JAH AND ADH -v- THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF COMMUNITIES AND OTHERS [2026] WACC 2

[2026] WACC 2 Page 1 JURISDICTION : CHILDREN'S COURT OF WESTERN AUSTRALIA ACT : CHILDREN AND COMMUNITY SERVICES ACT 2004 CITATION : JAH AND ADH -v- THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF COMMUNITIES AND OTHERS [2026] WACC 2 CORAM : Magistrate A HORRIGAN HEARD : 23, 24, 25, 27 FEBRUARY 2026, 8, 9 APRIL 2026 DELIVERED : 5 JUNE 2026 FILE NO/S : PC 732 of 2018 BETWEEN : JAH AND ADH Applicants AND THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF COMMUNITIES First Respondent AND AMA Second Respondent AND NK Third Respondent AND KJA Child -- 1 of 51 -- [2026] WACC 2 Page 2 Catchwords: Protection Order (until 18) - Protection Order (special guardianship) - suitability of proposed special guardians - requirement to consider s 61(2), s 61(2A)(b) and s 80 Guidelines Legislation: Children and Community Services Act 2024 (WA), s 3, s 6(a), s 6(b), s 7, s 8, s 9, s 10(1), s 12, s 27, s 58, s 61, s 65, s 66, s 69A, s 80, s 143, Subdivision 6, Subdivision 7 Children and Community Services Amendment Act 2021 (WA), s 27 Family Court Rules 2021 (WA), r 477 Result: Application for Protection Order (special guardian) not granted Representation: Counsel: Applicants : Mr P Gardner First Respondent : Mr S Watters Second Respondent : Mr B Stewart Third Respondent : Mr J P S Gore Child : Ms R Mohan Solicitors: Applicants : Bannerman Solicitors Pty Ltd First Respondent : Department of Communities Second Respondent : Legal Aid of Western Australia Third Respondent : Jeffrey Paul S Gore Child : RM Law -- 2 of 51 -- [2026] WACC 2 Page 3 Case(s) referred to in decision(s): Nil -- 3 of 51 -- [2026] WACC 2 Page 4 Magistrate A HORRIGAN: The issue 1 This hearing is about KJA, a medically complex 7-year-old child of South Sudanese heritage, placed with Caucasian Australian carers, JAH, and her husband, ADH, since he was 4 months old. 2 A Protection Order (until 18) was granted on 7 August 2024. The order gives the Chief Executive Officer of the Department of Communities parental responsibility for KJA to the exclusion of any other person. That order remains in force unless proceedings are successfully brought pursuant to Subdivision 7 of the Children and Community Services Act 2024 (the Act). 3 On 28 October 2024, the carers lodged an application pursuant to s 69A of the Act seeking that the Court revoke the Protection Order (until 18) and replace it with a Protection Order (special guardianship) in their favour, with an order for payments as per s 65 of the Act, and contact arrangements. If granted, the carers would then have parental responsibility for KJA to the exclusion of any other person until he turns 18 years, subject to another application being made. 4 The special guardianship application was amended on 1 July 2025, 28 January 2026 and 19 February 2026, primarily in relation to the proposed contact regime. 5 The carers are the Applicants in this matter. 6 The Department of Communities was the First Respondent. 7 KJA's mother is AMA, the Second Respondent. 8 KJA's father has not been formally identified. 9 The Third Respondent is KJA's maternal grandmother, NK. 10 The issue for determination is whether I should grant the special guardianship application dated 19 February 2026 or not grant the application and maintain the status quo which exists under the current order. This exercise required me to examine the trial evidence, assess what would be in KJA's best interests and consider s 61(2) and s 61(2A)(b) of the Act. -- 4 of 51 -- [2026] WACC 2 Page 5 11 My decision will determine who KJA's guardian will be. The hearing 12 The application was heard before me on 23 to 27 February 2026 and 8 to 9 April 2026. 13 Given the application was opposed, a consideration of the evidence was required to determine whether I should grant or not grant the application. In accordance with my responsibility to determine this application according to law, I have considered the evidence placed before me, and particularly those matters which were contentious. It is neither possible, nor desirable, to refer to every fact or event referred to during the evidence in my findings. 14 I received written submissions from all counsel after the hearing concluded. The Applicant's position 15 The carers have previously asked the Department to consider a special guardianship arrangement if KJA was not able to be reunified to his mother. The Department declined those requests and maintained that its goal was to reunify KJA with his mother, if possible, otherwise to NK as the parallel plan. 16 The carers believe that KJA's needs are best met with them. They relied on four grounds in support of their application: 1. NK cannot meet KJA's complex medical and behavioural needs if transitioned to her care and this would place him at risk of harm. 2. If transitioned to NK, KJA would experience significant upheaval, attachment disruption and emotional and behavioural dysregulation caused by changes to his placement, routine, school, and the loss of his special guardian family. 3. Since the decision by the Department to transition KJA to NK's care, the relationship between the carers and the Department has become strained. 4. The carers recognise that although the maternal family is best placed to promote KJA's connection to his South -- 5 of 51 -- [2026] WACC 2 Page 6 Sudanese culture, an enforceable contact regime would support that cultural connection. The Department's position 17 The Department opposed the special guardianship application. 18 The Department's concerns centred on KJA's limited exposure to his maternal family and cultural disconnection, erosion of his cultural identity, and the consequences of a reduced funding arrangement, if a special guardianship arrangement were granted. 19 The Department remains committed to the plan to transition KJA to NK's care as they have assessed NK to be an approved carer. This would allow KJA to live in a permanent family placement with his older brothers and extended maternal family, within the broader South Sudanese community. Such a placement would enable KJA to be culturally connected, immersed in family, language, and culture, and be able to develop and deepen his cultural identity. The Department would provide appropriate resources, funding, and services to support all of KJA's needs. Likewise, NK would be supported with resources, funding, and services. 20 The Department's plan includes KJA maintaining his relationship with the carers and their family. AMA's position 21 AMA lives in Brisbane, Queensland, with her fourth child, EA, who is KJA's third brother. 22 AMA attended the first four days of trial in person but did not return for the balance of the trial. Duty Counsel represented her at the commencement of the hearing to advise the Court that she opposed the Protection Order (special guardianship). 23 AMA supported the Department's plan that her mother care for KJA; NK cares for AMA's sons, DA, born on 25 October 2012, and GA, born on 1 February 2014, under a family arrangement. Her long-term goal is to be reunited with KJA. 24 Duty Counsel advised that the current order funds AMA's travel to Perth from Brisbane for contact with KJA, DA, GA, NK, and extended family. This travel also enables contact with EA and his extended family. -- 6 of 51 -- [2026] WACC 2 Page 7 25 On the sixth day of trial, the same Duty Counsel who previously assisted AMA advised by email that AMA's position had changed; '… she now consents to the SGO application. She does not wish to participate further in the trial process…'. NK's position 26 NK opposed the application for special guardianship. 27 NK cares for two of her children and three of her grandchildren and seeks to have KJA transition into her care. She is confident that she can provide appropriate medical care for KJA with support from the Department. She embraces her South Sudanese culture, identity and traditions and wishes to promote KJA's cultural identity and heritage to avoid a risk of cultural disconnection. The Separate Representative's position 28 The Separate Representative supported the revocation of the current protection order and replacing it with a Protection Order (special guardianship) in favour of JAH and ADH, with specified contact conditions which could be registered in the Family Court of Western Australia pursuant to r 477 of the Family Court Rules 2021 to ensure enforceability. 29 Her view was based on several factors. Firstly, KJA's medical needs are significant, and those needs are met by the carers. Secondly, KJA is emotionally secure with the carers, having been in his placement for seven years and his primary attachment is within that placement. Last, specific contact arrangements would provide for, and maintain, familial and cultural connection. An overview of the relevant history of these proceedings 30 KJA was born prematurely at King Edward Memorial Hospital on 12 November 2018. He was born with a variety of medical issues, including Ichthyosis, a serious skin condition which requires a stringent regime of treatment. Failure to treat the condition exposes KJA to considerable risk of infection. 31 AMA did not meet KJA's needs in hospital. As a result, he was taken into the Department's care without a warrant on 12 December 2018 and placed with Wanslea general foster carers, as no family carers were available. When KJA was born, NK was living in Melbourne with DA and GA. She had travelled to Melbourne to support her cousin who had -- 7 of 51 -- [2026] WACC 2 Page 8 been seriously injured in a motor vehicle accident and hospitalised for a considerable period. She cared for her cousin's children for two years. 32 On 14 December 2018, the Department lodged a protection application seeking a time-limited order for two years because of AMA's inability to meet KJA's needs and the risk of medical neglect. The Department's goal was to reunify KJA. 33 On 15 March 2019, KJA was transitioned to his placement with the Applicants, specialised Key Assets foster carers, where he remains. 34 The protection application was determined in AMA's absence on 23 July 2019, and a time-limited order was made for two years. 35 NK returned to Perth in early 2020. In February 2020, she contacted the Department seeking to have KJA placed in her care. This did not occur. Further, the Department did not make arrangements to develop KJA's cultural exposure at that time by arranging contact with NK and the maternal family. 36 On 14 July 2021, the Department lodged an application to revoke the time-limited order and replace it with a Protection Order (until 18), in KJA's best interests. The Department considered that AMA had not made any progress towards reunification and had had limited contact with KJA. The s 143 written proposal filed 14 July 2021 noted that AMA conceded that she was unable to meet KJA's needs. 37 On 15 November 2021, NK made an application to the Children's Court seeking joinder to the long-term proceedings and placement of KJA with her pending an application to the Family Court of Western Australia for 'live with' orders and sole parental responsibility. At that stage, she was still caring for KJA's siblings, DA and GA, two of her children, M and A, and another grandchild, A. Her intention was to unite her family. 38 NK's application for joinder was granted on 22 November 2021. On that date, the Court also ordered that KJA be separately represented. 39 Changes to the Act were proposed in late 2021 by the Children and Community Services Amendment Act 2021 (the Amendment Act). Amongst other things, the legislation proposed statutory obligations to include culturally informed practice and placement principles when considering Aboriginal and Torres Strait Isander children or children of a culturally and linguistically diverse background. The Amendment Act -- 8 of 51 -- [2026] WACC 2 Page 9 came into force on 1 May 2022 and placed mandatory requirements on the Court when assessing the suitability of proposed special guardians. 40 In April 2022, NK underwent a carer assessment. Although she did not meet the requisite criteria, the Department arranged for NK and the maternal family to commence supervised visits with KJA. By early 2023, contact became semi-supervised at NK's home, where KJA could interact with his brothers and extended family. In early 2024, coinciding with school, regular weekly unsupervised contact commenced. 41 NK continued to work with the Department with a view to being approved as KJA's carer. On 23 May 2024, an interim placement and carer assessment approved her as a carer for KJA with supports, despite not meeting all the carer competencies. 42 When the interim placement and carer assessment was undertaken, the Parenting Capacity Assessment of Lisa Dominguez, clinical psychologist, Mindstate Psychology, dated 14 November 2023, was available to the Department. (Ms Dominguez had been appointed the Court Expert on 20 October 2022 and provided two subsequent reports.) Ms Dominguez's conclusion as to NK's capacity to care for KJA was not a positive assessment however, that outcome was not referenced in the s 143 written proposal. 43 The goal of the s 143 written proposal dated 23 May 2024 was consistent with the original plan; if AMA could meet the safety goals, then the Department would work towards reunification to AMA. If this were not achievable, then the parallel plan was for KJA to transition to his biological family through a placement with the now-approved NK, with appropriate supports to ensure that his complex needs would be met. 44 The s 143 written proposal noted: This transition has been planned to occur slowly to ensure that KJA's needs are prioritised. The timeframes provided are subject to change dependent upon how KJA adjusts during the transition process and what is assessed to be KJA's best interest. KJA's Care Team has consulted with the Child Advocate, CaLD Officer, and District Psychologist in assessing KJA's needs and best interests, and to make the decision to pursue placing KJA with NK. 45 Until this point, the carers had not been the subject of any negative comment or concerns. In the s 143 written proposal, the Department expressed the view that the carers may not be willing to encourage and support KJA to develop and maintain contact with his maternal family -- 9 of 51 -- [2026] WACC 2 Page 10 … to the extent that is required and expected. KJA's carers have been observed to be overly protective of him and on multiple occasions have put barriers in place to prevent KJA spending time with his biological family. 46 On 7 June 2024, the Department informed Key Assets of the plan to transition KJA to NK within six months. Key Assets then advised the carers of the transition plan. Despite not being parties to the proceedings, the carers were provided with a copy of the Cultural Support Plan on 7 June 2024. Until that time, the carers had operated under the belief that KJA would remain in their care unless reunified to AMA, as earlier care plans suggested that KJA would continue to remain with them under an ongoing care arrangement. 47 The carers expressed three concerns; the proposed speed of the transition to NK, NK's capacity to manage KJA's complex medical needs and developmental delays, and their belief that NK had not accepted how serious KJA's conditions were. 48 On 11 June 2024, the Applicants each lodged in-person joinder applications. 49 The joinder applications were heard on 7 August 2024. Even at this stage of the proceedings, the Separate Representative characterised the proceedings as 'a high conflict matter.' 50 The lawyers representing AMA, NK, the Department and the Separate Representative did not oppose the joinder and the order was granted. 51 At the same hearing, the lawyers representing AMA, NK, the Separate Representative and the newly joined carers, JAH and ADH, each consented to the long-term order being made for KJA. The Protection Order (time-limited) made on 23 July 2019 was then revoked and replaced with the current Protection Order (until 18). 52 It is surprising that the carers proceeded with the hearing of the revoke and replace application at the same time as the order for joinder was made, for several reasons. 53 Firstly, the carers had been aware since 7 June 2024 that the transition plan would occur within six months. This is in direct contrast however to the statement in JAH's affidavit; her belief was that the Department would be heavily involved in the transition and it would be done slowly, mindful of KJA's special needs. She stated, 'It was against -- 10 of 51 -- [2026] WACC 2 Page 11 this background that we consented to the application in court on 7 August 2024'. I find that with the passage of time, JAH conflated the s 143 written proposal plan to transition KJA slowly with the Cultural Support Plan, to transition him within six months. 54 Secondly, the carers did not avail themselves of the opportunity to be served with the court documents on 7 August 2024, which the order for joinder entitled them to receive. They only received the balance of the court documents in late August 2024. 55 Thirdly, the carers did not obtain legal advice until late August 2024. 56 I find that the decision to seek joinder, and consent to the long-term order, aware that the plan was to transition KJA to NK within six months, and not seek documents or advice, nullified the carers' decision to seek joinder. 57 The Applicants subsequently sought legal advice and on 27 August 2024 they obtained the court documents. 58 On 29 August 2024, the carers accessed the Parenting Capacity Assessment of Ms Dominguez, dated 14 November 2023. It is important to note that NK did not have an approved interpreter present at this interview. Instead, NK nominated a friend who was a school teacher. 59 In the first report, Ms Dominguez proposed that KJA and NK could have a positive ongoing relationship, either by placing him with NK on a long-term order with the Department retaining parental responsibility or by continuing the care arrangement and supporting the maternal family to have a meaningful relationship through contact. 60 Ms Dominguez concluded however that NK would not be suitable to be KJA's carer 'even with a raft of services' provided by the Department. She found that NK minimised KJA's medical health needs and did not understand the intricacies of those needs; because of NK's cognitive functioning, she was concerned that NK would not understand and manage KJA's medical health needs consistently and proactively and NK would find managing KJA's specialised needs too demanding, placing a burden on the other children she cared for. 61 Ms Dominguez found that as a result of KJA's secure attachment to his carers, and because of his vulnerabilities, he would find a transition overwhelming, with negative implications in the shorter term, with -- 11 of 51 -- [2026] WACC 2 Page 12 lasting effects on his longer-term outcomes. She added that the lack of closeness to NK would also make the transition more challenging for him. On this point, unlike the carers who had cared for KJA since he was four-months of age, NK's contact started in 2022 and had only become semi-supervised at her home in 2023. 62 The only recommendation made to mitigate KJA's loss of culture was to suggest that KJA meet more regularly with his maternal grandmother and extended family to become closer. 63 The conclusions expressed by Ms Dominguez paralleled the concerns expressed by the carers in grounds 1 and 2 of their application. 64 At the care plan meeting on 12 September 2024, and consistent with the Department's intentions, the transition plan was noted at 2.3.1, 'KJA to transition to a placement with his maternal grandmother NK'. The interim plan was for KJA to continue to reside with the carers, with the Department acknowledging he was settled, and the carers were meeting his needs. 65 The carers again expressed that they did not support the decision to transition KJA to NK. The Department acknowledged: [T]hat this is a significant change to the previous placement plan for KJA, where he was to reside with JAH and ADH through Key Assets in an ongoing care arrangement. Communities further acknowledges that this is a very difficult outcome for JAH and ADH (and their extended family), who it is understood, believed that KJA would remain in their care until he turns 18, with the possibility of progressing to a Special Guardianship Order under their care. 66 The carers applied to the Care Plan Review Panel seeking to review the Department's decision to transition KJA to NK on the basis that KJA's best interests had not been adequately considered. 67 The hearing took place on 21 November 2024. The Panel reviewed filed documentation and written submissions, and heard from JAH, NK, AMA and Departmental representatives, Sarah Digby-Castell, the case manager, and Wendy Ashcroft, the team leader. 68 JAH maintained her stance, as did NK. AMA advised the Panel that she agreed to KJA living with NK but did not understand that other options were available and, if there were a choice, she would choose JAH and ADH. -- 12 of 51 -- [2026] WACC 2 Page 13 69 After the hearing, AMA expressed the view that she had changed her mind and wanted KJA to move to NK's care. 70 By report dated 9 December 2024, the Panel found that it was too early to be satisfied that a change in care arrangements was in KJA's best interests but noted that the Department's plan … should continue to be a goal for KJA. In line with the placement principles in the legislation, living with family may well be best for KJA. Whether it is best for him to make that move, and when and how that happens, will depend on a range of matters. 71 The Panel considered the following matters to be relevant: (a) How KJA copes with spending extended time with NK; (b) The extent to which NK can meet KJA's special needs; (c) Any views KJA may have; (d) The impact of any change of care on KJA's ability to build a connection with his mother and other family members important to KJA; (e) The impact of KJA's living arrangements on his right to learn about, enjoy and experience his culture. 72 The Panel recommended that an amended care plan be prepared by taking into account those matters raised in the rationale. The recommendation was: In that Amended Care Plan, in addition to a reflection of the ultimate goal of KJA living with his family, the equivalent of Care Planning Decision 2.3.1 should read as follows: 2.3.1 KJA to remain living with his carers until such time as the District can be satisfied that KJA's special needs can be met in a placement with his maternal grandmother NK. 73 The rationale was detailed and, unsurprisingly, covered many topics that were relevant during this hearing. The plan required the Department to be satisfied that NK could meet KJA's special needs before changing his placement, noting that the plan was always to move KJA to the placement with NK. 74 The Panel understood the tension associated with the decision and stated: -- 13 of 51 -- [2026] WACC 2 Page 14 NK believes that, as he is family, KJA should be with her and the carers believe that KJA's needs are best met with them. 75 The Chairperson's final comment was directive in nature and apt: It is extremely important that KJA build a strong relationship with NK and his siblings and that the possibility of living with them should remain a goal … KJA needs all of the adults in his life to work together to help him achieve his potential. 76 On 7 August 2025, Sommer McEvoy, Specialist Community Child Protection Worker, completed the carer review for NK. The review found that NK met the carer competencies. Ms McEvoy did not review the November Parenting Capacity Assessment from Ms Dominguez, despite having access to the Departmental file. 77 On 11 March 2025, Claire McGowan, Senior Child Safety Practitioner, completed the s 61(3) written report, which is required to be considered by the Court on a special guardianship application. The report did not support the special guardianship application. The conclusion noted: Although ADH and JAH provide a nurturing and loving home for KJA, the Department are not confident that ADH and JAH will ensure that KJA is able to maintain his connection with NK and be fully supported to be part of the South Sudanese community. The Department does not support the application of the SGO as the Department's goal is for KJA to transition to living with his maternal grandmother, NK. NK is a very well-respected female leader in the South Sudanese community, and she continues to attend many cultural events with KJA, including language classes and church. KJA is becoming increasingly familiar in these settings. KJA is slowly learning some words and phrases in the Dinka language. The Department are confident that NK continues to build her capacity to care for KJA's complex needs. KJA's placement with NK and family would enable him to live with his two older brothers DA and GA, as well as his cousin A, and NK's teenage daughter and son, A and M. When the case management team completed a 'words and pictures' with KJA to explain the plan to transition to living with his biological family, KJA appeared to be pleased with this. Should KJA be placed with family members who share their cultural values and traditions, the child can naturally be supported to maintain a strong cultural identity and strengthen his family connections. Furthermore, this placement would be consistent with the principles set out in the Children and Community Services Act 2024 (WA) which stipulates that subject to protecting the child from harm and meeting the child's needs, the child -- 14 of 51 -- [2026] WACC 2 Page 15 should be placed with a member of the child's family and placed with the child's siblings. This is further supported by the Department's CaLD Placement Guidelines, which set out that, where in the child's best interests and otherwise practicable, the priority is to place the child with the child's family of origin. The Department would continue working with NK to manage KJA's day to day needs and ensuring she helps KJA maintain a connection with ADH and JAH. 78 Ms Dominguez provided a second report dated 25 January 2026 and an accredited interpreter attended the interview. 79 In broad terms, the report again concluded that KJA's psychological, emotional, social, and intellectual wellbeing would be best supported in his placement with the carers. Ms Dominguez expressed concerns about NK's understanding of KJA's medical needs, repeated minimisation of those needs (which was disputed by NK) and, despite an increased relationship between KJA, NK, and the maternal family, her view was that KJA's primary attachment was with the carers. She acknowledged that NK and the extended family provided an important source of cultural connection for KJA and that NK is well placed to support his cultural identity through ongoing contact. The relationships with the maternal family were 'best understood as important relational and cultural connections that compliment, rather than replace, his primary attachment relationships'. 80 Ms Dominguez raised a significant concern; if the special guardianship order were made, NK might disengage from the carers and thus impact KJA's contact with the maternal family and limit his lived experience of culture. Her report noted: … [W]hile the carers are well placed to meet KJA's emotional, medical, and developmental needs, an SGO may not adequately safeguard his cultural needs in the long term. 81 Ms Dominguez mentioned 'relational strain' in the relationship existing between the carers and NK. She noted: … I do not consider that an SGO provides sufficient structural support to protect this relationship over time. In my opinion, a Protection Order until 18 … would allow the Department to remain actively involved in facilitating contact, mediating relational strain, and safeguarding KJA's ongoing connection with his maternal family and cultural identity. -- 15 of 51 -- [2026] WACC 2 Page 16 82 Her second report recommended that KJA live with the carers under a Protection Order (until 18) to ensure a stable placement with the carers and the Department undertaking a supervisory role. 83 Ms Dominguez then provided a third report in the form of an addendum, dated 21 February 2026. The addendum report recognised her error about the type of protection order she had recommended, accepting that the Court cannot impose placement conditions on a Protection Order (until 18), as parental responsibility rests with the Department. I accepted her views referred to above in paragraphs 80 and 81 as accurate statements. 84 In this regard, Ms Dominguez promoted the continuation of KJA's placement with the carers under a special guardianship arrangement as KJA's developmental need would be best achieved by stability in his placement. Ms Dominguez noted: He has lived with the carers since infancy and presents with neurodevelopmental vulnerability, including FASD, intellectual impairment, attachment-related anxiety, and complex medical needs. Disruption of his primary caregiving arrangement, especially given his developmental immaturity and established attachment reliance on the carers, would pose a substantial risk of emotional destabilisation, behavioural dysregulation, and regression across multiple domains of functioning. While KJA's cultural identity and connection to his maternal family are important for his long-term development, cultural safeguarding must occur within a stable primary attachment framework. Stability is the foundation upon which cultural identity can be meaningfully supported. 85 She again raised concerns about the outcomes of the tensions associated with the final decision, the impact on already strained relationships and the consequences of those strained relationships on KJA's 'opportunities for cultural immersion'. 86 At no point was Ms Dominguez asked to specifically consider the import of s 61(2) and s 61(2A)(b) of the Act in any of her reports. In my view, this was a significant oversight. 87 The application then came for hearing before me. The evidence 88 The Applicants both gave evidence at trial. They also called evidence from: -- 16 of 51 -- [2026] WACC 2 Page 17 (a) Jody Sims, school psychologist. (b) Natasha Bloom, Education Assistant at Swan Christian College. (c) Julia Aland, Dean of Inclusive Education at Swan Christian College. (d) Sarah Tierney, case manager with Key Assets. 89 The Department called evidence from the following employees of the Department of Communities: (a) Cholok Naam, support worker. (b) Caroline Speirs, Director of Community Engagement Projects. (c) Eduardo Farate, Principal Policy and Planning Officer in Cultural Diversity in the Specialist Child Protection Unit. (d) Sommer McEvoy, Specialist Community Child Protection Worker. (e) Claire McGowan, Senior Child Safety Practitioner. (f) Sarah Digby-Castell, case manager. (g) Danielle Marchesano, case manager. (h) Rachael Clohessy, clinical psychologist. (i) Wendy Ashcroft, team leader. 90 AMA did not give evidence in these proceedings. 91 NK elected to give evidence but did not adduce any evidence. 92 The Separate Representative adduced evidence from Ms Dominguez, Clinical Psychologist. 93 Despite allegations during the hearing that witnesses were lying, I considered that each witness gave their evidence in accordance with their honest belief. 94 There were 67 exhibits tendered by the parties during the trial and the exhibit list is attached at Annexure A. -- 17 of 51 -- [2026] WACC 2 Page 18 Observations about the evidence 95 KJA is 7 years of age and a culturally and linguistically diverse child of South Sudanese heritage. KJA speaks English and is learning Dinka when he stays with NK. 96 Without doubt, KJA is a very loved little boy, as evidenced during this hearing. Medical challenges 97 The medical evidence was unchallenged. 98 KJA had a complicated start to life. He was born prematurely and was impacted by maternal substance misuse. He has complex diagnoses and significant physical, cognitive and neurological medical needs including: (a) congenital Ichthyosis; (b) bilateral conductive hearing loss requiring the use of a bone conductor hearing aid; (c) expressive and receptive language disorder; (d) FASD with severe impairments in four domains; (e) mild intellectual impairment with vulnerabilities in three domains; (f) separation anxiety and attachment difficulties; (g) attention concerns with impulsivity; (h) developmental coordination disorder and fine motor difficulties; (i) feeding and sleep onset difficulties; and (j) strabismus for eye misalignment. 99 He has a range of medical practitioners and therapists, prescribed medications, and a registered NDIS plan. He undertakes Dyadic therapy with NK and psychologist, Jasmine Kieft, and until recently, he has been engaging in a positive behaviour support program. -- 18 of 51 -- [2026] WACC 2 Page 19 100 The care plans over the years provided insight into KJA's day-to- day experiences which ranged from loving to challenging, from chaotic and dysregulated to loving. On occasion, Key Assets and the Department have quite properly provided additional supports to assist JAH's care of KJA. It is a significant care role. 101 I find that KJA is dependent on his caregiver to meet his needs (medical, educational, therapies, services, including NDIS supports). 102 I find that KJA is a child who needs long-term care arrangements to ensure his wellbeing. All parties acknowledged this fact when the long- term order was made. Placement with the carers 103 KJA has been placed with JAH and ADH for just over seven years. 104 JAH and ADH are married with four adult children. They have been full-time registered foster carers with Key Assets since 2012 and specialise in high needs medical placements. JAH has a background in supporting children with disabilities and has undertaken training and courses. Over the last 14 years, they have fostered more than 20 children. They currently have two high needs children under special guardianship arrangements, both of whom are older than KJA and with whom KJA has a loving relationship. 105 Apart from an Aboriginal special guardian sibling, it is otherwise a Caucasian placement. The carers speak English, which maximises their understanding of all aspects of his life, particularly the medical complexities. They do not speak any words of Dinka. 106 KJA's carers are dedicated to him, diligent, loving and adept in their care role. Not surprisingly, he calls them 'mum' and 'dad'. They have known and cared for KJA since he was a baby so their knowledge of him is extensive. They are acutely aware of his needs, his diagnoses and his frailties, given the long-standing nature of their care role. 107 Given JAH and ADH's experience, it is understandable why Key Assets placed KJA into their care and I find that they are competent foster carers. Finances 108 ADH earns approximately $140,000 per annum which covers rent (approximately $870 per week) and living expenses. JAH earns -- 19 of 51 -- [2026] WACC 2 Page 20 approximately $50,000 as KJA's foster carer. Together, their joint income is approximately $190,000. 109 The Department currently provides Key Assets with $280,000 per annum for KJA. That sum includes the carer payment and the special needs funding. Given KJA's complex needs, I draw an inference that this sum is likely to increase as he ages. 110 There is a significant shortfall. 111 If the special guardianship arrangement is granted, JAH plans to request that the Department continue with the additional funding under a special needs loading to accommodate the higher level of resources that are required to care for KJA, including education and medical assessments. Her understanding is that the Department can make those arrangements. JAH's evidence on this point was: We have put that in a request before and we also receive the obligation for our other children. So it is the presumption and the discussions that I have had that that continue for the additional needs stuff … We will shoulder the bills in regards to providing day-to-day living, life, just everything that entails with raising a child such as our own but the additional recognised conditions stuff, like his schooling that the Department agreed to, his medical assessments, anything that is above and beyond is what we receive for the other children and it is our understanding that the Department have the ability to continue to do that for KJA. 112 When pressed by Counsel for the Department, 'And if you didn't have the financial assistance with the Department, would that cause an issue for you?' JAH replied, 'No. Not at all'. 113 While a special guardianship order is in force, the Chief Executive Officer has discretion to provide the special guardian with any social services considered appropriate within the meaning of s 3 of the Act that the Chief Executive Officer considers appropriate pursuant to s 66 of the Act. 114 There was no evidence of any agreement from the Department on this point, or a satisfactory financial plan if the special guardianship order were granted. The carers would be responsible for KJA's care unless they received additional funding pursuant to s 66 of the Act. 115 Without the appropriate financial resources, KJA would not be able to receive the treatment he requires, and will continue to require, into the future. -- 20 of 51 -- [2026] WACC 2 Page 21 116 The lack of a concrete plan and operating on a 'presumption' is gravely concerning for this child, who has extensive medical needs. 117 I find that the carers would not have sufficient funds to adequately care for KJA and meet his needs if the Chief Executive Officer did not exercise its discretion to meet the shortfall. 118 Further, if a special guardianship arrangement were granted, KJA would not be eligible for a leaving care plan pursuant to s 96 of the Act. This would not be in his best interests. The carers' roles 119 In addition to my comments above, and without limiting the role either carer plays in KJA's life, the following evidence of routines was established. ADH 120 ADH arranges breakfast, bathing and applying KJA's cream. He then gets KJA ready for school before he leaves for work. When he returns home after work, he assists with dinner, bathing, and wind-down before KJA goes to bed. 121 He often drives KJA to and from the contact collection point at Outback Splash. He has some interaction with NK as a result. JAH's roles 122 JAH undertakes the majority of the day-to-day tasks in KJA's life. Medical and other appointments 123 JAH takes KJA to his appointments and reports back to Key Assets after those appointments or after contacts. School 124 JAH usually takes KJA to school. He attends Swan Christian College with his two special guardian siblings, as the carers' preference is that the children attend the same school. 125 Apart from NK attending a cultural day, she has not played any role at KJA's school. This is because she is not KJA's carer. 126 In 2025, KJA commenced Year 1. He experienced significant separation anxiety, extreme escalation, and dysregulated behaviours. -- 21 of 51 -- [2026] WACC 2 Page 22 This included attempting to escape the vehicle whilst JAH was driving him to school and during the day, including running into the car park and off school grounds onto a major highway. KJA, and the staff, relied on JAH's ability to settle him sufficiently to engage at school. 127 The school arranged a modified school program to provide KJA with a more manageable routine which largely reduced his attendance hours to mornings. The staff wanted to ensure his safety at school and were worried that KJA's dysregulated behaviours would impact his academic achievement. It is clear that KJA needs to be regulated at school and needs support, focus, and significant encouragement to progress. 128 KJA recommenced his education at Swan Christian College in Year 2 this year. 129 Questions were raised in the hearing about KJA's wellbeing while his carers were at court for the hearing in February 2026, given his propensity to become dysregulated on the way to school or at school. The evidence was that KJA attended school during the day, with transport facilitated by a Key Assets worker, and no incidents reported despite the transport being provided by another person. He was not dysregulated at school. 130 Since early April 2026, KJA has been attending school full-time, and his behaviour is described as 'improving'. It would appear that KJA is performing overall far better in Year 2. 131 Swan Christian College does not have an education support system within the school. 132 A change of school would be required if an education support unit were recommended or if KJA transitioned to NK. Culture NK 133 NK is a south Sudanese woman who is actively involved in the Aweil Community Association in Western Australia. 134 She is fluent in Dinka and Arabic and is learning English. 135 Her evidence was that in South Sudanese culture, the community is actively involved in raising a child. She firmly believes that KJA's -- 22 of 51 -- [2026] WACC 2 Page 23 prolonged exclusion from the family is harmful to his future, risks cultural disconnection and precludes everyday socialisation and nurturing. She believes that his time to understand the importance of culture in his life must happen 'between now and when he is 18'. 136 She has been actively working towards her goal of caring for KJA since her return from Melbourne in 2020. She has steadily increased her contact time with KJA; he now spends alternate weekends with his extended family and, most importantly, with his siblings. KJA's attachment within his maternal family has steadily deepened. 137 NK's affidavit was clear about her worries for KJA's ongoing cultural needs saying: KJA's cultural, religion, heritage and identity are very important and require to be immediately addressed. It cannot be addressed by reading books or going to community function once a fortnight it has to be lived in ... Only me and my community can provide this … I do not want KJA to feel an outsider amongst his own black family and community … I do not want KJA to be confused as to his identity, I do not want him to feel socially isolated if he is cared for by white carers, I do not want him to not know who he is and who he identifies with. This will occur if KJA continues to live with his carers. KJA is black like his brothers and me. His carers are white. KJA is my grandson, he is family and family take care of their own. 138 She is a committed Christian. She attends church regularly, which is an integral part of her cultural observations. KJA attends church and also attends Dinka classes every fortnight at the church. He also attends cultural events arranged by the South Sudanese community. He needs to engage and participate in these experiences. The Department 139 I find that the Department's cultural plans contained in KJA's care plans were inadequate and largely meaningless rhetoric. 140 They contained motherhood statements and hopes with no active plan to enrich and develop KJA's cultural knowledge and experiences. This is despite NK living in Perth since early 2020 and contacting the Department in February 2020. At the very least, a culturally appropriate contact arrangement could have been developed to encompass the whole family, especially the sibling relationships. NK was available and wanted to provide a family-focused care arrangement which would have been culturally appropriate for KJA. -- 23 of 51 -- [2026] WACC 2 Page 24 141 For example, the care plan dated 4 September 2019 confirmed the ongoing placement with the carers. It contained a very small segment on Identity and Culture, largely relying on KJA having a relationship with his mother, who expressed her aversion to KJA learning about his South Sudanese culture. The hope was to connect KJA to his culture by exploring his family and the expectation that the carer would support him by obtaining knowledge of, and exposing KJA to, his culture. What was proposed was contact with his mother, which had been non-existent since April 2019. 142 Again, the care plan dated 12 May 2020 reflected planning to promote long-term stability for KJA, consistent with the principle in s 9(g) of the Act and it acknowledged that KJA was settled in his placement with the carers. The plans for culture were limited. Again, the hope that AMA would have contact. KJA was to be exposed to culture by attending cultural events and activities with his carer, and through exploration of his family. 143 The care plan dated 19 May 2021 was equally limited. It repeated the content of the last care plan. The onus was on the Department and the carer to 'expose him to his culture through different events and activities'. 144 Despite the Department's plans and the expectation that the carers would expose KJA to his culture through activities and events, no headway was made. 145 The care plan dated 16 August 2022 finally revealed some active change as regards culture for KJA. Contact with NK, his brothers and extended family started. Sadly, there was no contact with AMA. The plan again identified that the carers would attend cultural events and activities with KJA. At this point, the Department ought to have planned significant input from NK. It did not. 146 A Cultural Support Plan, as opposed to a care plan, is intended to develop, deepen and maintain a child's cultural identity by promoting the child's cultural, ethnic, and religious identity as well as developing and maintaining connection with the culture and traditions of the child's family and community. They should ensure that planning decisions are made with an appropriate cultural lens. 147 Only one cultural plan was filed during these proceedings, the Cultural Support Plan dated 23 May 2024. That plan confirmed that, at -- 24 of 51 -- [2026] WACC 2 Page 25 5 years of age, KJA had limited understanding of, or exposure to, his South Sudanese heritage and culture. 148 This was the most important cultural document filed during these proceedings and it only scraped the surface of KJA's culture in a superficial manner. 149 Several important cultural steps have been progressed. There is an arrangement that KJA has contact with his siblings and his extended maternal family when he stays at NK's home. Living with his siblings and extended maternal family has provided KJA with a natural, biological family connection, missing in his current placement. 150 Since reconnecting with NK, KJA has also had opportunities to connect with the South Sudanese community; through church, exposure to the Dinka language, foods and traditional clothing, traditional dancing, songs, stories, and games. NK went to KJA's school and shared her Dinka culture with KJA's class in Year 1. 151 KJA is starting to form a relationship with his mother and EA, who travel from Queensland from time to time, supported by the Department. The plan noted AMA's continued concerns about some cultural ways of the South Sudanese community and concerns about exposing KJA to the South Sudanese culture. 152 KJA's relationship with his mother is likely to be influenced by the status quo in her relationship with NK. The carers 153 I have already made positive findings about the carers' ability to care for KJA from a physical, medical and emotional perspective. I find however that the carers have not prioritised, nor actively embraced, his exposure to South Sudanese culture whilst he has lived in their care for the last seven years. Without being critical of the carers, I attribute the carers' lack of cultural knowledge to the following factors. 154 Firstly, the carers are Australian Caucasian people, and they participate fully in Australian Caucasian culture. They have no knowledge of the South Sudanese community and traditions. 155 Secondly, they are undertaking a foster care role for the Department. I accept that the carers would quite reasonably have had an expectation that the guardian would create an appropriate cultural plan for KJA. The planning occurred in a superficial way and only improved -- 25 of 51 -- [2026] WACC 2 Page 26 as contact with the maternal family developed to the current arrangement of Friday to Sunday every fortnight since 2024. 156 Thirdly, their reliance on the maternal family to provide culture is reasonable to the extent that it would be an authentic Dinka experience. What is not appropriate is that the carers relied on the maternal family and contact alone to provide culture and they did not accept any responsibility to learn about Dinka culture themselves. 157 Consistent with ground 4 in this hearing, the importance of the maternal family from a cultural perspective was not in dispute. JAH did not shy away from this at the hearing accepting: … [H]is cultural needs reside around community, mostly, and spending time together, talking stories, sharing history, family, about their own heritage, sharing a meal, you know, singing songs, dancing together, learning from each other as they grow, spending time with multiple people within the community ... [W]e can never pretend to be able to provide the community, the culture that the children need from us as a Caucasian family. But what we can do is literally embrace their family and have the children grow and understand that they are part of two separate families. We are doing our best, and we will continue to try to involve KJA with his biological family and support them as a whole, as we do with our other child… Just to continue to do our best to involve him in family and hope that they will provide the time and … educate him. 158 The prospect of these two families embracing each other is highly unlikely. There is a very limited shared narrative. 159 I accept that the carers genuinely believe in the importance of KJA's culture and that they have always indicated their willingness to participate in and support KJA's culture. The issue is that in seven years, there is little evidence of KJA's exposure to culture by the carers. They do not appear to have a genuine understanding of South Sudanese culture. There was no evidence of books, clothing or other resources to enhance KJA's earlier years before his contact commenced with his maternal family. 160 I acknowledge that the carers have transported KJA to and from contacts with the maternal family, tried to attend cultural events, and arranged contact with his mother. 161 I find that the carers believe that the contact that is facilitated allows for KJA to be immersed in his culture. Immersion however, suggests deep engagement within a community. It requires active and meaningful -- 26 of 51 -- [2026] WACC 2 Page 27 participation in daily activities, sharing traditional stories and experiences. The current alternate weekend contact and any additional contact that may arise simply does not allow for, encourage, or grow culture. 162 The inability to appreciate South Sudanese culture has led to several cultural clashes. The following are some examples of cultural clashes. 163 In January 2026, KJA was scheduled for a haircut as his hair had grown long. The case worker gave NK permission to arrange the haircut. In Dinka culture, it is culturally appropriate for the grandmother to arrange the haircut. JAH objected to NK arranging the haircut and the style of the haircut. She noted that '… in Australian culture, we the parents are responsible for haircuts'. She described in an email being 'absolutely gutted' that the case worker would give NK permission to cut his hair as shaving would humiliate him. 164 Other cultural clashes have occurred over Christmas and birthday celebrations. KJA has missed out on family celebrations or attended them belatedly. Christmas celebrations in Australian culture involves gift giving however, in Dinka culture the importance of the day is emphasised by attending religious celebrations. On his seventh birthday, KJA celebrated his birthday with the carers. Although JAH gave NK the opportunity to do a video call, NK did not. KJA celebrated his birthday with his maternal family three days later. 165 Culture is not a commodity. It is a living, breathing, real thing. It invokes a shared way of life, beliefs, values, customs, traditions, language, religious practices, social behaviour, symbols, song and dance. Culture is passed down through generations. Culture shapes and defines how people communicate, interact, behave and see the world. 166 It is for precisely this reason that the Act was strengthened to promote cultural inclusivity for culturally and linguistically diverse populations. 167 I am not satisfied that the carers have actively supported, encouraged or enhanced KJA's cultural connection apart from contact. Cultural connection is an integral part of KJA's life and developing his identity. 168 I am satisfied that NK and the maternal family are best placed to promote KJA's culture. On this issue, the carers would agree. -- 27 of 51 -- [2026] WACC 2 Page 28 169 I find that KJA's exposure to culture has been greatly enhanced as a result of connection with his maternal family. Relationship issues 170 With the exception of the relationships between JAH and AMA, and ADH and NK, I find that the relationships between the partis are strained, conflicted, and tense. JAH's relationship with AMA 171 JAH has a positive relationship with AMA and there has been open communication in the past between them. JAH facilitated video calls between KJA and AMA and provided videos, photos, and updates about KJA to her. 172 The carers have always been supportive of reunification to AMA. AMA opposed the special guardianship arrangement. She questioned JAH asking, 'Why don't you want him to be with his biological family?' JAH's response was, 'I have always supported KJA to be with you'. AMA said, 'I know. So why are we here then?' JAH replied, 'For safety. Safety and the ability to meet KJA's needs … In regard to NK, I'm concerned with his wellbeing, his safety needs, and whether NK can understand and recognise those as he grows and changes and they've been diagnosed now …'. 173 It is unclear what the status of this relationship is currently. I anticipate it remains positive. Relationship between AMA and NK 174 The relationship between AMA and her mother, NK, is a complex one. Historically, there were difficulties between mother and daughter typical of teen behaviours and boundary testing. On one occasion, this resulted in a criminal prosecution for NK and being placed on an order. 175 Despite these tensions, AMA has relied on NK to care for two of her children under a family arrangement; DA has lived with NK since he was about 12 months old and GA, since he was about 5 months old. The boys are now aged 13 and 12 years respectively. -- 28 of 51 -- [2026] WACC 2 Page 29 176 I find that AMA's position is dependent on whether she has a positive relationship with her mother or not. It was apparent that by the second part of the trial that there had been a falling out between them. NK made her views about drinking alcohol with EA present known to AMA and, as a result, AMA's wishes changed such that she supported the special guardianship application. 177 AMA's perspective was similarly changeable after the Care Plan Review Panel regarding who should care for KJA. 178 In the end, I find that AMA's changeable and emotionally charged views are of limited relevance in this determination. 179 Although AMA may wish to seek reunification with KJA, it is not a reality at this juncture. Were the special guardianship arrangement to be made, the onus would be on AMA to lodge the application. The prospect of reunification in these circumstances would be almost impossible notwithstanding the positive relationship AMA shares with the carers. 180 If the current order is maintained, reunification remains open for AMA. The relationship between the carers and NK 181 I find that the relationship between JAH and NK is strained. 182 The relationship between ADH and NK appears to be more positive as ADH is primarily responsible for contact drop-offs and collections. 183 Ms Dominguez found that there was 'relational strain' in the relationship existing between the carers and NK. 184 I was also able to observe the body language in the courtroom which was akin to frigid politeness. There was certainly no warmth displayed which is understandable in the throes of litigating such a testing issue. 185 JAH has had KJA's primary care since he was a baby, so she knows him intricately, unlike NK, whose relationship with KJA is relatively recent. 186 JAH asserts that NK does not understand, and cannot manage, KJA's wellbeing and medical needs and minimises them. She opposed KJA's transition to NK because she held concerns for his safety. An example was when KJA returned to the carers with an infected back. -- 29 of 51 -- [2026] WACC 2 Page 30 187 JAH was also concerned that NK did not understand how to manage KJA's medical issues and developmental issues. JAH alleged that NK gave him his medication on the wrong day causing 'a medical administration error'. NK refuted this assertion noting that she did not give KJA the medication on the day he returned to the carers. There was also a recent issue over the provision or non-provision of creams. 188 I suspect that without intending to do so, JAH presented a rigid and patronising attitude towards NK. An example of this occurred during an exchange when being asked about KJA spending three days every second weekend with NK. JAH said: It's his ongoing daily therapy and medical needs. NK can absolutely cater to the weekends but he needs specialist support during the week and also we aren't without concerns for the weekend. It's just that we will manage them and I absolutely believe that as our relationship grows it will be easier to have those conversations with NK directly. 189 Communication difficulties exist as NK does not write English and cannot read text messages. She is fluent in Arabic and Dinka but also cannot write in these languages. 190 NK does not believe that JAH respects cultural matters and has complained that JAH has yelled and been rude to her. NK believes that JAH either removed or blocked her telephone number from KJA's iPad which meant that KJA could not contact her. NK describes JAH as being controlling and unwilling to share information with her. 191 JAH gave evidence that she would be prepared to try to repair the relationship. 192 The examples, and the findings, reveal discord between the two people who will continue to have responsibility for this child and his care. 193 It is absolutely essential for the relationship between a special guardian and a family member to be harmonious, civil, and capable of flexibility. It do not see any characteristics of harmony, civility and flexibility in the proposed arrangement. A relationship proposing stringent contact arrangements is a further reflection of inflexibility. 194 Without doubt, the Department needs to remain in place to manage these relationships so that contact can continue for KJA, in his best interests. -- 30 of 51 -- [2026] WACC 2 Page 31 The relationship between the Department, Key Assets and the carers 195 I find that the relationship between the Department, Key Assets and the carers is an uneasy one. The following are some examples of the fraught nature of the relationships. 196 In mid-2024, the carers voiced their concern about KJA's best interests not being met by the transition plan; their view was critical of the Department. 197 The s 143 written proposal dated 23 May 2024 expressed the Department's lack of confidence that the carers would commit to ensuring KJA had ongoing contact with his maternal family and South Sudanese community to encourage his cultural identity to develop and grow; in the seven years of the care arrangement, the carers had shown little interest in the South Sudanese culture or community. 198 The carers were critical of the Department for the limited cultural plan for KJA. To its credit, the Department accepted responsibility for this during the hearing. 199 The Department was critical of JAH because of the quantity of email observations between JAH and Sarah Tierney, Key Assets, and between Ms Tierney and the case manager. JAH provided 'feedback' after any visit, medical appointment, schooling or contact. JAH considered that active reporting was part of her role, and she felt unduly criticised for her commentary. Had the carers not reported their concerns to Key Assets, I suspect that this too would have given rise to further allegations and criticism by the Department. 200 The carers had made previous unsuccessful requests that the Department consider special guardianship. The decision to apply for special guardianship only months after the carers had consented to the long-term order caused a rift between the carers and the Department. The rift was further exposed during the Care Plan Review Panel. KJA's contact with the maternal family 201 KJA currently has contact with his maternal family every alternate weekend. KJA spends from Friday after school, for two nights, until Sunday mid-afternoon at NK's home. The arrangement is facilitated by the carers, usually ADH, and NK meeting at Outback Splash where handover occurs. During school holidays, the plan has been augmented to allow additional time to be spent with the maternal family. -- 31 of 51 -- [2026] WACC 2 Page 32 202 The current contact plan enables KJA to live for short periods at his grandmother's home, with his siblings, cousin, aunts and uncles and his grandmother. The ability to strengthen his sibling relationships is important as these relationships are life-long. From time to time, KJA also spends time with his mother and little brother, EA, when they visit from Brisbane. It presents a window of opportunity to be a natural, biological family unit. 203 I have seen photos of KJA with DA, GA, and A together. Whilst I cannot know what occurred before the photo was taken, what I see are big smiles and a sense of contentment shared between siblings and their cousin. KJA is close to his brothers, in particular, GA, and it is clear that he enjoys his family time. This is a matter upon which JAH agreed. 204 I have also seen photographs of KJA with NK in a shopping centre. Again, it is impossible to know what happened moments before the image was captured but what those images reveal is a little boy having his hand held by his grandmother at the shops. Unlike the significant concerns expressed by the staff at Swan Christian College, KJA looks peaceful and attuned to his care giver, and she to him. 205 Cultural immersion cannot take place in a piecemeal fashion. KJA enjoys his time with his brothers, in particular, and with his extended maternal family. It is essential that his cultural identity grows and develops within the heart of his biological family. Lisa Dominguez Opinion at the outset of the hearing 206 Ms Dominguez supported the application for special guardianship; this would retain KJA's primary placement with the carers and accommodate a 'spend time' arrangement with NK. She described that the benefit of this option 'is that it involves less upheaval for KJA, something that is important given his functioning'. I find that she did not apply a cultural lens to this position. Capacity to care for KJA safely 207 Consistent with her reports, she believes that the carers have the capacity to meet KJA's complex needs, whilst NK does not have that capacity, saying 'I just don't think she's learned enough'. Ms Dominguez expressed concerns that NK said, more than once, that there was nothing wrong with KJA, (which NK disputed) and her understanding of KJA's medical issues was in broad terms only. Despite the supports provided -- 32 of 51 -- [2026] WACC 2 Page 33 by the Department, Ms Dominguez found that NK struggled to understand the medical language, the reason for appointments, and instructions, and will continue to require an interpreter. Upheaval 208 Ms Dominguez spoke of the risks associated with the transition to NK in terms similar to her second report. A transition would be difficult for any child, but she was concerned that KJA is a child with added challenges. She identified the upheaval to include moving house, changing school and friends and meeting new teachers. Realistically, these are all issues which any child in a transition situation needs to grapple with. 209 She predicted that KJA would experience emotional and behavioural dysregulation, attachment disruption and anxiety which NK would not be equipped to manage. By contrast, Ms Dominguez acknowledged that when she saw KJA at NK's home in January 2026, that he presented as more relaxed than when she had seen him previously. After hearing the evidence from the staff at Swan Christian College, it would appear that even a confident carer like JAH struggled to manage KJA from time to time. 210 KJA is not in a position where he will simply be removed from one household to another. He has been steadily building his relationship with and attachment to NK, his siblings and the maternal family for some time. He enjoys his time spent at his grandmother's home with his brothers, where they share a room. 211 I find that upheaval will be managed best if planning occurs in a sensitive manner, consistent with KJA's needs. Unlike Ms Rachael Clohessy's evidence, which suggested that the transition had to happen sooner rather than later, I consider that JAH's initial concerns were valid. A gentle approach to transitioning KJA to NK's care should be undertaken, using the school holidays to lengthen the time he spends in NK's care and respecting input from JAH. Cultural identity 212 Ms Dominguez had assurances from the carers that they would support KJA's cultural identity if the application were granted. Although the carers agreed that they would be willing to promote KJA's culture, the evidence revealed how limited their practical input was. Whilst I acknowledge that the Department, as guardian, is responsible for not -- 33 of 51 -- [2026] WACC 2 Page 34 crafting a more appropriate cultural plan, the carers likewise did little themselves to promote and enable KJA to embrace his culture. 213 I agree with the view expressed by the carers; the maternal family is best placed to enhance KJA's connection to his South Sudanese culture. Cultural immersion and alternate weekend contact 214 Ms Dominguez made some rather clinical suggestions about how KJA could experience cultural immersion. For example: … I really, really want the maternal grandmother's involvement in KJA's care. I want KJA … to be able to immerse himself in the culture and I think that's best placed with the maternal grandmother. But I think the stability of placement is more important. I think the culture - stability of placement with structure for the culture. 215 She firmly believed that immersing KJA in culture could be achieved by enforceable alternative weekend contacts and commented: I think that would very much help immerse him … in the culture. He will be around his family … the maternal grandmother told me that she wants him to sing in the language, attend dances in the traditional costume and … it's the religious and church involvement … within the Dinka language as well. So I … think there's great opportunity. 216 She commented on the alternate weekend contact as follows: … I think that would be sufficient provided that there's efforts made to immerse him in that culture, so going to church, because I think that would be really important for him, because there's the Christian factor that's important to the MGM, and it's in Dinka. So it's – it's those sorts of things. 217 I do not agree with Ms Dominguez's concept around alternate weekend contact providing a 'great opportunity' for cultural immersion. Friday afternoon until Sunday afternoon means two and a half days each fortnight spent with family. It means church and language classes are fortnightly instead of weekly and the warm and loving relationship with his brothers and maternal family is limited to those few days. I find that KJA's opportunity to develop natural relationships with his biological family is significantly impacted. 218 Ms Dominguez conceded the following: I believe that he enjoys going to his grandmother's, I believe that she is immersing him in the culture, I believe that they have been going to – she -- 34 of 51 -- [2026] WACC 2 Page 35 has been doing dances and traditional – they quite traditional dances and clothing and the food. So I believe that he is, and he prefers her food. So I believe that there is some cultural immersion … he gets to interact with his family and – of the same culture. So that's important, too, and he's very close to the boys… 219 If the special guardianship order were made and the contact conditions were not enforceable, Ms Dominguez believed that the carers should be able to navigate the 'spend time with' arrangements. I am uncertain how Ms Dominguez arrived at this conclusion as she had already acknowledged the strained relationship between the carers and NK. Communication was difficult and occasionally fraught. Given my findings on the conflictual relationship between JAH and NK, I take issue with this assumption. 220 Further, I noted at the beginning of this decision that several amended versions of the Applicant's application were filed. An examination of them is relevant; what the carers proposed was supervised contact for KJA with his family. 221 The initial special guardianship application dated 28 October 2024, and the amended special guardianship application dated 1 July 2025, proposed that the carers facilitate and supervise contact between KJA and the mother, as arranged and agreed between the parties and subject to the child's best interests, on at least one occasion per fortnight. 222 The amended special guardianship application dated 28 January 2026 proposed that the carers facilitate and supervise contact between KJA and the maternal family, as arranged and agreed between the parties and subject to the child's best interests, on at least one occasion per fortnight. 223 The amended special guardianship application dated 19 February 2026 proposed that the carers facilitate and supervise contact between KJA and the maternal grandmother, as arranged and agreed between the parties and subject to the child's best interests, on at least one occasion per fortnight. 224 I find that the drafting of each of the contact proposals was restrictive, limited, overly controlling and patronising. 225 Even days before the hearing in February 2026, the contact proposed was supervised. There was simply no need for the carers to have suggested the need to supervise contact between KJA and any of -- 35 of 51 -- [2026] WACC 2 Page 36 the maternal family in circumstances where alternate weekend contact was already in place. 226 To my mind, it is further evidence of the strained relationships and discord between the parties. Although there was no comment made by Counsel for NK at the hearing on this issue, I inferred that it would have been yet another source of friction. 227 I consider that Ms Dominguez's evidence as to how contact and cultural immersion could occur is forced and very unnatural. I find it is entirely inconsistent with the objects and principles of the Act, in particular Sections 6(a), (b) and (c) and s 8(1)(j) of the Act. 228 Cultural immersion cannot be achieved through limited family time, and the proposed arrangements are completely inadequate. The evidence that alternate weekend contact 'would be sufficient' is a reflection on the lack of a true cultural lens being applied to this case. This attitude is consistent with Ms Dominguez's comment that it is not the amount of time that was critical but the quality of time. I disagree with this assertion. 229 I find to the contrary; KJA simply does not experience enough time with his siblings, his grandmother and his extended maternal family in a culturally safe space. It is also sad that KJA and his mother only have contact when AMA is in Perth. Lisa Dominguez's changed position 230 Ms Dominguez had maintained in her evidence that KJA should remain with the carers as his special guardians to ensure KJA's safety from harm. The carers could arrange contact with NK and the maternal family to enable cultural immersion. 231 The crux of the Department and NK's case was put to Ms Dominguez by Counsel for the Department as alternative position: If you accept for the moment that NK is able to adequately care for and meet KJA's medical needs - and, obviously, given the cultural connections to his grandmother, his brothers who are in the home; his cousins … are in the home; his uncles, aunties are in the home - that the better place for him is in that home, isn't it? Ms Dominguez replied, 'Well, it would be'. 232 This was a very significant concession by Ms Dominguez. It goes to the heart of the case for NK and the Department, as both NK and the -- 36 of 51 -- [2026] WACC 2 Page 37 Department believes that she is capable and suitable to care for KJA safely. She is approved as KJA's carer, she is family, KJA is attached to her and she is culturally appropriate. NK 233 Despite immense personal tragedy, NK remains focussed on uniting her family, perhaps as a consequence of her significant losses. Her determination to recover her grandson, A, from Israel, speaks to that focus as does her dedication to caring for GA and DA, and her participation in this hearing. 234 In contrast to Ms Dominguez, who has only met NK on a few occasions, the Department case management team has regular engagement with NK and a much more positive outlook about her capacity. NK has worked steadily and co-operatively with the Department to meet the goal of being KJA's carer. NK has also undertaken programs, such as Centrecare Stronger Together, and Dyadic therapy with KJA and Jasmine Kieft, psychologist, to build a secure emotional attachment with him. I find that NK has established a strong relationship with KJA since 2022. 235 NK has satisfied the Department that she is a suitable carer for KJA notwithstanding his complex issues. As the team leader, Ms Ashcroft, said in evidence: … [W]e don't expect parents to be perfect, good enough will do otherwise children would never be reunified or transitioned to their families. She was then asked, "And is the Department looking at what I might call perfect parenting, or what are they looking at?" Ms Ashcroft replied, 'No. It just needs to be good enough'. 236 JAH is acutely aware of KJA's medical issues. I attribute this to her pride in her work, longevity with KJA's care and her specialised interest in fostering children with high needs. She has also undertaken training and program and has an excellent understanding of KJA's needs. 237 NK has demonstrated over the years that she is prepared to put in the effort required to become KJA's carer. She already cares for KJA for two and a half days per fortnight. I find that NK will continue to apply herself to deepening her knowledge to care for all facets of KJA's care. NK has demonstrated that she can work effectively with the Department. -- 37 of 51 -- [2026] WACC 2 Page 38 NK will be well supported by the case management team with service, supports and appropriately funded programs. 238 I acknowledge that English is not NK's first language. In a short period of time, she has become familiar with KJA's medical needs and has been given the support of an interpreter. Her competence has developed. Given that English is not her first language, I find that the language barrier is likely to impact NK. As a result, NK has been provided with a resource in Ms Naam, as both an interpreter and a support person. This resource is valuable, culturally appropriate and consistent with s 9(l) of the Act, which promotes the services of an interpreter or other appropriate person are to be made available to assist a person who has difficulty understanding or communicating in English. 239 By contrast with JAH, I find that NK is broadly aware of KJA's medical conditions. Although NK was not detailed as to particulars, I received the firm impression that she understands KJA's needs and medical challenges. NK is aware of the medications and creams to be administered, despite a recent incident where she forgot to apply a cream. NK is capable to undertake these tasks, and she is also supported to attend his medical appointments. NK's broad level of knowledge is not a concern for the Department and I find that the Department is satisfied that NK's level of care and knowledge is 'good enough'. 240 Consistent with the Care Plan Review Panel decision, KJA was to remain living with his carers until such time as the District could be satisfied that KJA's special needs can be met in a placement with his maternal grandmother. The Department has been satisfied that NK can meet KJA’s special needs since May 2024. 241 I am satisfied that NK's knowledge of KJA's complex circumstances is sufficient to undertake the role of his carer, with the Department remaining as his guardian. Relevant considerations under the Children and Community Services Act 2024 242 Although reference to these factors will form part of my findings and conclusions, I consider it of assistance to those reading my decision to be aware of the lens I applied when determining this application. -- 38 of 51 -- [2026] WACC 2 Page 39 Burden and standard of proof 243 As the Applicants, the carers bear the onus to satisfy the Court that it is in KJA's best interests that the order they seek is made. The standard of proof is on the balance of probabilities The rules of evidence 244 The court is not bound by the rules of evidence and may inform itself on any matter in any manner it considers appropriate, including accepting hearsay evidence. The weight to be given to hearsay evidence is a matter for the Court. Best interests test 245 The test in s 7 of the Act is a best interests test. In performing a function under the Act, the paramount consideration is the best interests of the child. Section 8 factors in determining the best interests of the child 246 Section 8 provides a non-exhaustive list of matters which must be taken into account to determine what is in a child's best interests. I took each of these matters into account when I considered KJA's best interests. Section 9 principles 247 In performing a function under the Act, I am mindful that I must observe the s 9 principles. I have referred to the following principles which were relevant to my considerations: (a) the principle that the parents, family and community of a child have the primary role in safeguarding and promoting the child's wellbeing; (b) the principle that the preferred way of safeguarding and promoting a child's wellbeing is to support the child's parents, family and community in the care of the child; … (e) the principle that every child should have stable, secure and safe relationships and living arrangements; … (f) the principle that planning for the care of a child who is in the CEO's care should occur as soon as possible in order to promote long-term stability for the child and should, as soon as possible, -- 39 of 51 -- [2026] WACC 2 Page 40 include consideration of whether it is appropriate to work towards returning the child to the child's parents; (ga) the principle that objectives of planning for the care of a child who is in the CEO's care include the following — (i) to achieve continuity and stability in the child's living arrangements; (ii) to preserve and enhance the child's relationships with the child's family and with other people who are significant in the child's life (subject to protecting the child from harm and meeting the child's needs); (iii) for an Aboriginal child, Torres Strait Islander child or child of a culturally or linguistically diverse background — to preserve and enhance the child's connection with the culture and traditions of the child's family or community; (gb) the principle that objectives of planning for a placement arrangement for a child include, subject to protecting the child from harm and meeting the child's needs, the following: (i) to place the child with a member of the child's family; (ii) to place the child with the child's siblings (subject also to protecting the siblings from harm); (iii) to place the child with a person who is willing and able to encourage and support the child to develop and maintain contact with the child's parents, siblings and other members of the child's family and with other people who are significant in the child's life, subject to decisions under this Act about that contact; … (h) the principle that decisions about a child should be made promptly having regard to the age, characteristics, circumstances and needs of the child and to minimising the risk of detrimental effects arising from delay in decision-making; (ia) the principle that decisions about a child with disability should be made giving special consideration to any difficulties or discrimination that may be encountered by the child because of the child's disability and should support the child's full and effective participation in society; (i) the principle that decisions about a child should be consistent with cultural, ethnic and religious values and traditions relevant to the child; -- 40 of 51 -- [2026] WACC 2 Page 41 (j) the principle that a child's parents and other people who are significant in the child's life should be given an opportunity and assistance to participate in decision-making processes under this Act that are likely to have a significant impact on the child's life; (k) the principle that a child's parents and other people who are significant in the child's life should be given adequate information, in a manner and language that they can understand, about — (i) decision-making processes under this Act that are likely to have a significant impact on the child's life; and (ii) the outcome of decisions under this Act that are likely to have a significant impact on the child's life (as described in section 10(3)), including an explanation of the reasons for the decisions; and (iii) any relevant complaint or review procedures; (l) the principle that, as far as practicable, services of an interpreter or other appropriate person are to be made available to assist — (i) a person who has difficulty understanding or communicating in English; or (ii) a person whose disability prevents or restricts the person's understanding of, or participation in, a decision-making or other process or the person's expression of wishes or views. Section 9 findings 248 In addition to findings already made in this decision, I make the following comments. 249 KJA was placed with the carers as a 4-month-old baby with significant needs. The carers have tended to his needs and over the course of years have become, to all intents and purposes, his parents. He has a significant relationship with the carers and their children, biological and special guardian children. These relationships have grown and developed over years. 250 By contrast, KJA met his biological family in recent years. These relationships have grown and developed and created strong bonds; they will continue to do so in a natural and connected way. KJA should spend his childhood with his grandmother, siblings, cousins and extended family members on a day-to-day basis. A relationship with his mother -- 41 of 51 -- [2026] WACC 2 Page 42 and EA is also desirable. Each of these relationships will enrich his cultural identity and maternal family connection, in particular his sibling relationship. I am satisfied KJA's complex needs will be met by NK, supported by the Department. 251 The role of a foster carer is to be responsible for the day-to-day care of a child, as their custodian. It is a paid role. The unpaid portion of the role is the loving relationship which develops as a result of care and responsibility. This is the silver lining for KJA and his carers. It is also precisely what makes this decision a painful one for them. 252 The Department resisted the wish of the carers to be KJA's special guardians before this litigation, mindful of the s 9 principles. The objects of the Act include promoting the wellbeing of children, acknowledging the role of families in safeguarding and promoting the wellbeing of children, and encouraging and supporting families to carry out that role. 253 In this case, the s 9(a) and (b) principles are apt; the principle that the family and community of a child should have the primary role in safeguarding and promoting the child's wellbeing and that consistent with this principle is that the preferred way of safeguarding and promoting a child's wellbeing is to support the child's family and community in caring for the child. These principles form the heart of the Department and NK's case. 254 KJA is still very young. I must infer his wishes from the evidence. There is no doubt that KJA loves his carers and his maternal family, especially his brothers. The description of KJA being pleased with the plan to transition him to living with his family by reference to the Words and Pictures story enabled me to infer that he is pleased to be transitioning into NK's care. 255 Continuity and stability in KJA's living arrangements is important, particularly given his attachment to the carers and conscious of his medical challenges. KJA will experience upheaval and disruption when he transitions to his placement with NK. There will be a permanent change of home, without doubt a change of school, and the loss of his foster care family. They are all significant people in his young life and have formed the fabric of his day-to-day life. 256 The contact regime has been operating for some time with the maternal family and familiarity has been established. There is also a deep bond between the siblings. The natural closeness of the relationships and the consistency of contact will help to ameliorate much -- 42 of 51 -- [2026] WACC 2 Page 43 of the disruption. KJA will be in a place where his life will be enriched by culture, and his view of the world will be that he sees family members who look like him. 257 There will always be disruption and upheaval consequent on any transition. Children would never be reunified to their families if transitions did not happen. This upheaval will require the Department and the adults in his life to come together, with goodwill, to plan, manage and work cooperatively and in his best interests for home, happiness, education and health. It will require the Department, NK and the carers to be receptive and open to what a sensitive transition looks like and how ongoing contact into KJA's future can occur with the carers. Consistent with my findings as regards the Words and Pictures, KJA is happy with the plan to be transitioned to his grandmother's care. His happiness and his loving relationship with his brothers will certainly smooth that transition. 258 Delay is a factor which has worked against KJA's best interests. The plan to transition KJA two years ago at age 5, to promote KJA's long-term stability, consistent with s 9(g) of the Act, did not occur, and then litigation commenced. Hopefully the litigation will end with this decision, almost two years after the transition plan was first mooted. 259 The principle in s 9(ga) reflects the different aims of the parties to achieve continuity and stability in the child's living arrangements. I am satisfied that NK can ensure KJA's safety, protect him from harm and meet his complex needs, supported by the case management team, Ms Naam and the South Sudanese community. This will enable KJA to experience life with his siblings and maternal family in a manner that is safe, culturally appropriate, and which will preserve and enhance KJA's connection with his culture and traditions. 260 The Department also has a solemn responsibility to KJA to preserve his relationship with the carers and their family, as they hold a very important position in his life as his primary attachment figures. This is consistent with the s 9(j) principle that a child's parents and other people who are significant in the child's life should be given an opportunity and assistance to participate in decision-making processes under this Act that are likely to have a significant impact on the child's life. Everyone who participated in this hearing demonstrated their love for KJA. 261 Going forward, the planning, as already mentioned, must include the carers, if they wish to be involved, as they will be an integral part of -- 43 of 51 -- [2026] WACC 2 Page 44 the success of the transition plan. Their continued support for KJA would be in his best interests. It would require a selfless approach by them. If they decided not to act co-operatively, KJA would experience a very sudden and disrupted attachment and this would not be in his best interests. The importance of maintaining the key figures in his life cannot be understated. 262 The principle in s 9(gb) is relevant. Subject to ensuring that the child is protected from harm and the child's needs can be met, planning for a placement arrangement for a child should consider placing the child with a member of the child's family and with the child's siblings. In this case, given I am satisfied that NK can protect KJA from harm, those cultural, ethnic and religious values and traditions are relevant to KJA and also how and where he grows up. This is consistent with the s 80 Guidelines, s 8(h) and (j) and s 9(i) of the Act. Subdivision 6 and Section 61 considerations 263 On 1 May 2022 by virtue of s 27 of the Children and Community Services Amendment Act 2021, s 61 of the Act was amended. It directed the Court when assessing the suitability of a proposed special guardian to have regard to the Guidelines established under s 80 for a child of a culturally and linguistically diverse background, as if the order were a placement arrangement. 264 Given the nature of the application, I considered Subdivision 6 which sets out the legislative requirements the Court must consider for special guardianship orders. 265 In terms similar to s 58 of the Act, s 61 imposes a mandatory restriction on making special guardianship orders, in the following terms: (2) The Court must not make a protection order (special guardianship) in respect of a child unless the Court is satisfied — (a) that long-term arrangements should be made for the wellbeing of the child; and (b) that the proposed special guardian is — (i) a suitable person to provide long-term care for the child; and (ii) willing and able to provide such care. -- 44 of 51 -- [2026] WACC 2 Page 45 (2A) The Court must, in assessing the suitability of the proposed special guardian, have regard to the following as if the order were a placement arrangement — (a) for an Aboriginal child or Torres Strait Islander child — the principle set out in section 12; (b) for a child of a culturally or linguistically diverse background — the guidelines established under section 80; (c) in any case — other principles set out in Part 2 affecting the placement of a child who is in the CEO's care. … (3) The CEO must provide the Court with a written report that — (a) contains information addressing the matters referred to in subsections (2)(b)(i) and (ii) and (2A); and (b) outlines the proposed arrangements for the wellbeing of the child; and (c) without limiting paragraph (b), outlines the proposed arrangements for encouraging and supporting the child to develop and maintain contact with the child's parents, siblings and other members of the child's family and with other people who are significant in the child's life, subject to decisions under this Act about that contact; and (d) for an Aboriginal child, Torres Strait Islander child or child of a culturally or linguistically diverse background — is accompanied by a cultural support plan for the child. (4) However, the report need not be accompanied by a cultural support plan if the application for the protection order (special guardianship) is made under section 69A. (5) The Court must, before making a protection order (special guardianship), consider each report given to the Court under this section. (6) The CEO must give a copy of each report given to the Court under this section to the other parties to the proceedings. -- 45 of 51 -- [2026] WACC 2 Page 46 Section 80 guidelines for placement of certain children 266 In applying s 61(2A)(b), the Court must, in assessing the suitability of the proposed special guardians, have regards to the Guidelines established under s 80 as KJA is a culturally and linguistically diverse child. 267 Specifically, s 80(2) provides: Without limiting the scope of the guidelines, they are to address the need to preserve and enhance a child's cultural, ethnic and religious identity. 268 The objective of the Guidelines is to preserve, enhance and maintain a connection with family, culture and religion for a culturally and linguistically diverse child who is in the Department's care under a placement arrangement. They parallel the s 12 placement principles and priorities of placement for Aboriginal and Torres Strait Islander children. 269 The Guidelines direct the Department, when making a decision about the placement of a child, that: Any placement must, so far as is consistent with the child's best interests and otherwise practicable, be in accordance with the following order of priority: 1. placement within the child's family of origin; 2. placement with a carer from the same culture and religion; 3. placement with a carer who is accepting and respectful of the child's specific cultural and religious needs. 270 I am familiar with those Guidelines when considering placement of children from culturally and linguistically diverse backgrounds and I am conscious that the Court is directed in mandatory terms. KJA is a culturally and linguistically diverse child. I must also take into account the s 8 factors in determining best interests, noting that the guidelines specifically refer to s 8(1)(i) and s 8(1)(j) of the Act. Other principles to be observed are s 9(ga)(iii), s 9(i), s 9(k), s 9(l) and s 10(1) of the Act. Findings on s 61(2) and s 61(2A)(b) 271 The Court is directed in mandatory language pursuant to s 61(2) of the Act not to make a Protection Order (special guardianship) unless it can be satisfied as to clauses (a) and (b). -- 46 of 51 -- [2026] WACC 2 Page 47 272 I am satisfied to the required standard that clause (a) is met. KJA has complex needs, and long-term arrangements should be made to ensure his wellbeing, consistent with the term 'wellbeing' in s 3 of the Act, and also by taking into account his best interests. 273 I am satisfied that KJA's long-term needs would be met under either the current order or the proposed order. 274 The crux of this hearing related to 'suitability of the proposed special guardian' by reference to s 61(2)(b) of the Act. 275 I must then ask myself, are the proposed special guardians suitable persons to provide long-term care to KJA and are they willing and able to do so? I have already found that both JAH and ADH are competent, diligent, and loving carers. They are suitable persons who are willing and able to care for KJA under a long-term arrangement. That is clear from my findings and consistent with their application seeking special guardianship. 276 If satisfaction of s 61(2) in its entirety was all that was required, then the carers would meet the criteria under the Act on the evidence. I must however consider the mandatory, and non-discretionary, requirements contained in s 61(2A)(b) of the Act, which qualifies s 61(2). 277 Section 61(2A)(b) of the Act directs that the Court must, in assessing the suitability of the proposed special guardian, have regard to the Guidelines established under s 80 for a child of a culturally and linguistically diverse background, as if the order were a placement arrangement. 278 I have already made findings in my decision about the carers and their lack of cultural engagement. While the carers are well-placed to meet KJA's medical, emotional, and developmental needs, the special guardianship order would not adequately safeguard his cultural needs in the long term. The proposed placement with the carers would not enhance or preserve KJA's cultural, ethnic and religious identity. As a result of this qualification, I do not find that the carers meet the requisite test for 'suitability', applying the s 80 Guidelines. 279 The consequence of this finding is that I am directed in mandatory terms not to make a Protection Order (special guardianship) unless I can be satisfied to the required standard, of the suitability of the proposed special guardian. Notwithstanding the carers are excellent carers and -- 47 of 51 -- [2026] WACC 2 Page 48 love KJA very much, I find that they do not meet the statutory requirement under the Act. 280 Since May 2024, when NK was approved as a carer for KJA, the Department intended to follow its Guidelines and sought the transition. KJA's placement with NK would meet the first priority as a placement within the child's family of origin. Although the Department approved NK, the Care Plan Review Panel recommended in December 2024 that KJA remain living with his carers until the Department could be satisfied that KJA's special needs could be met in a placement with his maternal grandmother, NK. 281 The s 143 written proposal dated 23 May 2024 has not been updated. This is because the case finalised with the making of the long- term order on 7 August 2024. The Department's goal was reunification to AMA otherwise, the parallel plan was to transition KJA to a placement with NK, with appropriate supports to ensure that his complex needs were met. 282 The Department has assessed NK and approved her to be KJA's carer. NK has met the requirements to care for KJA, notwithstanding his significant needs and notwithstanding the negative reports from the expert. The Department case affirmed its support for the placement to be with NK with appropriate supports. This placement would be consistent with ensuring KJA's best interests are met from a cultural and financial perspective. Cultural considerations would be met with this placement within a family placement with his maternal grandmother, two siblings, a cousin and other extended family members. Financial arrangements would ensure his ongoing access to medical and therapeutic care, medications, education, and relevant programs. 283 This is not a case of culture overriding the best interest of KJA. The Department is satisfied that the placement with NK is safe and that NK can adequately meet KJA's medical needs, which the Department will fund. NK will continue to be well supported by the Department. I agree with this view. KJA will also be eligible for a leaving care plan. The Department will be able to arrange contact for KJA with his carers, mediating relational strain and safeguarding KJA's ongoing connection with his maternal family and cultural identity. 284 Placement with NK would be consistent with KJA's best interests; it complies with the Guidelines for placement within the child's family of origin. -- 48 of 51 -- [2026] WACC 2 Page 49 285 In compliance with my oath and applying the facts to s 61(2A)(b) of the Act, I cannot grant the application for special guardianship. Recommendations 286 I recommend that KJA's transition be undertaken in a sensitive manner. Transition plans should include input from the carers and NK. Consistent with the Chairperson of the Care Plan Review Panel's comment, 'KJA needs all of the adults in his life to work together to help him achieve his potential'. 287 The Department has a solemn responsibility to KJA to preserve his relationship with the carers and their family consistent with the s 9(j) principle. I recommend that the Department arrange for KJA to have ongoing, regular contact with the carers and their family. I certify that the preceding paragraph(s) comprise the reasons for decision of the Children's Court of Western Australia. TH Court Officer 5 JUNE 2026 -- 49 of 51 -- [2026] WACC 2 Page 50 Annexure A EXHIBIT LIST NUMBER TYPE DESCRIPTION 1 Exhibit Affidavit of JAH filed 28 Jan 2026 2 Exhibit Bundle of 3 reports dated 19/6/25, 16/10/25 & 30/10/25 from Dr Michelle MCNAMARRA-SMITH 3 Exhibit Bundle of text messages between JAH & AMA & JAH & NK 4 Exhibit Bundle of Emails from JAH 5 Exhibit Bundle of Photographs labelled 1-6 6 Exhibit Emails from JAH dated 28 Jan 2025 7 Exhibit Bundle of Emails between counsel for parties dated between Sep 2025 & Dec 2025 9 Exhibit Emails dated 30 & 31 Jan 2026 between department, Key Assets and Carer 10 Exhibit Care Plan for KJA dated 16 Aug 2023 11 Exhibit Care Plan for KJA dated 12 Sep 2024 12 Exhibit Notes from Natasha BLOOM from Swan Christian College dated 16/10/25 & 08/12/25 13 Exhibit TSH school support program progress report 2025 for KJA 14 Exhibit Email from Julia ALAND to parties regarding incidents 4-6 Aug 2025 15 Exhibit Minute from meeting 14 Aug 2025 regarding KJA 16 Exhibit Adjustment Evidence of KJA from 14 Nov 2025 17 Exhibit Email from 9 May 2025 from Julia ALAND 18 Exhibit Adjustment Evidence of KJA dated 28 Feb 2025 from Julia ALAND 19 Exhibit Observations of KJA from Julia ALAND dated 28 Mar 2025 20 Exhibit Email from Julia ALAND dated 31 Oct 2025 21 Exhibit Key Assets Monthly Report Mar 2024 22 Exhibit Monthly Progress Report from Sarah TIERNEY dated May 2024 23 Exhibit Monthly Progress Report from Sarah TIERNEY dated June 2024 24 Exhibit Monthly Progress Report from Sarah TIERNEY dated July 2024 25 Exhibit Aweil Community Association Invitation for 31 Jan 2026 26 Exhibit Affidavit of Cholhok NAAM lodged 5 Feb 2026 27 Exhibit Affidavit of Caroline SPEIRS lodged 4 Feb 2026 28 Exhibit Affidavit of Eduardo FARATE lodged 2 Feb 2026 29 Exhibit Cultural Support Plan for KJA dated 20 May 2024 30 Exhibit Affidavit of Sommer McEVOY lodged 4 Feb 2026 31 Exhibit Affidavit of Claire MCGOWAN lodged 4 Feb 2026 32 Exhibit Section 61(3) report produced by Claire MCGOWAN 33 Exhibit Care Plan Review Panel Report dated 9 Dec 2024 34 Exhibit Interim Placement and Carer Assessment Report dated 23 May 2024 35 Exhibit Affidavit of Sarah DIGBY-CASTELL lodged 6 Feb 2026 36 Exhibit Section 143 proposal lodged 23 May 2024 37 Exhibit Case Plan Supervision Approved Outcome Report dated 7 Dec 2023 38 Exhibit Email Correspondence between Sarah DIGBY-CASTELL, Sarah TIERNEY & JAH 39 Exhibit Case Plan Supervision Approved Outcome Report dated 19 Jun 2024 40 Exhibit Case Plan Supervision Approved Outcome Report dated 26 Sep 2024 41 Exhibit Care Plan Review Panel Record of Proceedings dated 21 Nov 2024 42 Exhibit Case Plan Supervision Approved Outcome Report dated 26 Nov 2024 43 Exhibit Care Plan of KJA dated 12 Sep 2024 -- 50 of 51 -- [2026] WACC 2 Page 51 44 Exhibit Email exchange between Sarah TIERNEY & Sarah DIGBY-CASTELL dated 7-10 Jun 2024 45 Exhibit Affidavit of Danielle MARCHESANO lodged 30 Jun 2025 46 Exhibit Affidavit of Danielle MARCHESANO lodged 4 Feb 2026 47 Exhibit Affidavit of Danielle MARCHESANO lodged 24 Feb 2026 48 Exhibit Video Recording on USB of cultural event 49 Exhibit Case Plan Supervision Approved Outcome Report dated 21 Mar 2025 50 Exhibit Affidavit of Rachael CLOHESSY dated 3 Feb 2026 51 Exhibit Mindstate Psychology Report from Lisa DOMINGUEZ dated 14 May 2023 52 Exhibit Mindstate Psychology Report from Lisa DOMINGUEZ dated 25 Jan 2026 53 Exhibit Letter from Lisa DOMINGUEZ dated 21 Feb 25 (26) 54 Exhibit Case Plan Consultation Approved Outcome Report dated 27 Feb 2025 55 Exhibit Email chain dated 31 March 2026 from Mr Ben STEWART 56 Exhibit Affidavit of Wendy ASHCROFT filed 4 February 2026 57 Exhibit Email from Danielle MARCHESANO dated 4 February 2026 58 Exhibit Email from Danielle MARCHESANO dated 16 February 2026 59 Exhibit Email chain from DOC dated 18 March 2026 60 Exhibit Email chain including text messages between Cholhok NAAM and JAH dated 18 March 2026 61 Exhibit Email from Ms Richa MALAVIYA to all parties dated 6 April 2026 62 Exhibit Email from Aimee VAN RENSBURG to JAH dated 7 April 2026 63 Exhibit Email from Jeffrey GORE to all parties dated 30 June 2025 64 Exhibit Case Plan Supervision Approved Outcome Report dated 16 August 2023 65 Exhibit Email from Sarah TIERNEY at Key Assets to DOC dated 22 December 2023 66 Exhibit Email chain from DOC regarding PBS funding with multiple dates 67 Exhibit Affidavit by NK - Second Respondent 68 Exhibit Terms of Reference for Expert Report 8 MFI Bundle of Photographs Labelled 1-12 -- 51 of 51 --