CVJ & Anor v Department of Children, Youth Justice and Multicultural Affairs [2022] QCAT 280

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: CVJ & Anor v Department of Children, Youth Justice and Multicultural Affairs [2022] QCAT 280 PARTIES: CVJ (applicant) CJP (applicant) v DEPARTMENT OF CHILDREN, YOUTH JUSTICE AND MULTICULTURAL AFFAIRS (respondent) APPLICATION NO/S: CML399-21 MATTER TYPE: Childrens matters DELIVERED ON: 24 June 2022 (orders) 7 September 2022 (reasons) HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Mellifont, President ORDERS: Application dismissed. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – child protection – application for stay – where Department decided children should live with aunt – where grandmother applied for stay of decision – whether decision should be stayed – whether in best interests of children for decision to be stayed ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES – ABORIGINAL AND TORRES STRAIT ISLANDER CHILDREN – where children’s mother is of Chinese and additional descent and children’s father identifies as Aboriginal – where the children also identity as Aboriginal – where children were placed in care of aunt who is also of Aboriginal descent Child Protection Act 1999 (Qld), s 5A, s 5B, s 5BA, s 5C, s 5D, s 6AA, s 83, s 82, s 86(2), s 86(4), s 99P(1), s 247 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) -- 1 of 14 -- 2 REASONS FOR DECISION Application [1] On 6 December 2021 the applicants, CVJ and CJP, made application to the Tribunal on behalf of the children, WRH (born 2013) and WDQ (born 2015) (“Children” together) to review a decision of the Chief Executive of the respondent, Department of Children, Youth Justice and Multicultural Affairs (“Department”), to place the Children in the care of PJD (“Decision”). [2] On 24 June 2022, I dismissed the application. These are my reasons for doing so. Background [3] The Children are the children of CXQ and WZX. At the time of hearing the proceeding, WRH was eight years of age and WDQ six years of age. The Children are of Chinese and ZVP descent on their maternal side. WZX identifies as Aboriginal with his family connecting to the XQU people of YPT. The Children also identify as Aboriginal. [4] On 4 February 2022, the Director of Child Protection Litigation made application to the Children’s Court for a child protection order giving long-term guardianship of the Children to the Chief Executive. The application had not been determined at the time of hearing the proceeding. [5] CVJ and CJP are the maternal grandparents of the Children. CVJ resides in South Australia with her adult son, CQA, the Children’s uncle. CJP resides in Darwin, Northern Territory. [6] PJD is the Children’s paternal aunt. She lives in New South Wales with her eleven-year-old son, PCZ. [7] On 15 December 2021 the Children were placed with PJD. Subsequently, on 19 January 2022, it was decided to place the Children in the fulltime care of PJD. [8] As has been said, on 6 December 2021, CVJ and CJP applied to the Tribunal to review the Decision. They made a further application to review the Decision on 4 May 2022. Legislative framework Child Protection Act 1999 (Qld) [9] The placing of a child in the custody or guardianship of the Chief Executive in care is provided for in division 4 of part 6 of the Child Protection Act 1999 (Qld) (“CP Act”). The Chief Executive may place the child in the care of: (a) an approved kinship carer for the child; (b) an approved foster carer; (c) an entity conducting a departmental care service; (d) a licensee; (e) if it is not possible, or not in the child’s best interests, for the child to be placed in the care of an entity mentioned in paragraphs (a) to (d) – a provisionally approved carer for the child; or -- 2 of 14 -- 3 (f) if the Chief Executive is satisfied another entity would be the most appropriate for meeting the child’s particular protection and care needs – that entity.1 [10] If the child is in the Chief Executive’s custody or guardianship under a child protection order, the Chief Executive may place the child in the care of a parent of the child.2 [11] Subject to s 86(3) and s 86(4), the Chief Executive must, as soon as practicable after deciding in whose care to place the child, give written notice of the decision to the child and the child’s parents stating the following: (a) the person in whose care the child is placed and where the child is living; (b) the reasons for the decision; (c) the child or child’s parent may apply to the tribunal to have the decision reviewed; (d) how, and the time within which, the child or child’s parent may apply to have the decision reviewed; (e) any right the child or child’s parent has to have the operation of the decision stayed. [12] The Chief Executive must consider the matters prescribed under a regulation before complying with s 86(2). [13] If, after considering the matters, the Chief Executive reasonably suspects compliance with s 86(2) would constitute a significant risk to the safety of the child or anyone else with whom the child is living, the Chief Executive may decide not to comply with the section. [14] If the Chief Executive decides under s 86(4), the Chief Executive must give written notice of the decision to the child and the child’s parents stating the following: (a) the Chief Executive has decided not to tell the child’s parents the person in whose care the child is placed and where the child is living; (b) the reasons for the decision; (c) the child or child’s parent may apply to the tribunal to have the decision reviewed; (d) how, and the time within which, the child or child’s parent may apply to have the decision reviewed; (e) any right the child or child’s parent must have the operation of the decisions stayed. [15] The requirement in s 86(2) does not apply if the Chief Executive is satisfied it is not reasonably practicable for the Chief Executive to give the notice because the child is placed in the person’s care for less than 7 days. 1 CP Act, s 82(1). 2 CP Act, s 82(2). -- 3 of 14 -- 4 [16] The paramount principle for the administration of the CP Act is spelt out in section 5A. It is “…the safety, wellbeing and best interests of a child, both through childhood and for the rest of the child’s life…”. [17] Other principles are found in s 5B to s 5D of the CP Act. Section 5B contains general principles for ensuring the safety, wellbeing and best interests of a child as follows: (a) a child has a right to be protected from harm or risk of harm; (b) a child’s family has the primary responsibility for the child’s upbringing, protection, and development; (c) the preferred way of ensuring a child’s safety and wellbeing is through supporting the child’s family; (d) if a child does not have a parent who is able and willing to protect the child, the State is responsible for protecting the child; (e) in protecting a child, the State should only take action that is warranted in the circumstances; (f) if a child is removed from the child’s family, support should be given to the child and the child’s family for the purpose of allowing the child to return to the child’s family if the return is in the child’s best interests; (g) if a child does not have a parent able and willing to give the child ongoing protection in the foreseeable future, the child should have long-term alternative care; (h) if a child is removed from the child’s family, consideration should be given to placing the child, as a first option, in the care of kin; (i) if a child is removed from the child’s family, the child should be placed with the child’s siblings, to the extent that is possible; (j) a child should only be placed in the care of a parent or other person who has the capacity and is willing to care for the child (including a parent or other person with capacity to care for the child with assistance or support); (k) a child should be able to maintain relationships with the child’s parents and kin, if it is appropriate for the child; (l) a child should be able to know, explore and maintain the child’s identity and values, including their cultural, ethnic, and religious identity and values; (m) a delay in making a decision in relation to a child should be avoided, unless appropriate for the child. [18] The principles relevant to making decisions about actions to be taken, or orders to be made, under the Act are stated in section 5BA (Principles for achieving permanency for a child).3 For ensuring the wellbeing and best interests of a child, the action or order that should be preferred, having regard to the principles mentioned in sections 5B and 5C, is the action or order that best ensures the child experiences or has: 3 CP Act, s 5BA(1). -- 4 of 14 -- 5 (a) ongoing positive, trusting, and nurturing relationships with persons of significance to the child, including the child’s parents, siblings, extended family members and carers; and (b) stable living arrangements, with connections to the child’s community, that meet the child’s developmental, educational, emotional, health, intellectual and physical needs; and (c) legal arrangements for the child’s care that provide the child with a sense of permanence and long-term stability, including, for example, a long-term guardianship order, a permanent care order or an adoption order for the child.4 [19] Permanency, for a child, means the experience by the child of having the things mentioned in sections 5BA(2)(a) to (c).5 [20] The following principles also apply for deciding whether an action or order best achieves permanency for a child, in order of priority: (a) the first preference is for the child to be cared for by the child’s family; (b) the second preference is for the child to be cared for under the guardianship of a person who is a member of the child’s family, other than a parent of the child, or another suitable person; (c) if the child is not an Aboriginal or Torres Strait Islander child—the next preference is for the child to be adopted under the Adoption Act 2009 (Qld) (“Adoption Act”); (d) the next preference is for the child to be cared for under the guardianship of the Chief Executive; (e) if the child is an Aboriginal or Torres Strait Islander child—the last preference is for the child to be adopted under the Adoption Act.6 [21] The provisions of section 5C of the CP Act are relevant in the circumstances here. The additional principles apply for administering the Act in relation to Aboriginal or Torres Strait Islander children. They are: (a) Aboriginal and Torres Strait Islander people have the right to self- determination; (b) the long-term effect of a decision on the child’s identity and connection with the child’s family and community must be taken into account. [22] The following child placement principles also apply in relation to Aboriginal or Torres Strait Islander children: (a) the principle (the prevention principle) that a child has the right to be brought up within the child’s own family and community; 4 CP Act, s 5BA(2). 5 CP Act, s 5BA(3). 6 CP Act, s 5BA(4). -- 5 of 14 -- 6 (b) the principle (the partnership principle) that Aboriginal or Torres Strait Islander persons have the right to participate in significant decisions under the Act about Aboriginal or Torres Strait Islander children; (c) the principle (the placement principle) that, if a child is to be placed in care, the child has a right to be placed with a member of the child’s family group; (d) the principle (the participation principle) that a child and the child’s parents and family members have a right to participate, and be enabled to participate, in an administrative or judicial process for making a significant decision about the child; (e) the principle (the connection principle) that a child has a right to be supported to develop and maintain a connection with the child’s family, community, culture, traditions, and language, particularly when the child is in the care of a person who is not an Aboriginal or Torres Strait Islander person. [23] The principles spelt out in section 5D of the CP Act are relevant to exercising a power or making a decision under the Act. They are: (a) a power under the Act should be exercised in a way that is open, fair, and respectful of the rights of each person affected by the exercise of the power; (b) to the extent that it is appropriate, the views of relevant persons should be sought and taken into account before a decision is made under the Act; (c) if a relevant person for a decision under the Act needs help to participate in or understand the decision-making process, or to understand a statutory right relevant to the decision, the relevant person should be given help; (d) a relevant person for a decision under this Act may obtain their own legal advice, or be represented by a lawyer or supported by another person, in relation to the decision-making process; (e) information about a child affected by a decision under the Act should be shared: (i) only to the extent necessary for the purposes of the Act; and (ii) in a way that protects the child’s privacy.7 [24] Relevant person, in the section and for a decision, means each of the following persons: (a) the child to whom the decision relates; (b) a person who is a parent or sibling of the child and is affected by the decision; (c) any long-term guardian of the child. [25] Section 6AA of the CP Act is also relevant in the circumstances here. When making a significant decision about an Aboriginal or Torres Strait Islander child, a relevant authority (defined as the Chief Executive, the litigation director, and an authorised officer) must: (a) have regard to the child placement principles in relation to the child; and 7 CP Act, s 5D(2). -- 6 of 14 -- 7 (b) in consultation with the child and the child’s family, arrange for an independent Aboriginal or Torres Strait Islander entity for the child to facilitate the participation of the child and the child’s family in the decision-making process.8 [26] Section 6AA(2)(b) does not apply if: (a) complying with the subsection: (i) is not practicable because an independent Aboriginal or Torres Strait Islander entity for the child is not available or urgent action is required to protect the child; (ii) is likely to have a significant adverse effect on the safety or psychological or emotional wellbeing of the child or any other person; or (iii) is otherwise not in the child’s best interests; or (b) the child or the child’s family does not consent to the ongoing involvement in the decision-making process of an independent Aboriginal or Torres Strait Islander entity for the child.9 [27] Also, s 6AA(2)(b) does not apply if: (a) the relevant authority is the litigation director; and (b) the litigation director is satisfied the Chief Executive, or an authorised officer has already complied with the requirement in relation to the significant decision.10 [28] A relevant authority, as far as reasonably practicable, must, in performing a function under the Act involving an Aboriginal or Torres Strait Islander person (whether a child or not), perform the function: (a) in a way that allows the full participation of the person and the person’s family group; and (b) in a place that is appropriate to Aboriginal tradition or Island custom.11 [29] Additional provisions for placing Aboriginal and Torres Strait Islander children in care are found in s 83 of the CP Act. The Chief Executive must, in consultation with the child and the child’s family, arrange for an independent Aboriginal or Torres Strait Islander entity for the child to facilitate the participation of the child and the child’s family in the process for deciding about where or with whom the child will live. [30] However, the Chief Executive is not required to arrange for the involvement of an independent Aboriginal or Torres Strait Islander entity for the child under section 83(2) if: (a) it is not practicable because an entity is not available or urgent action is required to protect the child; (b) the Chief Executive is satisfied that an entity’s involvement: 8 CP Act, s 6AA(1). 9 CP Act, s 6AA(3). 10 CP Act, s 6AA(4). 11 CP Act, s 6AA(5). -- 7 of 14 -- 8 (i) is likely to have a significant adverse effect on the safety or psychological or emotional wellbeing of the child or any other person; or (ii) is not otherwise in the child’s best interests; or (c) the child or the child’s family does not consent to the entity’s involvement.12 [31] The Chief Executive, in deciding about the person in whose care the child should be placed, must, if practicable, place the child with a member of the child’s family group.13 [32] However, if it is not practicable to place the child with a member of the child’s family group, in deciding about the person in whose care the child should be placed, the Chief Executive must place the child with: (a) a member of the child’s community or language group; (b) if it is not practicable to place the child in the care of a person mentioned in paragraph (a), an Aboriginal or Torres Strait Islander person who is compatible with the child’s community or language group; or (c) if it is not practicable to place the child in the care of a person mentioned in paragraph (a) or (b), another Aboriginal or Torres Strait Islander person; or (d) if it is not practicable to place the child in the care of a person mentioned in paragraphs (a) to (c), a person who: (i) (i) lives near the child’s family, community, or language group; and (ii) (ii) has a demonstrated capacity for ensuring the child’s continuity of connection to kin, country, and culture.14 [33] The Chief Executive must also consider: (a) the views of the child and the child’s family; and (b) ensuring the decision provides for the optimal retention of the child’s relationships with parents, siblings, and other people of significance to the child under Aboriginal tradition or Island custom.15 [34] The Chief Executive must consider whether the person is committed to: (a) facilitating contact between the child and the child’s parents and other family members, subject to any limitations on the contact under s 87; (b) helping the child to maintain contact with the child’s community or language group; (c) helping the child to maintain a connection with the child’s Aboriginal or Torres Strait Islander culture; and (d) preserving and enhancing the child’s sense of Aboriginal or Torres Strait Islander identity, 12 CP Act, s 83(3). 13 CP Act, s 83(4). 14 CP Act, s 83(5). 15 CP Act, s 83(6). -- 8 of 14 -- 9 before placing the child in the care of a family member or other person who is not an Aboriginal person or Torres Strait Islander.16 [35] Importantly in the context of the application before the Tribunal, section 99P(1) of the CP Act provides a person, other than the public guardian, may file a review application on behalf of a child only with the President’s permission. The President may give permission only if the President considers: (a) the person is not, on the person’s own behalf, entitled to apply for the decision to be reviewed by the tribunal; and (b) it is in the child’s best interests that the application be made; and (c) it would be inappropriate for, or unreasonable to require, the child to make the application himself or herself.17 [36] An aggrieved person for a reviewable decision may apply, as provided under the Queensland Civil and Administrative Tribunal Act 2009 (Qld), to the Tribunal to have the decision reviewed. A decision under section 86(2) of the CP Act is a reviewable decision within the meaning of section 247 of the CP Act.18 An aggrieved person for a reviewable decision means a person stated opposite the decision in schedule 2.19 For a reviewable decision under s 86(2), “aggrieved person” means the child’s parents or the child. Queensland Civil and Administrative Tribunal Act 2009 (Qld) [37] The Tribunal, in exercising its review jurisdiction: (a) must decide the review in accordance with the QCAT Act and the enabling Act under which the reviewable decision being reviewed was made; (b) may perform the functions conferred on the Tribunal by the QCAT Act or the enabling Act under which the reviewable decision being reviewed was made; and (c) has all the functions of the decision-maker for the reviewable decision being reviewed.20 [38] The purpose of the review of a reviewable decision is to produce the correct and preferable decision.21 The Tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.22 Applicants’ submissions [39] CVJ resides in South Australia. CJP supports the application “…but is not available to partake in the proceedings directly.”23 16 CP Act, s 83(7). 17 CP Act, s 99P(2). 18 See schedule 2 to the CP Act. 19 See schedule 3 to the CP Act. 20 QCAT Act, s 19. 21 QCAT Act, s 20(1). 22 QCAT Act, s 20(2). 23 Applicants’ submissions filed 4 May 2022 (applicants’ submissions), at p 1. -- 9 of 14 -- 10 [40] In the applicants’ submissions, CVJ refers to section 99P of the CP Act. She then goes on to spell out considerations why, in her submission, permission should be granted to file the review application. [41] CVJ asserts she has had consistent contact with the Children since they were placed in foster care, including by telephone on a weekly basis and travelling from South Australia to Cairns and Brisbane on several occasions. The latter has ceased consequent on COVID-19 restrictions.24 [42] She is the closest relative of the subject children, after their parents.25 PJD, however, is a very distant relative (‘second degree cousin’),26 who is divorced from the biological uncle of the Children.27 [43] CVJ asserts she has established a close long-term relationship with the Children.28 PJD had never met the Children before being contacted by the Department in November 2021.29 [44] In 2019, CVJ asserts, the Children’s parents indicated they wanted CVJ to be the Children’s carer.30 The Children have indicated that they want to live with her.31 [45] CVJ lives in a four-bedroom house and has sufficient financial resources to provide for the Children, even beyond the age of eighteen years, whereas PJD, CVJ asserts, does not.32 When CVJ contacted her, PJD thereafter created a GoFundMe page.33 [46] PJD, it is asserted by CVJ, has changed accommodation three times since October 2021 which impacts on the stability of the children.34 She is a political activist and takes the Children to political rallies despite their ages.35 Photographs of the Children posted by CVJ on social media allows the children to be identified which impacts on their privacy.36 She allows her father, who has a criminal record, to have contact with the children.37 Respondent’s submissions [47] The Department, in its submissions dated 2 June 2022 (“respondent’s submissions”), confirms the Children are of Chinese and ZVP descent on their mother’s side.38 They identify as Aboriginal. The father also identifies as Aboriginal.39 24 Applicants’ submissions, page 1 and applicants’ application filed 6 December 2021 (First Application), at pt E, p 4. 25 Ibid. 26 Applicants’ submissions, at p 1. 27 First Application, pt F, at p 5. 28 Applicants’ submissions dated 4 May 2021, at p 1. 29 First Application, at pt F, p 5. 30 Applicants’ submissions, at p 1. 31 Ibid. 32 Applicants’ submissions, at p 2. 33 First Application, at pt F, p 5; letter CVJ to the Department dated 21 November 2021 and attachment 2. 34 Applicants’ submissions, at p 2. 35 Applicants’ submissions, at p 2. 36 Ibid. 37 Ibid. 38 Respondent’s submissions, at [7]. 39 Ibid. -- 10 of 14 -- 11 [48] PJD is the Children’s paternal aunt.40 [49] Application has been made for a child protection order giving long-term guardianship of the Children to the Chief Executive. The application had not been determined at the time of hearing the proceeding.41 [50] CVJ resides in South Australia. CJP resides in Darwin.42 [51] The Department disputes PJD has changed accommodation three times. At the time PJD was engaging with the Department regarding the children, it is said, she was living in a two-bedroom house and thereafter moved into a three-bedroom house before the Children went to stay with her.43 [52] PJD is an educator, a social worker, and a charity organisation co-founder. The “rally” she took the children to, mentioned by CVJ and CJP in their submissions, was the 50th anniversary of the Aboriginal Tent Embassy in Canberra, an event part of the cultural heritage of the Children.44 [53] PJD has also taken the Children to the Chinese Gardens, Lunar New Year celebrations and mandarin classes.45 [54] PJD’s father, the Department states, does not have a criminal record and is not considered an unsafe person to be around the Children. [55] The Children were first placed with PJD in December 2021. In January 2022 the Department decided to place the Children in the full-time care of PJD for several reasons, including: (a) she can provide stability, care, and nurture; (b) since being in her care, the Children have presented as settled and happy;46 (c) the placement has been positive for the Children, allowing them to build a relationship with paternal family;47 (d) PJD ensures the Children retain contact with their parents, other family members and previous carers, including CVJ and CJP;48 (e) she has a good understanding of the importance of relevant cultural contact and involves the Children in cultural activities; (f) the Children have said they are happy in PJD’s care.49 [56] The Department has concerns about CVJ, including: (a) allowing the Children’s mother to stay with her when she visited the Children; 40 Respondent’s submissions, at [10]. 41 Respondent’s submissions, at [8], [21], [32] – [33], [39] – [40]. 42 Respondent’s submissions, at [9]. 43 Respondent’s submission, at [44(g)]. 44 Respondent’s submissions, at [44(i)]. 45 Respondent’s submissions, at [16]. 46 Respondent’s submissions, at [13]. 47 Ibid. 48 Ibid. 49 Respondent’s submissions, at [12(e)]. -- 11 of 14 -- 12 (b) a threat to remove the Children from Cairns; and (c) concerns raised by the mother that she was subjected to physical and emotional abuse by CVJ resulting in her being taken into foster care before she was 12 years of age (substantiated by CVJ’s Northern Territory Child Protection history). [57] CVJ, the Department submits, demonstrates limited insight into the needs of the Children and the routine and commitment the Children have in PJD’s care.50 Her contact with PJD has been “…demanding, dismissive and abrupt…”.51 [58] The Department contends it is important that the Children remain in stable care while the application for long-term guardianship is pending and while case plans are being developed for the Children. A goal is to reunify the Children with their parents. To that end, it is important that the Children remain in regular contact with their parents.52 [59] The Children have indicated they are “…frustrated with the level of ongoing contact with [CVJ]…” and there is concern about the questions she asks the Children. PJD reports that while the Children love their maternal grandmother, at times there are challenges in encouraging them to speak to her on the telephone.53 [60] The Children’s mother indicated a preference for the Children to be placed with CVJ in January 2022. However, in March 2022, she stated that her relationship with CVJ was not going well, and CVJ continues to manipulate and abuse her as she did when she was young. In May 2022 the mother said that she wanted the Children to be placed with PJD. In January 2022 the Children’s father indicated he wants the Children to be placed with PJD.54 Consideration Introduction [61] As has been said, a person, other than the public guardian, may file a review application on behalf of a child only with the President’s permission.55 [62] The President may give permission only if the President considers: (a) the person is not, on the person’s own behalf, entitled to apply for the decision to be reviewed by the tribunal; and (b) it is in the child’s best interests that the application be made; and (c) it would be inappropriate for, or unreasonable to require, the child to make the application himself or herself.56 [63] It follows the President may only give permission to the person to file the review application if the President is satisfied of all the considerations in paragraphs (a) to (c) of s 99P(2) of the CP Act. 50 Respondent’s submissions, at [20]. 51 Respondent’s submissions, at [19]. 52 Respondent’s submissions, at [21]. 53 Respondent’s submissions, at [22]. 54 Respondent’s submissions, at [24]–[26]. 55 CP Act, s 99P(1). 56 CP Act, s 99P(2). -- 12 of 14 -- 13 [64] The considerations are addressed under the headings: (a) entitlement to apply (s 99P(2)(a) of the CP Act); (b) Children’s best interests (s 99P(2)(b) of the CP Act); and (c) requiring the Children to make the application (s 99P(2)(c) of the CP Act). Entitlement to apply (s 99P(2)(a) of the CP Act) [65] A decision in whose care to place a child under a child protection order granting the Chief Executive custody or guardianship under section 86(2) of the CP Act is a reviewable decision within the meaning of section 247 of the CP Act.57 An aggrieved person for a reviewable decision means a person stated opposite the decision in schedule 2.58 For a reviewable decision under section 86(2), aggrieved person means the child’s parents or the child. [66] CVJ and CJP are neither the Children’s parents nor the Children. It follows they are not, on their own behalf, entitled to apply for the decision to be reviewed by the tribunal. [67] The consideration in section 99P(2)(a) of the CP Act is satisfied. Children’s best interests (s 99P(2)(b) of the CP Act) [68] CVJ and CJP assert ten reasons for it being in the best interests of the Children that the Tribunal give permission for the filing of the review application. The reasons are summarised in paragraphs [39] to [46] of these reasons for decision. Several of the asserted reasons are incorrect, and to the extent the reasons are not in dispute, they are not reasons explaining why it is in the best interests of the Children that permission be given for the filing of the review application. [69] The Department submits, and I accept, that in deciding whether it is in the best interests of the Children that permission be given for the filing of the review application, the Tribunal should be guided by the paramount principal in section 5A of the CP Act and the principals for achieving permanency for the Children in section 5BA. In the circumstances here, additional guidance is provided by s 5C (Additional principles for Aboriginal or Torres Strait Islander children), s 6AA (Principles about Aboriginal and Torres Strait Islander children – Chief Executive, litigation director and authorised officers) and s 83 (Additional provisions for placing Aboriginal and Torres Strait Islander children in care). [70] The goal of the long-term guardianship of the Children, it is said by the Department, is to provide the Children with physical, emotional, relational, and legal permanency and stability with kin given reunification with the Children’s parents, or one of them, is presently unavailable. PJD is kin59 and has the capacity and is willing to care for the Children. Importantly, the Children are together. [71] It is clear PJD is facilitating the Children maintaining relationships with their parents and other people of significance to them and has taken positive steps to enable them 57 See schedule 2 to the CP Act. 58 See schedule 3 to the CP Act. 59 Defined in schedule 2 to the CP Act as: (a) Any of the child’s relatives who are persons of significance to the child; and (b) Anyone else who is a person of significance to the child. -- 13 of 14 -- 14 to know, explore and maintain their identity and values, including their cultural and ethnic identity and values. She has relevant art and artefacts on display in her home and the Children’s clothes display words and symbols relevant to Aboriginal culture. Also, as has been said, she is an activist for the Aboriginal people and operates a local Aboriginal charity group working for families in the community. The Children are learning Aboriginal and contemporary dance, as well as Aboriginal customs. [72] Initially, the Children’s mother indicated a preference for the Children to be placed with CVJ but subsequently changed her mind indicating her preference for the Children being placed with PJD. The Children’s father has likewise indicated a preference for the Children being placed with PJD. [73] Not surprisingly, the Children’s views on where they should be placed are yet to be sought. However, it seems they are happy in their current placement with PJD. Any change in the current placement would be disruptive. [74] Having regard to the whole of the evidence before the Tribunal and the guidance provided by the provisions of the CP Act mentioned, the Children’s best interests will not be served by granting permission to file a review application on behalf of the Children. The consideration is not satisfied. Requiring the Children to make the application (s 99P(2)(c) of the CP Act) [75] WRH, at the time of the hearing of the proceeding, was 8 years of age. WDQ was 6 years of age. Plainly, it would have been inappropriate for, or unreasonable to require, the Children to make the application themselves. [76] The consideration is satisfied. Decision [77] In all the circumstances, I do not consider that it is in the child’s best interests to give permission to CVJ and CJP to file a review application on behalf of the Children and therefore dismiss the application. -- 14 of 14 --