DZ v Department of Communities, Child Safety and Disability Services [2016] QCAT 453

CITATION: DZ v Department of Communities, Child Safety and Disability Services [2016] QCAT 453 PARTIES: DZ (Applicant) v Department of Communities, Child Safety and Disability Services (Respondent) APPLICATION NUMBER: CML020-16 MATTER TYPE: Childrens matters HEARING DATE: 26 May 2016, 27 May 2016 HEARD AT: Townsville DECISION OF: Member Ford, Presiding Member Member Lindsay Member Rogers DELIVERED ON: 15 July 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. The Tribunal sets aside the decision of the Department of Communities, Child Safety and Disability Services to place YZ and RZ with foster carers, PB and EB, and returns the matter for reconsideration to the department, with the following directions: a. Explore more comprehensively the options for foster care or kinship care in Town B, including indigenous carers and GF and TF; b. Obtain more comprehensive information about the children's cultural heritage to better inform their cultural support plans; c. Take into account the position of the separate representative, appointed for the children in the Children’s Court proceedings, and the independent assessment report, if available, that will inform these proceedings; d. Explore options to increase contact -- 1 of 14 -- 2 between DZ and her children, including applying for further funding to support contact. CATCHWORDS: CHILDREN’S MATTER- where application for long term guardianship not determined – where placement decision made – where placement required relocation of children to new town and schools – whether adequate consideration of principles for placement of Aboriginal children – whether sufficient evidence available for decision - whether decision premature Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 6, s 18, s 19, s 20, s 21, s 24, s 28, s 29, s 43, s 142 Child Protection Act 1999 (Qld), s 5A, s 5B, s 5C, s 5D, s 5E, s 6, s 82, s 83, s 86, s 99C, s 99D, s 99H, s 122, Schedule 1, Schedule 2 Child Protection Regulation 2011 (Qld), Part 7 ‘suitable person’, Part 22 ‘approved foster carer’ APPEARANCES: APPLICANT: DZ RESPONDENT: Department of Communities, Child Safety and Disability Services REPRESENTATIVES: APPLICANT: DZ represented by Mr G. Lynham of Counsel instructed by Aboriginal and Torres Strait Islander Legal Service NQ RESPONDENT: Department of Communities, Child Safety and Disability Services represented by Mr S Melville, Advocate REASONS FOR DECISION The background history [1] DZ loves her children, YZ (male child aged 7) and RZ (female child aged 5) and she wants to remain in their lives to the greatest extent possible. Her youngest child, TZ, a male aged 4, lives with his father and she does not have contact with TZ. [2] DZ has come from a fractured family, with her parents divorcing when she was an infant. Her father came back into her life when she was twenty years -- 2 of 14 -- 3 old. She has lost contact with her sister who lives in Townsville and her brother who may live in Brisbane or Rockhampton. Her mother has passed away. DZ identifies as indigenous and understands, on earlier advice of her brother, she is from a tribe moved to Palm Island. [3] YZ lived with DZ from birth, with no contact with his father. He had not been subject to any statutory child protection orders. DZ had worked with the department through intervention with a parental agreement, between May 2011 and November 2012. [4] RZ was born on 12 April 2011 and went into care when she was one month old, with PB and EB being her foster carers in Town A up until the reunification process to DZ in Town B. Full reunification was achieved in August 2013. PB and EB supported DZ in this process, with EB driving up to Town B to assist and occasionally taking RZ back into her care informally if DZ was struggling. [5] A concern remaining for stakeholders was that DZ's intellectual disability impacted adversely on her capacity to parent, particularly more than one child at a time. There were also concerns for DZ's mental health and anger issues. In home support was provided to progress her parenting skills in the reunification phase. Support continued through the Town B Community Centre providing an intensive in home program of 28 hours per week. [6] Following two incidents that involved DZ assaulting her children, both children were taken into care under a Care Agreement signed by her on 16 June 2014. The department considered the assaults were a result of DZ having a mental relapse due to the stressors in her life. Criminal charges were laid against DZ. On 8 September 2014, she was convicted and sentenced to 18 months probation and required to serve 100 hours community service. [7] The reunification process had failed. The department decided to keep the children in Town B and they moved to SL's care. Both PB and EB in, Town A and GF and TF in Town B have provided respite since this time. [8] DZ had moved to Town B in 2012, with YZ, to be closer to her father, who is not indigenous. She was able to live next door to him and he supported her with the children. He has been recently diagnosed with dementia and now resides in an aged care facility. DZ considers Town B to be her home now and she is a valued part of the community. She is also accepted as an aboriginal woman by members of the local indigenous community. [9] DZ currently has supervised contact for two hours a fortnight in her home with the children in Town B. This contact has reduced over time since the children were removed from her care. [10] YZ is attending the Central State School in Town B and is in grade 2. He receives one on one support but is no longer in the special education unit. YZ presents with developmental delay, with a diagnosis of intellectual disability made in June 2015. He is reviewed by the paediatric outreach -- 3 of 14 -- 4 team in Town B. An aboriginal elder, Uncle K, provides significant support to the young boys at YZ's school. YZ also attends the PCYC Circle of Respect program designed for young indigenous boys. [11] RZ attends BH day care, but had previously attended K day care, a centre specifically focused on culture for indigenous children. She has one kidney, thus her medical needs are greater than most children, but her health is stable. She has been diagnosed with global developmental delay, including fine motor, gross motor and communication delays. She has been regularly reviewed by the Child Development Service since 2012. This team continues to review RZ at the Town B outreach clinic. She requires speech therapy and physiotherapy to rectify poor gait and in-toeing. [12] The children have remained in the care of the department since June 2014. The department filed an application for long term guardianship in the Town B Magistrates court on 10 September 2015. The department had concluded that both children were in need of protection and that protection is unlikely to be achieved by any less intrusive order. This application has not been decided. DZ is contesting the application. A separate representative for the children was appointed on 22 March 2016 for the Children's Court proceedings. To date no independent report has been produced via the separate representative. [13] A decision was made on 21 January 2016 by the department to place the children in Town A with PB and EB, thus removing them from their current placement with SL in Town B. This decision was made with their 'long term needs' taken into consideration even though their mother is contesting the long term guardianship application. Relevant legislation and guiding principles [14] The Tribunal has been asked to review this placement decision and the review must be undertaken by way of a fresh hearing in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (‘the QCAT Act’) and the enabling Act.1 We may either confirm (or amend) the decision or set aside the decision. If we set aside the decision we can either substitute our own decision or return the matter to the decision maker with directions.2 [15] The limits of the Tribunal’s power were argued in submissions.3 The department argued it was not appropriate for the Tribunal to make its own placement decision. The opposing argument was that the wording of the legislation is clear, the Tribunal is empowered to substitute its own decision and no restriction should be applied. [16] Making a new decision would require the Tribunal to exercise the executive functions of the department. This would involve an exhaustive investigation of the carer options available at the time of the decision. It would also have 1 QCAT Act, s 19, s 20. 2 QCAT Act, s 24. 3 Submissions of Respondent, 10 June 2016 at [29]; Submissions of Applicant Mother, 15 June 2016 at p 3. -- 4 of 14 -- 5 the effect of denying the parties a layer of review, since any appeal against the decision would be made to the appeal tribunal.4 [17] Having considered these consequences, the Tribunal confirms the previous Tribunal practice that in reviewing a placement decision, and in determining that the placement is not suitable, the only possible remedy is for the Tribunal to set aside the decision and return the matter for reconsideration to the decision maker for a new placement decision to be made, with directions if appropriate. [18] If we confirm the decision the children will be placed in Town A. If we set aside the decision the children will remain in Town B until a further decision is made by the department. [19] The placement decision was made pursuant to s 82 of the Child Protection Act 1999 (Qld) (‘the CP Act’). In reviewing this decision the safety, wellbeing and best interests of these children is our paramount consideration.5 We must make the correct and preferable decision based on the merits of this case.6 [20] DZ and her children are indigenous and thus the ATSI child placement principle and the effects of decisions on the children's identity and connection with family and community and culture must be considered as well.7 The obligations imposed by the CP Act strive to ensure children remain connected to their family, community, clan, traditions and customs which are integral to their sense of identity. They are best met by the development of a cultural support plan8 and consideration of this plan must inform any decision making for the child. [21] This approach is supported by a recent research project report which emphasised the importance of cultural care plans (in Queensland, referred to as cultural support plans). It identifies there are two components to cultural care for Aboriginal and Torres Strait Islander children in out of home care and they both need to be fully supported. The first involves gathering and documenting information about a child’s family and country, this is the task undertaken when developing a cultural support plan. The second involves supporting young people in their participation and inclusion in their communities in practical and ongoing ways to allow them to be embraced by their family.9 The report goes on to state: Cultural care/support plans need to be living documents, rather than records which are updated from time to time, because cultural identity is formed by ongoing experiences. 4 QCAT Act, s 142. 5 The CP Act, s 5A. 6 QCAT Act, s 20. 7 The CP Act, s 83. 8 Department of Communities, Child Safety and Disability Services, Practice Resource: Developing a cultural support plan for an Aboriginal or Torres Strait Islander child. 9 Cultural Care for Aboriginal and Torres Strait Islander Children In Out of Home Care, Libesman T, 2011, p 11. -- 5 of 14 -- 6 The issues raised by the parties [22] The Tribunal has weighed all the evidence and submissions provided by DZ and her legal team and by the department. It is not intended to forensically address each piece of evidence in these reasons but to address the issues that have led the Tribunal to form its decision. We found the evidence of the witnesses provided different perspectives but was not factually inconsistent. The veracity of the witnesses was not challenged by either party. In this case, where there is no single correct decision, the responsibility of the Tribunal is to decide what the preferable decision may be. This is the issue contested by the parties. The department's issues - why the children should live with PB and EB in Town A [23] The department draws attention to the following factors supporting a decision to move the children to Town A. [24] The current carer, SL has cared for the children for the past two years since they were removed from DZ. SL is not indigenous nor a long term carer and usually only has respite care or short term responsibilities, therefore an alternative placement is required. [25] PB and EB are suitable persons under the CP Act and can meet the standards of care required. They have a strong and reciprocal attachment to RZ and YZ, who also appear to enjoy and seek out the company of the other children in their care; they have knowledge of the children's needs, particularly RZ's medical needs; there is an established relationship between DZ and PB and EB who are committed to maintaining the children's connections to their mother. [26] PB and EB have four boys in their care, aged 8, 6, 5 and 3 for whom they have long term guardianship. They would seek the same order for DZ's children if the children were to live with them and were in long term care. EB operates a family day care business in her home Monday to Wednesday. The home environment has been addressed with renovations underway to provide additional rooms because they are aware RZ will need her own room in the future. [27] The department acknowledges that GF and TF, who live in Town B, are prepared to be long term carers for the children if required. However GF and TF have their adult son, who has been diagnosed with schizophrenia, living with them and the department has concerns for the safety of the children if his mental health deteriorates at any stage. [28] The children ask frequently when will they get to visit and sleepover at PB and EB. They want to live with PB and EB. They have expressed to SL that they do not like to go to the other carers in Town B, GF and TF, with whom they have stayed for respite. They get upset when their mother mentions GF and TF. -- 6 of 14 -- 7 [29] The children have a half sibling, TZ, in Town A with whom DZ does not have contact. PB and EB are prepared to nurture a relationship between the siblings, if the father of TZ allows this to occur. [30] It is PB and EB's proposal that DZ will have natural contact with her children by staying for the weekend each fortnight at PB and EB's home. There she can impart her cultural knowledge and have extended contact time. Further opportunities exist with PB and EB's offer of the children returning to Town B every six weeks for a day visit. DZ could also attend school events in Town A and other special occasions. Financial support would be provided for the bus fare expenses DZ incurred. [31] The Recognised Entity in Town A, The Town A Aboriginal and Islander Health Centre, support this placement decision. It has taken the view that, as DZ made PB and EB Godparents for RZ, her decision bestows on them familial status. The highest priority of the child placement principle is thus met in that the children would be with ‘a member of the child's family’.10 [32] A cultural support plan would be developed and supports identified in Town A for the children. [33] The Recognised Entity is concerned the children's cultural linkage to the specific area of Town B is questionable. DZ's family are understood to be from the Town C area, with possible links to Palm Island. Thus DZ's integration with, and acceptance by, the Aboriginal community in Town B requires further exploration. DZ's father is non indigenous and she had moved to Town B, with YZ, to be closer to him. DZ's issues - why the children should remain in Town B [34] DZ, through her legal team, argues that the Department, by its decision to place the children with PB and EB in Town A, has failed to comply with the principles of the CP Act and to take into account the long term effect on their identity and connection with their family and community. [35] The department's decision was swift and without proper consultation and not in the children's best interests. The decision to move the children in January 2016 was not warranted, as SL had simply confirmed in December 2015 that she did not wish to be considered as a long term carer option should guardianship be granted by the Court. [36] The department's stakeholder meeting held on 17 December 2015 with PB and EB, GF and TF, DZ, SL and departmental representatives covered respite plans for Christmas and possible options for long term placement in the future. The Recognised Entity was not invited to this meeting even though there is a requirement they be consulted.11 [37] There is no evidence that there was an urgency to change placement. During cross examination, SL stated she is able to continue to care for the 10 CP Act, s 83. 11 Ibid, s 6. -- 7 of 14 -- 8 children for a few more months until the long term guardianship application is decided. Her proposed overseas travel plans, that sparked the decision making by the department, are flexible. [38] Relocating the children and enrolling them in a Town A school, even though a stay application was before the Tribunal, occurred without DZ's consent and without acknowledging she retains parental guardianship. This decision created unnecessary instability and uncertainty in the children's lives. The department aggressively pursued their preferred option without regard for the impact this would have on the children should DZ's efforts to contest the department’s actions be successful. [39] The decision to relocate the children to Town A does not support reunification should long term guardianship not be ordered, as attested by the department. [40] Further, the department failed to give due consideration and priority to a placement option in Town B, namely with GF and TF, who have provided respite care in the past. GF and TF live near the children's family in accordance with the ATSI child placement principle. [41] Like PB and EB, GF and TF would consider seeking a guardianship order of the children to their care. They are committed to providing long term care to these children. They are prepared to support contact between DZ and her children and to be flexible in that regard, while in keeping with departmental requirements. Their certificate to be approved foster carers was recently renewed. Their son, who has schizophrenia, has been living with them but planning is in place for him to move into other accommodation. No concerns have arisen regarding their son's mental health issues and the care of children when he has lived in the family home. GF and TF see recent departmental concerns about their son as reasoning to diminish their appropriateness to be considered as viable carers for DZ's children. [42] The department has placed significant weight on the views purportedly expressed by the children. DZ's consistent views have been regarded as unimportant in comparison. The decision was not made in a way that was fair and respectful of the rights of the children and fails to demonstrate how the mother's views were taken into account before the decision was made. [43] The Child Advocate, Ms Melissa Wilson made an assessment in February 2016 that the children lacked the necessary capacity for her to participate and convey their views and wishes. This is the only current independent view about their capacity. [44] The department has relied on the alleged views of the children in a variety of circumstances that only support their actions. No evidence is provided of what the children have said about spending time with their mother or what observations have been made about the contact. DZ recalls the children wanting to visit her in her home and to come home or wanting her to live with them at PB and EB. -- 8 of 14 -- 9 [45] Although appointed by the Tribunal, a separate representative chose to not participate in the hearing when the hearing dates could not be changed upon her request. Thus the Tribunal does not have the benefit of such a person to assist in reaching conclusions about the children. [46] DZ wants the children to remain within the local Town B community, at least until the long term guardianship application is decided. [47] In deciding this review application, she asks the Tribunal to ensure all appropriate enquiries and information relating to the children's needs are obtained before any long term placement decision be made. She argues the substantive application before the Children’s Court needs to be decided first. [48] At the time the department made the decision for the children to move to Town A, and up to the date of the Tribunal hearing investigations have been limited. Specifically, no independent assessment has been conducted, no evaluations made if the order is the least intrusive order, nor has there been any reviews to explore the mother's capacity to care for the children with or without support in the foreseeable future. The appointed separate representative is yet to address these issues for the Court proceedings. [49] The decision by the department and subsequent actions could be seen as an attempt by the department to pressure DZ into consenting to their application to the Children's Court without due process or independent views being obtained. [50] Given the specific vulnerabilities of both children and the concerns raised about their intellectual capacity, any decision made should be informed by appropriate professional assessments. The diversity of opinion about the children's ability to express their views is concerning. [51] Considerable weight is placed on RZ’s strong attachment to PB and EB given their care of her as an infant. However, the department fails to consider how this attachment may impact on RZ's attachment with her mother and what impact further fracturing of RZ's relationship with her mother might have on her into the future. DZ argues a situation where she could not regularly perform ‘mother duties’ would have a severe detriment on RZ's overall health, wellbeing and sense of identity now and in the longer term. [52] DZ has a greater capacity to be a part of the children's lives by attending school events, seeing them weekly, being part of local cultural and community celebrations in Town B. Evidence from staff of K child care and the neighbourhood centre clearly shows an acceptance of DZ's aboriginal background and the inclusion of the children in culture and local community activities. [53] The views of the Recognised Entity to support the department's decision were formed by relying on limited information. It did not undertake a -- 9 of 14 -- 10 comprehensive investigation of the children’s cultural heritage to support its views of the children’s needs. [54] The Tribunal lacks sufficient material to adequately assess the children's care and protection needs, particularly where these decisions have potential long term consequences on the children's lives and emotional needs, and in circumstances where there continues to be concerns and questions around what their specific needs may be now or in the future. [55] The preferable course of action is one that reduces instability in the children's lives while ensuring their care and protection needs are met. The children should remain in their current placement (with SL) until the long term guardianship application is decided or be placed with the GF and TF family who can provide a foster care placement in the local area. [56] The children would not be restricted from continuing to enjoy respite periods at PB and EB home, which DZ has supported. Of note, there was no consultation with the mother or permission sought regarding the children spending Easter holidays with PB and EB in March 2016 for 17 days, notwithstanding this decision impacted on her contact time. The Tribunal's consideration of the evidence and decision [57] It is acknowledged by the Tribunal that placement decisions are not easy for departmental workers to make and that numerous factors must be taken into consideration. [58] A stay was granted by the Tribunal after the implementation of the department’s decision, which resulted in the children being returned from Town A to Town B. It may be argued that DZ's review application has tempered further the stability these children require. However, the Children's Court is yet to decide on their short term or long term futures. There is no certainty until those proceedings are finalised. In this context the placement of the children in the intervening period has the potential to impact on that decision. [59] DZ has a right of review to the Tribunal, which she exercised. She felt excluded from the decision making process and believes her relationship with her children and their cultural connections were not regarded fully, nor respected, by the department. [60] It is not a common situation for children in care to have more than one set of carers prepared to commit to their long term care, if that is required, and to taking that further step themselves of being prepared to apply to the children's court for guardianship. In that regard, YZ and RZ are fortunate to have PB and EB in Town A and the GF and TF family in Town B willing to provide that stability and consistency of care. The Tribunal considers both sets of carers are sincere in their preparedness to care for these children long term, if required, and to support DZ in having contact. Neither of these families is Aboriginal or Torres Strait islander though both have indicated their willingness to engage in cultural activities with the children. -- 10 of 14 -- 11 [61] It is easy to see why the department finds PB and EB in Town A suitable carers for YZ and RZ. The Tribunal acknowledges the love and care this family has bestowed on the children, most particularly RZ who was in their care before reunification progressed. They welcomed DZ into their home as well and supported her through the reunification process of RZ to DZ's care in Town B. They continued to provide respite when the children were placed in SL's care in Town B. [62] However, the Tribunal is not satisfied that the placement decision of 21 January 2016 was the correct and preferable decision to make. The decision to place the two children in Town A, moving them away from Town B where their family resides, was premature. [63] A long term guardianship application is on foot and is being challenged by DZ. The consequences of the subsequent removal of the children from Town B three days after the decision was challenged by DZ, via a stay and review application to the Tribunal, were clearly not considered. The children were exposed to further changes when the Tribunal stayed the decision some weeks later, and they were subsequently returned back to Town B. [64] The Tribunal accepts that parallel planning is a sensible process when reunification is adversely affected by events, such as assault charges in DZ's case, and concerns of a parent's capacity to successfully care for their children. However that planning requires comprehensive assessment and critical analysis as well as adherence to the CP Act and its principles. [65] It is clear from her evidence, DZ did not understand that the December meeting would result in a placement decision strongly influenced by the considerations of long term placement. It appears the department itself did not have a clear intention to make a long term decision at the time. [66] In her evidence EB said she did not get the impression the carers were competing for the long term care of the children, she thought the meeting was mostly to make arrangements for Christmas. [67] Ms DB, from the Recognised Entity in Town A, confirmed she did not attend the Family Group meeting of 17 December 2015 or meet with DZ before giving an opinion that placement with PB and EB was appropriate. She said she was aware of the placement options but the service agreement the Recognised Entity has with the department does not allow them to go out to investigate unless it is authorised by the department. [68] She met and considered the views of the children but did not speak to DZ about her recollections or knowledge of her family. She said she knew DZ had made PB and EB godparents and that was a relationship that meant family. She said that it was important for the carers to connect first as a family with the mother and children, to get that happening and then to maintain a connection to the community. [69] Ms Caitlyn Lyall became YZ and RZ’s Child Safety Officer from the department in November 2015, two months before the decision was made. -- 11 of 14 -- 12 She gave evidence that once the department was made aware the SL was making travel plans on 10 December 2015 they wanted to give the children consistency. The agenda for the Family Group meeting on 17 December 2015 was to discuss Christmas arrangements for the children and, at a later stage, there were longer term discussions. She said she consulted with the Recognised Entity by submitting to them what was happening but did not get a response. [70] The Tribunal is not satisfied that the planning and assessment that occurred focussed on the ATSI child placement principles. [71] The children remained in Town B after the reunification process failed, they continue to have contact with their mother and to be a part of this community. They have been in Town B for most of their lives and accepted as aboriginal children, particularly by the education system and community services provided to them. We accept the evidence from the community witnesses in Town B that cultural connectiveness happened organically in this community and the whole family are recognised and supported by the community. [72] There is no evidence of a significant focus on the cultural needs of the children by the department before the placement decision was made. RZ has been in care since a baby, there is no cultural support plan for her to date. The Recognised Entity in Town A has further enquiries to make but little movement has occurred regarding adherence to the ATSI child placement principle or research into their cultural ties. PB and EB may be seen to hold familial status, given DZ made PB and EB godparents for RZ, but there now exists a tension between DZ and PB and EB. This relationship needed to be explored further before it could be relied on to claim a placement had been made with ‘family’ under the CP Act. [73] The Tribunal acknowledges that a barrier to cultural care is the lack of a depth of appreciation about the significance of cultural care and how it impacts on all aspects of a child or young person’s well-being amongst many non-Aboriginal and Torres Strait Islander government and non- government agencies who work with Aboriginal and Torres Strait Islander families involved with child welfare systems. [74] The Tribunal acknowledges the desirability of the children growing up knowing their brother, TZ. There is little evidence before the Tribunal about plans to support this relationship. In the absence of specific plans we have given little weight to this factor supporting the children’s relocation to Town A in reaching our decision. [75] We agree that the children require stability and consistency in their lives. What children articulate can be relevant in this regard. The department's evidence presents a picture of the children wanting to live with PB and EB, of their being entirely comfortable in that environment. There is a clear strong attachment for RZ in particular, given she was with the family for the critical first two years of her life. -- 12 of 14 -- 13 [76] The Tribunal notes that up until September 2015 YZ had regularly stated he wanted to live with his mother.12 [77] It is the evidence of Ms Lyall that in March 2016 she visited YZ and RZ when they were staying with PB and EB on respite. YZ was very happy with PB and EB and he told her he wanted to live with PB and EB forever. [78] We have considered the evidence of the Child Advocate, Ms Melissa Wilson that it was her assessment in February 2016 that the children lacked the necessary capacity for her to participate and convey their views and wishes. [79] Relying on the views and wishes of small children with developmental delay must be treated cautiously however. The consequences of any decisions made cannot be understood by them at this tender age. In our view it is unwise to place great weight on the views of the children when so many other important factors need to be considered. [80] It is relevant that PB and EB are not the only option available. Stability and consistency of care is also being offered in Town B by the GF and TF family. An assessment of who may be appropriate to care for these children in Town B has not occurred. DZ has made it clear this community is her home and that she has been accepted as an aboriginal person in this community. There is no evidence to suggest otherwise. GF and TF have committed to long term care of these children, like PB and EB. How their son's mental health issues impact on their capacity to protect the children is an issue, but there is no evidence to suggest he is a threat or has threatened children in their care in any way. [81] The Tribunal accepts that it does not have the power to order specifically with whom the children should be placed and our decision therefore creates a further period of uncertainty. However that uncertainty is ongoing in any event pending the determination of the Childrens Court application. We consider the short term uncertainty created is justified in circumstances where hasty decision making could result in adverse long term consequences. [82] DZ currently holds legal guardianship in certain matters. She has been excluded from decision making about the children’s education, YZ’s enrolment in a Town A school at the beginning of the year is a case in point. She was not a party to conversations that led to the change of placement in January this year. She thought the meetings in December were simply about respite and holiday time. We note Ms Lyall’s evidence that at the time of the decision communication with DZ was through her solicitor but that does not excuse a failure to seek her consent to those decisions that may be considered the right of the guardian. [83] The paramount principle, being the safety wellbeing and best interests of these children, must be married with their connection to family community and culture. Further assessment of their identity, culture and their 12 Affidavit of Christie Sunderland CSO, 10 September 2015, sheet 41. -- 13 of 14 -- 14 connectedness to their mother together with further assessment of suitable carers in the Town B area is needed to comprehensively meet these principles. [84] The question of contact does not form part of this application, however we are concerned that every opportunity be given to DZ to maintain her relationship with the children while the decision concerning long term guardianship is considered. The placement decision under review included a proposal for lengthy contact. Options for extended contact in Town B also need to be explored. We are aware our directions require investigations which will take some time to complete and therefore consider it necessary for directions promoting optimal contact to be made. [85] For these reasons the Tribunal has decided to set aside the decision and return it to the decision maker with directions: 1. The Tribunal sets aside the decision of the Department of Communities, Child Safety and Disability Services to place YZ and RZ with foster carers, PB and EB, and returns the matter for reconsideration to the department, with the following directions: (a) Explore more comprehensively the options for foster care or kinship care in Town B including indigenous carers and GF and TF; (b) Obtain more comprehensive information about the children's cultural heritage to better inform their cultural support plans; (c) Take into account the position of the separate representative, appointed for the children in the Children’s Court proceedings, and the independent assessment report, if available, that will inform these proceedings; (d) Explore options to increase contact between DZ and her children, including applying for further funding to support contact. -- 14 of 14 --