS KATE:  Yeah.

MR CROWLEY:  How did you get onto IDRS?

MS KATE:  I can't remember.

MR CROWLEY:  When you did make contact with them, how far along in the pregnancy with your second child were you?

MS KATE:  I think I was early on.

MR CROWLEY:  During this time you are still with your ex partner, still living  
together?

MS KATE:  Yeah, but I was ---

MR CROWLEY:  In that new ---

MS KATE:  I also came in contact with IDRS when I gave birth to my son as well.

MR CROWLEY:  Yes.  I will just keep asking you at the moment about your second child for the moment, Kate.

During that time when you were still living with your partner, you speak about in your statements about the Department being involved in and making you do urine tests?

MS KATE:  Yes.

MR CROWLEY:  Can you just tell us what that was all about?

MS KATE:  Well, they thought I was on drugs because my ex partner had a really bad drug history.  And basically they made both of us do urines.  There were even times when I was at contact, and they would ring me going, "You have a urine in half an hour", and I was like, "Well, how am I meant to get from contact all the way there within the hour when contact finishes at 10.30 and I have a urine at 11?"

MR CROWLEY:  Now you have also said, though, in your statement that you never took drugs, you do not do drugs or even drink?

MS KATE:  No.

MR CROWLEY:  But you still had to do the tests?

MS KATE:  Yeah.  And if I missed one, then they classified that as dirty.

MR CROWLEY:  During that time the Department asked you to do a Parenting Capacity Assessment?

MS KATE:  Yes.

MR CROWLEY:  And this happened at a time when you were quite heavily pregnant?

MS KATE:  Yeah, I fell into labour that day of having the Parenting Capacity Assessment when my waters broke, and we didn't even finish the Parenting Capacity Assessment.

MR CROWLEY:  What happened then?
 

MS KATE:  They basically stopped the Parenting Capacity Assessment and I went into the birthing unit, and then got transferred to another hospital.  And then   like I was not getting contractions or anything, then they basically took me upstairs of the hospital that I was at and just waited.  Then early hours in the morning was when I got rushed down to the delivery room.

MR CROWLEY:  During the time that you were in hospital with your second baby, you met Julia Wren?

MS KATE:  Yeah.

MR CROWLEY:  She was a caseworker from IDRS?

MS KATE:  Yes.

MR CROWLEY:  And during that time did you know what her role was, what she did?

MS KATE:  No.  I actually was worried that she was a DOCS worker.

MR CROWLEY:  How long did it take for you to trust Julia?

MS KATE:  A while.  I think     two

MR CROWLEY:  Sorry, Kate.

MS KATE:  I think a couple of months.

MR CROWLEY:  I want to ask you about what happened then with your second baby.  You were in the hospital.  Were you able to take your baby home?

MS KATE:  He went into a foster, like it was not a foster placement, it was where his dad   with his dad's foster mother.  And basically I was travelling to and from for a bit until we had a service come in and they were able to supervise at home.  They were working on restoration, but it didn't happen because of all the abuse and stuff with my ex partner.

MR CROWLEY:  I want to ask you about that, Kate.  You describe in your statement that you and your ex partner, the relationship broke down.  And that was the end of things with him because of the abuse?

MS KATE:  Yes.

MR CROWLEY:  After he was no longer with you, did you try to have your baby with you at home to continue with that reunification?

 
MS KATE:  No, because I did not think that I would be able to have a chance, that the Department would not let me.  They did mention that I could have co parented, but I wanted to co parent with my foster mum but they said that she was unwell and could not help me.

MR CROWLEY:  And did you explain to them that you could not co parent with your ex partner as well because you had separated because of the abuse?

MS KATE:  Yeah.  I had also Julia talking to them as well, to try and work out something but they would, like, they would never negotiate with what is going on.  Like I was actually breastfeeding at the time as well. So, like when he went back to where he was staying, I would have to express my breast milk during the day, and then send it home with him so he was still getting the, like, the good milk and not formula, because I always said, like, I want to breastfeed my baby and I don't care how it is, but, you know, I'm not having formula.

MR CROWLEY:  Now, after your baby went to   into care, you continued to have that contact, travelling back and forth?

MS KATE:  Yes.  And there was some nights where he was able to actually stay at my house with a worker, he was allowed to stay overnights.  And then it   like went to   it could be unsupervised where I had him overnight, and then a worker would come in the morning and it would be like that for a while, and then when the worker was doing their reports, they basically said that I was doing everything and dad was just sitting there playing the PlayStation ignoring the child.

MR CROWLEY:  I want to take you ahead now, Kate, to when you had your third baby.

You ended up having an emergency caesarean, you speak about in your statement, with your third baby?

MS KATE:  Yes.

MR CROWLEY:  Can you tell us how old you were then?

MS KATE:  I was about 21, I think.  He is four now.  So yeah, I was about 21.

MR CROWLEY:  Now at the time you had your third baby, your first two children were still in care with the foster carers?

MS KATE:  Yeah.

MR CROWLEY:  When you had your third ---

MS KATE:  At the time I gave birth to my third child, my first child was with my biological mother.
 

MR CROWLEY:  You still had contact with each of your first two children, did you?

MS KATE:  The first one, no, not so much.  I missed out on a lot.  The only communication I would have with her was, like, when my biological mother would send me photos of her.  But other than that I would see her at least once a month.

MR CROWLEY:  But more contact with your second child?

MS KATE:  Yeah, more contact with my second child because he lived in the area.  And it was easier for me to get back and forth.

MR CROWLEY:  When you had your third child, what was your plan of how you were going to look after the baby?  What were you going to do?

MS KATE:  I was going to live with my foster mum and co  parent with her, but they did not even give me that option.  They basically came in and ripped him away from me.  At birth, like the day after I had my caesarean.  At that time I could not even walk or, you know, get up and actually go and see him.  So he was in nursery because they told   they told the hospital that they had to put him there, so they could come in and check him before I could even see him.  They came and done their checks, and they said everything was fine.  And it took them two weeks to find a placement for him.  And they still gave me the yellow paper to say he was coming into care, like, the day after he was born.  And I'm sitting there and I was crying and I'm going "How can you do this?  I have just had an emergency caesarean, like I can't believe this", and like I was so upset that that is what they were doing.

And when they came in to take him, they didn't even have clothes for him.  They had no formula for him.  No nothing.  And I said to them, I said, "He is, you know, yous are travelling miles away, and you aren't even going to take formula or anything for him", and they said "Oh, we will stop on the way".  But I found out that when they took him there, that there was   he was just taken in the clothes he was taken from hospital in and still in a nappy that was drenched.

MR CROWLEY:  Kate, you told us a moment earlier about, with your second child, how you were able to still express and breastfeed and give breastmilk for your baby.  Was that the case with your third child?  Were you able to do that?

MS KATE:  I was breastfeeding him up until the minute that they left the hospital.  And then when they took him from the hospital, they didn't supply anything for him.  And then they came like two weeks later and told me that I have to fill out his birth certificate forms and I said "Well, what's the point in me doing it when I can't even see him or anything?"  And I put up a big fight for me to see him.  It was to the point where I was seeing him four times a week.  And they were paying for my train fare and everything because I was not driving at the time.  And they paid for my train fare, got up there.  I went and seen him for three hours then would travel all the way back home.  I did that for four times a week, then it went down to two times a week.   
Then it went to once a month.  And now it is every six weeks.

MR CROWLEY:  Kate, was it explained to you the reason why you couldn't have your baby stay in your care?

MS KATE:  No, they didn't tell me.  They just said because one baby was removed, the other is removed.

MR CROWLEY:  Was there any discussion about how you might be able to have the baby at home if you had other supports?

MS KATE:  No.  There was no discussion at all.

MR CROWLEY:  Earlier I asked you about Julia Wren and IDRS.  Was Julia with you or in contact with you when you had your third baby?

MS KATE:  She was in contact with me and on the phone as a support person when they would give me the papers and stuff.  And I also had my foster mother there as well.

MR CROWLEY:  You mentioned earlier about a plan of the wanting to have co parent with your foster mum?

MS KATE:  Yes.

MR CROWLEY:  You suggested that to the Department?

MS KATE:  Yeah.

MR CROWLEY:  But that was not agreed?

MS KATE:  Yeah, they said --- like they basically turned it away and said "No".

MR CROWLEY:  I want to ask you now, Kate, about your fourth child, your youngest child who is still with you.

MS KATE:  Yeah.

MR CROWLEY:  Now, when you fell pregnant with your youngest child you were in a new relationship with your current partner?

MS KATE:  Yes.

MR CROWLEY:  And your current partner, he also has some mental health issues and an intellectual disability?

MS KATE:  Yeah, that is correct.
 

MR CROWLEY:  But you have described him as being supportive of you and helps you with the things that you need to do?

MS KATE:  Yes.

MR CROWLEY:  When you found out that you were pregnant with your fourth child, you speak of contacting Julia Wren from IDRS early in your pregnancy, you say in your statement?

MS KATE:  Seven weeks pregnant when I   I went into the office and we made the phone call to DOCS helpline asking if we could get some assistance from Family and Community Services, and they basically got a caseworker involved, and I worked with them from the time that I basically told them that I was pregnant, to what --- yeah, until now.

MR CROWLEY:  I want to ask you about going in to see Julia and contacting the Department.  You have spoken of, in your statement, about going to see her in the office and that she suggested ringing the Department to tell them that you were pregnant.

MS KATE:  Yeah.

MR CROWLEY:  How did you feel at the time about doing that?

MS KATE:  I was scared.

MR CROWLEY:  What were you scared about?

MS KATE:  About them taking the baby.

MR CROWLEY:  And what did you think might happen, though, if you did not tell the Department?

MS KATE:  They would have came and taken the baby?

MR CROWLEY:  You say in your statement that you spoke to Julia and she explained to you that she was not suggesting you do this to try and dob you into the Department, but that she was trying to support you and help you so you could keep your fourth child?

MS KATE:  Yeah.  Yeah.

MR CROWLEY:  How long did it take to have that discussion for you to decide it was a good thing to call the Department?

MS KATE:  Basically straight away.
 

MR CROWLEY:  And then when you made the decision to do that, you mentioned earlier about calling the helpline. This is the DOCS helpline at the time?

MS KATE:  Yeah.

MR CROWLEY:  And you speak of in your statement about saying to the helpline operator, "We are not ringing to make a report, we are ringing to reach out for help"?

MS KATE:  Yeah, that is correct.

MR CROWLEY:  Was that something that you had to stress to them, that this was not a report about child being harmed or in danger, you wanted help?

MS KATE:  Yeah.

MR CROWLEY:  And it was after making the phone call, some time later, a prenatal caseworker from the Department got in contact to help you out?

MS KATE:  Yes.

MR CROWLEY:  Just tell us about that, if you could, Kate.  What was the caseworker able to do to help you during the time that you were pregnant leading up to birth?

MS KATE:  Yup, they got an intensive family based service involved.  Basically, had a support worker come with me to my antenatal appointments.  Some I did on my own, some I had a support worker.  Basically they just kept in contact, making sure I was going to my antenatal appointments.  And then when I had baby, they got an intensive family based service to come in and actually stay so it was a bit like what I had with my second child, but except for this service went on for 12 weeks.  It was intensive and they were there every day up until about six weeks old.  And then they like cut down a bit, so it went from like, I think it was like three times a week, and then they would move down more.  Then cut down hours.  So like on a Friday I would have the worker there up like from 9.30 until about 6, then there would be a two hour gap, and then another worker would come for night times, then that would just   they gradually went off.  And then it was just once, like one day a week.  Then it was a couple of hours at night time and then they would leave.  So basically it was a lifesaver for the intensive family based service.

MR CROWLEY:  That is the intensive family support services that you talk about in your statement?

MS KATE:  Yeah, that is correct.

MR CROWLEY:  You developed such a strong bond with them you even refered to them as the Aunties, the intensive family support services.
 

MS KATE:  Yes.

MR CROWLEY:  What were the sort of things they could do in providing that intensive service for you?

MS KATE:  They just did support, really.

MR CROWLEY:  And they were in the home with you during that intensive period?

MS KATE:  Yeah.

MR CROWLEY:  And if you just describe for us, Kate, if you could, what difference did that make for you in being able to look after your fourth baby compared to, say, your second baby?

MS KATE:  Because they could write reports and facts about how I was parenting, and that I had everything, like, like supplied everything.

MR CROWLEY:  And how did it make you feel having them there to support you compared to when you had your other babies?

MS KATE:  It was helpful, but then it was a bit useless really, like because I already knew what I was doing, but then it was helpful that they were there explaining to the fact that we could do it, and like writing reports and that, so it was like   it was not like evidence based, but it was basically so I could show them that I could parent.

MR CROWLEY:  With your youngest baby you were able to keep your baby with you and the Department didn't take any action to remove the baby?

MS KATE:  No, not at all.

MR CROWLEY:  What about after the intensive family support service service, the intensive service, when they had finished, were you still provided with any other supports?

MS KATE:  Up, no, not really.  We basically   like as soon as they left there was no intervention at all.  Or Family and Community Services came out for a home visit to check everything and make sure we had everything, and then they closed the case.

MR CROWLEY:  Why do you think it was different with your fourth baby?  As opposed to your second baby, other babies?

MS KATE:  Different partner.  And no violence.  And that I actually worked with them.

MR CROWLEY:  And the pre natal worker that you had, how were they different to  
the other caseworkers you had before?

MS KATE:  The pre natal caseworker worked with me from, you know, basically day dot from having that phone call.  Where the other ones, like, I had a pre natal caseworker call me with the third child, but I basically did not want to --- like, negotiate with them or anything like that, I actually um went to my home and basically tried to hide so they wouldn't take my child, because they were all promising me, "We are not taking your baby.  We are not taking your baby.  You can have him".  And then as soon as he was born, they basically said "No, we are taking him".  So it was different to when I had my third child.

MR CROWLEY:  If you'd had the support that you had for your fourth child, the intensive service, do you think things would have been different with your other babies?

MS KATE:  Yeah.

MR CROWLEY:  How?

MS KATE:  Well, having the support in place, I guess, could have   that could have helped with keeping them home.

MR CROWLEY:  I want to ask you, Kate, during the times that you have spoken about, did the Department provide you with any cultural support?

MS KATE:  Yeah.

MR CROWLEY:  Yeah, so what I'm asking, Kate, is did they ever provide you with in cultural support or services through the Department?

MS KATE:  No, they didn't.

MR CROWLEY:  Was that something that was discussed with the Department about your Aboriginal heritage, and that was part of your children's as well?

MS KATE:  No.

MR CROWLEY:  What about now with your children?  Are they in contact with their culture and their heritage?

MS KATE:  Yeah, they do like Aboriginal stuff.  But they   

MR CROWLEY:  Like what?  Sorry, Kate, you go ahead.  What sort of things?

MS KATE:  Well, they do NAIDOC Day, my daughter actually does NAIDOC day, my daughter does the Welcome to Country at assemblies, so she does the whole speech thing.  My two boys are actually learning how to play the didgeridoo.  And  
my fourth child is actually currently doing a lot of Aboriginal stuff at school, like at day care, so they are doing paintings.  They know like where her mob is.  They do, like, the Dreamtime stories. They read stuff of basically her Aboriginality.

And they also do, like, food tasting, so basically like during NAIDOC Day and that, they have like kangaroo and all that sort of stuff, they bring that in, especially with, like, the --- all sorts of furs as well.  Like the kangaroo fur, wombat, and all them sort of things.  They do that sort of stuff.  My daughter really likes it.

MR CROWLEY:  Kate, you talk about in your statement that you made contact with Aboriginal mothers’ group?

MS KATE:  Yeah.

MR CROWLEY:  And has that been a help to you?

MS KATE:  Yeah, it has.  I have   I also go to an Aboriginal play group as well with my fourth child.  We go to an Aboriginal play group.  But sometimes because it is on a Monday she goes to school, so I do it at least every second Monday where I take her out of school and then let her sit with them.

MR CROWLEY:  You have also spoken about in your statement, Kate, about how you feel that your culture keeps the kids safe.

MS KATE:  Yeah.

MR CROWLEY:  Even if they are not in your care?  Can you just explain about that, what you mean by that?

MS KATE:  Basically just so they know, like, where their Aboriginality comes from and also basically like if they are out stuck in the bush, then it learns   like it teaches them how to actually protect themselves if something bad happens.

MR CROWLEY:  Kate, I have a couple more questions for you.  I wanted to ask you about a couple of things that you mention at the end of your statement.

You say that you would like to see some more consistency with the people you deal with at the Department, and about their attitudes towards a First Nations parent with disability like yourself.

MS KATE:  Yes.

MR CROWLEY:  Can you just explain what you mean by that about the consistency and the approach in attitudes?

MS KATE:  They need to acknowledge the parents who have disabilities, like they need to let them have a chance of actually being able to parent their children, and not  
just rip them away.  And also be able to let them show that they can actually be good parents and like put more supports in place, really.  Like the intensive family support services, for example, like they were great.  And I would recommend it to, you know, other parents who have disabilities to, like, if they have got a FACS involvement or whatever to get that service in place, because it is really, really good, and like for them to keep their children it is important.

MR CROWLEY:  With your fourth child, Kate, do you feel like you were given a go to show that you could be a good parent?

MS KATE:  Yeah.  Yes.

MR CROWLEY:  What about with your first three children?

MS KATE:  No, I wasn't.  It was appalling, what they did.

MR CROWLEY:  The thing that you say in your statement, the one thing you would say is ask for the Department to give parents in your situation a go, let them show that they can be parents?

MS KATE:  Yes.

MR CROWLEY:  Thank you, Kate.  That is all the questions I have.  Just wait there a moment, please.

CHAIR:  Thank you, Kate, very much.  I will just ask other Commissioners if they have any questions.  Commissioners Mason and Atkinson are in Brisbane.

I will ask first Commissioner Mason if she has any questions she would like to ask.

QUESTIONS BY THE COMMISSION

COMMISSIONER MASON:  Thank you, Chair.

Kate, thank you so much for coming and sharing the experiences you have had as a young person and during those years of, a mum with your children.  We all really appreciate the time that you have taken in doing your statement as well as coming today.

I did have a question about that transition between being with your foster mum and being in that home, to transitioning out of the home.  And just getting your thoughts about what FACS, is that what you would say, FACS, child protection?

MS KATE:  Yeah.

 
COMMISSIONER MASON:  What they could be doing to support someone like you in those circumstances to prepare for life beyond being with your foster mum?  With someone who has a disability, but who also is a First Nations person, what could be some of those supports that could be given to help prepare for that transition?

MS KATE:  Well, I think to try to get a worker or somebody in place where they go into the home and actually teach them how to parent.  And basically, like, living life skills, to try to teach them how to do that as well.  Like, if they have grown up in a foster home like myself, where everything was handed to you, everything was done for you, and that you know, there was no need to, you know, do stuff on your own   where you could have had a worker come in and say "Hey this is how you do this" or meal preparations --- this is what you need in", you know?  Like there is a lot of things they could have done to help, but they didn't.  They chose not to.

COMMISSIONER MASON:  Thank you.

CHAIR:  Thank you, Commissioner Atkinson?

COMMISSIONER ATKINSON:  No, thank you.

CHAIR:  Commissioner McEwin?

COMMISSIONER McEWIN:  No, thank you.

CHAIR:  Kate, thank you for coming to give evidence.  We know it is it is not an easy thing to do.  We appreciate that you have shared your story with us and we thank you very much for that.  So thank you.

MS KATE:  Thank you.

CHAIR:  Mr Crowley, do we now take an adjournment?

MR CROWLEY:  Yes, Chair, if we could can, please, for 20 minutes.

CHAIR:  We will adjourn for 20 minutes.

Thank you again, Kate.

THE WITNESS WITHDREW

ADJOURNED    [11.44 AM]

RESUMED    [12.05 PM]

 

CHAIR:  Yes, Mr Crowley?

MR CROWLEY:  Chair, the next witnesses we have to give evidence are Kenneth Clift and Julia Wren, they are each giving their evidence via AVL, as a panel together.

CHAIR:  Yes, thank you.  I think we are just waiting for them to come on the screen.  Yes, I think we now have Mr Clift and Ms Wren.

Thank you very much for coming to give evidence to the Royal Commission.  Just so you are aware, Commissioners Mason and Atkinson are in the Brisbane hearing room.  Commissioner McEwin and I are in Sydney.  And Mr Crowley is in the Brisbane hearing room.

If you would be good enough to follow the instructions of Commissioner Atkinson's associate, she will administer the affirmations to you.

MS JULIA WREN, AFFIRMED

MR KENNETH ROBERT CLIFT, AFFIRMED

CHAIR:  Thank you very much.  Mr Crowley will now ask you some questions.

EXAMINATION IN CHIEF BY MR CROWLEY

MR CROWLEY:  Yes, thank you, Chair.

Good morning, Mr Clift and Ms Wren.  Could I ask first of all, please, if you could just each confirm for me you have both provided a statement to the Royal Commission?

MS WREN:  Yes.

MR CLIFT:  Yes, that is true.

MR CROWLEY:  And the contents of those statements, are they true and correct to the best of your knowledge and belief?

MS WREN:  Yes, they are.

MR CLIFT:  Yes, they are.
 

MR CROWLEY:  Chair, the statements of Mr Clift is in the Tender Bundle B at Tab 11.  I ask that that be received, I tender it and if it might be marked as Exhibit 8.11.

CHAIR:  Yes, that can be done.

EXHIBIT #8.11   STATEMENT OF MR KENNETH ROBERT CLIFT

MR CROWLEY:  And the document which is annexed to the statement at Tab 12, if that could be marked Exhibit 8.1.11, please.

CHAIR:  That also can be done.

EXHIBITS #8.11.1   ANNEXURE TO STATEMENT OF KENNETH ROBERT CLIFT

MR CROWLEY:  And the statement of Ms Wren, if that could be received.  I tender the statement, if it could be Exhibit 8.12, please.

CHAIR:  Yes, that will be Exhibit 8.12.

EXHIBIT #8.12   STATEMENT OF MS JULIA WREN

MR CROWLEY:  Could I start with you first, please, Ms Wren.  If you could tell us a bit about yourself, where you are currently working and what your role is.

MS WREN:  I work for IDRS, which stands for Intellectual Disability Rights Service.  My role is a non legal parent advocate, so part of the IDRS is Ability Rights Centre which is the legal side of IDRS, and I work in that centre.  So, as I explained to all the parents that I work with I'm not a lawyer.

MR CROWLEY:  And how long have you been in that advocate role?

MS WREN:  Close to six to seven years.

MR CROWLEY:  And in the role that you have, could you give us a brief description about what it is that you do as an advocate?

MS WREN:  As a non legal advocate I work with parents who have intellectual disabilities, that could be a mother or father.  I can't work with both due to legal reasons.  I work with the parents that have community services or child protection  
involved already, or are potentially going to get involved or there is a risk of child removals.

MR CROWLEY:  Thank you.

Mr Clift, could I ask you please if you could tell us what your position is and what your role involves?

MR CLIFT:  Yes, certainly.  I'm employed by IDRS as the care and protection solicitor in the parents program.

MR CROWLEY:  And what do you do in that role?

MR CLIFT:  The role is provisional advice and representation to parents with intellectual disabilities who are at risk of or involved with Department of Communities and Justice.

MR CROWLEY:  And how long have you been in that position?

MR CLIFT:  It will be five years next February.

MR CROWLEY:  Can I ask each of you, you were each involved to greater or lesser extents with the case of Kate, who is a client of the service?

MS WREN:  Correct.  I have been involved with her when she had her second child.  So, yes.  I have been involved with her quite extensively.  She was actually my first parent that I ever worked with in this role.

MR CROWLEY:  And are you still involved with Kate?

MS WREN:  Yes.  Very much so.  Not because Community Services are involved, it is just that she is part of IDRS and we do keep in contact, and we have always had a great relationship and also when Kenn works with her I step in as well and assist her with what needs to be done.

MR CROWLEY:  Just in terms of Kate's continued involvement with IDRS, there is an advisory group, Making Rights Real?

MS WREN:  That is right.

MR CROWLEY:  Kate is part of that group?

MS WREN:  Yes, she is.

MR CROWLEY:  Just tell us about what that group does, please.

MS WREN:  They actually examine, go to different parts of IDRS and explain to us  
how it is easier and better for us to interact with people with intellectual disabilities.  Kate goes to the board meetings and talks to them about the services that we have here, and she also has participated in other things such as, you know, surveys, research and she is very much involved with IDRS on many different levels in that way.

MR CROWLEY:  She even jokes about being your boss?

MS WREN:  Yes!  But I tell all the parents I work with that they are my boss, but she is actually really my boss being in IDRS Making Rights Real Group, absolutely, yes.

MR CROWLEY:  Mr Clift, you had some involvement in Kate's case too for a period of time?  You were involved when there was court proceedings in relation to her third child?

MR CLIFT:  Yeah, I was not involved in representation in those proceedings, but I did assist Julia by supporting Kate through some of the processes that she had to go through with DCJ.

MR CROWLEY:  I'm going to ask you about the model at IDRS where the lawyer and the advocate are working on a case together, but could I ask, Mr Clift, if you could just explain a bit more about IDRS and what services it actually provides to clients?

MR CLIFT:  Certainly.  IDRS is a fairly large organisation, so we are a very large disability advocacy and community legal organisation.  We also provide education to people with disabilities and their supporters and other people working with them in how best to work with people with disability.  The legal team basically provides general legal services to people with intellectual disability throughout NSW.  My role is more a specialist role just doing care and protection work.

MR CROWLEY:  Ms Wren, if I can ask you then, if you could tell us a little more about the model where the advocate and the lawyer are working together in the child protection matters for clients.

MS WREN:  There is a model that works really well.  I do not work just with Kenn, I work with a lot of different lawyers.  And I work with lawyers that I feel that in my opinion that they respect the parents that we work with, because they are complex with intellectual disability.  The reason why it works is that if it is in court, it is not   lawyers cannot speak to the caseworkers or casework managers, and the lawyers have to go through their lawyer and go through it, so it is like a chain.  Means one, you know, one person has to go through another person.  So what we --- what works is that I can speak to the caseworkers, the child protection workers, and I have meetings and I can always report back to the lawyers.

One example is there is a care plan meeting or family action plan meeting, at least I can report back to the lawyers and say, "This is what has happened, this is what has  
been said", then we can talk together with the parents about plans and strategies with the affidavits so they can write up.

MR CROWLEY:  How important do you think it is for your clients to have someone performing that advocate role, not just the lawyer acting for them, but the advocate in their dealings with department many?

MS WREN:  One example with Kate, this happened with Kate.  We had a meeting with DCJ and they were talking about Kate being quite promiscuous having a number of children with a number of different partners, but I said "Well, hang on a minute, no, that's not true because the first partner she was with, she was with him for quite some years", and she said "Oh yes, it was six years I was with him" and they actually then said "We stand corrected".  So if I wasn't there, you know, to tell them, "Hey no, that is not right" and to advocate on her behalf they would have put it in the affidavit she was some person that liked to be promiscuous, and which --- regardless it is relevant or not, but still the truth has to be upheld.  So, and fair go.  They need to have a fair go.  I think it is very important to have somebody as a non legal advocate for these parents because they can stand by and they can support the parents to speak for themselves, advocate for themselves.  If they don't want to, then I will speak for them.  And it keeps the DCJ workers accountable, and they have to listen to what the parents last to say.

CHAIR:  Ms Wren, if you wouldn't mind speaking just a little more slowly, because ---

MS WREN:  Sorry, yes.

CHAIR:  --- this is being translated into Auslan and we need to have real time transcript.  So, as I say to other witnesses, you are by no means the first to speak too fast but if you can speak a little more slowly, that would be good.

MS WREN:  Apologies.

MR CROWLEY:  Now, Ms Wren, in your statement you refer to the Parents Program of IDRS?

MS WREN:  Yes.

MR CROWLEY:  That is the particular program you are engaged with?

MS WREN:  Yes, correct.

MR CROWLEY:  Can you just explain about that, what the program is and how it works?

MS WREN:  Well, the program consists of Kenn and I, and it works like there is a legal advocate and non legal advocate and I'm the person that does the non legal  
stuff, so I do the casework stuff with the parents or case management with the parents.  We also have --- part of the website has information there about the parents program that we work on.  And that assists parents, that assists other advocates, family members, and caseworkers as well, like DCJ caseworkers if they want to go do that website and so we manage that as well.

MR CROWLEY:  In terms of the clients that you have within the program, are you able to tell us how many are First Nations parents with intellectual disabilities?  What sort of proportion?

MS WREN:  I say it would be up to 50%, at least.

MR CROWLEY:  And total numbers, are you able to give us an idea at any given time?

MS WREN:  Okay.  Right now I have eight parents that I'm working with.  Five of them are First Nations.

MR CROWLEY:  And as for the client's circumstances, is it the case that it is not just the intellectual disabilities that they may have, but there might be a whole range of other conditions as well, or other issues that they have?

MS WREN:  Yes.  I have a saying, "They tick all three boxes".  So they’re First Nations, they have an intellectual disability and they were kids in care themselves.  And just seems like every single Aboriginal family that I have worked with or First Nations families I have worked with, tick those three boxes, which is   which the intergenerational trauma is rife, absolutely rife.

MR CROWLEY:  When you say "They tick those three boxes", what does that mean, though, from your point of view of if they have those features?

MS WREN:  I've been told by DCJ workers in the past that because they were foster kids themselves, they do not know how to parent themselves, because their foster family weren't good enough to teach them.  And that is not always true.  And so ---  and having an intellectual disability they do not have any insight, they have not learnt, they do not have the capacity.  So yeah, they are ticking those three boxes, it is automatic removal, almost.

MR CROWLEY:  Just on that question of capacity, from IDRS's point of view, what is IDRS's view about whether those parents do have or can have capacity?

MS WREN:  The parents with intellectual disabilities certainly have the capacity to parent adequately.  Given the right environment, given the right supports and also given the right lifestyle --- that might be the word, yeah   will increase the capacity.  Having DCJ in your life decreases your capacity because your anxiety increases, and with any person when your anxiety is increased your capacity diminishes.  So it is like a double edged sword, you know; put them in a great environment, have  
someone that is really supportive in your life, you can do really, really well as a parent.  Have DCJ there and documenting every word, everything you say, making it negative, it is a negative point of view.  I mean, some of the things I have read in affidavits completely are untrue or misleading, you know?  But the parents have the capacity to parent quite adequately, given the right environment and supports and people in their lives.

MR CROWLEY:  Mr Clift, I ask you then, from your perspective, and in your observations in practice, if you could tell us about the client that you represent as a lawyer.  If you can tell us about the challenges that they face, particularly the First Nations clients?

MR CLIFT:  Okay I can.  Well, typically my clients are young women, they all have intellectual disabilities.  The challenges they will face is simply being accepted in the larger society.  They will tend to be alienated and marginalised.  Being young and inexperienced, they may make poor choices at times, and will often make bad connections with partners that they will need some assistance with, like support.  It is not often that that support is available in a timely way.  People tend to think that, people tend to look at the disability first and assume the disability means you do not have any capacity at all, rather than looking at the person and looking at what the person is motivated to do and providing the support to the person to help them do what they would like to achieve, which is generally to be a good parent.

MR CROWLEY:  For your clients that are First Nations parents with disability, in terms of their interactions with the Department and case officers, are you able to tell us how you see cultural competency from the Department's offices as being relevant to the outcomes for those clients?

MR CLIFT:  I guess the thing that jumps out is that parents are really scared of the Department, and defensive when it comes to the Department.  I think that for First Nations parents, the history of First Nations people about in this country is one of the unfortunate --- just interventions, stolen generations, massacres, there has been a litany of failures by the Australian governments and the colonial governments before them, which is reflected now in families that have been broken apart by trauma.

So yeah, a person who has grown up with that kind of background is going to have a real difficulty engaging with a representative of a Department that they see as largely there to police them rather than support them.

MR CROWLEY:  One of the things that you have mentioned in your statement, you talk about the child protection system appearing opaque to parents?  Just explain what you mean by that.

MR CLIFT:  Well, it is very difficult to know.  Parents constantly say "I don't know what the Department wants me to do.  I have done this, this and this, but they are still saying I can't have my children back".  So, often parents are given unreal or unrealistic sets of goals to achieve, and said that this is "Go and do these things, this  
will help you get your children back", which is not really true.  I mean, parents generally will do anything and everything.  More often than not it doesn't result in having your children restored to you.  And there are so many points within the system that can cause failures that get in the way of successful restoration.

MR CROWLEY:  One of the other things you have spoken about is about a lack of consistency in terms of within the State and in particular from between individual community service centres.  There might be differences in caseworkers, inconsistencies there.  Can you just tell us about that?

MR CLIFT:  Yeah, well that is true.  We tend to notice that, like, if you get a referral and the parent that you are working with is under the jurisdiction of a certain office, you are going to know that you have a hard fight against you because that office may have a culture of removing, very quick to remove.  Cultures within offices can change.  So you know, an office that at one time is bad could go good and be more willing to work with parents and provide adequate early support, or two people within the one office can do very different things.  So it is kind of   you 're just sort of hoping that you get a caseworker who is familiar with parenting with disability, and is not   does not have a preconceived idea that a parent with a disability is going to be inadequate.

MR CROWLEY:  Let me just ask you about that aspect.  When dealing with the Department, in your observations and in your experience, are there adjustments that are made taken into account by caseworkers when they perform their roles?

MR CLIFT:  Um, there are adjustments made by good caseworkers, but look, I would say it is more often not the case that adjustments are made.  So, you know, I have seen caseworkers go to some attempts to make adjustments in the way they communicate, communicating more simply and using different methods to communicate.  I have seen other officers, recently where I heard from a mother who I gave advice to who I said "It would be really good if you were able to take a support person with you when you are speaking with the Department, that is your right", and the mother fed back "The caseworker thinks that's not a good idea, the support person would just get in the way".  It is not recognising the fact that a person with an intellectual disability, one of the greatest deficits is communication, and support to ensure clear communication would be pretty crucial.

MR CROWLEY:  Can I ask you, Ms Wren, from your experience and perspective, is the Department able to provide or facilitate other supports for parents with disability, particularly First Nations parents with disability?

MS WREN:  The Department itself generally don't and won't.  I have had the Department call me and make referrals to me on a regular basis.  They are my highest referral point.  But for them to actually organise First Nations or a relevant or culturally appropriate support for these parents, I have not seen that.  I'm usually the one to make those referrals, I'm usually the one that will set that up.

 
MR CROWLEY:  I want to ask you in particular about early supports for parents.  If you can tell us about that.  That is an aspect of your role as an advocate?

MS WREN:  Yes, it is   it is easier to keep a baby rather than have a baby restored.  So the sooner that I know a parent is pregnant, you know, as soon as   you know, on the first trimester, I will call the department and I will start asking around for a pre natal worker, is there one, who is it, and so advocating it, advocating to that actual office to get them involved, so that the pre natal worker and us, the parents and myself can start talking about concerns, and be able to address those concerns before baby is born so baby can go home safely.  And that is one of the   Kate is one of the examples there.

MR CROWLEY:  I will come to ask you about Kate's particular case, but in terms of the things that the Department can support or facilitate at that stage, can you just describe for us the sort of things that can be done or are available?

MS WREN:  First Nations, they actually have perinatal conferences, and that is three meetings with the whole team of people that includes social workers from hospitals, Health, DCJ, advocates, support workers, caseworkers.  They all get involved and we talk about the strengths, concerns, and their dreams and desires.  And in those three meetings you should be able to get to a point where baby can go home safely.  Also, there is family group conferences where the whole family gets together, so with First Nations People, the culture is to have community and get community involved.  So those family group conferences are really important because people then can put their hands up to be able to assist the parents in what needs to be, you know, what needs to be addressed.  So there is a concern around breastfeeding.  There could be a person within the community that can assist mum with the breastfeeding.  That is just an example that, you know --- so they can do that.  The Department does hold those perinatal conferences, they do hold those family group conferences and the facilitators for those conferences are usually Aboriginal, so that is culturally appropriate.

However, I have had to put names in for these facilitators because the Department seem to   in my opinion I feel that they lack the knowledge of who is who, and I have been fortunate enough to have connections with facilitators that are culturally appropriate.

MR CROWLEY:  Can I ask you, Mr Clift, about on the issue of the supports that might be provided by the early supports or later supports once the parent has a child.  Can you tell us about how important it is from your point of view that those supports for First Nations People be provided or facilitated through the community and community organisations?

MR CLIFT:  The reason I think it should be provided through community organisations is that to have the Department remove your children from you and take you to court also being the Department that offers you support tends to be a very conflicting role.  It makes it difficult for the parents to believe the support is support.   
However, if the support was delivered through a community organisation, and the First Nations parents ideally through a First Nations community organisation that they are familiar and comfortable with, they would have some confidence that that support is actual support.  Parents have often complained they feel that when support is being put in, they are just being monitored, it is an evidence gathering exercise rather than support, so I think the separation of the roles is just incredibly important.

MR CROWLEY:  Ms Wren, if I could go back to you then and follow up with you about your involvement in Kate's case.  Can you just start, please, if you could tell us when you first became involved and what the contact was like at that time.

MS WREN:  My first the day in this role was when I first met Kate.  So that was my first matter that I dealt with in this role was Kate, got a phone call from Kate saying "I have just given   I have been having a Parenting Capacity Assessment.  I broke water, I have given birth and Department of Community Services are here, what do I do?"

So I spoke to the caseworker and she seemed quite reasonable and quite agreeable with having Kate being involved with her child.  So I spoke to the caseworker, and the conversation was around the child going to kinship care but Kate having daily contact.  And then when I   then Kate got on the phone and I asked the caseworkers to leave the room because this is a conversation I needed to have in confidence with Kate.  And I spoke to her.  She said "I don't want the baby taken, I want to keep the baby", and I apologised and said "I can't stop this, they are taking the baby but let's look at you seeing the baby every day.  You keep breastfeeding and you keep having that connection and that bond with your baby".  So that is my first engagement with Kate, was on the phone, and advocating for her very strongly on the phone, and the baby was   went into kinship care, and for the first six months Kate saw the baby every day and was able to breastfeed daily.

MR CROWLEY:  Now, that was Kate's second baby.  Were you also involved when she had her third baby?

MS WREN:  I was involved briefly.  Not as intensively as I was with the last baby.  Only because I did not even know she was pregnant.  She gave birth   the baby was removed at birth, and the things that I was doing, I was advocating for her to receive good contact.  The caseworker was not pro Kate, she was very much against her having her children or keeping her children.  And so I was advocating for Kate to be able to see her child on a more of a regular basis than what they were doing.  And the stuff they were saying about Kate was quite concerning, because they were saying "Well she does not have a bond with him, with the child", but the thing is they removed the child before Kate could even have skin on skin contact with the child.  So yeah, they said some pretty nasty things about Kate.  I was advocating on Kate's behalf that "Kate is doing her best" and she was doing really, really well.

MR CROWLEY:  Can I ask you, Mr Clift, in a case where a parent, a mother has had one child removed and then they give birth and have a second child, you have spoken  
in your statement about the Act operating for a presumption of removal.  Can you just tell us about that?

MR CLIFT:  In section 106A of the Care Act, it basically operates that --- if you have had a child previously removed and placed into care, any following children that you have, if the Department then decide that they need to be removed and puts a care application in front of the court, the presumption then is that the child is in need of care and protection, it is a presumption that does away with the need to prove that the child is in need of care and protection, which is unfortunate.

The only way you can get around that is if you can get involved early enough to work with the Department and the parents to show that the situation has changed, and that the relevant circumstances have changed so there is no need to lodge a care application.  But that rarely happens, so generally what happens is matters go to court and the presumption comes into effect and it is just assumed that this child is in need of care and protection because the first one was.

CHAIR:  Mr Clift, may I ask what is the source of that presumption?  Is that something that courts apply or are you just referring to the factual situation?

MR CLIFT:  No, no, it is applied by the courts, Commissioner.

CHAIR:  What is the source of the presumption?

MR CLIFT:  Section 106A of the Children and Young Persons (Care and Protection) Act NSW 1998.

CHAIR:  Thank you.

MR CROWLEY:  If I can go back to you, Ms Wren, you then were involved in an earlier stage when Kate was pregnant with her fourth child?

MS WREN:  Correct.  She was eight weeks pregnant when she walked in the office, "I'm eight weeks pregnant.  What do I do?"

MR CROWLEY:  When she came in and said that to you, had you previously spoken to her to say to her when she had her third child, "You need to come and see me sooner"?

MS WREN:  Yes.  I did   when she had her third child, I said, "Next time you are pregnant, like as soon as you find out and you know you are definitely pregnant, come in and see me, because then we can really work really hard, and we can, you know, discuss, address all the issues and the concerns that the Department have, and then we can have a really good chance this time".

MR CROWLEY:  You speak about in your statement that when Kate did come to see you at the office, that you made the phone call to the Department's helpline.  Can you  
just tell us about that, how that came about?

MS WREN:  At that time there was a little bit of a shift within the Department.  They started getting pre natal workers in, so it was a new role that they had in the different CSCs, community service centres.  So I rang the office that it was closest to Kate.  I asked if there was a pre natal worker there, and there was.  Got the names, and emails and phone numbers, and I started ringing her on a regular basis.  I asked her --- I basically said to her, at the end of the day, "I'm not letting Kate have the baby so you can remove.  You need to engage with Kate today.  This needs to happen now, so we are going to work with her.  We can address all the concerns that you have".  And she is the one that advised me to call the helpline and told me to use the words "I'm calling for assistance.  This is not a risk of serious harm report.  This is for assistance".

So I spoke to Kate about that, went through a bit of a script with her, she agreed, and I did this with Kate.  I would not do it without her, so she was next to me.  I told them about Kate and I actually told the helpline that "Kate is here with me" and she spoke to them saying "Yes, I am here with my advocate", and that is when we started to have that conversation, "This is what we want, and this is how it has to be done.  We are not waiting for a baby to be born so section 106A can be used against her".

So yes, we asked for assistance on a number of occasions.

MR CROWLEY:  Now, Ms Wren, you explain in your statement that you had never done this before, and you have not done it since.

MS WREN:  No.

MR CROWLEY:  But you go on to say it was an arduous task, that it took about 20 minutes on the phone call and you repeatedly had to emphasise, "We are wanting help.  This is not about a report of harm or risk.  We want help."

MS WREN:  Yes.  I remember saying to Kate at that time, I said "This is such   hard work, to make a report is hard work.  People must have a lot of time on their hands to make all these reports, especially the malicious reports that we --- especially that Kate was getting at the time   there were a few malicious reports against her.  So it was   I think it was tense because it was a helpline and we were both   I mean, I was nervous as well, to be completely honest.  I was nervous, to make that phone call, but it worked out in the end.  But I was hassling the pre natal worker nearly on a daily basis in the end, because I was not going to let this happen.

MR CROWLEY:  And just on that point, Ms Wren, you go onto say that even after making if the phone call there were still further delays in eventually getting the help from the Department.  And you had to persist.

MS WREN:  Yes, that is exactly right.  I was ringing her, this pre natal worker nearly   on a daily basis nearly.  We laugh about it now, but it was not funny back  
then.  Because she said "We have to wait for the allocation.  There has not been   there isn't a report", and there were all these excuses.

In the end I said, "If you don't do this I will go up higher".  I had to because they were sitting on their hands, they were not doing anything and I knew we could make this one work, definitely work, because it was early enough.

MR CROWLEY:  Eventually the Department agreed to allocate the pre natal worker you had been speaking to, to Kate's case?

MS WREN:  Yes, I only wanted her and no one else, reason being is that the other caseworkers in that particular centre were very much   they removed the other children, and they were telling this pre natal worker that they have to remove the baby.  So it was fortunate enough this pre natal worker was   had a good manager as well, so she had support within her own team, and she was advocating on Kate's behalf for them to keep the baby after the other caseworkers were telling her to remove because they had removed all the other children.

MR CROWLEY:  Now eventually when the caseworker was allocated, Kate was able to get support and then, when she had the baby, intensive support?

MS WREN:  Correct.

MR CROWLEY:  Were you involved in that stage?

MS WREN:  Yes, I was involved from the time she was eight weeks pregnant to the time that DCJ closed the file, we had a closing meeting even, which we have never had before.  So it was such a big intensive work that we did with Kate that, yes, I was part of the whole process.  We had many, many meetings at the office.  We had a lot of home visits.  We had a lot of --- there was a lot of work put into it.  I was not really happy with the intensive family services that they put in, it was 22 hours a day for six weeks.  And 22 hours or having someone in your life is pretty invasive.

MR CROWLEY:  I want to ask you both, but can I start with you, Ms Wren, I want to ask you about the issue that Mr Clift was speaking about before about some inconsistencies that he has observed within the way that the Department approaches your clients.  Is that something that you have experienced, Ms Wren, in the assessments that are made of parenting capacity and the programs that the Department suggests that your client undertake?

MS WREN:  Absolutely.  The inconsistency is one of the hardest things to deal with.  The Parenting Capacity Assessments, I have been to numerous as a support person, and I cannot tell you how many because I have been to so many, not one has been the same.  Not one.  So, I mean, how can you say that the reports are consistent or the reports are true or real when every single person that assesses a parent is completely different?  The tools that they use are different.  The questions they use are different.  It is just   and it just makes no sense to me at all, at all.
 

MR CROWLEY:  You just mentioned about the tools.  One of the things we have heard about is a structured decision making tool.  Are you familiar with that?

MS WREN:  Yes, I was fortunate enough to be part of one Structured Decision Making meeting, only been to one because I had a very good working relationship with the caseworker and the manager.  And they invited me to this meeting and it was quite interesting.  It is on a scaling basis so they scale 1 to 5, I think, I cannot remember the numbers.  It is basically   you have a casework specialist who does not know the situation of the family, the story, they just know what is on paper.

The caseworker, the casework manager, the manager of the centre, and I was there this time.  It was all about what their opinion or views were, how it actually made the final decisions.  So it is supposed to be objective but it is very subjective.  So the one that I went to was an Aboriginal family, and Mum had also mental health, and it was   I had to really fight tooth and nail for them to listen to what Mum's side of the story is.

So at the end of the day they let Mum take baby home, but it was   yeah, it is quite   it is subjective.  So whatever biases or whatever issues you may have comes into it.

MR CROWLEY:  Now, Mr Clift, can I ask you about that type of tool?  Do you have any familiarity with that?  Is that something that you have experienced in your role?

MR CLIFT:  I'm aware of the tool.  I do not experience it so much day to day in my role because I do not do the sort of support work that Julia does with clients.  But yeah, I have taken time to familiarise myself with the tool and how it works because it is important for me to know how caseworkers come to their decisions.

MR CROWLEY:  Now, just following on from your earlier observations, in terms of the supports that are available for First Nations parents with disability who are your clients, can I ask each of you, are you able to tell us, from your experience and observations, how appropriate the services are that are available when, or referred when the Department refers your clients to those services or requests, since you undertake those programs?

Can I ask you first, Ms Wren?

MS WREN:  I worked with the father that was one of the Stolen Generation.  He was institutionalised.  He was very, very anti religious because he was told to forget about his culture and his family.  He was also told that his parents were killed or they were dead.  DCJ allocated an Aboriginal caseworker, and she had a crucifix on her necklace and she then sent their son to Sunday School and to church, and told him that he enjoys it and that is what he is going to do.  This traumatised the father because of his history and background.

 
There are   are a few Aboriginal workers within DCJ that do come and are supposed to support the families and are supposed to do culturally appropriate supports, I have seen it   in my opinion what I have seen in my role, the DCJ workers that are supposed to do that, I have not seen them do it properly.  However, what I have done, I get Aboriginal organisations to come in and work with DCJ, or work with the family so it becomes culturally appropriate.  So it is the services that I call in and it's the services that I have put in place, not DCJ.  That is what I have done in my role.

MR CROWLEY:  Now, Mr Clift, in your statement, you have spoken about some matters that you would like to see done differently or changed from the Department's point of view.  One of the things is, you have stressed caseworkers receiving training in both intellectual disability and parenting as well as training in supporting First Nations parents with disability.  Can I ask you if you could tell us about those, why you think those two things are matters that would help make things better for your client.

MR CLIFT:  I think that it is important that caseworkers understand that the greatest   one of the greatest jeopardies a parent with intellectual disability will face is the miscommunication that can occur between the caseworker and the parents because of the communication deficits that are associated with the disability.  Therefore I think it is really important that caseworkers have to be alive to how they communicate, and to take extra, extra pains to make sure they are being understood by the parent, and that they also take time to listen to and understand the parent.

I also think that as far as First Nations clients go, it would be seem to me silly to ignore the history of this country and the history of the Stolen Generations.  I think that needs to be taken into account by any person who is working with First Nations clients.  You need to understand that First Nations parents have largely suffered at the hands of the white system.

MR CROWLEY:  Ms Wren, can I just ask you one final question on this area.  You also suggest in your statement that programs for First Nations parents with disability that support them that are run by Aboriginal community controlled organisations is the way to go.  Why do you say that?

MR CROWLEY:  Because they understand the parenting, the culture, and the way that community is, where the other parenting courses, it is just paper driven, it is tokenistic, really, but I have seen some really good results in the one on one parenting courses with Aboriginal organisations with Aboriginal parents.  And they engage.  The parents engage.  The parents are excited.  And you need to have that.  You need to be able to have them excited and happy they are pregnant, not scared and their anxiety going through the roof.

MR CROWLEY:  Yes, thank you.

Chair, that is all the questions that I have.  I can indicate that I understand that Ms Furness for the State may wish to ask some questions after any questions the  
Commissioners may have.

QUESTIONS BY THE COMMISSION

CHAIR:  Yes, thank you, Mr Crowley.

Mr Clift, can you tell us when you come into a case?  At what point are you involved?

MR CLIFT:  Commissioner, I don't necessarily work on matters that Julia works on.  We don't always share matters.  We actually share a lot of experience and knowledge.  So I will   I will generally come into a matter, the first contact I will have with the parents is probably --- it will be an advice appointment.  I will speak to them and then it may be a matter where it seems that one of the larger issues is that the disability is being focused on rather than the parenting.

If that is the case, then I might   and if I have the capacity   I may take the matter on as a court representation matter.

CHAIR:  By that time, I take it, the Department would have instituted some sort of order for care of the child?

MR CLIFT:  Yes, that is correct.  If I'm able to be involved early, we might be able to support the parents, have meet meetings with the Department and they may not file a care application.  However, if they do file the care application and I have already been working with the parents and I have the capacity to take them on, I would look at taking the matter onto represent them in court.

CHAIR:  As a practical matter, how important is section 106A(2), the one that creates the presumption?

MR CLIFT:  It is in used every day in the Children's Court, Your Honour.  It is a very low threshold, the civil standard of proof in the Children's Court as to whether the matter is established, so the first question is, "Is the child at risk", or would the child be at risk if it was not taken?" and the threshold is extremely low, and generally the presumption raised in section 106A is enough to get the case over the threshold and establish it.

CHAIR:  I suppose in theory if they   a person has had a child placed into care previously, woman, and the woman gives birth, all that would be required is that the Department to say, "This is the second child.  The first child has been put into care, that is a prima facie case under section 106A"?

MR CLIFT:  Is it a prima facie case.  Generally they may also focus on other reasons, so they might   I mean, disability is specifically excluded as a reason of  
removal but they may suggest that the parents' capacity flowing on from the disability is also a factor, which would then sort of bolster their section 106A case.

CHAIR:  Yes, thank you.

Just one other thing   from your statements I assume are you both part time?

MR CLIFT:  I work three days a week.

MS WREN:  I work four days a week.

CHAIR:  Who funds the organisation?

MR CLIFT:  Various funding bodies, Federal and State.  Our Executive Officer looks after the money, Commissioner.

CHAIR:  Okay.  Thank you.

Commissioner Mason, do you have any questions?

COMMISSIONER MASON:  Yes, I do.  Thank you, Chair.

Thank you very much for giving your evidence today, and also giving us that broader context of the support that you gave, and are continuing to give to Kate.

I'm really interested in this idea of child protection systems and the progress of them becoming - moving towards less western centric systems.  And we are talking about a very long timeline.  You have mentioned this morning in your evidence around Stolen Generations and the impact of colonisation, so we are talking about a long history.

In the timeline of Kate, at which point is she in the environment of an Indigenous centric system?  Or on the whole, is she basically moving through Western centric systems with effort trying to include and insert Indigenous culture and that safety of culture?

I was just interested in your views and thoughts on that question.

MS WREN:  She is   so her foster mother is a well respected Aboriginal woman, Elder.  And thank goodness for her, she is able to envelope Kate into the Aboriginal culture and history.  But Kate tries   she tries very hard to be part of her culture.  She says that her culture is actually what kept her alive and gave her that strength to be able to survive and go through what she has gone through.  But other than that, there   she loves her culture and she does embrace it, but it is   yeah, it is quite   I think it is minimal.

MR CLIFT:  Yeah, if I might add   it is pretty much a White Western system with  
some embellishments.

MS WREN:  Fortunate for her she does have her foster mother who is just a wonderful woman that does amazing work with her community.

COMMISSIONER MASON:  Thank you very much.

CHAIR:  Thank you.

Commissioner Atkinson, do you have any questions?

COMMISSIONER ATKINSON:  No, thank you.

Thank you for your evidence today.

CHAIR:  Thank you.  Commissioner McEwin?

COMMISSIONER McEWIN:  No, thank you.

CHAIR:  Thank you very much.

Ms Furness?  Do you wish to make an application ---

MS FURNESS:  I do.  Thank you.  Can you hear me?

CHAIR:  Yes, with some difficulty, but carry on and I will let you know if you fade into mute.

MS FURNESS:  Thank you.  My application is to ask a question primarily of Mr Clift in relation to the numbers which underlie the various comments he has made in his statement about numbers of people and what is common or otherwise in his experience, firstly.  And secondly, about access to policies and the like which he referred to in his statement.

CHAIR:  Access to policies?

MS FURNESS:  Yes.

CHAIR:  I'm sorry, I'm not quite sure what that means.

MS FURNESS:  In paragraph 24 of his statement he refers that advocates are hard pressed to find policy and procedural guidelines.

CHAIR:  I see.  They are the two matters you want to ask questions on?

MS FURNESS:  They are, Commissioner.

 
CHAIR:  Yes, well, go ahead.  Thank you.

CROSS EXAMINATION BY MS FURNESS (COUNSEL FOR NEW SOUTH WALES)

MS FURNESS:  Mr Clift, you indicated that you work three days a week, that is correct?

MR CLIFT:  That is correct.

MS FURNESS:  Over the period of the last two or three years, how many clients have you seen who are First Nations with a disability who have engaged with the child protection system?

MR CLIFT:  I could not give you an exact number.  But we gave a figure that I quoted for the last 12 months, which I can't remember off the top of my head.  That is pretty much typical of every year.  But of course we are a small service.  We are a part time service so we do not see a lot of   a large volume of clients.

MS FURNESS:  Are we talking about a dozen, more or less than a dozen?

MR CLIFT:  There would be more than a dozen certainly.

MS FURNESS:  Perhaps you could help us as some general idea as to how many.  Ms Wren said five at the moment.

MR CLIFT:  That is right, yes.  Look, I really couldn't give you a number off the top of my head.  I would be afraid of misleading the Commission.  As I said, the number I have given in my statement it was taken from the statistics which we have recorded over the last 12 months.

MS FURNESS:  Perhaps you could assist me.

CHAIR:  Pardon me for interrupting.

You are referring to numbers given in your statement?  Which paragraph, please, are you referring to, to help Ms Furness and myself?

MR CLIFT:  Paragraph 17, Chair.

CHAIR:  Yes, thank you.  That is the paragraph you mean?

MR CLIFT:  Yeah, okay, I have that.  So I was looking at the period from 1 July last year until 30 June this year.  The Parents Program is 74 clients.  So out of those, 20% are Aboriginal and Torres Strait Islander.
 

MS FURNESS:  Of those 15, Mr Clift, how many did you assist with legal advisor representation in the child protection system?

MR CLIFT:  I would have assisted all of them with legal advice because the practice is they first come to us and they have legal advice, and then I might refer them on to parent advocate.  And only a small number of them I would go on to work with.

I would do   I do a lot of minor casework, so I do a lot of letter writing and small jobs for people, but for instance at the moment I have only got one matter in court because I'm only working three days a week, and I need to be able to give my client plenty of time, more time than they would get from a private lawyer.

MS FURNESS:  So that it is the case that there is fewer than 15 people a year that you would represent in court?

MR CLIFT:  Certainly, yes.

MS FURNESS:  Thank you.

MR CLIFT:  Sorry, I was just going to add that I'm in contact, I work   I convene a network of care and protection lawyers, so I'm in contact with a lot of other lawyers who have the same experience as I do.

MS FURNESS:  Your statement is based on your experience, I take it?

MR CLIFT:  Beg pardon, sorry?

MS FURNESS:  Your statement is based on your experience, isn't it?

MR CLIFT:  Yes, that is right.  It is based on my experience.

MS FURNESS:  Thank you.  Now you referred to this material being statistics that are kept by the Service.  Is it the case that you keep statistics as to parents who you see who are First Nations with a disability, and whether or not they are in out of home care as a child?

MR CLIFT:  Look, we keep statistics as to disability, as to whether people are First Nations.  We don't keep statistics as to whether people are in out of home care as a child, but in gaining their instructions, what we find is that usually more often than not our clients were in out of home care as children.

MS FURNESS:  That is not recorded on your database but that may be recorded in the individual case files, is that right?

MR CLIFT:  Definitely recorded in the individual case files, yes.

 
It becomes an issue   it is usually raised by the Department themselves because they see that being raised in out of home care as a risk that needs to be addressed.

MS FURNESS:  So is the saying in relation to parents who have their children removed in the maternity ward, that that is not on your database but may well be in the individual files?

MR CLIFT:  Yes.  Yes.

MS FURNESS:  Is it also that whether or not a support person was present would be in the case file but not the database?

MR CLIFT:  Yeah, yeah.  If it was, you know, if it is our case files it would be fairly comprehensive so we would be noting whether the parents had support or not when they were speaking with the department.

MS FURNESS:  Similarly if they were removed, in your opinion, because of a parental disability, that would be recorded in the file?

MR CLIFT:  We would record all the reasons for removal that the Department has given, yes.

MS FURNESS:  Is it the case in preparation for making your statement you review all of the files in which you had been involved to determine the numbers of people that fitted within the four categories I have referred to?

MR CLIFT:  No, in preparation of my statement I asked our admin section for a breakdown of our stats for the last year, and I used my own knowledge of what I know about my parents, the parents I work with as to their background and their previous experience.

MS FURNESS:  So have you provided the Royal Commission with a breakdown of those statistics, because the only one in your statement is at paragraph 17?

MR CLIFT:  No, no, my statement is all that has been provided to the Commission.

MS FURNESS:  Thank you.  Can I just turn to the second topic, Mr Clift, that is in relation to the policies of the Department.  If you can turn to paragraph 24 of your statement.  Do you have that in front of you?

MR CLIFT:  Yeah, I do.

MS FURNESS:  Now, you refer there to advocates and lawyers finding the system complex.  Do you see that?

MR CLIFT:  Yes, that is right.

 
MS FURNESS:  And it is the case that you find the system complex, isn't it?

MR CLIFT:  The system is extremely complex.

MS FURNESS:  Thank you.  So the answer to my question is yes?

MR CLIFT:  Yes.

MS FURNESS:  Now, you then continue on about advocates, by which I take it you mean you, right?

MR CLIFT:  Well, yeah, advocates, yes, I guess so, normally I would include all advocates, so non legal advocates as well as lawyers.

MS FURNESS:  Well, this is your statement, isn't it, Mr Clift?  What you are saying here is that you were hard pressed to find policy and procedural guidelines that may assist in proving accountability?

MR CLIFT:  That is right.  There have been numerous revisions of the Department's website over the years that I have been in the job.  It is not always easy to locate a policy on any matter when you would like to locate it.  I have managed to collect some.

MS FURNESS:  When did you last access the website?

MR CLIFT:  I have not accessed the website this year.

MS FURNESS:  So you did not access for the purpose of making this statement?

MR CLIFT:  No, I was basically   the statement is based upon my experience over the last five years.

MS FURNESS:  You are aware of the Practice Standards which are on the website?

MR CLIFT:  Yes, I am.  I am aware of that.

MS FURNESS:  And those Practice Standards provide the reader of that document with knowledge and understanding of the standards that are to be applied by caseworkers and others within new department?

MR CLIFT:  Yes, that is correct.

MS FURNESS:  So in the event you were of the view that those standards were not complied with, that would be a matter that you would take up further because the standards were [audio distorted], is that right?

MR CLIFT:  It might possibly be a matter to take up further.  If the matter was a  
court matter, the issue is whether the child is safe and whether the child can safely be returned to the parents.  It would not be looking at the work of the Department leading up until that point.

MS FURNESS:  Have you had the opportunity of reading Mr Coutts Trotter, the Secretary of the Department's two statements?

MR CLIFT:  No, I have not had a chance to read that, sorry.

MS FURNESS:  Were they made available to you?

MR CLIFT:  I do not think they have been made available to me.

MS FURNESS:  You were not able to access the Commission's ---

MR CLIFT:  No, I have not read them, no.

MS FURNESS:  Now, had you had that opportunity and taken it, you would see that there is a practice advice called Working with Parents with Disabilities?  Has anyone brought that to your attention?

MR CLIFT:  Yes, I'm familiar with that document.

MS FURNESS:  Where did you access that document?

MR CLIFT:  I believe that   well, I got it via the Department.  I cannot remember whether I had to search for it on the website or whether a caseworker sent it to me. But it is sort of   there does not seem to be a single place where you can find every document.  Well, at least not the last time I looked, so I have had to collect them as I go along.

MS FURNESS:  I think you have said you have not accessed the website for over 12 months, have you?

MR CLIFT:  I have not accessed the website this year.

MS FURNESS:  So do you have a copy of that document in front of you?  I thought Ms Wren might have passed it to you.

MR CLIFT:  Yes, I have it here.

MS FURNESS:  Now there are various statements in the document and I'm not going to take you to all of them, but can I suggest, given that you have read that document, that many, if not all of your concerns about the attitudes of caseworkers are dealt with in a way that you would accept in this document?  Do you accept that from me?

MR CLIFT:  I accept that the document describes what's the ideal ways of working,  
yes.

MS FURNESS:  And it is the case, isn't it, that the document also refers to a document which was authored by your organisation called An Introduction to Intellectual Disability?

MR CLIFT:  Yes, that is true.

MS FURNESS:  That is certainly something you would be pleased that caseworkers were reading?

MR CLIFT:  If caseworkers read it we would be pleased, yes.

MS FURNESS:  Thank you.  I just have one question for Ms Wren.

Ms Wren, you heard what Mr Clift had to say about the data that is available to him.  I take it that is the same data that is available to you?

MS WREN:  Yes it is, but we also collect if there is domestic violence, if there is risk of homelessness, and [audio distorted] Aboriginal and Torres Strait Islander or any other cultural background, but there is no ‘home care’ indicated to tick.  But in hearing that, I think that is a really good idea.  I might add that to our database.

MS FURNESS:  Now you have indicated that you have about five First Nations people with disability you are working with at the moment?

MS WREN:  Yes.

MS FURNESS:  Are you able to tell us on an annual basis that category of people you work with?

MS WREN:  It fluctuates all the time.  I work with a family for quite a length of time.  I can work with a family up to three years, purely because DCJ have been involved for that long.  So I would say there would be approximately   oh, I don't really want to give a number because it does change all the time, so that I always give the numbers of the time that I have been asked that question.  So this is an indication that   that is why I do percentages rather than numbers, but usually between 50% to 70% of my workload or caseload are always First Nations families.

MS FURNESS:  Are we looking at similar sorts of numbers, Mr Clift, a dozen or so over a [audio distorted] period, generally speaking?

MS WREN:  Generally speaking it can be but I work   we work   we do not always work with the same families.  So we try to spread ourselves out because we are a part time service.  But I would say yes, that would be a generalisation that would be, yeah, 12 to 15 families a year.

 
MS FURNESS:  Thank you.

Thank you, Chair, I have nothing further.

CHAIR:  Thank you, Ms Furness.

Is there anything arising out of that Mr Crowley?

MR CROWLEY:  No, thank you, Chair.

CHAIR:  Thank you very much.

In that case, thank you for your evidence, Mr Clift and Ms Wren.  We appreciate your coming to give evidence.  Thank you very much.

THE WITNESSES WITHDREW

CHAIR:  What do we do now?

MR CROWLEY:  Chair, the next witness we have is Ms Cathy Pereira.  Mr Power will take her evidence.

CHAIR:  Yes, thank you.

Yes, Mr Power.

MR POWER:  Chair, the next witness is Cathy Pereira, and the Commissioners will find her statement at tender bundle B volume 2 at tab 14.  I ask to tender this statement into evidence and ask it that be marked as Exhibit 8.13.

CHAIR:  Yes, thank you.  That can be done.

EXHIBIT #8.13   STATEMENT OF MS CATHY PEREIRA

MR POWER:  Ms Pereira is on the screen.

CHAIR:  Good morning.  No, good afternoon.

MS PEREIRA:  Good morning, Commissioners.

CHAIR:  Thank you very much for coming to give evidence.  If you would be good enough to follow the instruction of Commissioner Atkinson's Associate, she will administer the affirmation to you.
 

MS CATHY PEREIRA, AFFIRMED

CHAIR:  Mr Power will now ask you some questions.  He is in our Brisbane hearing room.  Just so you are aware, Commissioner Mason and Commissioner Atkinson are in the Brisbane hearing room.  Commissioner McEwin and myself are in the Sydney premises of the Royal Commission.

MS PEREIRA:  Thank you.

EXAMINATION IN CHIEF BY MR POWER

MR POWER:  Thank you, Chair.

Ms Pereira, could you tell the Commission your name?

MS PEREIRA:  I'm Cathy Pereira.

MR POWER:  Have you prepared for the Commission a 34 page statement dated 12 November 2020 for the Commission?

MS PEREIRA:  Yes.

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

MS PEREIRA:  They are, yes.

MR POWER:  And since 2008 have you been the Principal Legal Officer and coordinator of the Aboriginal and Torres Strait Islander Women's Legal Service North Queensland?

MS PEREIRA:  Yes.

MR POWER:  And prior to taking on that role in 2008 after your admission as a solicitor in 1993, have you worked with the Indigenous Family Violence Unit in Rockhampton, and the Aboriginal and Torres Strait Islander Women's Legal and Advocacy Service in Brisbane?

MS PEREIRA:  Yes.

MR POWER:  Just to speak briefly about the Aboriginal and Torres Strait Islander Women's Legal Service North Queensland, what level of staffing does the funding  
for your organisation allow?

MS PEREIRA:  It is fairly a small funding, so we have sufficient for 2.5 solicitors, two community development workers, a paralegal, and some admin support, although it is minimal.

MR POWER:  Right.  Your statement details the work that your organisation does and the areas of Queensland that it covers.  If I can turn specifically to your client who are First Nations parents with disabilities, what percentage if you can say, are your clients who have a disability?

MS PEREIRA:  So in our --- in the last financial year, it was about 15%.  And     (overspeaking)    

MR POWER:  Sorry, I apologise, I cut you off.  How is that data collected?

MS PEREIRA:  So when someone wants advice or comes in for an appointment, we do an intake.  Part of the intake process is to ask whether the person has a disability.  If they disclose that, then it is recorded on the intake sheet.

MR POWER:  In terms of financial disadvantage, what percentage of your First Nations clients are financially disadvantaged?

MS PEREIRA:  About 92% in the past financial year.

MR POWER:  I want to turn to a section of your statement which deals with resourcing and care for expectant First Nations mothers.  Now, the Commission has heard of birth suite removal of newly born babies who are then taken into care.  Have you yourself seen that occur?

MS PEREIRA:  I certainly have in the time that I have been here, I have seen it   I can only say it is not uncommon.

MR POWER:  Right.  Your statement at paragraph   and sorry, if you could just speak up a little bit, from our end you are somewhat low in volumes.

MS PEREIRA:  I'm sorry.  Is that better?

MR POWER:  Yes, thank you.  At paragraph 40 of your statement, you say that the system is not working to provide expectant First Nations mothers with a disability with support to participate in decision making, and provide them with sufficient preparatory supports and resources to parent their child.

Could you explain why you say that and what you have seen in practice with regard to expectant mothers?

MS PEREIRA:  Yes.  So section 21A of the Child Protection Act provides that if a  
mother is expecting and   sorry, I am paraphrasing here, but if she is expecting the Department is to offer her supports if there is a risk that the baby will be removed.  All right?  So the way that that is carried out in practice is rather variable.  I can give you two examples of that.

One example would be   and this is a very common one   where two child safety officers turn up on the doorstep, ask the mother if she wants some support, maybe ask her a few questions, and then if she declines that support that will be the end of it.  The other approach that I have seen which is sort of extreme to the other end was two child safety officers turn up on the doorstep, they threaten the mother that if she doesn't sign a safety plan that the baby will be removed at birth.  So that is the other type of situation.

But the more common one is that the mother is given very little support.

MR POWER:  Now, in terms of your organisation, working with expectant First Nations mothers, in those scenarios, if contacted at an early time, what could your organisation do?

MS PEREIRA:  So if we become aware then the first thing that we do would be to establish whether or not the Department considers the baby would be at risk of removal, and if so what issues need to be addressed.  And then we can assist the mother by   you know, to the extent we are able to, we connect them with other support services to assist them to address the issues, so, for example, if an issue is domestic violence then we would try and connect the mother in domestic violence counselling, perhaps apply to the court for a domestic violence order.  So take practical steps to make sure that she is addressing any risk issues and work with the mother on that basis.

We have only got limited capacity, and that is one of the issues that I raise in my statement, that it really should not to be up to our Service to   you know, to do, and to an extent the Department would play a role if they   if we can persuade them to do referrals and so on, that very often it takes positive action from someone outside the Department to get the Department to do that, whereas they might be quite happy to just simply take a mother's initial refusal as the end of the story.

CHAIR:  Ms Pereira, are you dealing with a situation where you or the mother take the initiative in taking steps to provide support to the mother, or are you talking about a situation where the Department has expressed some concern about the forthcoming birth and the position of the baby?

MS PEREIRA:  So if we become aware that the mother is expecting, then we can write to the Department and say "Is the baby considered to be at risk?" And, "If so, what are the risks?" And then either ask the Department to connect the mother in with support services but because that is more likely to be slow and convoluted, we would do everything we could to try to get her into support services.  And sometimes the mothers know that themselves, and they take their own initiative and connect in  
with services.

CHAIR:  The way section 21A operates is it applies if the Chief Executive reasonably suspects that the child may be in need of protection after he or she is born.

MS PEREIRA:  Yes.

CHAIR:  What is the purpose of you taking the initiative in contacting the Department before the Department does anything?

MS PEREIRA:  If we have reason to believe that the mother may be considered to be at risk or if, for example, she has had a visit from two child safety officers and who have said "Do you want support?" and she has declined it, then that would be the trigger for us to get involved and to make those inquiries.

CHAIR:  If the child is, or the child that is expected is a First Nations child, then support has to be offered to the pregnant woman by the Department under the Act?  Does that in fact happen in your experience?

MS PEREIRA:  As I explained in my statement, very often it can be a box ticking exercise, so we have gone round to see the mother, she declined our support and we closed the file.  I can say that from experience that First Nations mother with a disability --- sorry, expectant mother with a disability was approached, and she said "No, I don't want anything to do with the Department" because of her own trauma from her own childhood, then the next thing that happened was they closed the file and did not do any further work.  She took her own initiative from there, on legal advice that, you know, she should ensure that she can demonstrate that there is no risk.  So she took her own initiative and signed up to programs.  She had developed a reasonably good family network support.  But the baby was still removed.

MR POWER:  You have spoken about a First Nations mother who has been approached but refused, or sorry, declined those services offered by the Department.  From your experience speaking to First Nations clients, why would there be that refusal if in fact in this case the mother did actually search out supports herself?

MS PEREIRA:  The initial refusal is the reaction that many of our clients have to the Department of Child Safety, particularly when they are expecting a baby, there is this terror that their baby is going to be removed.  Speaking with older First Nations women who have had the experience of being removed as children, one of their great fears is that their children will be removed or that their children's children will be removed.  There is always this underlying fear that the children will be removed.

MR POWER:  Now, you deal with this in your statement at paragraphs 49 to 52 and elsewhere.  But could you tell the Commission why it is important for First Nations community controlled organisations to be part of that support system and that referral system?
 

MS PEREIRA:  First of all, it is very important that service that are working with Aboriginal and Torres Strait Islander women, I can only speak for women, that they be a service that is culturally competent.  It is like   if they are not culturally competent, there is going to be a number of barriers to the person working with them.  There is going to be, you know, misinterpretation or perhaps   I don't know how to describe it   but there needs to be cultural competence to maximise the opportunity for the mother to actually engage with the service.

They also need to be trauma informed and to realise that if be someone presents and maybe they have difficult behaviours or maybe they have evasive behaviours, that it is related to trauma and that needs to be dealt with.

They also need to be disability accredited.  So to give you an example of why that is important, I worked with another woman who   when I came on board nobody had done anything about her to see whether her hearing   to see what her hearing level was.  No tests had been done.  She had a number of disabilities and one of them was hearing.  It was really difficult to assess her capacity without that initial hearing test being done and that issue being addressed, and it was addressed by a service that she was working with, but it just seemed to have taken quite a long time to get to that point.

And when eventually that was addressed, it was clear that there was another issue as well, and that was capacity.

MR POWER:  Now turning then to an issue you raised about permanent care orders for children, at paragraphs 57 to 67 of your statement, you discuss what you see as the risks and dangers of permanent care orders, and permanency planning for First Nations children.  And in particular you raise the issue of the presumption under the act of a two year time period for that to be dealt with.

Could you just explain to the Commission what your concerns are in a First Nations context and particularly for First Nations parents with disability?

MS PEREIRA:  Certainly.  So there is a number of different types of long term orders that can be put in place.  There is long term guardianship to the Chief Executive, long term guardianship to another person, and permanent care orders.

The permanent care order is a particular type of order, so one of the issues first of all is that the Act provides that if a child has been in care continuously under a child protection order for a period of two years, that time cannot be extended.  And then there is another provision that it can be extended if it is in the best interest of the child.  However ---

MR POWER:  Sorry to interpose there, it must be in the best interest of the child, and that reunification can be reasonably achieved in the proposed extended time period is that right?
 

MS PEREIRA:  Well, that would definitely be one of the criteria that the court would look at if it is going to extend the time.

So working with First Nations parents who have a disability, their needs are very complex.  They may be dealing with a number of different issues at the same time.  And all of that impacts on the capacity to advance reunification.  It may also be a departmental issue where their department   they are obliged to do a case plan every six months.

A case plan does not always happen at 6 months.  There's often delays.  And if the parent is unrepresented, it is not clear whether the Department is going to act in a way that it is going to advance reunification; for example, by increasing contact visits with the child.  Their perception of what may be appropriate may be different to what is actually appropriate in the circumstances.  That is why it is important for the parent to have legal representation.  And one of the problems is that legal representation often drops off once an order has been made.  So you have somebody who has a child on a child protection order for two years, short term custody to the chief executive for two years.  The case planning process   once the order has been made then Legal Aid doesn't usually provide another grant a day unless there are legal proceedings afoot.  That means that they could be unrepresented when they are going to a family group meeting or having further case planning.  That case planning does not have to be done in a family group meeting setting.  But if you have a legal advocate who says   who has an eye on the fact that the time is ticking for the two year period, then they are going to do their best to try to make sure that the case plan matches with that two year period.  But it does not necessarily happen if the person is unrepresented.  For various reasons.

MR POWER:  Turning then to some positive changes that you have noted in your statement.  At paragraph 122 of your statement, you say that you have been "Inspired by recent improvements to the extent of engagement of Aboriginal and Torres Strait Islander services through our family led decision making framework".

Could you just explain what your experience has been with this, and what you consider can be done to further advance those improvements that you have seen in that section?

MS PEREIRA:  Yes.  One of the great improvements that has come, probably come out of the Carmody Inquiry recommendations actually is the perception that there needs to be more cultural engagement for Aboriginal and Torres Strait Islander families.  So I notice that that is now in the Child Placement Principle in the Act where it talks about a number of principles including prevention and so on.  But it comes out of the right to self determination, and so what happens is that the Department now has quite   it has more Aboriginal and Torres Strait Islander workers.  That in itself would not necessarily improve things if you have an overarching culture that is not culturally competent.

 
But in the situation where organisations that are culturally competent such as the   I mention in my submission, my evidence the Townsville Aboriginal and Islander Health Service, TAIHS.  They actually take on a lot of work around family led decision making.  And the way that the meetings are conducted is very difficult to the way the department very often conducts meetings.  So they are culturally competent, they will also acknowledge the Elders and the people of the land in which they are working.  They will always understand the issues facing families and the difficulties and barriers that a lot of parents face and a lot of families face in trying to negotiate the system and trying to keep children safe.  And it is   you know, they are speaking the same language as the parents.  They understand where the parents are coming from because they understand that cultural background as well.  There is no   there is not the same cultural difference that parents have to negotiate if they are dealing with a non Indigenous service.

MR POWER:  And your organisation has broad coverage across Queensland.  And you have mentioned particularly Townsville Aboriginal and Islanders Health Service (TAIHS).  Is it your experience that the extent to which the department either uses or has ACCOs that are appropriate available to it varies from place to place?

MS PEREIRA:  Yes, it does.  That is quite true.  I mean one thing we are lucky to have TAIHS, but it has taken some time for TAIHS to be taking on that role because obviously that depends on the legislative framework.  It also depends on the funding available to the organisation.  Cairns also has Wuchopperen, a similar service which provides a diverse services for Aboriginal and Torres Strait Islander.

MR POWER:  Just so we have it for the record, what was the Cairns organisation you referred to?

MS PEREIRA:  W u c h o p p e r e n   I hope I have that right.

MR POWER:  Finally, in conclusion, I will not take you through them, but at paragraphs 120 138 you make a number of the quite extensive recommendations for change.  And is it the case that you would ask the Commission to look at those recommendations in determining how it reports back in the Commission's findings?

MS PEREIRA:  Yes.  Most certainly.  Very much so.  I think the thing that is missing in the picture is the human rights framework, and an understanding of how human rights works under the Human Rights Act in Queensland.  I see it missing from the department.  There is no overarching body that can assess whether the department is compliant with its human rights obligations.  And there needs to be that in place for things to improve.  There needs to be research around how compliant it is with human rights, and how those things can be improved.  And without that research and that overarching scrutiny, then my concern is that the changes will happen slowly, and that people will still be struggling with the same issues.

MR POWER:  Thank you.  Chair, that is the evidence of Ms Pereira.
 

CHAIR:  Thank you very much.  I shall ask the Commissioners if they have any questions they would like to put to you.

Commissioner Mason?

COMMISSIONER MASON:  No, thank you, Chair.

CHAIR:  Commissioner Atkinson?

COMMISSIONER ATKINSON:  No, thank you.

COMMISSIONER McEWIN:  No, thank you.

CHAIR:  Ms Pereira, thank you for giving your evidence, your detailed proposal and recommendation for change.  We appreciate the thought and attention that has gone into your evidence.  Thank you very much.

THE WITNESS WITHDREW

MR POWER: Chair, could we request that the hearing adjourn to resume at 1.40pm Brisbane time, 2.40pm Sydney time if that is convenient?

CHAIR:  Yes, thank you.  We will adjourn until 1.40pm Brisbane time, 2.40pm Sydney time.

ADJOURNED    [12.44 PM]

RESUMED    [1.44 PM]

CHAIR:  Ms Bennett, I think?

MS BENNETT:  Thank you, Chair.  I think Mr Coutts Trotter and Ms Katherine Alexander are the next witnesses.

CHAIR:  Mr Coutts Trotter, Ms Alexander, thank you for coming to give evidence.  If you wouldn't mind following the instructions of Commissioner Atkinson's associate who will administer the affirmations to you.  Thank you.

MR MICHAEL COUTTS TROTTER, AFFIRMED

 

MS KATHERINE ALEXANDER, AFFIRMED

CHAIR:  Thank you very much.  Just so you are aware of our set up, this electronic age we have Commissioner Mason and Commissioner Atkinson in the Brisbane hearing room of the Royal Commission.  Commissioner McEwin and I are in the Sydney premises of the Royal Commission, and Ms Bennett is in Melbourne.  We hope it all goes well.  What could possibly go wrong!

All right, yes, Ms Bennett.

EXAMINATION IN CHIEF BY MS BENNETT

MS BENNETT:  Thank you, Chair.

Mr Coutts Trotter, you have made two statements to the Royal Commission.  The first is 54 pages and is dated 28 October 2020, is that right?

MR COUTTS TROTTER:  Yes, that is right.

MS BENNETT:  The Commissioners will find that in part C of the bundle, tab 15.

Mr Coutts Trotter, are the contents of that statement true and correct?

MR COUTTS TROTTER:  Yes, they are.

MS BENNETT:  You made a second statement on 30 October 2020 which is 55 pages long.  Are the contents of that statement true and correct?

MR COUTTS TROTTER:  Yes, they are.

MS BENNETT:  Chair, you will find that behind Tab 16.  Those statements I seek to tender and have marked as Exhibit 8.14, they are accompanied by annexures that are tabbed 17 to 76 in the Commissioners' bundles, and I ask that they be marked as Exhibits 8.15.1 to 8.1 ---

CHAIR:  Did you mean to mark both statements as Exhibits 8.14?

MS BENNETT:  I did.  8.14, yes, thank you.

CHAIR:  So what are we doing with the exhibits to the statements?

MS BENNETT:  Exhibits 8.14.1 to 8.14.76.

 
CHAIR:  Right.  So the exhibits to the statements will be 8.14.1 to 8.14.76.

MS BENNETT:  Yes, thank you, Chair.

EXHIBIT #8.3   STATEMENTS OF MR MICHAEL COUTTS TROTTER

EXHIBITS #8.14.1 TO #8.14.76   ANNEXURES TO STATEMENT OF MICHAEL COUTTS TROTTER

MS BENNETT:  Now, Ms Alexander, you have made a statement of four pages.  Are the contents of that statement true and correct?

MS ALEXANDER:  Yes, they are.

MS BENNETT:  Thank you.  I tender that and seek it be marked Exhibit 8.15.

EXHIBIT #8.15   STATEMENT OF MS KATHERINE ALEXANDER

CHAIR:  Yes.

MS BENNETT:  I think there are a number of exhibits that are attached to that affidavit which I would seek to have marked 8.15.1, 8.1.2.

CHAIR:  I think you mean 8.15.

MS BENNETT:  Yes, thank you, Chair.

CHAIR:  That can be done.  Thank you, yes.

EXHIBITS #8.15.1 TO #8.15.2  ANNEXURES TO STATEMENT OF KATHERINE ALEXANDER

MS BENNETT:  Thank you.

Mr Coutts Trotter, I wanted to ask you first about your position.  Can you tell the Commissioners what your role is in the State Government in NSW?

MR COUTTS TROTTER:  Certainly.  I'm the Secretary of the Department of Communities and Justice.

 
MS BENNETT:  Yes.  How long have you held that role?

MR COUTTS TROTTER:  The Department was created in May last year.  And prior to that I was the secretary or Director General of the Department of Families and Community Services appointed to that role in August 2013.

MS BENNETT:  Ms Alexander, what is your role in the NSW Government?

MS ALEXANDER:  I'm the Senior Practitioner for the Department of Communities and Justice.

MS BENNETT:  For how long have you held that role?

MS ALEXANDER:  Since 2013.

MS BENNETT:  Mr Coutts Trotter, you are obviously at the apex of a significant department.  You say in your statement at paragraph 6 you identify the focus of your Department including the areas in which you seek to include outcomes.  At paragraph 6(h) you say you seek to improve outcomes for Aboriginal people who are over represented across all of our services.  I just wanted to start by understanding what you mean by that.  In which services do you understand First Nations People to be over represented?

MR COUTTS TROTTER:  Thank you, Ms Bennett.

Can I just also just begin by acknowledging that my colleague and I are here on Gadigal land and pay our respects to Gadigal Elders past and present, and those of the Eora Nation.

By that, Ms Bennett, we mean, I mean that compared to Aboriginal peoples' share of the population in NSW, they are disproportionately represented in our Child Protection Services, in our housing, homelessness services, in our youth justice services, in our adult corrections services.  That is not quite as true in disability services, but I think that is a function of poor access to those services rather than need.

MS BENNETT:  All right, we might return to that.  Do you consider that over representation to be problematic, from your point of view?

MR COUTTS TROTTER:  Yes, absolutely. 

MS BENNETT: And why is that?

MR COUTTS TROTTER:  Because to be represented in those services is a marker of disadvantage, often a marker of poverty, often a marker of poor mental health, often a marker of drug and alcohol use and abuse, and often a marker that you are a victim/survivor of violence.
 

MS BENNETT:  Now, Mr Coutts Trotter, I had a discussion with your counterpart from Queensland yesterday about the notion of unconscious bias.  Is that a concept that you are familiar with?

MR COUTTS TROTTER:  Yes.

MS BENNETT:  Can you tell the Commissioners what you understand by that term?

MR COUTTS TROTTER:  Applying it to child protection, it describes predictable errors in decision making   that are driven by the way human beings approach decision making, particularly when under pressure.

So, for example, we know that we put more weight on the first thing we heard and the last thing we heard about a family.  We know that we are likely to put greater weight on information we hold and be less curious about information that is held by other agencies or by family.  So there are a range of entirely predictable mistakes that can emerge in child protection decision making that we have to guard against.

MS BENNETT:  And do I understand from your evidence that it is a risk that arises in more   in faster decision making, decision making that has to be made under time pressure?

MR COUTTS TROTTER:  Time pressure is one aspect of pressure.  Probably more importantly is the risk that is felt by child protection practitioners when they are making decisions about children's safety and wellbeing.  Child protection systems are characterised by fear, fear amongst staff, and fear among the families we work with.

MS BENNETT:  All right.  So how many staff roughly work in the frontline of child protection in your agency?

MR COUTTS TROTTER:  We have 2,333 child protection practitioners, caseworkers.  We have a range of other staff who work in support of those professionals.

MS BENNETT:  And how many of those 2,333 are First Nations People?

MR COUTTS TROTTER:  9.3% of child protection casework work force identify as First Nations People, when they are formally asked as part of the process of recording information with us as an employer.  That is their employment.

MS BENNETT:  In child protection, First Nations People make up a higher percentage of your client base than that, don't they?

MR COUTTS TROTTER:  Significantly higher.

MS BENNETT:  Yes.  Are you taking steps to try to increase the representation of  
First Nations People among your caseworkers?

MR COUTTS TROTTER:  Yes, we are.

MS BENNETT:  What are those steps?

MR COUTTS TROTTER:  We   I can give an example of a few.  We have Aboriginal cadet programs, we have internship programs, we run a very local recruitment campaign through social media outlets, Aboriginal media outlets.  We have a range of community Elders and authority figures who are prepared to be a point of contact for First Nations applicants who are thinking about coming to work the organisation.  We use the workplace experience of Aboriginal colleagues in a range of social media materials.  So there are a wide range of things that we seek to do to explain the nature of child protection work in the organisation, and give Aboriginal people confidence about becoming supports that they will enjoy if they come and work with us.

MS BENNETT:  All right --- I should also add --- sorry.

MS BENNETT:  No, please go ahead.

CHAIR:  Go ahead, Mr Coutts Trotter, if you want to, please do.

MR COUTTS TROTTER:  Thank you, Ms Bennett.

Commissioner, you raised a question yesterday about our Queensland colleagues and the requirement for be applicants for child protection roles to hold tertiary qualifications.  While we value tertiary qualifications, they are not required for Aboriginal applicants who come with a whole range of other capabilities that are entirely relevant to the work.

CHAIR:  Mr Coutts Trotter, you mentioned that the staff as well as clients operate in a climate of fear.  What is the fear of the staff?

MR COUTTS TROTTER:  The fear for staff is that they will do something or fail to do something that will in some way contribute to a child being seriously hurt or killed.  That is a real fear for child protection practitioners that we have to recognise in our work and think about how we enable people to feel that the organisation is sharing that risk with them, and enable them to lower levels of anxiety, and make better decisions for children and families.

CHAIR:  I imagine that part of the fear would be what happened if something goes wrong as far as the media is concerned?

MR COUTTS TROTTER:  Indeed, Commissioner.  There is a very famous case of a high profile child death in England, Baby P, and following Baby P's death there was a media coverage about the role of child protection staff in that case, and the rate in  
which children came into care in England was up by 50%, following that.  So that was a reaction of child protection staff to that fear, that sense of risk.

CHAIR:  I do not think you have to go to England to see the responses of the media where child protection processes break down, do you?

MR COUTTS TROTTER:  No, indeed.

MS BENNETT:  What about the other side of that fear equation, Mr Coutts Trotter?  Is there fear on the part of the families when it comes to child protection involvement?

MR COUTTS TROTTER:  Yes, absolutely.  We are described in many Aboriginal ---

MS BENNETT:  Sorry, a difficulty with the slight delay.

What do you understand to be the nature of that fear that families feel in relation to child protection involvement?

MR COUTTS TROTTER:  The fear they will take their children for no good reason, and they have historical grounds to hold that fear.  Our organisation is still known by older Aboriginal people, particularly older Aboriginal women as (inaudible), and we have a history of implementing policies to remove Aboriginal children because they were Aboriginal, and that is their history.

So we have to understand that, and we have to work very hard to assure people that our practices have changed.

MS BENNETT:  All right.  In your statement you talk about the ways in which your practices have changed, and you say that the latest data has shown   and I'm going to paragraph 53 of your statement now   you say that:

..... the latest data has shown that 33 per cent fewer [First Nations] children entered [out of home care] in 2019 20 compared to 2015 16.

The same (inaudible) sought to demonstrate that the Department (inaudible) to address the over representation of Aboriginal children in out of home care, that's your evidence as I understand that, is that fair?

MR COUTTS TROTTER:  Yes, Ms Bennett.

MS BENNETT:  So you are extrapolating from the data in 2015 16, showing a lower number are First Nations children in child protection at 2019 2020, you are noting the reduction and attributing that to successful intervention by your Department for First Nations children.  Is that your evidence?

 
MR COUTTS TROTTER:  My evidence is that it is a result of what the Aboriginal community --- and examining our own practice.  We have changed our practice in ways that mean we are better able to work to support families, Aboriginal families, to enable their children to stay safe at home.

MS BENNETT:  So is it your understanding that First Nations representation has decreased over that time in the child protection system?

MR COUTTS TROTTER:  No.  What I'm recording here is the number of children who   Aboriginal children, First Nations children   that we assumed into care.  And that number has fallen year by year since 2015 16.  But the total number of children assumed into care has fallen, and for non Aboriginal children, that reduction, some 42%, is a larger reduction than the reduction for Aboriginal children.  So     (overspeaking) --- yes.

MS BENNETT:  So as I understand it, and there is an infographic that shows this at document DRC.0011.0006.0001, that there is a 42% reduction in all children ---

CHAIR:  Do you want that brought up on the screen?

MR COUTTS TROTTER:  Yes, thank you, Commissioner.

MS BENNETT:  So as I understand it, the first dot point on the right hand side says there has been a 42% reduction in all children and young people entering out of home care, that is what OOHC stands for, in NSW?

MR COUTTS TROTTER:  Yes.

MS BENNETT:  Then the second dot point tells us there has been a less significant reduction for First Nations children, and that is at 35%.  So there has been a 35% reduction over that period.  Is that right?

MR COUTTS TROTTER:  And that of course refers to a period finishing in 2018 19, but yes, that is correct.

MS BENNETT:  Okay.  But what I would like to understand from this graph, if the operator could return to the graph   is, first of all, let me test this with you Mr Coutts Trotter.  Does that suggest that whatever intervention goes you are doing to decrease entry to out of home care is working more for non First Nations children than it is for First Nations children?

MR COUTTS TROTTER:  It is evident that it has had that effect.  Understanding why it has had that effect is an open question.  But I have not answered that.

MS BENNETT:  Yes.  So it is not   oh well, let me understand this graph as well.  So we understand that the bar shows the total number of children entering out of home care in each year.
 

MR COUTTS TROTTER:  Yes.

MS BENNETT:  So you will see that the graph, the bar reduces each year over the period that we are talking about.

MR COUTTS TROTTER:  Yes.

MS BENNETT:  Now, the lower line, the orange line shows First Nations children and the blue line, the top line, shows non First Nations children.

MR COUTTS TROTTER:  Yes.

MS BENNETT:  Now, those two lines are coming closer together.  Is that your observation, Mr Coutts Trotter?

MR COUTTS TROTTER:  Yes.

MS BENNETT:  So, in the first bar we have First Nations children are 1,418 out of the total of 3,886.  Do you see that?

MR COUTTS TROTTER:  Yes.

MS BENNETT:  Then the following year they make up a greater proportion, which is 1,133 from the total of 2,969.  Do you see that?

MR COUTTS TROTTER:  Yes, I do.

MS BENNETT:  So on my maths we have gone from 36.5% of the total of First Nations children, to, now, 38.2% of First Nations children.  I will not ask you to do the maths on the run, but you agree based on the raw figures that that proportion is increasing?

MR COUTTS TROTTER:  Yes.

MS BENNETT:  Now, as I see it, it dips the following year because the total number reduces significantly, so we are now down to 2,157 as the total number, but the number of First Nations children is 817, so that is a slight reduction as a total of the whole.  Is that fair?

MR COUTTS TROTTER:  Yes.

MS BENNETT:  And in the final year we have this data for, it increases again, so now we have First Nations children who are 928 out of the 2,265, now making up 41%.  Of the total population?

MR COUTTS TROTTER:  Yes.
 

MS BENNETT:  So we go from 2015 16, at 36.5%, to now being 41% of the total entering out of home care.  I would suggest to you that that is an upward trend of First Nations children entering out of home care.

MR COUTTS TROTTER:  Yes, of course.  But of course as far as those children's families are concerned, we are able to work more successfully with more families to enable more Aboriginal children (inaudible) with their family again, so your observation is correct and it is something that concerns   is a concern for us, but the overall trend is a reduction in the number of Indigenous children coming into care, which is reason for hope.

MS BENNETT:  Yes, but as a proportion of the whole entering care, it is increasing, and you agree with me that that is a matter of concern?

MR COUTTS TROTTER:  Yes.

CHAIR:  Ms Bennett, I think we can all agree that the percentage in 20015 16 was 36% and has gone up to 41%, they are the maths, so let us proceed on that basis, I do not think we need to interrogate.

MS BENNETT:  No, I was --- Mr Coutts Trotter, my understanding of your evidence is that the 33% reduction of the total represents a successful implementation of First Nations policy, and I would like to understand if that is   if that is as straightforward a proposition as it might appear.

The second element to that really relates to the number of First Nations children in out of home care as a proportion of the total.  So that is a different question.  I was asking you before about entry into out of home care, and I now would like to under the population of children in out of home care.

Now that, as I understand it, is also trending up, is that your understanding?

MR COUTTS TROTTER:  Yes, it is.  The overall population of children in care has fallen, but it has fallen again more markedly for non Aboriginal children than it has for Aboriginal children.

MS BENNETT:  Yes.  So does that suggest to you, Mr Coutts Trotter, that the interventions that you have put in place are working less effectively for First Nations children than they are for non First Nations children?

MR COUTTS TROTTER:  It could.  It could suggest that.

MS BENNETT:  Yes.  What is your Department doing to understand whether that is the case or not?

MR COUTTS TROTTER:  So we have a range of evaluations underway of  
relatively recent interventions, new programs of one kind or another, and in every case we are looking to understand whether the outcomes for Aboriginal children and families are different to those for non Aboriginal children and families, and if possible, to draw some insights about why that might be the case.

MS BENNETT:  And are you able to tell the Royal Commission about any of the insights that you have gleaned from your investigations to date, about why this graph is trending upward?

MR COUTTS TROTTER:  No.  None of the evaluations are finalised yet, Ms Bennett.  The ones that I'm referring to.

MS BENNETT:  And when do you expect them to be finalised?

MR COUTTS TROTTER:  There are quite a number that will be finalised in the next 18 to 24 months.

MS BENNETT:  All right.  In the meantime, is it your expectation that that upward trend will continue?

MR COUTTS TROTTER:  Based on what is now a trend over five years of an overall reduction in the number of children coming into care in NSW, a very significant reduction but a more marked reduction among non Aboriginal children, it would be   I would conclude looking at that trend, that it is precisely that, a trend that is likely to continue, which means that this measure of over representation needs to be further grappled with.

MS BENNETT:  Yes, thank you.  I had one further question that only tangentially relates to this 33% figure, and that is, there have been recent changes, as I understand it, to make it easier for permanent care arrangements to be put in place.  Is that right?

MR COUTTS TROTTER:  To clarify that, are you asking about guardianship?

MS BENNETT:  Yes.

MR COUTTS TROTTER:  Or adoption?

MS BENNETT:  Yes.  I'm asking about adoption and permanent care of children from the child protection system, who leave out of home care for permanent placements with people who are not their family of origin.

MR COUTTS TROTTER:  No indeed.  In NSW the policy legislation establishes a hierarchy, the first objective of our work is to preserve children safely at home.  Second, to   if they cannot stay safely at home, the placement of extended family, then seek to restore them home.  If that is not a feasible option, then we would seek guardianship with their extended family.  I mentioned non Aboriginal children: we would seek open adoption, but for Aboriginal children, adoption is the least preferred  
permanency outcome.  We would seek first to establish long term foster care for Aboriginal children before we would consider adoption.

MS BENNETT:  All right, so ---

CHAIR:  Mr Coutts Trotter, can I ask, please, what are the drivers in your view of the reduction of children going into out of home care?  The figures are quite striking on their face; a reduction from 3,700 or 800, depending upon my eyesight, down to 3,200 or thereabouts.  What are the drivers?

MR COUTTS TROTTER:  Thank you, Commissioner.  I think first and foremost is the establishment of our Child Protection Practice Framework in NSW, my colleague Kate Alexander, it's under her leadership, which has changed the culture of the organisation and changed the ways in which we make decisions affecting families.  In more recent periods there has been an expansion of evidence based family support services that we have put in play in many parts of the State.  And at the same time, I actually think the creation of a Department that better integrates child protection with housing and particularly social housing and other forms of housing assistance has given us a few more ways in which we can provide families with a stable and safe home, that is an absolutely necessary precondition for children to thrive.

CHAIR:  So may we take it, then, that the reduction in the number of children going into out of home care reflects an increase in the number of children who have remained within their families who otherwise would have gone into out of home care?  Is that your understanding of how this has worked out over the last four or five years?

MR COUTTS TROTTER:  That is absolutely correct, Commissioner, and the data demonstrates that.  Year on year we are witnessing more children and families, and yet the rate at which those children come into care has fallen quite dramatically.  So now if we work with the family, the least likely thing we are going to do is bring a child into care.

CHAIR:  And has there been in increase in the average duration of the time spent in out of home care for those children who are entering out of home care?

MR COUTTS TROTTER:  No.  No, there hasn't been, and we would hope that the average duration of the time the children spend in out of home care would actually reduce.  One, because we know that restoration has to be pursued with urgency and successful restoration --- 60% of successful restorations happen within the first 12 months.  And we know we cannot leave children drifting in care; they need to have a permanency goal, a clear goal of a permanent, safe and loving family, and that needs to be established reasonably quickly.

CHAIR:  Thank you.

MS BENNETT:  Thank you, Chair.
 

Mr Coutts Trotter, while we are talking about data, can I see if I understand some of the data capture processes within your Department.

I think you tell us at around paragraph 33 that when a profile is created for a person, it must specify whether the person identifies as First Nations.  Is that right?

MR COUTTS TROTTER:  Can I just check the paragraph number, Ms Bennett?

MS BENNETT:  Yes.  Probably less critical, but yes.

MR COUTTS TROTTER:  I'm sorry.

MS BENNETT:  Your first statement, I think.

MR COUTTS TROTTER:  Yes, thank you.  Paragraph?

MS BENNETT:  33.

MR COUTTS TROTTER:  Thank you.

MS BENNETT:  Yes.

MR COUTTS TROTTER:  Yes.  Yes.

MS BENNETT:  And that is the way that First Nations status is captured by your Department?

MR COUTTS TROTTER:  Yes.

MS BENNETT:  Do you have any other inputs from any other Departments around that question?

MR COUTTS TROTTER:  To establish Indigenous status, we would seek information from a range of sources.  Of course, first and for foremost, a child's family or community or extended family but also from information held by other Government agencies, particularly the Department of Health, the Department of Education, but the NSW Police in exchange of information under Section 16A of the Childcare and Protection Act.

MS BENNETT:  And that includes as to First Nations status?

MR COUTTS TROTTER:  It does.  It is a fundamentally important piece of information about a child and their family.

MS BENNETT:  Just so I'm clear, if someone in the Department of Education enrols a child and records their First Nations status,that will end up in your system?
 

MR COUTTS TROTTER:  We would be aware of that information and we would use it to seek clarification with the child or young person of that family.

MS BENNETT:  Yes, I understand that.  What about disability status?  As I understand it, your statement at paragraph 39 tells us that that is an optional field when you are creating a profile.

MR COUTTS TROTTER:  Yes, it is.

MS BENNETT:  So that can be left blank?

MR COUTTS TROTTER:  Yes, it can be.

MS BENNETT:  And so do you keep reliable data about the disability status of children in your system?

MR COUTTS TROTTER:  No, I could not describe it as wholly reliable, and I would observe that we need to make that a mandatory aspect of identity that we record about someone, or that status about someone.

MS BENNETT:  And what about the caring?  Is the same true of the parents for whom you make a profile in your system?

MR COUTTS TROTTER:  No.  We have very inconsistent and therefore poor information about the disability status of parents.

MS BENNETT:  Why do you think it is important to have that information?

MR COUTTS TROTTER:  Because in a child perspective, child protection perspective, there may be   it is particularly depending on the nature of disability, but obviously as we have heard in evidence before the Commission, issues of communication and clarity and communication, sharing understanding is really important in child protection work.  It is something that is relevant to understanding the supports a person needs in order to be a protective parent.

MS BENNETT:  I would like to just ask you about those supports.  What role does your Department play in providing supports for parents with a disability that are engaged with your system?

MR COUTTS TROTTER:  Firstly, we should in the language of the (inaudible) Convention, make a reasonable adjustment to enable a person with disability to fairly access our service, and that is often around communication but not always around communication.  And then our first aim, as I say, in child protection is safely preserve children with their family.  If the family has one or more parents or carers with disability and that disability in some way affects their parenting, that is something we need to know and understand so that we can think about the supports  
that can be made available either from universal service systems, or from services that we fund to provide those kinds of supports.

MS BENNETT:  Now I'm interested that you use the phrase "reasonable adjustment".  That is language from the Disability Discrimination Act.

MR COUTTS TROTTER:  Yes.

MS BENNETT:  Does your Department operate on the basis that it is bound by that Act in its interaction with parents?

MR COUTTS TROTTER:  We completely accept the concept that the language used in our materials, and I think the Commission has some tendered in evidence, for example, our practice guidelines on working with parents with disability does not use that language, but it speaks to exactly the same concept, which is not to make assumptions about a person's disability, not to make assumptions about how they feel about it or how it affects them in their experience or in their capacities or abilities but rather to be curious and ask questions about that.  But that guidance to our caseworkers does exclusively fall out; we need to ensure that our communication is clear and understood and obviously when we are working with families, as you have heard, there is often very heightened anxiety on behalf of the parents we are working with.  So that of itself means that communication has to be very purposeful.

MS BENNETT:  That anxiety is likely to be heightened among a First Nations population with the history of dispossession you described at the start of your evidence, is that fair?

MR COUTTS TROTTER:  Yes, absolutely.

MS BENNETT:  And so the confluence of those two factors, is that something that your officers take into account?

MR COUTTS TROTTER:  I would hope that they would, and the leadership of senior practitioner training and support materials, the methods by which we make decisions, all seek to ensure that that interaction is understood.  I do not want to operate  as a deficit, but  interaction between Aboriginality and disability is something that presents as an impediment or a challenge to people.

MS BENNETT:  Well, is there a tension between the decision making process in child protection which identifies mental health problems as triggers for potential risk, and that attitude?

MR COUTTS TROTTER:  Not when the practice is well delivered, no.  I don't think so.

MS BENNETT:  I would like to ask you a little bit about that.  At paragraph 66 of your statement, you talk about risk factors that are taken into account in decision  
making.

MR COUTTS TROTTER:  Yes.

MS BENNETT:  So you say:

During screening of concerns reported to the Child Protection Helpline, questions are asked about potential risk factors ....

Just to pause there for a moment, Mr Coutts Trotter, I want to place this in context.  As I understand it, this is at the screening stage so no notification has yet been substantiated; this is a call into the Department to raise a concern.  Is that fair?

MR COUTTS TROTTER:  Yes.

MS BENNETT:  And it can come from anyone?  It can come from a neighbour, a police officer, a teacher, someone at the local hospital?  Is that right?

MR COUTTS TROTTER:  75% of our reports come from police, education and health, and indeed (inaudible).

MS BENNETT:  Was there anyone in that list that I just rattled off that could not make a notification of this kind?

MR COUTTS TROTTER:  No, anyone can make a notification.

MS BENNETT:  Anyone?

MR COUTTS TROTTER:  Yes.

MS BENNETT:  I understand.  The person who takes the screening call, as I understand your evidence at paragraph 66, the Child Protection Helpline will ask questions about parental risk factors.  The first one you identify is a mental health problem, or a diagnosed mental illness that interferes with their daily functioning.

Mr Coutts Trotter, what is the difference between a mental health problem and a diagnosed mental illness?

MR COUTTS TROTTER:  I might refer to my colleague Kate Alexander, my understanding is that the information will be confirmed from, for example, Health, that confirms the diagnosis, the mental health problem, might be an assessment of a mandatory reporter but it is not confirmed in information that we are able to source from the Department of Health.

MS BENNETT:  Is it a tentative conclusion or does it range beyond what could be a mental illness?  So let me put that another way.  Depression is a recognised mental illness and it can be diagnosed.  That is right?
 

MR COUTTS TROTTER:  Yes.

MS BENNETT:  Does "mental health problem" refer to a suspicion that someone has depression, or does it refer to an undefined other kind of mental health problem?

MR COUTTS TROTTER:  No.  If you don't mind, Ms Bennett, I'm not sure, so I would turn to my colleague Kate Alexander, if that's okay.

MS ALEXANDER:  The thing that is very important for our workers when they are assessing risk and safety for children is that they rely on very firmly, and the Structured Decision Making (SDM) manual you referred to yesterday do have very clear definitions about mental health.  What they encourage our workers to do, they very clearly state, that if a primary carer has never been diagnosed but appears to have or has had a mental health problem, consider training and assessment prior to scoring.

So it is very important that our workers rely on definitions in practice when they are applying these tools.  If a parent themselves tells them they have had a mental health problem or if our records in the past indicate knowledge of that, then we would encourage our workers not to score that as a mental health problem, but to seek a professional assessment.

MS BENNETT:  Well, my question is what is a mental health problem?

MS ALEXANDER:  So if we   I'm referring to the SDM manual that is in our evidence.

MS BENNETT:  You may need to be more specific.

MS ALEXANDER:  The safety risk and reassessment one, I'm referring to that at the moment.

MS BENNETT:  Okay, well, that is in a different folder.

MR COUTTS TROTTER:  Our apologies.

MS BENNETT:  Well, why don’t you take me to the definition of "mental health problem"?

MS ALEXANDER:  Okay, so at M7 and it asks our workforce to mark if a professional --- primary parent, carer, mental health professional, qualified to do so, has diagnosed the primary carer with a mental health condition other than substance related disorders, or the primary parent has had multiple reports for mental health, psychological evaluation, treatment or hospitalisation.

MS BENNETT:  So, not trying to be difficult, but I still do not know if mental health  
problem is something that must be capable of diagnosis or if it is something else.

MS ALEXANDER:  It is something we are encouraging people not   we do not want child protection workers putting a label on parents as having a mental health problem.  That is what we have been doing.

MS BENNETT:  Isn't that what you are doing?  You are making the identification of a mental health problem the trigger for consideration for that person's parenting capacity, aren't you?

MS ALEXANDER:  In the Safety Assessment Tool, mental health is one of the dangers that would be   that we would ask people to consider.  And that is because   that is because of the evidence behind that tool, and so our workforce would be asked to consider whether there was a mental health problem.  What I'm saying is that we are really encouraging that they do not have the qualifications to diagnose or label the parent as having a mental health problem themselves.

CHAIR:  Ms Bennett, I wonder if you wouldn't mind either you or Ms Alexander identifying the document you are talking about.  I'm trying to find it at the moment.  I am having some difficulty.

MS BENNETT:  I'm having the same difficulty, Chair.

Perhaps there should be a document ID on the top right hand corner of the document you are looking at.

CHAIR:  What is the title of the document?

MS ALEXANDER:  It is the document, Ms Bennett, that you referred to yesterday, it is the Structured Decision Making, Safety, Risk and Risk Reassessment, Policy And Procedures Manual, August 2012.

MS BENNETT:  They are   it uses versions of a similar tool.  They are not identical documents.

Sir, it might be a convenient time in any event to have a 10 minute break for afternoon tea.

MS ALEXANDER:  We have a number here, if that helps?

MS BENNETT:  I will just   if that is a convenient time, Chair, perhaps we could have a 10 minute break and I will organise the documents.

CHAIR:  Are we talking about the Policy and Procedures Manual, Restoration Assessment?

MS ALEXANDER:  Not restoration, safety risk and risk reassessment.  We do have  
a number if that would help?

CHAIR:  Yes, please give us the number, that might help.  Thank you.

MS ALEXANDER:  0030.0015.0001.

CHAIR:  All right.

Ms Bennett, if you want to have a short break in order to locate the document, we can do that.

MS BENNETT:  Thank you, Chair.  That would be convenient if 10 minutes is appropriate?

CHAIR:  Not especially, but we will do it anyway.

All right, we will take a 10 minute break.

ADJOURNED    [3.27 PM]

RESUMED    [3.37 PM]

CHAIR:  Yes, Ms Bennett.

MS BENNETT:  I understood Commissioner Atkinson had a question, Chair?

CHAIR:  Yes.

COMMISSIONER ATKINSON:  And particularly you, Mr Coutts Trotter, is this   you mentioned, at the beginning of your evidence, fear.  And we talked a little about the fear that is felt by child protection workers because of the fear of a child being harmed or dying.  And we also talked about the political and media consequences of that.  But I want to just ask you about the other fear, the fear of parents.  I spent 20 years, until very recently as a judge in the Supreme Court of Queensland, and I sat on a number of trials and sentencing hearings where a child had died because of the act of a parent or neglect to seek treatment by a parent.  Almost invariably, and I can't think of a single case where this wasn't true, that parents had articulated that fear of having the child removed was the reason, or a reason, a significant reason, why that parent had not sought treatment or assistance for that child.

This of course is exacerbated when there is more than one reason to fear, for example, the person has First Nations status, or has a disability such as a psychosocial disability.  So what steps has your Department taken to deal with that  
fear held by parents?  You talked about the justified fear felt by First Nations People because of policies of child removal in the past.  But I'm talking about a fear that is felt and articulated in this day and age by parents who fear having their child removed, and even when it has consequences that the child has died?

MR COUTTS TROTTER:  Thank you, Commissioner.  Um, I think my response to that is to deliver our child protection practice in the ways that we plan to, and that involves open and respectful communication with parents, and an appreciation that there are a whole range of fears that they may hold about our involvement.  And for us to be honest about that, and to plan our interactions with families with that in mind.

MS ALEXANDER:  Sorry, we did not hear that question.

COMMISSIONER ATKINSON:  I said, is that the extent of it?

MR COUTTS TROTTER:  Well ---

COMMISSIONER ATKINSON:  That fear?

MS ALEXANDER:  Look, it is an excellent question, Commissioner, and if you like, it is probably the biggest challenge facing Child Protection Services.  We know that if we are going to do our job of keeping children safe, we need to work with their parents, and we need to do everything we can to help parents trust and confide in the system, because the more information we can gather from parents, the better job we can do of assessing cases.

Wehave done it in three ways, we have tried to work on the cultural practice, and change the way around the practice and the way it is delivered, and we have done everything we can to change the skills of our workforce.  So when I talk about  culture, I'm talking about the way parents are understood (audio distorted) pr --- with 80 officers across NSW, and how we get out to those officers and help them keep the cultural practice alive is very important.

With such a diverse workforce, we brought in a practice framework with principles to unite the culture of our workforce.  We have had many, many years of a lot of rules and tools and policies that weren't doing the trick.  But we went for principles, and the first principle is that one that acknowledges that culture is ever present, and it really pushes our workforce to understanding the practice of the Stolen Generation and lead with that in their thinking always when we work with Aboriginal families.

So that is an example of culture through how we have changed our practice culture through our principles.  There is other --- we have changed the language, we have got rid of alienating language, acronyms and jargon that distance us from the families, and with children.  We have pushed very hard to change our relationship focus.  We know, across all child protection evidence, the single most important ingredient to keeping children safe is the quality of relationships formed between the worker and  
the family, way  above the rules and the tools.

So we have worked to impact on the relationships.  We have worked to bring in what we call a culture of critique where we are very good at looking at the impact of our own practice and we are really pushing our workforce to think about the impact of the power that they hold and how they use their power.  We drill that into our staff in their first week.  Their first week in the caseworker development course is a week about human rights.  And in that very first week we ask them to talk about their own personal biases with the assumptions they bring to their work.

Our last principle, the fifth principle, is about ethics, and how ethics and values are critically important to our work.  Ethics in its shades of grey is something we are encouraging our staff to talk about all the time.

So it is putting themselves in with the families and seeing the person who knocks on the door, as their job to come back a second time.

That is about upholding people's dignity and working with compassion and curiosity, and it is incredibly important we do that, given the past legacy of our system, and the very real fear you talk about.

The issue about skills is really important, because when Michael spoke earlier about an anxious child protection workforce, we know the anxiety of the workforce is heightened when people are not skilled.  They are more likely to react with anxiety toward a parent who might be very angry with us because they are frightened, because they do not want to work with us.  What can happen is a parent's fear will manifest in a way that may come across as angry, and our workforce might then react with anxiety in response to that.  We know that taps into an unconscious bias that workers who feel anxious will attribute there is a level of danger to the child that may or may not exist.  So the more skilful our people, the more we can increase skills, the better we will be at decreasing anxiety.  So skill development means that in their 16 week caseworker development course, they have to do role plays, they have to have their practice watched.  They have to get very good at coping with people who are upset or frightened, and they are really forced to put themselves into people's shoes working with them.

The last thing quickly to talk about is the structures we have put around practice.  So that is group supervision.  No longer in NSW do we make decisions about children that change the course of their lives, no longer do we make those decisions in isolation.  Decisions are made in group with other professionals present, and we have a very structured way of using group.

We also have raised the delegation of removal decisions for Aboriginal children.  So Aboriginal children cannot be assumed into care without the approval of a senior leader in the, what we call our director community person, the highest child protection leader for the district.

 
So that is just an example of the structures we put around our decision making that we think are very important to (inaudible).

COMMISSIONER ATKINSON:  Have you been able to evaluate whether or not this has made a difference to the fear felt by parents?

MS ALEXANDER:  Certainly.  We have done an evaluation of the early implementation of our practice framework.  And the evaluation we are just starting now, our mid term evaluations include seeking perspectives of children and parents.  It matters that we ask them how they experience our practice, and that we listen to them.  So that is what our current evaluation is doing.

COMMISSIONER ATKINSON:  Evaluation is underway but not yet complete, is that right?

MS ALEXANDER:  No, we did do an earlier evaluation of the framework that has shown some very positive results.  The issue is, as Michael referred to, the framework is one part of our reform. So it is   some of the results could be to do with other things we have done in concert with it, like the introduction of Family Group Conferencing like the Permanency Program, the permanency support workers put in place.  There has been a host of reforms over the last five years, so it is sometimes difficult to piece out which bit might be leading to success.  But certainly the early indicators are the framework is making a difference in practice.

COMMISSIONER ATKINSON:  Sorry, my question very specifically was have you done an evaluation of the effect on parents of fear of the Department?

MR COUTTS TROTTER:  No.

MS ALEXANDER:  No.

COMMISSIONER ATKINSON:  Right, I thought it was important because it was one of the first things that Mr Coutts Trotter mentioned.

Would you intend to evaluate that?

MS ALEXANDER:  Yes, I think that the way we will do that through our evaluation of the framework and through the application of our practice standards is that they prompt our staff to ask parents and children for feedback all the way along.  And that questions about is there things we can do differently, how do you find, what is it like for you when we work with you?  Do you feel heard by us?  Do you understand why we have come to visit you today?

We have built all of those questions into our standards.  So that is evaluation at a very local level that guides a practitioner daily.  The evaluation of the framework, as I mentioned before, we will be asking parents how they experience us, and whether they experience fear or anxiety working with us would be a part of it.
 

COMMISSIONER ATKINSON:  All right.  I think I'm talking about people who fear coming into contact with child workers, they are not actually people you have come in contact with.  You do not have any public programs to deal with that kind of fear, which, in my experience, has led to the death of children?

MS ALEXANDER:  I suppose what I would say about that is the more confidence the sector holds us in, the more likely they are to encourage families to work with us.  And the more confident we are at working with the sector and working with advocates, I think the better we will do on that subject of getting those people who are afraid of us.

COMMISSIONER ATKINSON:  All right.

Thank you very much, Ms Bennett, for allowing me that opportunity to ask those questions, something that has concerned me for some years.  Thank you.

MS BENNETT:  Very pleased, Commissioner.

You were just speaking a moment ago, before we return to structured decision making you were talking about your workforce, and I wanted to pick up on something you said there, that your workforce goes through a 17 week training program, that is right?

MS ALEXANDER:  Yes.

MS BENNETT:  What is the turnover like of staff?

MR COUTTS TROTTER:  From memory, Ms Bennett, the turnover of our child protection staff currently runs at about 11% each year on average.

MS BENNETT:  Is that   so 1 in 10 resign each year or you add 1 in 10 people?

MR COUTTS TROTTER:  So on average, a person will spend nine years with us before leaving.

MS BENNETT:  I see.  When did you commence your 17 week training program?

MS ALEXANDER:  We have been running that training program for years, but on the 20 July this year we commenced a brand new one.  We completely overhauled the program.

MS BENNETT:  I see.  So at this stage that is still in the process of working through your workforce?

MS ALEXANDER:  Yes, we start a course every second week.

 
MS BENNETT:  I see.  Okay.  We were discussing one of the structured decision making tools, and I was asking you about a question of mental health or mental health problems and if the operator could find NSW.0030.0015.0042, I think that is the part of the tool you were going to.

If I could ask the operator to highlight N7, that shows, as I understand it, this part directs the decision maker to mark a "1" if either there has been a diagnosis, which is tab 1, that's bullet point 1, and I take it the second bullet point is an "or", that is an alternative, there have been multiple reports for mental health, psychological evaluations, treatment or hospitalisation, and it follows to explain that if the primary parent or carer has never been diagnosed but appears to have or have had a mental health problem, consider obtaining an assessment prior to scoring.

Then, this warning:

Do not count reports motivated solely by efforts to undermine the credibility of primary carer or parent or other ulterior motives.

So is it fair to say a person can score a 1 on that measure without a mental health diagnosis and without an assessment?

MS ALEXANDER:  I would hope not.

MS BENNETT:  My question is a bit more specific than that.  It would be permitted, by this direction, to mark with a "1" without a diagnosis or an assessment.  Is that right?

MS ALEXANDER:  When you are referring to where you mark 1, you are referring in the same document at page 36, which is our risk assessment    

MS BENNETT:  If the operator could show NSW.0030.0015.0038.

MS ALEXANDER:  This is at N7?

MS BENNETT:  Yes.  This is the heading for neglect.  This is an assessment of abuse or neglect and you will score a 1 if there are past or current problems, and you will score a zero if there are no problems.  That is what your decision maker is confronted with.  They read that entry in combination with the direction that we were just considering, and as I understand it, your decision maker would be free to mark a 1 in the absence of a diagnosis.  Is that right?

MS ALEXANDER:  No.  What is very important is the stage of the assessment we are referring to here.  So this process we are following now is at the risk assessment stage.  So that is the third stage in our process of assessing safety.  And that is important in how this information is gathered, because in the progression they would have been assessed by a different form on a Helpline, it would have been allocated to a local office and a safety assessment would have first been conducted.  The safety  
assessment determines dangers and protective capacities, and if needed, it would   in this instance, a risk assessment would follow.  So this is at the point of working with a family that would be about 30 days down the track of our involvement with the family, at which point we should know a lot of information.

What we would ask our workers to do is to apply the definition, so when they fill in N7 they are in practice, they look at their definition, and they would come to N7 definition, and the definition says that a professional is qualified, has diagnosed, or the parents themselves have had multiple mental health, and they are encouraged to speak before scoring.  And that is really important that they do that.

MS BENNETT:  It says, just to come back to the wording, consider an assessment if the person is not diagnosed.  They are not required to undertake one, are they?

MS ALEXANDER:  They could score that, but at that point in our process, with all of the supports around the inter case discussions and the seeking information from prescribed bodies, they really would have the information at hand.

MS BENNETT:  Just so I understand your evidence, they could score it a 1?

MS ALEXANDER:  They could score it a 1 without a diagnosis, but there is then a lot of prompts in the system that would tell them not to.

MS BENNETT:  Okay.  I had not seen anything that tells someone not to score someone without a diagnosis.  Can you take me to where it says "Do not score without a diagnosis"?

MS ALEXANDER:  Yes, I will just find a sentence that says "Do not score this unless you have had an assessment" quote, but I just have to find that sentence.  It is not jumping out at me.  I know the sentence.

MS BENNETT:  Perhaps you could take that on notice     (overspeaking)    

CHAIR:  Ms Bennett, can we just make sure we are having one person speak at a time, and so it may be better to allow the witness to finish and then you come in.

MS BENNETT:  May it please the Chair.

Are you content to take that question on notice?

MS ALEXANDER:  I am.  I just   it might be helpful if I could offer a quick example here.  What is commonly the case is we may receive reports where people who are not qualified to do so will tell us that they might say, for instance, the mother has a mental health problem.  A schoolteacher might tell us that.  And in the first stage of assessment at the point of screening, which is   that is just an allegation based tool, we would record the teacher's concerns about a mental health problem.  When we go to these stages we are talking about now, risk assessment, our  
job is to not rely on what other people have told us over time but to substantiate it by other professionals.

And I can reassure you with all of the work that goes around planning before they go out, our staff are very, very familiar with seeking assessments of qualified professionals.

MS BENNETT:  All right.  We will await your response on notice.  Would you agree with me that these tools treat mental illness as a risk factor, albeit in combination with other matters?

MS ALEXANDER:  Yes.

MS BENNETT:  And is there a potential for stigmatisation of people with mental health difficulties?

MS ALEXANDER:  Yes.

MS BENNETT:  And what are you doing to counter that potential stigma?

MS ALEXANDER:  A lot of the things that I referred to earlier in our training and in our practice framework and principles, the other point that is very important with our responsibility to protect children is that we constantly are asking our workforce to understand what is the child's experience.  So if we are worried about a parent's mental health, our worries will be about how it impacts on the child.

MS BENNETT:  Yes.

MS ALEXANDER:  We will do what we can to overcome stigma of the parents by doing everything we could to engage support people for them, and to talk with them and their support people openly about the best ways to work with their family, and the best ways to understand their condition.  But our primary focus would be the impact on the child.

MS BENNETT:  All right.  Mr Coutts Trotter, I would like to ask you about the Families Cultural Report which was provided in 2019, you refer to it at paragraph 21 of your statement.  Am I right to characterise that as a significant and recent review of First Nations children in out of home care?

MR COUTTS TROTTER:  It is   the report was delivered recently, it is a significant review.  It is a review of practice by and large in the 2015 2016 financial year.  It is a focus on over 1,000 Aboriginal children that went into care in that year.

MS BENNETT:  Yes.  We have today been provided with an interim report from your Government as to its   the status of its implementation and I want to see if I understand that status.  Your Government has   or your Department has not accepted all the recommendations of that report, is that right?
 

MR COUTTS TROTTER:  It's the Government position, Ms Bennett.  Yes, that is correct.

MS BENNETT:  All right.  So you have   as I understand it, there are 24 recommendations that have not been accepted from that report.  Is that right?

MR COUTTS TROTTER:  I would have to confirm that.  But I would need to confirm that on notice for you.

MS BENNETT:  Do you otherwise accept the findings and recommendations of that report?

MR COUTTS TROTTER:  Yes.  The Government's position in relation to them is set out both in my second statement and in the publication to which you refer.

MS BENNETT:  As I understand, that report recommends a number of amendments to the Children and Young Persons (Care and Protection) Act.

MR COUTTS TROTTER:  Yes, it does.

MS BENNETT:  Is it correct to understand that those recommendations will not be considered until 2023, 2024?

MR COUTTS TROTTER:  Yes, that is correct.

MS BENNETT:  Is there any reason they can't be considered now?

MR COUTTS TROTTER:  The view of the Government was that there were significant amendments made to the Care and Protection Act very recently, and the Government wanted to see the impact that those changes had before considering further major reviews of First Nations.

MS BENNETT:  Were those amendments directed to the care and protection of First Nations children?

MR COUTTS TROTTER:  They were directed to the care and protection of all children, but I'm sorry, I'm just trying to, remember whether there were any amendments that were particularly focused on First Nations children.  I don't think so.  I think they were general amendments affecting all children.

MS BENNETT:  And that the Family Culture report is specifically concerned with issues that directly affect the First Nations children in the child protection area.  Is that right?

MR COUTTS TROTTER:  Yes, it is.

 
MS BENNETT:  And so why not at least consider the recommendations being proposed by that report?

MR COUTTS TROTTER:  As I say, Ms Bennett, the Government took a major package of reforms through the Parliament and felt that it wanted to see the impact of those changes and changes in policies and practice in our agency before revisiting a major reform of the legislation, but it has given an undertaking to review the legislation in that timeframe.

MS BENNETT:  So those recommendations, will they be considered afresh in the three or four years, or will there be a fresh review then?

MR COUTTS TROTTER:  No, they will be considered as part of a review of the legislation at that point.  But all of the explicit recommendations that the Government has not rejected in relation to legislative change will be part of that review.

MS BENNETT:  I see.  Can I ask the operator to show you NSW.0030.0006.0001.  This is an Aboriginal Cultural Capability Framework that you refer to in your statement, Mr Coutts Trotter, the first statement at paragraph 17.

MR COUTTS TROTTER:  Yes.

MS BENNETT:  As I understand it, this is a document that is guiding your Department's movement towards better First Nations about cultural capability.  That is a fair description?

MR COUTTS TROTTER:  Yes.

MS BENNETT:  And it is marked 2017 to 2021, so I take it is a process that is going on in that period, and that is the period across which you expect this framework to be taking effect?

MR COUTTS TROTTER:  Yes.

MS BENNETT:  And here are the key domains, five domains down the left hand side: leadership, accountability, practice, relationships, and workforce.

MR COUTTS TROTTER:  Yes.

MS BENNETT:  For each of those domains you identify across the top, an emerging cultural awareness, developing capability and proficiency.

MR COUTTS TROTTER:  Yes.

MS BENNETT:  So am I to understand that cultural awareness is where your Department is understood to be beginning the process in 2017, and proficiency where  
it seeks to end up by the end of the process?  Is that right?

MR COUTTS TROTTER:  That would be our ambition, yes.

MS BENNETT:  And is this a process that you measure and test as you go?  So for example let's start with accountability the second box down.  It asks that leaders are aware of the importance of reporting to the Aboriginal community about the Department's performance.

MR COUTTS TROTTER:  Yes.

MS BENNETT:  Have you measured whether you are complying or if you are proficient, or emerging or developing in relation to that particular issue?

MR COUTTS TROTTER:  Ms Bennett, when we began the process, we had executive leaders self assessed where they thought they and their function was against these levels of competence, and we will certainly, at the very least, undertake that process of assessment again.  But there are some very specific things that have flowed from this that are very quantifiable that we would include in the process of assessment, and obviously, most importantly, we need to think about how we can seek the views of Aboriginal children, families, community and our Aboriginal colleagues in the Department.

MS BENNETT:  So is it a document against which you measure your progress?

MR COUTTS TROTTER:  It is a framework within which we measure our progress, yes.

MS BENNETT:  And so have you actually carried out any measures against this framework since 2017?

MR COUTTS TROTTER:  We have and do regularly survey Aboriginal staff, which is --- it is a structured survey but it also includes the opportunity to provide commentary about their experience of the workplace, and late last year, over the course of a number of months, we engaged with around 3,000 people in the organisation, including Aboriginal staff to assess our progress against some of these domains, and of course we have been structurally changed so that the scope of the Department now includes a whole range of other functions, particularly justice system functions, youth justice and corrections, and so we have established a group of leaders across the whole of the organisation to revisit this and think about its application to the whole of the Department against some important measures of outcome that we seek within --- for Aboriginal community.

MS BENNETT:  So Mr Coutts Trotter ---

MR COUTTS TROTTER:  Yes.

 
MS BENNETT:  I'm sorry, I did not mean to interrupt you.  I did wonder if perhaps I need to be clearer.  As I understand ---

MR COUTTS TROTTER:  No, sorry.

MS BENNETT:  --- this statement, it applies to your workforce?

MR COUTTS TROTTER:  Yes.

MS BENNETT:  And it is a guide for your workforce to move towards being better leaders, more be accountable and more culturally capable?

MR COUTTS TROTTER:  Yes.

MS BENNETT:  In the work that they do particularly, as it relates to First Nations People?

MR COUTTS TROTTER:  Yes.

MS BENNETT:  Is that right?

MR COUTTS TROTTER:  Yes.

MS BENNETT:  So with accountability, where are   where is your Department at the moment as against those four measures up on the screen?

MR COUTTS TROTTER:  We are --- sorry, can you explain what you mean by that?

MS BENNETT:  Well, as I understand it, you have identified     (overspeaking) ---

MR COUTTS TROTTER:  I see, I'm sorry.  I understand.

MS BENNETT:  So when you have proficient accountability, you will be held accountable through governance and contractual requirements and engage with Aboriginal community members about the Department's performance in improving outcomes for Aboriginal clients through targeted Aboriginal programs and services ---

MR COUTTS TROTTER:  Yes.

MS BENNETT: --- as opposed to the emerging status.

MR COUTTS TROTTER:  Yes.

MS BENNETT:  So where is your Department on accountability at the moment?

 
MR COUTTS TROTTER:  Oh, developing, at best.

MS BENNETT:  Yes, okay, and is that the result of a review?  Have you   do you measure yourself against this?

MR COUTTS TROTTER:  No, that is my assessment as the Secretary of the Department.

MS BENNETT:  Yes, and so what are the steps you need to take to move from developing to capable to proficient?

MR COUTTS TROTTER:  In the child protection sphere, implementing the Aboriginal Case Management Policy, further improving Aboriginal education, employment strategy.  Two key measures.  But they are focused on governance or process.  Um, there are a range of recommendations coming out the Family is Culture review that go to the Department's accountability.  Some of those are, as you mentioned, bound up in proposed legislative reforms, and of course there has been a significant appointment for creation of a deputy children's guardian with responsibility for Aboriginal children and families, with a specific role as a statutory   as a regulator of our department to hold it to account.

So there are a number of things that are happening, but the Aboriginal Case Management Policy being implemented in our districts is probably our next significant set of accountability to Aboriginal people and communities.

MS BENNETT:  So that is a document that   do you consult that document from time to time?

MR COUTTS TROTTER:  That document was created by AbSec, the recognised peak Aboriginal child and family organisation in NSW, and we continue to work with AbSec who find for its implementation within each of our 15 districts.

MS BENNETT:  Is it fair to say AbSec might have been not happy with the initial response to the Family Culture Report?  Is that correct?

MR COUTTS TROTTER:  Look, that would be my view, but of course you have Dana Clarke who is a witness before the Commission, so I should let her speak for herself.

MS BENNETT:  Is that a matter of concern for you?

MR COUTTS TROTTER:  Yes.  I would much prefer a closer relationship with Aboriginal peak organisations, and that is our objective.  We would like to strengthen, further strengthen those relationships.

MS BENNETT:  All right.  I would like to ask you a little bit about disability supports available to people in contact with your system, because I think it is  
important to understand exactly the way in which they are provided.  Does your Department involve itself with the provision of supports to children in care, where they need it because of their disability?

MR COUTTS TROTTER:  No.  We would fund those supports under contract with non Government partners.  Although, there could be specific examples within families where we are, through our child protection functions, working with family, and a family we are working with may need, as part of a family action plan, to have a vehicle modified to allow the family to transport children with disability to health services or education.

So there are specific small scale examples like that, but in terms of sort of more rounded disability service provision, we would be   we would be funding non Government organisations to provide that.

MS BENNETT:  And do you work at the Office of Senior Practitioner in relation to these issues?  I think you address this at paragraph 26 of your statement.

MR COUTTS TROTTER:  Thank you, Ms Bennett.

The question of building the capability of our workforce to understand and know where to go for specialist advice for specific health and services for a child or parent with disability, we have a function inside our department for the engagement and family support to be building the capability of our child protection workforce who help children in care who need access to the National Disability Insurance Scheme, or whose NDIS package is not meeting their needs or is not been effectively utilised.

So there is a lot of work at the moment to build the capability of our child protection practitioners to enable and better support children with disability in care or in contact with the child protection system, would be effectively referred into the National Disability Insurance Scheme.

MS BENNETT:  Where a parent has a disability that interferes with their parenting, is your office involved in providing them with supports to return them to the capacity to parent their children?

MR COUTTS TROTTER:  Yes.  We would   if the primary goal is usually to safely preserve a child in their family, but if a parent's disability is in some way affecting their functioning, in a way that affects their ability to protect and safely parent their children, then we would be looking for services in supports that could support the parent to build skills, or have other supports that enable them to effectively parent their children.

MS BENNETT:  One of the witnesses, Professor Higgins, I think --- Mr Higgins, I think, I called the kind of intervention goes provided in this context tertiary interventions.  He said that they are ---

 
MR COUTTS TROTTER:  Yes.

MS BENNETT:  --- provided at that point.  Would you agree with that assessment?  Are you providing tertiary interventions?

MR COUTTS TROTTER:  If it is a statutory child protection workforce involved, and we have an open case with the family and in our language, yes, that is tertiary intervention.  But we fund a range, 550 non Government organisations through our targeted early intervention program that provide parenting supports, community centres, community transport, a whole range of things that support children and families, including children and families with disability to   you know, greatly participate more in their local community and be more effectively supported.  And so it would not require a report to our child protection helpline screening them at risk of significant harm for people to access those services.  They are available to the community without reference from us.

MS BENNETT:  So there is early intervention support available before being screened into the Department, into child protection.  Is that right?

MR COUTTS TROTTER:  There is, and there are particular channels within health, education particularly, where they have child wellbeing units which are a source of advice for teachers, or health professionals who may have a concern about a child's safety or welfare.  Their task is to essentially triage those concerns, see if they meet the statutory threshold or not, and if they don't, think about how, within the healthcare system or the school system, some of the teacher or nurse or physician concerns pending that can be met within those universal service systems.

MS BENNETT:  And are those services talking to each other about the supports that this parent or family needs?

MR COUTTS TROTTER:  Yes, although there is room for improvement there     (overspeaking)    

MS BENNETT:  Where is there room for improvement there?

MR COUTTS TROTTER:  The room for improvement is understanding the context within which someone who is presenting with poor mental health, understanding the context of the rest of their life.  So it can be the case that healthcare systems view people as patients, they do not view them as parents as well.  And of course if they view them as parents as well they are thinking about the impact of someone's poor mental health on their functioning as a parent, and they will be thinking about other services or agencies that they may need to engage to enable that person to achieve both good mental health recovery, but also have issues dealt with that affect other members of the household or the family.

MS BENNETT:  And is it the case that there are some supports that are only available after a family is screened into the child protection system?
 

MR COUTTS TROTTER:  Yes.  Yes.  More intent --- more intensive family support services, particularly on clinical responses, for example, family therapy or family functional therapy.

MS BENNETT:  In the opening we heard from Grandmothers Against Removal who said once into the system --- they characterise it as a gate that only swings one way.  Once you are in the system, it is hard to get out.  Is that right as far as you would understand it?

MR COUTTS TROTTER:  No, because during the course of the year we work with, and then stop working with thousands of families who establish some goals for change within their family, they achieve those goals, and we no longer have any good reason to be involved in the family.

So that is actually the experience of the majority of people with whom we work.  As I say, the least likely response now from us is to assume a child into care.

MS BENNETT:  I mean within the child protection system, not necessarily removal.  I mean once you are in the system and being monitored by your officers, is it difficult to step away from the stream?

MR COUTTS TROTTER:  I'm not sure how to answer that.  I mean, we have a very well defined statutory role, if it is clear when it starts and it is clear when it finishes.  But what you are describing are the compounding effects of intergenerational trauma, poverty, mental health, drug and alcohol, family violence.  So they can be disadvantages that are difficult to change, and so we do see 38% of children reported to us stand to be at risk of significant harm, with whom we work, are re reported in the following year.  That is actually one of the key measures we use to determine whether our interventions are having an impact in enabling families to deal with the factors that create risks for children.

MS BENNETT:  Because isn't it the case that once you have   you are in the system for one purpose, you are at risk of further scrutiny the further issues being brought to the attention of the Department?

MR COUTTS TROTTER:  To the extent that you may have a family support service working with you in your home four days a week while you work to build aspects of your parenting, yes, there is a degree of scrutiny there which comes with that supporting contact.  But our aim, of course, is to enable people to live their own lives free of our involvement, and that is our primary objective.

MS BENNETT:  It really comes back to the fear point that I think you identified at the very beginning, doesn't it, that people don't necessarily perceive that supervision as benign, do they?

MR COUTTS TROTTER:  No.  That is absolutely correct.
 

MS BENNETT:  Yes, and that is --- you're working on how to change that understanding in the community?

MR COUTTS TROTTER:  Yes.

MS BENNETT:  Yes.

Those are the matters, Chair.  I note the time.  Those are the matters that I sought to take Mr Coutts Trotter to specifically today.

CHAIR:  Yes, thank you very much.  Commissioner Mason, do you have any questions?

COMMISSIONER MASON:  Thank you, Chair, I was forming a question around family support services, but I think that answer has been given in the last few minutes.  I'm really interested in this division of effort at the primary prevention area and the tertiary area.  And when family support services are done at the tertiary levels, our level --- how that still has a level of --- I won't use the word "stigma", or challenge within families, and at the primary level the effort, particularly by First Nations organisations, community controlled, member led organisations in providing primary support, targeted interventions, a significant intervention and investment for families would find themselves --- and individuals would find themselves coming into contact with the child protection system.  But I think that you covered that quite well a few minutes ago in your response, that that is necessary in both places, actually, and if it is needed, it is needed.  Because the goal is to reunify families.  Thank you.

CHAIR:  Yes, thank you.  Commissioner Atkinson?

COMMISSIONER ATKINSON:  No, thank you, Chair.

CHAIR:  Commissioner McEwin?

COMMISSIONER McEWIN:  Thank you, I have one question.  It is a two part question.  The first part is, what percentage of your staff who work in child protection have a disability?  And the second part is, what qualifications are they required to have to be caseworkers?  Thank you.

MR COUTTS TROTTER:  Thank you, Commissioner.  The proportion of our staff who identify as people with disability is 3.5% in the most recent period.  I will take on notice the proportion of staff working in child protection and report back to you.  But it would be less than that.  I know that to be the case, but I do not have a figure in front of me.

In terms of qualifications, I might invite my colleague Kate Alexander to describe the qualifications.
 

MS ALEXANDER:  So we have a broad entry gate into our system.  The most common qualifications are very similar to Queensland yesterday, the Social Science and Social Work, Psychology degrees.  We also accept people with four year bachelor qualifications in backgrounds like teaching or nursing or policing.

COMMISSIONER McEWIN:  Thank you.  I note you are taking that on notice, the actual percentage.  Just for now, say 3.5% is say the current percentage.  And given the large number of people or people who you are having to interact with who have a disability, is it fair to say that you think that percentage is very low when it comes to our requirement that people, staff, have an understanding of the issues that your clients are dealing with?

MR COUTTS TROTTER:  Yes, it is.  We have a target to increase the proportion of our staff who identify as people with disability to 5.6% --- to 5.6% by 2025 but we need to give greater attention to those areas of our organisation that are closest to providing services day to day to people with disability and child protection and housing assistance.  But I would agree with you that it is too low.

COMMISSIONER McEWIN:  Thank you.

No further questions.  Thank you, Chair.

CHAIR:  Thank you.  I think it was Professor Higgins who suggested there was a fundamental incompatibility between the departmental function of maintaining a child protection system in the interest of preserving the safety and wellbeing of a child through interventions and the provision of support and assistance in order to prevent a child being brought within the system.  I don't know whether you followed that evidence.  But is there such an incompatibility, and if there is, how do you deal with it?

MR COUTTS TROTTER:  I will offer a view, and I invite my colleague to offer a view.  I think there is the potential of an incompatibility, and I think as we have discussed over the course of the afternoon, it is often about how we are viewed by the people we seek to serve.  In other words, that once they ask for help or seek help with us, for fear we will put their children, through them.  I think we are turning around that perception, and I think there is nothing inherent in our function as a child protection organisation that has the first objective, keeping kids safely at home through an organisation that funds and provides support.

So I think there are issues we need to be aware of, and we need to recognise them honestly.  But I do not think there is a fundamental incompatibility.

The only other thing I would add, though, is that we do need to significantly increase the proportion of primary or secondary services provided by Aboriginal organisations.  There is absolutely no doubt of that.

 
CHAIR:  Thank you.

MS ALEXANDER:  I absolutely agree with Michael.  It really is to do with a lot of the points that have been made already this afternoon about fear of families in working with us.  One of the most important skills of the child protection worker is the skills to work with families and groups.  What that means is to bring in support people and advocates and people who can walk alongside families to help lower the risk that is not dependent on us having a relationship.  That enables us to work with other families, and make best use of our resources.  But it also enables families trusting relationships of people that they can confide in that might not be us.

Having said all of that, I can tell you, I have so many stories of families that have trusted us and told us things that show that it is completely possible, and that includes Aboriginal families.  I sat with a young Aboriginal woman in Parkes last week whose experience of us as a child was horrendous, and at 24 now she would say the people who have kept her alive and have kept her child with her are our Aboriginal colleagues from the Parkes office.  I have certainly seen it work both ways but we do need to rely on the sector.

COMMISSIONER MASON:  Can I ask one more questions.  That triggered a question.  The number of organisations, 550, that the department funds around primary care, I was interested if you were aware that there was a high service demand and that resources are stretched and there are waiting lists to access some services, or whether that provides a reasonable coverage of the need that is required at that primary level?

MR COUTTS TROTTER:  I don't think there would be a Departmental Secretary that would come before this Commission and not say that more resources are needed for some of the functions of their agency.  I do not mean to sound flippant.  But I think there is room for further investment.  But in the absence of further investment, we have to make best use of the money we have got.  That also means working far more closely with services that are provided or funded by our colleagues in Health, particularly Primary Health Care services.  It is partly about making best use of the resources available in a community.  But in some places I think there is need for further investment, beyond doubt.

CHAIR:  Right.  I will try to get over the deep shock I felt that you think you might need more resources.

Thank you very much for your evidence, and for attending today, Mr Coutts Trotter and Ms Alexander.

THE WITNESSES WITHDREW

May I assume, Ms Bennett, that we now adjourn until 9:30 Brisbane time tomorrow  
and 10.30 Sydney time?

MS BENNETT:  Yes, sir.

CHAIR:  Thank you, then we will adjourn.

ADJOURNED AT 4.35 PM AEST UNTIL THURSDAY, 26 NOVEMBER 2020 AT 9.30 AEST