Deceased
XY
Demographics
17y, female
Coroner
Coroner Simon McGregor
Date of death
2021-07-18
Finding date
2024-06-19
Cause of death
Neck compression by hanging (suicide)
AI-generated summary
XY, a 17-year-old Wemba Wemba Aboriginal girl, died by suicide on 18 July 2021 while in out-of-home care. The inquest found the Victorian Department of Families, Fairness and Housing (DFFH) failed in its duty of care as the child's legal guardian. Critical failures included: inadequate cultural connection and support, poor case management focused on crisis response rather than relational practice, failure to facilitate family contact despite court orders, insufficient mental health supports (not culturally safe), inadequate support for carers, and repeated placement instability. The coroner identified systemic issues including underfunding of Aboriginal-led services, insufficient ACSASS resources, and prioritization of compliance-driven procedures over meaningful engagement with XY's voice and best interests. Recommendations emphasize self-determination for Aboriginal communities, adequately resourced Aboriginal Community-Controlled Organisations, culturally grounded suicide prevention, relational case management, and enhanced child voice in decision-making.
AI-generated summary — refer to original finding for legal purposes. Report an inaccuracy.
Specialties
Error types
Drugs involved
IN THE CORONERS COURT OF VICTORIA AT MELBOURNE COR 2021 003810 FINDING INTO DEATH WITH INQUEST Form 37 Rule 63(1) Section 67 of the Coroners Act 2008 *Amended pursuant to section 76 of the Coroners Act 2008 on 29 July 2024
INQUEST INTO THE PASSING OF XY Findings of: Coroner Simon McGregor Delivered on: 19 June 2024 Delivered at: Coroners Court of Victoria Hearing dates: 23 – 26 October 2023 at Bendigo 30 October – 1 November 2023 at Melbourne Proceeding Suppression Orders have been made in this matter pursuant to section 18(2) of the Open Courts Act 2018. The names of the deceased, her family members, other children, frontline workers and child protection practitioners have been replaced with pseudonyms or redacted.
*The finding was amended on 29 July 2024 to correct a referencing error at footnotes 124 and 125.
Counsel Assisting the Coroner: Karen Argiropoulos Dr Gideon Boas Instructing Solicitors: Fiona Ransom Dylan Rae-White Counsel for Department of Naomi Hodgson Families, Fairness & Housing: Ashleigh Best Instructed by Lander & Rogers Counsel for Anglicare Victoria: Rachel Ellyard Instructed by Hall & Wilcox Counsel for Bendigo Health Andrew Woods Instructed by HWL Ebsworth Counsel for Bendigo & District Shannon Finegan Aboriginal Co-Operative: Candice Jackson Instructed by HQ Law Counsel for Chief Commissioner Liam Brown SC of Police: Rose Singleton Instructed by MinterEllison ii
ACKNOWLEDGEMENT & CULTURAL WARNING Aboriginal and Torres Strait Islander readers are advised that this Finding contains the name of a deceased Aboriginal person.
Readers are warned that there may be words and descriptions that may be culturally distressing.
I acknowledge the Traditional Owners of the land where the Coroners Court of Victoria sat in this matter, the Wurundjeri and Dja Dja Wurrung peoples of the Kulin nations. I acknowledge their longstanding connection to Country, and I pay my respects to their Elders past and present.
Much of what this inquest has revealed is confronting and traumatic. I would like to acknowledge all the First Nations people who gave their time, evidence, and insights to my investigation. This process has benefited profoundly from their participation, and I acknowledge the emotional toll of their engagement in the coronial process.
iii
CONTENTS THE APPLICATION OF THE CHARTER TO PUBLIC AUTHORITIES (OTHER THAN THE CORONERS COURT) 16 iv
iv
EARLY INTERVENTION AND IMPROVING CASE MANAGEMENT PRACTICES FOR ABORIGINAL AND RECOMMENDATION TO SUPPORT ONGOING IMPROVEMENT OF CASE MANAGEMENT AND CASE vi
XY was born on 31 March 2004 and passed on 18 July 2021 at the age of 17. Although she had grown into a proud young Wemba Wemba woman, XY was, at the time of her passing, disconnected from her family, her culture and her community.
XY had a voice, and it was articulate. Sadly, it was not heard in time. There are, however, many other young people in our community who share similar vulnerabilities, who may not feel able to give voice to their experiences, so this inquest has examined XY’s life in detail, looking for prevention opportunities that might assist those who remain.
At the time of her passing, XY was under the care of the Victorian Department of Families, Fairness and Housing (‘DFFH’),1 having been removed from her family home at the age of 13 by Child Protection. From shortly thereafter, the Secretary stood in loco parentis, with a well-recognised statutory and common law responsibility to act in her best interests.
In the four years that XY was out of her family home, she had seven different care placements, many of which were short-lived and inappropriate for her needs. At the time of her passing, XY lived at Maison House, a residential care unit operated by Anglicare Victoria (‘Anglicare’) and was being case managed by Anglicare’s Intensive Case Management Service (‘ICMS’).
From the time of her removal from the family home, XY had complex mental health needs. Her mental health further deteriorated as XY disclosed alleged sexual offending by her stepfather and other men, which XY reported to Victoria Police from 2018 onwards. In the months leading up to her passing, XY was actively suicidal, regularly expressing suicidal ideation, engaging in self-harm and attempting suicide.
Following XY’s removal from her family, and despite her deteriorating mental health, XY was disconnected from her Aboriginal culture and lacked the protection and support 1 For convenience, this Finding refers to DFFH and its predecessor departments holding responsibilities for Child Protection (including the Department of Health and Human Services and Department of Human Services) as DFFH.
that her culture and community could provide. As XY herself stated in her letter dated 17 December 2020:2
After being removed from her family home, XY did not have a relationship with her mother, nor with her siblings. To a significant extent, this was due to XY’s Mother not believing XY’s allegations of sexual offending by XY’s Mother’s partner (XY’s stepfather), and to the DFFH’s failure to facilitate contact between XY and her family at appropriate opportunities despite that obstacle. XY did not have any contact with her siblings, although she had frequently expressed her desire to do so.
After XY’s passing, XY’s Mother captured the event’s extended impact in a statement dated March 2022:3
XY’s Mother remembers XY as a ‘beautiful, bright young spirit who was taken too soon’.4 Her memories of XY are of a child who loved to ‘sing, dance and dress up’, who was artistic, adventurous and close to her family.5 She described XY as ‘a talented, beautiful, happy and giggly girl’, who would light up a room, a ‘bushy’ who loved to go camping with her Uncle .6 2 Coronial Brief – Medical Records Volume, 6665. (‘MR’) 3 Statement of XY’s Mother, Coronial Brief – Coronial Brief Volume, 33 [4]. (‘CB’) 4 Statement of XY’s Mother, CB 33 [5].
5 Ibid [9], [11], [13] and [15].
6 Ibid [5]-[14].
Before I turn to address some of the circumstances relevant to XY, it is important to acknowledge the broader social and historical context within which XY’s passing occurred.
Aboriginal and Torres Strait Islander people have lived in Australia for more than 60,000 years, displaying sophisticated ways of living and caring for Country and each other.
Suicide was virtually unknown in Australia prior to colonisation. 8 In stark contrast, between 2018 and 2022 in Victoria, Aboriginal and Torres Strait Islander people died by suicide at a rate nearly three times higher than non-Indigenous people.9 Professor Pat Dudgeon, an Aboriginal expert in suicide prevention, gave evidence that in 2021, suicide accounted for 5.3% of Aboriginal and Torres Strait Islander deaths while for nonIndigenous Australians suicide accounted for 1.8% of deaths. 10
The rate of self-harm for Aboriginal youths is also approximately three times higher than for non-Indigenous youths. This is a significant concern not only because self-harm behaviours in themselves can cause distress and injury, but also because intentional selfharm is a strong predictor of future suicide attempts.11
Recent reports prepared by the Coroners Aboriginal Engagement Unit and the Coroners Prevention Unit as part of this court’s prevention functions demonstrate that this alarming public health trend amongst First Peoples is continuing.12 7 Coronial Impact Statement of Jacquii Jackson (1 November 2023) 4; T 722:11-14.
8 Statement of Pat Dudgeon, CB 3654.
9 Coroners Court of Victoria, ‘Suicides of Aboriginal and Torres Strait Islander people in Victoria, 2018-2022’ (22 February 2023), 8.
10 Statement of Pat Dudgeon, CB 3655.
11 Statement of Pat Dudgeon, CB 3655.
12 See Coroners Court of Victoria, ‘Suicides of Aboriginal and Torres Strait Islander people in Victoria, 20182022’ (22 February 2023).
In addition, Aboriginal children and young persons are grossly overrepresented in Victoria’s child protection system. This is despite multiple reports and inquiries into the child protection system in Victoria over the last decade which have made recommendations directed towards improving the plight of Aboriginal children and young people in state care.
Since XY’s passing there have been two commissions undertaken in Victoria which have directly confronted some of the systemic issues raised by the investigation into XY’s passing.
Royal Commission into Victoria’s Mental Health System
In March 2021, the Royal Commission into Victoria’s Mental Health System (‘RCVMHS’) delivered its final report. Implementation of the recommendations made by the RCVMHS is currently underway in Victoria, with substantial reforms being implemented with the aim of improving the capacity of Victoria’s mental health system, including by: a. improving supports available to support children, young people and families; b. redesigning bed-based services for young people; c. improving supports available to address trauma; d. providing culturally safe suicide prevention responses; and e. supporting Aboriginal Social and Emotional Wellbeing.13
To avoid unnecessary duplication of inquiries and investigations, 14 and because implementation of the substantial recommendations made by the RCVMHS is currently underway, I directed that the mental health supports that were in place for XY be examined only to the extent that they fell within the scope of the inquest due to their interaction with the child protection system.15 13 Statement of Paul Flowerdew, CB 2021-1 – 2021-12.
14 Coroners Act 2008 (Vic), s 7. (‘Coroners Act’) 15 Transcript of Directions Hearing (29 March 2023), 5-6.
I was fortified in taking this course by the opinion of the court-appointed expert psychiatrist, Associate Professor Robert Parker, who advised me that, following his review of XY’s treatment, and as at the time of her passing, the mental health services made available to her, primarily through Bendigo Health, were reasonable and appropriate given her complex presentation and the broader system’s contemporaneous design and resourcing. 16 Given that those systemic parameters have changed significantly since the Royal Commission, I decided in the course of setting the scope for this investigation that there was no utility in examining the operation of the mental health system as it was at the time of XY’s passing, although understanding aspects of that system would shed light on the reasonableness and appropriateness of the child protection system’s interactions with it.
It was with this limited goal in mind that I received evidence about the operation of the mental health system.
Yoorrook Justice Commission
On 4 September 2023, the Yoorrook Justice Commission (‘Yoorrook’) delivered its second interim report, Yoorrook for Justice: Report into Victoria’s Child Protection and Criminal Justice Systems (‘Yoorrook Report’).17
The Yoorrook Report recommended that the Victorian Government ‘transfer decisionmaking power, authority, control and resources to First Peoples, giving full effect to selfdetermination in the Victorian child protection system’, and recommended that negotiations to facilitate such change occur through the Treaty process, including through potential interim agreements. 18 In addition, Yoorrook recommended wide-ranging, urgent reforms be made to Victoria’s child protection system.19
These Findings are informed by the contents of the Yoorrook report and its recommendations, some of which are already in the early stages of implementation.
16 Expert report of Robert Parker, CB 3050, especially at 3062–3065.
17 Yoorrook Justice Commission, Yoorrook for Justice: Report into Victoria’s Child Protection and Criminal Justice Systems (Interim Report No 2, August 2023). (‘Yoorrook Report’) 18 Yoorrook Report (fn 17) 26, Recommendation 1.
19 Ibid 29-34 Recommendations 7-26.
Again, Yoorrook’s important work represented an opportunity to avoid unnecessary duplication of inquiries and investigations.20
The Yoorrook report is also a rich source of statistical evidence regarding the experiences of First Peoples children and young people in Victoria’s child protection system. It confirmed that First Nations children and young people are overrepresented in Victoria’s child protection system and in out-of-home care. As at 30 June 2022, Aboriginal children in Victoria were, when compared to non-Aboriginal children: a. 5.7 times as likely to be the subject of a report to child protection services; b. 8.5 times as likely to be found to be ‘in need of protection’ by child protection services; and c. 21.7 times as likely to be in out-of-home care.21
In addition, as of 31 March 2023, 29 per cent of children in state care in Victoria were Aboriginal. 22
Evidence before Yoorrook also showed that a very high proportion of Aboriginal children and young people in out-of-home care have a mental health diagnosis. Among other research, the Yoorrook report cited a 2019 report of the Victorian Auditor General’s Office that found that children in out-of-home care had more than five times the rate of mental health problems and double the rate of suicide attempts compared to the general population.23
These sombre statistics are a stark reminder that XY’s experience within the Victorian child protection system was unfortunately not unique. There are historic and ongoing systemic issues for Aboriginal children and young people in protective care of the state which require urgent resolution.
20 Coroners Act s 7.
21 Yoorrook Report (fn 17) 18-19 (citations omitted).
22 Ibid 178.
23 Yoorrook Report (fn 17) 191, citing Victorian Auditor-General’s Office, Child and Youth Mental Health (June
National Agreement on Closing the Gap
This year also saw the publication of the Productivity Commission’s first Review of the National Agreement on Closing the Gap (‘Closing the Gap Review’).25
The Commission explained the purpose of the project as follows: In 2020, all Australian governments, along with the Coalition of Aboriginal and Torres Strait Islander Peak Organisations, signed the National Agreement on Closing the Gap (the Agreement). They committed to mobilising all avenues available to them to achieve the objective of the Agreement – which is ‘to overcome the entrenched inequality faced by too many Aboriginal and Torres Strait Islander people so that their life outcomes are equal to those of all Australians’.26
Aside from its deep dive into progress (or otherwise) in specific outcome areas, the report generally confirmed that governments around Australia still retain power over decision making in partnerships with First Nations people, and still require First Nations people to fit into mainstream approaches to design and implementation.27 The Commission’s ‘overarching finding’ was that ‘a paradigm shift’ and ‘fundamental change’ is required.28
The Commission further stated: 24 Victorian Government, ‘Response to the Yoorrook for Justice report’ (April 2024). See responses to recommendations 1, 5, 7, 9-10, 13-18, 20, 22, 25-26 and 29.
25 Australian Government Productivity Commission, Review of the National Agreement on Closing the Gap (February 2024). (‘Closing the Gap Review’) 26 Closing the Gap Review (fn 25) (Vol 1, Study Report) 3.
27 Ibid 34.
28 Ibid 3, 79.
It remains too easy to find examples of governments making decisions that contradict their commitments in the Agreement, that do not reflect Aboriginal and Torres Strait Islander people’s priorities and perspectives and that exacerbate, rather than remedy, disadvantage and discrimination.29
The SEO 12 target remains off track, and is worsening nationally. At 30 June 2022, the rate of Aboriginal and Torres Strait Islander children aged 0–17 years in out-ofhome care was 56.8 per 1,000 children in the population. This is an increase from 54.2 per 1,000 children in 2019 (the baseline year). The average annual change was an increase of 0.91 per 1,000 children, with an average annual decrease of 2.03 per 1,000 children required to meet the target (PC 2023d, p. 66).
Progress against this target varies across jurisdictions. Victoria and South Australia have the highest rates of Aboriginal and Torres Strait Islander children in out-ofhome care (102.2 and 92.7 per 1000 children respectively) and these rates have increased substantially since 2019. 30
30 Closing the Gap Review (fn 25) (Vol 2, Supporting Paper) 316.
31 Ibid 316.
32 Ibid 317.
The trigger for XY's removal from her family was disclosure of abuse. On this front, the Commission reported that, nationally: …in 2021-22, 39.8 per 1,000 Aboriginal and Torres Strait Islander children aged 0– 17 years were the subject of substantiated abuse, with emotional abuse the most common type, and the only type to increase from 2018-19. All other types (physical and sexual abuse and neglect) recorded decreases.33
Further, in 2021, 6 out of 10 First Nations children in out-of-home care across Australia were not living with culturally related carers, although Victoria was among the jurisdictions that were able to report improved numbers of placements with a First Nations relative or kin from 2017.34
First Nations children subject to child protection reunification orders were only reunited with their families in 16.4% of all cases, whereas 21.5% of non-indigenous children were reunified.35
As will become apparent below, XY had the misfortune to be on the wrong side of all these statistics.
Several of the recommendations made in these Findings relate to innovations and reforms that have already been introduced, or sometimes just foreshadowed, but so recently that there has understandably not been time to assess their effectiveness. While I have noted the existence of those reforms in those instances, as an aid to better monitoring and future accountability I have nonetheless made the recommendations in their originally proposed forms, so as to enable the interested parties, in their mandated responses, to have an additional three months to assemble evidence as to the effectiveness of the reforms targeted to those recommendations.
33 Ibid 317.
34 Ibid.
35 Ibid.
The Secretary’s role in loco parentis and the Court’s parens patriae jurisdiction
It is uncontroversial that once a Care by Secretary Order36 was made in relation to XY on 30 September 2019,37 the Secretary of the Department of Health and Human Services (as it then was) had ‘parental responsibility’38 for her, to the exclusion of all others, for two years.
The common law has long described this legal standing, and its consequential obligations, with the Latin phrase in loco parentis, meaning ‘in place of the parent’ and describing ‘a person who looks after another's child for and on behalf of the parent and acts as a substitute parent and assumes responsibility for providing for the child in the parent's absence’.39
There is authority for the proposition that the phrase ‘parental responsibility,’ used in the Children, Youth and Families Act 2005 (‘CYFA’), carries with it even more comprehensive powers and obligations than a common law actor standing in loco parentis.40
So, while this means the DFFH was responsible for XY’s care, wellbeing and all decisions concerning her, the chain of responsibility does not end there. A Court’s ordinary jurisdictional powers are buttressed by the common law doctrine of parens patriae once the welfare of a child is at stake. Garde J held in Secretary to the Department of Justice and Regulation v McIntyre:41 The doctrine of parens patriae is foundational and … is now incorporated by legislation into family law, guardianship, child welfare and child protection jurisdictions across Australia.
36 Children, Youth and Families Act 2005 (Vic), s 289. (‘CYFA’) 37 Coronial Brief – Protection Records Volume, 5726. (‘PR’) 38 CYFA s 3(1).
39 Butterworths Australian Legal Dictionary (1997) ‘in loco parentis’.
40 For instance, see Habib v QBE Insurance (Australia) Limited [2022] NSWPICMR 73 at [71]: ‘…the term ‘parental responsibility’ which requires the claimant to have ‘all’ of the duties of the parents on a continuing basis and not just some of those duties on a transient basis.’
Human rights law protects children in Australia. The key instrument is the United Nations Convention on the Rights of the Child 42 (‘CRC’), which Australia ratified in 1990. The CRC outlines a comprehensive set of civil, political, economic, social and cultural rights for children. Some key child rights protected under the CRC include the right to life, health, education, play, freedom from violence and abuse, and overarchingly, having their best interests taken as a primary consideration in all actions that concern them. The CRC also recognizes the rights and responsibilities of parents in raising children.
Within Australia, the protection of children's human rights extends into the laws of the State of Victoria. The key instrument is the Charter of Human Rights and Responsibilities Act 2006 (‘Charter’), which protects twenty civil and political rights derived from the International Covenant on Civil and Political Rights (‘ICCPR’).43 In addition to rights of generic application to all individuals, the Charter includes specific rights for children under section 17(2), which states: Every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.
As I will unpack below, the Charter requires all statutory provisions to be interpreted compatibly with human rights. It also requires Victorian public authorities to act in way that is compatible with human rights and to give proper consideration to human rights when making decisions – obligations that equally apply to the specific human rights of children. In considering compatibility with human rights, the reasonableness and demonstrable justifiability of any limitations on those rights can be evaluated in Victorian court proceedings. Complaints about potential breaches can be made to the Victorian Ombudsman.44 42 Opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990). (‘CRC’) 43 Opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976). (‘ICCPR’) 44 Bronwyn Naylor, Julie Debeljak and Anita Mackay, ‘A Strategic Framework for Implementing Human Rights in Closed Environments: A Human Rights Regulatory Framework and its Implementation’, (2015) 41 Monash University Law Review 218-70.
While Australia has implemented many of the CRC obligations through domestic laws, the Committee on the Rights of the Child has raised concerns about the treatment and wellbeing of certain groups, including First Nations children.45 The Federal Government has committed to upholding these rights and addressing violations through policies, programs and independent monitoring bodies like the National Aboriginal and Torres Strait Islander Children’s Commissioner.46
In summary, even though international human rights treaties like the CRC have been ratified by Australia and legally oblige the government to protect and promote the rights of all children inside the country, their domestic implementation remains an ongoing challenge in some areas.
Perhaps for this reason, recommendation 5 of the Yoorrook Report emphasised the importance of upscaling Victorian Government capability, competence and support in relation to human rights: … including Aboriginal cultural rights, of all persons appointed to work or working in: a) the child protection system … e) Victoria police … to ensure that they have the capability, competence and support necessary for them to carry out the obligations under [the Charter] and other human and cultural rights laws, and in particular for this purpose the government must: 45 Committee on the Rights of the Child, Concluding Observations on the combined fifth and sixth Periodic Reports of Australia (Doc No CRC/C/AUS/CO/5-6, 1 November 2019); and see also the immediately previous report: Committee on the Rights of the Child, Consideration of reports submitted by States parties under article 44 of the Convention : Convention on the Rights of the Child : concluding observations : Australia (Doc CRC/C/AUS/CO/4, 28 August 2012).
46 See Attorney-General’s Department (Cth), ‘Australia’s response to the Committee on the Rights of the Child List of issues in relation to the combined fifth and sixth reports of Australia’ (3 July 2019); Department of the Prime Minister and Cabinet (Cth), ‘Next Steps on Closing the Gap: delivering remote jobs’ (Media Release, 13 February 2024).
g) review and revise all relevant policies, procedures, protocols, administrative directions, guidelines and like documents h) review all relevant training courses and programs; and i) ensure that Victorian First Peoples businesses or consultants participate on a paid basis in the review and revision of training courses or programs, and the delivery of these, wherever possible.
It will be clear from what follows that I consider human rights mechanisms to be a useful lens through which to view the multitude of interactions that the state and its delegates have with individuals within its jurisdiction. When one is considering whether a death was preventable, it is useful to have the human rights of the person in mind, and to consider: a. whether one or more of the person’s human rights were engaged during the interactions that person had with the state; b. if so, whether those rights were limited by the state during such interactions; and, c. if so, i. whether the limitations are reasonable and can be demonstrably justified; or ii. whether alternative pathways were available, that more effectively balanced the right and the limit, both in terms of assessing compatibility with rights and considering future prevention opportunities.
Those alternative pathways may identify future prevention opportunities, even if the alternatives themselves did not form part of the factual circumstances that actually occurred in this particular case, nor formed part of any chain of actual causation in the present death under investigation.
The Charter sets out the twenty civil and political rights the Victorian Parliament seeks to protect and promote by ensuring that when laws are enacted, and their provisions interpreted, this is done so far as is possible to do so in a way that is compatible with
those rights.47 The Charter also obliges public authorities (including courts and tribunals when acting administratively)48 to act compatibly with human rights and give proper consideration to rights when making decisions.49 Human rights may only be limited to the extent that a limitation is reasonable and can be demonstrably justified in a free and democratic society taking into account all relevant factors.50
The application of the Charter to the Coroners Court itself
Pursuant to section 4(1)(j) of the Charter, a court or tribunal is not a public authority except when it is acting in an ‘administrative capacity’. That expression is not defined in the Charter and there is no direct Australian judicial authority to my knowledge on whether the Coroners Court is a public authority under the Charter when conducting an inquest and exercising the powers in the Coroners Act 2008 (Vic) (‘Coroners Act’) to make findings, comments and recommendations. Whilst many coronial functions are administrative, a Victorian coroner is exercising judicial power when they preside over an inquest hearing, as distinct from an investigation on the papers.51
That said, the Coroners Court is acting administratively when investigating a reportable death and is therefore a public authority at those times and so is required to act compatibly with human rights and give proper consideration to relevant human rights when making those administrative decisions pursuant to section 38 of the Charter.
47 Charter ss 1, 28, and 32.
48 Ibid s 4.
49 Ibid s 32.
50 Ibid s 7.
51 Cemino v Cannan [2018] VSC 535, [92] (‘Cemino v Cannan’). See also Coroners Court of Victoria, Inquest into the Passing of Veronica Nelson (COR 2020 0021, 30 January 2023) Appendix A. An appeal against this decision on a different point was subsequently dismissed: Runacres v The Coroners Court of Victoria [2024] VSC 304 (11 June 2024).
Irrespective of whether it is a public authority, section 6(2)(b) of the Charter applies directly to the Coroners Court to the extent that it has functions under Part 2 (that is, relating to particular Charter rights), and Division 3 of Part 2 (interpretation of laws, including the Coroners Act itself). The most consistently accepted construction of section 6(2)(b) is that the function of the court is to enforce directly only those rights enacted in Part 2 of the Charter that directly relate to court proceedings.52
The Coroners Court most evidently has functions under the right to life (s 9 of the Charter), namely, to conduct an effective investigation into a reportable death. In addition, and in common with other courts, the Coroners Court has functions relating to the way matters are conducted, including the rights to a fair hearing and to equality before the law (ss 24 and 8 of the Charter respectively).53
Finally, section 32(1) of the Charter provides that so far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights. Relevantly, I am satisfied that a compatible interpretation of the power conferred by section 67(1) of the Coroners Act is one that includes investigating breaches of human rights that might have caused or contributed to XY’s passing. Consistent with that view, interpretation of the powers to comment and make recommendations pursuant to sections 67(3) and 72 of the Coroners Act, respectively, encompasses powers to make recommendations and comments in relation to human rights issues connected with the death.54 52 Cemino v Cannan (fn 51) [110]; De Simone v Bevnol Constructions (2009) 25 VR 237, 247 [52] (Neave JA and Williams AJA); Kracke v Mental Health Review Board (2009) 29 VAR 1, 63 [250] (Bell J); Victoria Police Toll Enforcement v Taha (2013) 49 VR 1, [247]-[248] (Tate JA); Matsoukatidou v Yarra Ranges Council [2017] VSC 61 (‘Matsoukatidou’) [32] and references cited in footnote 12; DPP v SL [2016] VSC 714, [6]; Application for bail by HL [2016] VSC 750, [72] (Elliot J); DPP v SE [2017] VSC 13, [12] (Bell J); Harkness v Roberts; Kyriazis v County Court of Victoria (No 2) [2017] VSC 646 [21].
53 If a right applies directly to a court via section 6(2)(b), when assessing whether the court has acted compatibly with the right, section 7(2) should be applied: Matsoukatidou (fn 52) [58]; Victoria Police Toll Enforcement v Taha (2013) 49 VR 1, [250].
54 I note that in the Inquest into the death of Tanya Day, Coroner English made a Ruling on the scope of the Inquest. At [19] of the Ruling, Coroner English stated that for her to rule on the scope of that inquest it was not necessary to address the question of whether the Coroners Court is a public authority when conducting an inquest and exercising the powers in the Coroners Act to make findings and recommendations on matters connected with a death. Accordingly, Coroner English did not rule on this issue.
The application of the Charter to public authorities (other than the Coroners Court)
Section 4 of the Charter defines a ‘public authority’, relevantly, to include certain individuals and entities having functions of a public nature or that exercise functions on behalf of the state or a public authority (whether under contract or otherwise).55 This means that with the exception of the Senior Next of Kin and Dr Thileepan Naren, the remainder of the interested parties in this inquest are public authorities for the purposes of the Charter.
As mentioned above, section 38(1) of the Charter imposes two distinct obligations on a public authority. It makes it unlawful for a public authority to act in a way that is incompatible with a human right (the so called ‘substantive obligation’) and, in making a decision, to fail to give proper consideration to a relevant human right (the so called ‘procedural obligation’). These obligations do not apply if the public authority cannot reasonably act differently or make a different decision under law under section 38(2), for example where a public authority is giving effect to an express statutory provision that is incompatible with human rights.56
Section 7(2) of the Charter applies to a public authority’s obligation to act compatibly with human rights (the ‘substantive obligation’). Where an action of a public authority limits a right, but the limit is reasonable and demonstrably justified, the restriction on the human right is not unlawful. This means there is no contravention of the obligations under section 38 of the Charter. Whether a limitation of a right is reasonable and demonstrably justified is an assessment made by reference to the inclusive list of factors contained in section 7(2), which includes the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, the relationship between the limitation and its purpose, and any less restrictive means reasonably available to achieve the purpose sought to be achieved by the limitation. Section 7(2) of the Charter embodies a proportionality test.57
Even if a limitation on a human right arising from an act of a public authority is ultimately found to be reasonable and demonstrably justified, if the public authority has made a 55 Charter s 4.
56 Charter s 38(2), and example provided in the Charter.
57 Momcilovic v R (2011) 245 CLR 1, 39 [22] (French CJ).
decision, it is still required to give proper consideration to human rights in making that decision (the ‘procedural obligation’). This procedural component of a public authority’s obligation is additional or supplementary to any obligation imposed under the primary legislation governing the operations of the public authority. 58 The content of this procedural obligation is now settled in Victorian law59 such that proper consideration, while it may be discharged in a manner suited to the particular circumstances,60 cannot be satisfied by merely invoking the Charter ‘like a mantra’.61 Rather, it requires ‘that review by the Court be of the substance of the decision-maker’s consideration rather than the form’.62 The two obligations under section 38 are independent and cumulative, which means both obligations must be met.63
(a) is any human right relevant to the decision or action that a public authority has made, taken, proposed to take or failed to take? (the relevance or engagement question);
(b) if so, has the public authority done or failed to do anything that limits that right?
(the limitation question);
(c) if so, is that limit under law reasonable and is it demonstrably justified having regard to the matters set out in s 7(2) of the Charter? (the proportionality or justification question); 58 Colin Thompson (in his capacity as Governor of Barwon Prison) & Anor v Craig Minogue [2021] VSCA 358 [80].
59 Castles v Secretary of Department of Justice (2010) 28 VR 141 (‘Castles’), 184 [185]-[186]; De Bruyn, 669701 [139]-[142]; Bare, 198-199 [217]-[221] (Warren CJ), 218-219 [277]-[278] (Tate JA), 297 [534] (Santamaria JA) (each of the three Justices of Appeal applied the ‘Castles test’ for proper consideration by way of obiter dicta); Colin Thompson (in his capacity as Governor of Barwon Prison) & Anor v Craig Minogue [2021] VSCA 358 [83].
60 PJB v Melbourne Health (Patrick’s Case) (2011) 39 VR 373 [311] (Bell J).
61 Castles (fn 59) 184 [186].
62 De Bruyn v Victorian Institute of Forensic Mental Health (2016) 48 VR 647, 701 [142].
63 Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children (No 2) [2017] VSC 251, [177] and [225]-[226] (‘Certain Children (No 2)’).
64 Certain Children (No 2) (fn 63) [174]; Minogue v Dougherty [2017] VSC 724 at [74]. These questions build on the three-step approach articulated in Sabet at [108] which was applied by the Court of Appeal in Baker v DPP [2017] VSCA 58 at [56].
(d) even if the limit is reasonable and demonstrably justifiable, if the public authority has made a decision, did it give proper consideration to the right? (the proper consideration question);
(e) was the act or decision made under an Act or instrument that gave the public authority no discretion in relation to the act or decision, or does the Act confer a discretion that cannot be interpreted under s 32 of the Charter in a way that is consistent with the protected right (the inevitable infringement question).
It appears that paragraphs (a) to (c) address the substantive obligation under section 38(1), paragraph (d) addresses the procedural obligation under section 38(1), and paragraph (e) addresses the exception to unlawfulness under section 38(2).
Focusing on the procedural obligation, the Supreme court has explained that, whilst there is ‘no strict formula’ and the decision-making process should not be scrutinised ‘overzealously’, a decision maker must undertake a number of steps to ‘give proper consideration’. The decision maker must:65 a. understand in general terms which are the rights of the person affected by the decision may be relevant and whether and if so how those rights will be interfered with by the decision; b. seriously turn their mind to the possible impact of the decision on a person's human rights and the implications there of for the affected person; c. identify the countervailing interests or obligations; and d. balance competing private and public interests as part of the exercise of justification.
65 Ibid [185]-[186]. See also Certain Children (No 2) (fn 63) [174]; Minogue v Dougherty [2017] VSC 724 at [74]. These questions build on the three-step approach articulated in Sabet at [108] which was applied by the Court of Appeal in Baker v DPP [2017] VSCA 58 at [56]. See also Pound A & Evans K, Annotated Victorian Charter of Rights (2nd Ed) (2019) Thompson Reuters, Sydney, Australia at p.304.
The Content of the Rights of a Child in Victoria
The overarching nature of the human rights protections afforded to children makes this particular right the most relevant lens through which to review whether XY’s human rights were adequately honoured.
In section 17 of the Charter, the Victoria Parliament gave domestic effect to Australia’s CRC obligations 66 to ensure that the best interests of the child shall be a primary consideration in all actions concerning children. The inclusion of this right recognises the special vulnerability of children, so it is a right they hold in addition to all other Charter rights.67
While the terms of section 17(2) do not specify who it is that is required to protect children, the Charter only applies to Parliament, courts and tribunals, and public authorities to the extent specified by section 6(2) of the Charter. While other entities (such as the child’s family or society generally) may have a social responsibility to protect children, for current purposes the section 17(2) obligation to protect children rests on the government through the performance of functions by public authorities using the mechanisms I have set out above.
Australian courts have acknowledged the relevance of the CRC at a domestic level. 68 In Northern Territory v GPAO (1999) 196 CLR 553, per Gleeson CJ and Gummow J at 584, Their Honours held that the best interests of the child was an ‘important and salutary principle of substantive law, adopted by courts exercising parens patriae jurisdiction for more than a century’.
66 Article 3 of the CRC requires that ‘[i]n all actions concerning children… the best interests of the child shall be a primary consideration’. See also Article 12.
67 Other Charter rights are also engaged by the factual matrix of this inquest, such as Sections 8 Equality, 9 Right to Life, and 19 Cultural Rights.
68 Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, 287, 288, 291 (Mason CJ and Deane J), 302 (Toohey J); 305-6 (Gaudron J). See also Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children [2016] VSC 796 [146] (‘Certain Children (No 1)’); see also Application for Bail by HL [2017] VSC 1 [121]-[123]; Certain Children (No 2) (fn 63) [260]-[262].
In Secretary to the Department of Human Services v Sanding [2011] VSC 42, a case involving Aboriginal children in the child protection system, in the context of sections 17(2) and 24, Bell J pointed out that: It is unquestionably important for the voice of a child to be heard in matters affecting them. As I have said, children bear rights personally, and are entitled to respect of their individual human dignity. The views of children should therefore be obtained and given proper consideration.69
Garde J described the ‘best interests of the child’ as the central element of the right recognised by section 17(2), adding that ‘by reason of ss 17(2) and 38 of the Charter, the best interests principle is … imported to the acts and decisions of a public authority that engages Charter rights’.70
While the Charter does not define ‘best interests’, the phrase has been subjected to substantial analysis in different contexts. Courts, public authorities and legislators could refer to a number of different sources, both international and domestic, in considering what meaning to attribute to ‘best interests’ in the Charter context.71
In particular, the Supreme Court has indicated that the CRC is relevant to interpreting the meaning of ‘best interests’ in the Charter, and the scope of section 17(2) more generally.
Sections 10(2) and 10(3) of the CYFA set out matters that must be considered when deciding what is in the ‘best interests’ of a child. These matters provide guidance on the content of section 17(2) of the Charter.72 Those considerations include, among other things: a. the need to protect the child from harm; b. the need to protect the child’s rights; 69 At [209].
70 Certain Children No 1 (fn 68) [145]. This is consistent with how the equivalent right in art 24(1) of the ICCPR has been interpreted. See Human Rights Committee, Views: Communication No 1069/2002 (Bakhtiyari v Australia), 79th sess, Doc CCPR/C/79/D/1069/2002 (6 November 2003) [9.7]).
71 A & B v Children’s Court of Victoria [2012] VSC 589 [109]; Certain Children No 1 (fn 68) [146].
72 Re HL (No 2) [2017] VSC 1 [123].
c. the need to promote the child’s development (taking into account the child’s age and stage of development); d. the child’s views and wishes; e. that intervention into the relationship between parent and child is limited to that necessary to secure the safety and wellbeing of the child; f. the need to strengthen, preserve and promote positive relationships between the child and the child’s parent, family members and persons significant to the child; and g. that a child is only to be removed from the care of his or her parent if there is an unacceptable risk of harm to the child.73
74 Committee on the Rights of the Children, General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art 3, para 1), 62nd sess, Doc CRC/C/GC/14 (29 May 2013) [52]–[79]
Saliently in this proceeding, the international jurisprudence leaves no doubt that the child’s own views about what is in their best interests are to be ‘given due weight in accordance with their age and maturity’,75 a principle that has been accepted and affirmed by the Victorian Supreme Court: indeed, Dixon J has stated that it would not be possible to make such an assessment without meeting those requirements.76
I will return to this analysis in the ‘XY’s Voice’ section, towards the end of this Finding.
Cultural rights
Since XY identified with her Wemba Wemba heritage, she also has an additional source of human rights protection.
Section 19 of the Charter protects cultural rights and distinct Aboriginal cultural rights.
In the absence of any detailed consideration of the scope of the cultural rights protected by section 19 in Victorian law, international jurisprudence suggests that positive measures may be necessary to protect against the denial or infringement of the right to culture.77 Further, the denial of the right to culture must meet a certain threshold to be considered a violation. Whether ‘interference’ becomes ‘so substantial’ that it amounts to a ‘denial’ of the right78 is a question of degree.
76 Certain Children (No 2) (fn 63) [262]; see also Department of Human Services v Sanding (2011) 36 VR 221; [2011] VSC 42 [209]; Certain Children (No 1) (fn 68).
77 Poma Poma v Peru, United Nations Human Rights Committee, Views: Communication No 1457/2006, Doc.
78 Ibid.
79 See Martin Laverty, Dennis McDermott and Tom Calma, ‘Embedding Cultural Safety in Australia’s Main Health Care Standards’ (2017) 207(1) Medical Journal of Australia 15; Judy Atkinson, ‘Trauma-informed
Accordingly, I also applied this lens when reviewing XY's interactions with those charged to act in her best interests. For the purposes of this Finding, I have proceeded on the basis that enabling, engaging, renewing and or maintaining XY’s access to her own culture was in her best interests, even where aspects of her relationship with her own family from within that culture were at times problematic for her.
With this framework in mind, I now turn to my statutory tasks under the Coroners Act.
THE CORONIAL INVESTIGATION Jurisdiction
XY’s death constituted a ‘reportable death’ pursuant to section 4 of the Coroners Act because her death occurred in Victoria, was unexpected and unnatural, and immediately before her passing, XY was a person deemed to be ‘in care’ by virtue of being under the care of the Secretary of the DFFH.80 Purpose of a coronial investigation
The jurisdiction of the Coroners Court is inquisitorial. 81 The specific purpose of a coronial investigation is to independently investigate a reportable death to ascertain, if possible, the identity of the deceased person, the medical cause of death and the circumstances in which the death occurred.82
The broader purpose of coronial investigations is to contribute to a reduction in the number of preventable deaths, both through the investigation findings and by the making of recommendations by coroners. 83 This is generally referred to as the coroner’s prevention role.
services and trauma-specific care for Indigenous Australian children’, Resource sheet no. 21, 23 July 2013, http://earlytraumagrief.anu.edu.au/files/ctg-rs21.pdf; Finding into the death of Harley Robert Larking (Coroners Court of Victoria, Deputy State Coroner English, 18 September 2020).
80 Coroners Act ss 4(1), 4(2)(a), 4(2)(c).
81 Ibid s 89(4).
82 Ibid s 67(1).
83 Ibid s 1(c).
Coroners are empowered to: a. comment on any matter connected with the death they have investigated, including matters of public health or safety and the administration of justice;84 and b. make recommendations to any Minister or public statutory authority or entity on any matter connected with the death, including public health or safety or the administration of justice.85
These powers are the mechanisms through which the coroner’s prevention role can be advanced.
The holding of an inquest
As XY was a ‘person placed in custody or care’ immediately before her passing,86 the investigation into her passing must include an inquest, pursuant to section 52(2) of the Coroners Act.87 Findings pursuant to section 67(1)
The matters regarding which a coroner investigating a death must, if possible, make findings are set out in section 67(1) of the Coroners Act. They are: a. the identity of the deceased; and b. the cause of death; and c. the circumstances in which the death occurred.
84 Ibid s 67(3).
85 Ibid s 72(2).
86 Ibid s3(c). XY was ‘a person for whom the Secretary to the Department of Human Services has parental responsibility under the Children, Youth and Families Act 2005’.
87 I note that by s52(3A) of the Coroners Act 2008, the coroner is not required to hold an inquest in the circumstances set out in subsection (2)(b) if the coroner considers that the death was due to natural causes.
Further that s52(3A) of the Act provides that for the purposes of subsection (3A), ’a death may be considered due to natural causes if the coroner has received a report from a medical investigator, in accordance with the rules, that includes an opinion that the death was due to natural causes.’ The circumstances set out in subsection (3A) do not limit the powers of a coroner to hold, adjourn or recommence an inquest.
The Coroners Act 2008 replaced the Coroners Act 1985 (Vic) (‘1985 Act’), which set out the findings a coroner must make at section 19(1). Notably, prior to the Coroners Amendment Act 1999, the 1985 Act included at section 19(1)(e) a requirement for the coroner to find ‘the identity of any person who contributed to the cause of death’. The Coroners Amendment Act 1999 removed this subsection and no equivalent to this subsection was reintroduced in the Coroners Act 2008.
Nevertheless, findings as to the circumstances surrounding a death may relate to the acts or omissions of other persons in important ways, including: a. factual findings as to the courses of action that other persons took; b. findings as to relevant standard practices in a person’s profession or industry; and c. findings as to the likelihood that various courses of action, including the one taken, could have prevented the death.
Questions about a person or party’s ‘culpability’, in a statutory context where coroners do not assign fault or blame, can be addressed in comments regarding the relationship between the person or party’s course of action and either of the latter two categories above.
The power to comment arises from section 67(3) of the Coroners Act, which states: ‘a coroner may comment on any matter connected with the death, including matters relating to public health and safety or the administration of justice’.
These powers arise as a consequence of the obligation to make findings. They are not free-ranging. The powers to comment and make recommendations are inextricably connected with, rather than independent of, the power to enquire into a death and the obligation to make findings. They are not separate or distinct sources of power enabling a coroner to conduct investigations for the sole or dominant reason of making comment or recommendation.88 88 Harmsworth v The State Coroner [1989] VR 989 at 996.
It is important to stress that coroners are not empowered to determine civil or criminal liability arising from the investigation of a reportable death, and are specifically prohibited from including a finding or comment or any statement that a person is, or may be, guilty of an offence.89 It is not the role of the coroner to lay or apportion blame, but to establish the facts. 90 A Coroner must, however, report to the Director of Public Prosecutions if they believe that an indictable offence may have been committed in connection with the death.91 Standard of proof
All coronial findings must be made based on proof of relevant facts on the balance of probabilities. 92 The strength of evidence necessary to prove relevant facts varies according to the nature of the facts and the circumstances in which they are sought to be proved.93
In determining these matters, I am guided by the principles enunciated in Briginshaw v Briginshaw.94 The effect of this and similar authorities is that a coroner should not make adverse findings against, or comments about, individuals or entities, unless the evidence provides a comfortable level of satisfaction that the individual or entity caused or contributed to the death.
Proof of facts underpinning a finding that would, or may, have an extremely deleterious effect on a party’s character, reputation or employment prospects demand a weight of evidence commensurate with the gravity of the facts sought to be proved.95 Facts should 89 Coroners Act s 69(1). However, a coroner may include a statement relating to a notification to the Director of Public Prosecutions if they believe an indictable offence may have been committed in connection with the death. See ss 69(2) and 49(1) of the Coroners Act.
90 Keown v Khan (1999) 1 VR 69.
91 Coroners Act s 49.
92 Re State Coroner; ex parte Minister for Health (2009) 261 ALR 152.
93 Qantas Airways Limited v Gama (2008) 167 FCR 537 at [139] per Branson J (noting that His Honour was referring to the correct approach to the standard of proof in a civil proceeding in the Federal Court with reference to s 140 of the Evidence Act 1995 (Cth)); Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 per Mason CJ, Brennan, Deane and Gaudron JJ.
94 (1938) 60 CLR 336. See also Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369 at [96]- [104]; and NOM v DPP [2012] VSCA 198; (2012) 38 VR 618 (at 655 [124] where Redlich and Harper JJA and Curtain AJA explained that ‘[m]ere mechanical comparison of probabilities independent of a reasonable satisfaction will not justify a finding of fact’. Most recently, see Runacres v The Coroners Court of Victoria [2024] VSC 304 at [96] –[104].
95 Anderson v Blashki [1993] 2 VR 89, following Briginshaw v Briginshaw (1938) 60 CLR 336.
not be considered to have been proven on the balance of probabilities by inexact proofs, indefinite testimony or indirect inferences. Rather, such proof should be the result of clear, cogent or strict proof in the context of a presumption of innocence.96
Causation, proximity and connection
The ‘cause of death’ refers to the medical cause of death, incorporating where possible, the mode or mechanism of death.
The ‘circumstances of the death’ do not refer to the entire narrative culminating in the death, but rather to those circumstances which are sufficiently proximate and causally related to the death. Findings as to circumstances will necessarily include findings as to which events caused others, in what combination they played this causative role, and to what degree.
The standard for making a finding that matters are ‘connected with’ the death for the purposes of making comment under section 67(3) or recommendations under section 72(2) of the Coroners Act is not the same as the standard for making a finding as to the circumstances, which requires a proximate connection. In Thales v Coroners Court,97 Beach J adopted the interpretation of Muir J in Doomadgee v Clements98 that ‘there was no warrant for reading “connected with” as meaning only “directly connected with”’, and that the range of matters connected with a death, for the purpose of comments or recommendations, can be ‘diverse’.99
Beach J in Thales quoted a number of examples of matters ‘connected with’ a death from Muir J in Doomadgee v Clements, which included ‘the reporting of the death’ and ‘a police investigation into the circumstances surrounding the death’.100 96 Briginshaw v Briginshaw (1938) 60 CLR 336, 362-3 per Dixon J.
97 Thales Australia Limited v The Coroners Court of Victoria & Anor [2011] VSC 133 (11 April 2011), [75].
98 Doomadgee v Clements [2006] 2 QdR 352.
99 Thales Australia Limited v The Coroners Court of Victoria & Anor [2011] VSC 133 (11 April 2011), [75].
100 Ibid.
Scope of Inquest
Although the coronial jurisdiction is inquisitorial rather than adversarial,101 it should operate in a fair and efficient manner.102 When exercising a function under the Coroners Act, coroners are to have regard, as far as possible in the circumstances, to the notion that unnecessarily lengthy or protracted coronial investigations may exacerbate the distress of family, friends and others affected by the death.103
In Harmsworth v The State Coroner,104 Nathan J considered the extent of a coroner’s powers, noting they are ‘not free-ranging’ and must be restricted to issues sufficiently connected with the death being investigated. His Honour observed that if not so constrained, an inquest could become ‘wide, prolix and indeterminate’.105 His Honour stated that coroners do not have general powers to conduct open-ended enquiries into the merits or otherwise of the performance of government agencies, private institutions or individuals.106 Significantly, he added: Such an inquest would never end, but worse it could never arrive at the coherent, let alone concise, findings required by the Act, which are the causes of death, etc. Such an inquest could certainly provide material for much comment. Such discursive investigations are not envisaged nor empowered by the Act. They are not within jurisdictional power.107
In Lucas-Smith v Coroner’s Court of the Australian Capital Territory108 the limits to the scope of a coroner’s inquiry and the issues that may be considered at an inquest were also 101 Second Reading Speech, Legislative Assembly: 9 October 2008, Legislative Council: 13 November 2008.
102 Coroners Act s 9.
103 Coroners Act s 8(b).
104 [1989] VR 989 105 Ibid 995.
106 Ibid.
107 Ibid 996.
considered. As there is no rule that can be applied to clearly delineate those limits, ‘common sense’ should be applied. In this case, Higgins CJ noted that: It may be difficult in some instances to draw a line between relevant evidence and that which is too remote from the proper scope of the inquiry. […] It may also be necessary for a Coroner to receive evidence in order to determine if it is relevant to or falls in or out of the proper scope of the inquiry.109
Higgins CJ also provided a helpful example of the limits of a coroner’s inquiry, suggesting that factual questions related to cause will generally be within the scope of the inquest.110
Ultimately, however, the scope of each investigation must be decided on its facts and the authorities make it clear that there is no prescriptive standard that is universally applicable, beyond the general principles discussed above.111 Scope of this Investigation and Inquest
Having received notification of XY’s death, I conducted a site visit on 26 July 2021.
The first directions hearing was on 16 August 2021, and an Interim Suppression Order was made on 18 August 2021 which prohibited the publication of the identification of, or information that would tend to lead to the identification of, XY and/or any other child referred to in the proceedings.
In this period, I also issued a number of Form 4 requests for production of protected information including medical records, Medicare and PBS records, and Children’s Court records. Those records were then collected, considered and on 15 June 2022 the coronial brief was made available to interested parties.
On 29 July 2022, the first draft of the scope of inquest was provided to interested parties.
The scope provided a framework of relevance against which to examine XY’s experience 109 Ibid [20].
110 Ibid [14]. I note that in that matter, Higgins CJ was referring to the cause of a fire. However, I consider this analogous to the cause of death.
111 See Inquest into the deaths of Matthew Poh Chuan Si , Thalia Hakin, Yosuke Kanno, Jess Mudie, Zachary Matthew Bryant and Bhavita Patel: Ruling No 2 (COR 2017 0325) [2019] VicCorCOR 26149 (Coroner Hawkins, 23 August 2019).
of the child protection system and its interactions with the mental health and criminal justice systems.
On 21 September 2022, I made a proceeding suppression order and pseudonym order which revoked and replaced the 18 August 2021 interim order, and prohibited the publication of the name, image or any information that would identify or tend to identify XY, XY’s family members, and/or any children (as at the time of XY’s passing or currently) referred to in the proceedings.112
Having received submissions in response to the draft proposed scope provided on 29 July 2022, a Revised Scope of Investigation 113 was circulated on 12 October 2022, and prevention opportunity reflection statements were requested from the interested parties.
By 9 November 2022, the Court had commissioned independent expert opinions from Dr BJ Newton in respect of the child protection system and Associate Professor Robert Parker in respect of the mental health system.
In early 2023, those expert opinions were received, the coronial brief was updated and the Scope of Inquest was narrowed, reflecting that as a result of the investigative processes, many narrative facts were not in issue and would not need to be the subject of oral evidence at an inquest.
Following a directions hearing on 15 September 2023 at which interested parties were afforded the opportunity to be heard, the Scope of the Inquest114 was finalised and the listing of the Inquest was confirmed, to commence on 16 October 2023 in Bendigo, XY’s home town.
On 19 October 2023, I made a proceeding suppression order which prohibited the publication of the name, image or any information that would identify or tend to identify frontline staff of Anglicare and BDAC who were involved in XY’s care and/or had given or will give evidence in this proceeding; and DFFH Child Protection Practitioners who 112 Appendix A to these Findings 113 Appendix C to these Findings.
114 Appendix D to these Findings
were involved in XY’s care and had made statements or had statements made on their behalf in this proceeding.115 Interested Parties
Facts Not In Dispute for the purposes of this proceeding
115 Appendix B to these Findings.
116 Exhibit A – ‘Facts Not in Dispute’ (18 October 2023). (‘FNID’) See the procedural history of the proceeding for an explanation of the FNID process.
Witnesses called at Inquest
Aboriginal Independent Expert Panel
The Aboriginal Independent Expert Panel comprised the following members, each of whom had provided an expert report: a. Dr BJ Newton;118 and b. Dr Jacynta Krakouer.119
The Aboriginal Independent Expert Panel (‘AIEP’) members were each provided a briefing pack and questions (‘conclave questions’) prior to convening to deliberate privately. Conclave panellists were expected to discuss each question and formulate consensus answers as far as possible. No conclave panellist was expected to compromise their opinion for the benefit of agreement. Rather, the process was intended to facilitate collaboration of thought in the development and refinement of opinions, and identify where agreement lay, and where opinions differed.
Medical Stakeholder Panel
118 Proud Wirajduri woman with a PhD in Social Work/Social Policy and a Bachelor of Social Work/Bachelor of Arts with Honours in Sociology.
119 Proud Mineng Noongar woman with a PhD in Social Work, Master of Social Work, Master of Social Policy and a Bachelor of Science (Psychology, History and Philosophy of Science).
a. Associate Professor Philip Tune, Clinical Director of Mental Health, Bendigo Health; b. Mr Julian McNeill, Lead Clinician, Youth Prevention and Recovery Care (‘YPARC’), Bendigo Health; and c. Dr Samuel Robson, Child and Adolescent Psychiatrist, Clinical Unit Head of Child and Adolescent Mental Health Services (‘CAMHS’), Bendigo Health.
Child Protection Stakeholder Panel
BDAC; f. Mr Michael Oerlemans, Regional Director North Central Region, Anglicare Victoria; g. AC, Case Manager, Intensive Case Management Service, Anglicare Victoria; and h. Superintendent John Kearney, Victoria Police.
MATTERS IN RELATION TO WHICH A FINDING MUST, IF POSSIBLE, BE MADE Identity, pursuant to section 67(1)(a) of the Coroners Act
Medical cause of death, pursuant to section 67(1)(b) of the Coroners Act
Forensic pathologist, Dr Melanie Archer performed an external examination on XY’s body at the Victorian Institute of Forensic Medicine on 20 July 2021 having reviewed the Police Report of Death Form, scene photographs and post-mortem computer tomography (CT) scan.
In her report dated 4 August 2021, Dr Archer confirmed the cause of death was neck compression by hanging, with consistent ligature marks clearly visible. Various other multidirectional incision type wounds were also visible, some sutured and some not.
These latter findings were consistent with XY's documented history of self-harm.
120 Cannabis.
121 An antidepressant medication.
122 A sedative medication.
123 An antihypertensive medication.
Findings as to circumstances, pursuant to section 67(1)(c) of the Coroners Act XY’s family background
XY was born on 31 March 2004 in Bendigo. She was 17 years old when she passed on 18 July 2021.
XY was an Aboriginal woman of the Wemba Wemba people through her maternal family.
She was the eldest child of XY’s Mother and XY’s Father.
XY’s mother is Aboriginal. Her country is Wemba Wemba. XY’s Mother’s parents (XY’s maternal grandparents) are and XY’s Grandmother. is Maltese and XY’s Grandmother is Aboriginal. XY’s Grandmother is originally from Swan Hill.
XY’s Mother and XY’s Father were in a relationship for approximately 10 years. They separated in 2008 when XY was 5 years old. They also had a son, Brother 1, born in 2007, who was aged 1 at the time of the separation.
XY’s Mother subsequently formed a relationship with XY’s Stepfather. XY lived with her mother and XY’s Stepfather in a suburb in Bendigo prior to being removed from the family home on 19 October 2017.
XY had eight siblings – Brother 1 (born 2007), Brother 2 (born 2011), Brother 3 (born 2015), Sister 2 (born 2016), Sister 1 (born 2018), (born 2006), (born 2010) and (born 2012). Sister 1 is deceased.
XY attended California Gully Primary School (from 2010 to March 2012 and April to August 2014) and St Liborious Primary School, Eaglehawk (from June 2012 to April 2014 and August 2014 to February 2017).124
When XY was little, she loved to sing and dance and dress up. She was also artistic and adventurous, and loved to play outside. She was close to her family and enjoyed spending time with her Nan, cousins and siblings.125 124 Primary school student records, CB 857. See also Statement of Kylie Hand, CB 1996.
125 Statement of XY’s Mother, CB 33-34.
Early interventions by Child Protection
Child Protection case notes contained within the Child Relationship Information System (‘CRIS’) held by the DFFH indicate that XY was subject to 17 reports to Child Protection between 5 January 2006 and 24 January 2019 and four Community Based Child Protection consultations. Of note:
The first report from 5 January 2006 was closed after Protective Intervention phase, with protective concerns substantiated on 21 June 2006;
Nine reports were closed at the Intake phase (19 October 2007; 1 September 2010; 12 June 2012; 7 May 2014; 14 April 2015; 29 June 2015; 4 February 2016; 14 August 2016 and 12 April 2017);
Five reports were closed after a Child Protection Investigation and not substantiated (20 July 2006, 10 December 2007, 12 January 2015, 31 August 2015 and 6 June 2016); and
Two reports proceeded to protection order phase (24 August 2017 and 24 January 2019).126 Chronology of relevant events from 2017
On 1 February 2017, XY commenced secondary schooling at Catherine McAuley College, Junortoun (also described as Catholic College Bendigo). As an aside, my investigation revealed that the College was a persistent exemplar of the proper form and content of pastoral care.
On 27 June 2017, Dr Thileepan Naren, General Practitioner, saw XY at the Bendigo & District Aboriginal Co-operative (‘BDAC’), where she attended with her mother. The presenting concern was a suspected eating disorder. Dr Naren prepared a Mental Health Care Plan and referred XY to a psychologist and subsequently to the Child and Adolescent Mental Health Service (‘CAMHS’) at Bendigo Health.127 126 Statement of AW, CB 2031. See also Timeline prepared by BJ Newton, CB 3133-3132 and Protection Records cited therein.
127 Statement of Thileepan Naren, CB 3291. See also BDAC Health Summary, CB 651.
On 4 July 2017, XY and her mother attended an appointment with Dr Naren, at which XY’s Mother expressed some reluctance about proceeding with CAMHS and a preference to go through Headspace instead, due to her understanding of XY’s age and her belief as to what these services offered.128
On 4 August 2017, Amanda Kelly of CAMHS conducted a telephone assessment with XY’s Mother as part of the intake process for XY.129
On 7 August 2017, XY attended her first and only appointment with Dr Candice Boyd, a clinical psychologist with Headspace Bendigo. Dr Boyd advised Dr Naren that XY needed to be referred again to CAMHS eating disorder service.130
On 17 August 2017, XY’s Mother informed CAMHS that they did not wish to pursue CAMHS for XY at that time, although they would continue to see XY’s GP.131
Dr Naren continued to review XY twice weekly throughout 2017 and most of 2018.132
On 24 August 2017, Child Protection received a notification from XY’s school, raising concerns about XY’s mental health, refusal to eat, vomiting after meals and cutting her arms.133 XY’s Mother states that at times it was difficult to get XY to go to the doctors and that she also required assistance from BDAC to get XY to those appointments.134 Child Protection determined that the report required further protective assessment and progressed the matter to the investigation phase.135 As part of this investigation, on 18 September 2017, Child Protection workers conducted a home visit136 and XY underwent a mental health assessment by CAMHS at Bendigo Hospital.137
On 19 September 2017, XY’s Mother telephoned the Victorian Aboriginal Child Care Agency (‘VACCA’) in an upset state about XY. This was reported to Child Protection, who conducted a home visit. During the home visit, XY’s Mother expressed that she 128 BDAC Health Summary, CB 652.
130 Letter from Dr Boyd to Dr Naren dated 7 August 2017, CB 811.
132 Statement of Thileepan Naren, CB 3291. See also BDAC Health Summary, CB 651.
133 Case Note dated 24 August 20217, PR 4258.
134 Supplementary Statement of XY’s Mother, 6 October 2023, [5].
wanted XY to remain in her care and asked for support, specifically, to complete a referral to Stronger Families through BDAC. XY’s Mother explained that her call to VACCA was ‘a cry for help’. Child Protection interviewed XY, spoke to her school and decided to allow XY to return home that night.138
On 28 September 2017, Child Protection conducted a home visit. 139 Following consultation with Principal Practitioner AW, Child Protection decided to proceed with a Protection Application in relation to XY.140
On 4 October 2017, Child Protection telephoned XY’s Mother to advise that they would be intervening with a four-week Rapid Response. XY’s Mother agreed to the referral occurring.141 On 6 October 2017 the Rapid Response commenced.142
On 6 October 2017, Child Protection met with CAMHS and was told the family did not attend two appointments at the Eating Disorder Clinic.143 XY’s Mother concedes she may have missed one appointment.144
On 16 October 2017, XY attended an appointment with Dr Samuel Robson, Child and Adolescent Psychiatrist, CAMHS. Dr Robson’s recommendations included that XY attend CAMHS for case management and treatment (with lead clinician Jane Azul), that CAMHS ‘work with DHHS regarding their protective concerns’ and that XY attend BDAC daily until her medical condition improved.145
On 18 October 2017, XY told a staff member at school that she had been physically abused at home. Child Protection were notified of XY’s disclosures. XY was allowed to return home that night.146
144 Supplementary statement of XY’s Mother, 6 October 2023, [10].
145 Letter from Dr Robson dated 23 October 2017, PR 4156.
On 19 October 2017, a professional meeting was held concerning XY. The meeting was attended by representatives from DHHS, CAMHS, Rapid Response, Catherine McAuley College and VACCA.147 Removal of XY from her family home
On 19 October 2017, Child Protection issued a Protection Application and XY was removed from her family home.148
Between 19 and 23 October 2017, XY was placed with Sharon Collicoat (an Anglicare respite provider) in Woodend.149 While in Ms Collicoat’s care, XY refused to eat, and Ms Collicoat was very concerned for her welfare.
On 19 October 2017, Child Protection contacted BDAC, Mallee District Aboriginal Services in Mildura, Mallee Family Care (regarding possible placement in Swan Hill) and Anglicare about potential placement options beyond 23 October 2017 and was informed that none were available.150
On 22 October 2017, in consultation with Anglicare’s On-Call service, Ms Collicoat took XY to the Kyneton Hospital where XY was assessed by a nurse. XY also spoke to a psychiatrist at CAMHS by phone.151 On 23 October 2017, XY attended an appointment with CAMHS.152 Child Protection were notified of these concerns.153
On 23 October 2017, Child Protection continued to look for placements for XY. BB of Child Protection telephoned XY’s Mother, who provided the names of five family members who may be suitable. XY’s Mother also said that she had spoken to XY’s friend ’s mother, Jacqueline Jackson, about the situation.154
On 23 October 2017, XY spent the night in the care of Sally Atkinson.155 147 PR 4124.
150 PR 4119 (BDAC) and PR 4099 (MDAS Mildura).
153 DHS Client Incident Form, PR 3863.
On 24 October 2017, Child Protection records indicate that a phone call took place between Child Protection and VACCA at 10:46am in which VACCA stated they would like XY’s maternal grandmother to be assessed as a carer for XY. VACCA also asked if there had been sibling contact and, if not, could this be scheduled.156 XY is placed with Jacqueline Jackson
On 24 October 2017, XY was placed by Child Protection with Jacqueline and Jason Jackson. Child Protection records note that ‘XY continues to not eat or drink and carer is to take XY to BDAC for medical review tonight. If XY requires admission, then carer will contact AHS’.157
XY’s placement with the Jacksons was approved by Nathan Chapman, the Acting Assistant Director Child Protection, who queried whether consultation had occurred with VACCA or ACSASS. An email response from Anthony O’Brien, Deputy Area Manager, states, ‘We consulted with Lakidjeka/ACSASS. They also recommended assessment of the maternal grandmother, however, we have deemed her inappropriate’.158
On 24 October 2017, XY attended an appointment with Dr Naren, accompanied by Ms Jackson. Dr Naren referred XY to the Emergency Department at Bendigo Health.159 XY was admitted into hospital until 30 October 2017. Ms Jackson stayed with XY while she was in hospital.160
On 25 October 2017, an Interim Accommodation Order was made placing XY in a declared hospital namely Bendigo Health. Conditions of the order included a condition that ‘no family member must have any contact with XY other than agreed by the court’.161
On 30 October 2017, Child Protection attended Bendigo Hospital for a professionals/discharge meeting. The CRIS notes record that the medical professionals determined there was no need for XY to remain in hospital and that it was appropriate
159 BDAC Health Summary, CB 660.
160 Statement of Jacquii Jackson, CB 121.
that she be discharged that day.162 On that day, XY was discharged into the care of Ms Jackson. Ms Jackson’s children are Aboriginal and her daughter, , was friends with XY at school.163
Upon discharge from hospital, the plan was for XY to be seen by BDAC twice weekly for monitoring and 4-6 weekly by Paediatrician Dr Rhys Parry, and to continue to have regular CAMHS appointments.164
Ms Jackson was aware from XY’s hospitalisation and medical appointments of XY’s eating disorder and self-harming. She provided around-the-clock care to XY, including sleeping on a mattress in XY and ’s room to ensure that XY didn’t do anything overnight, and supervising XY while she showered and toileted. When XY returned to school, Ms Jackson attended school every lunchtime to monitor her eating. Ms Jackson quit her job in order to be able to support XY once she returned to school.165
On 30 October 2017, a home visit was conducted by Child Protection, during which XY’s Mother indicated that she would like for the children to remain in contact with XY. XY’s Mother also requested family counselling with XY as she felt that her relationship with XY had been damaged. Child Protection agreed to discuss this with XY.166 A court report due on 20 November 2017 was also to include an assessment as to the suitability of counselling between XY’s Mother and XY.167
On 31 October 2017, an Interim Accommodation Order was made ordering that XY be placed in the care of Ms Jackson. Conditions of the order included conditions that ‘parents must not have any contact with the child other than as agreed to by the child’ and ‘child may have contact with the child’s siblings at times and places as agreed between the child and DHHS’.168
As of 2 November 2017, Rapid Response were concerned about XY’s isolation from her family, especially her siblings. A Child Protection Case Note records that XY made a
163 Statement of Jacquii Jackson, CB 115.
164 Case Note created by AN, PR 4003.
165 Statement of Jacquii Jackson, CB 122-125.
167 Court Activity Case Note dated 31/10/2017, PR 3995.
phone call to Brother 2 for his birthday and had a brief conversation with him, and that Brother 1 did not want to speak to XY.169
On 9 November 2017, Ms Jackson spoke to AN at Child Protection. Ms Jackson advised that XY had taken a step backwards after learning she had put on 7kg. When asked how she was managing, Ms Jackson told AN that things had been hard. AN encouraged her to attend her GP for a Mental Health Plan.170
On 14 November 2017, XY’s Father contacted Child Protection, stating that he had learned through a family friend that XY was in care.171 On 16 November 2017, XY’s Father met with Child Protection. He advised that he wanted contact with his children and was willing to care for them.172
On 14 November 2017, AN spoke to XY and completed a Kinship Assessment. XY advised that she was not ready to have contact with her family. AN also discussed with XY her mother’s desire to have counselling together and advised XY that she could consider this.173
On 21 November 2017, Rapid Response closed. They recommended another referral be made to support reunification once XY returned home.174
On 27 November 2017, an extension was made to the Interim Accommodation Order made on 31 October 2017. In relation to family contact, the relevant conditions of the order provided the following: a. Parents must not have any contact with XY other than as agreed to by XY.
b. XY may have contact with her siblings at times and places as agreed between XY and DHHS.175
174 Signs of Safety Assessment and Planning Form, PR 3928.
On or about 29 November 2017, a Part A Kinship Assessment was uploaded to CRIS176 along with paperwork to support Ms Jackson’s application for a carer’s allowance.177
On or about 30 November 2017, responsibility for XY’s case was transferred from AN to another Child Protection Practitioner, ultimately AP.178
During December 2017, Ms Jackson expressed to Jane Azul at CAMHS that she felt inadequately supported by Child Protection. Also, XY reported that she was missing her siblings and wanted to visit her siblings and cousins.179
Ms Jackson states that sometime before Christmas 2017, XY disclosed to her that she had been raped by an adolescent male, .180 Ms Jackson reported the matter to Child Protection.181 XY also disclosed to CAMHS that she had been raped by an adolescent male, . These matters were notified to Child Protection in January 2018.182
On 29 January 2018, XY’s Father informed Child Protection that he would like XY placed in his care.183
On 31 January 2018, a Conciliation Conference was held. The Court extended the Interim Accommodation Order made on 27 November 2017 on the same conditions.184
On 5 February 2018, a Family Reunification Order was made. The order noted that the protective concerns did not relate to the biological father, XY’s Father. Conditions of the order included the following:
180 Statement of Jacquii Jackson, CB 1636-7.
181 Statement of Jacquii Jackson, CB 1637 and CB 1187.
182 BDAC Health Summary, CB 669; PR 3894; and the name ‘ ’ appears in a later case note PR 3855.
183 Case Note created by AP, PR 3890.
a. Mother, father and stepfather may have contact with the child at times and places as agreed between the child, parents and DHHS. DHHS or its nominees will supervise contact unless DHHS assesses that supervision is not necessary.
b. The child may have contact with the child’s siblings at times and places as agreed between the child and DHHS and the parents.185
At court on 5 February 2018, XY’s Mother’s solicitor informed Child Protection that XY’s parents would not be allowing XY to see her siblings.186
On 20 March 2018, XY’s school contacted Child Protection to advise that XY’s Mother had contacted them saying she refused to receive any information from the school about
XY’s Mother stated that she would not allow this.190
186 PR 3881; Supplementary statement of XY’s Mother, 6 October 2023, [12].
187 PR 3870; Supplementary statement of XY’s Mother, 6 October 2023, [12].
191 Statement of Jacquii Jackson, CB 1186-1187; Case Note dated 20 April 2018 created by AP, PR 3855 and related Case Notes, PR 3848-3854.
about these matters and XY was referred to the Centre Against Sexual Assault
The provision of respite would help to prevent placement breakdown.
I am aware that this placement has been fundamental to the progress that XY has made in the last 6 months in dealing with the eating disorder. She has other mental health issues which appear to be related to her experiences in her family prior to her removal. I am concerned that break down of this placement will have a negative impact on her mental health.193
On 30 April 2018, AP wrote to Ms Azul advising that Ms Jackson had said respite could be tricky because of XY’s high needs and asked whether Ms Azul could recommend any clinical respite placements for XY. Ms Azul responded that she was not aware of any clinical settings XY could attend for respite other than hospital, which she did not require at that time.194
On 21 April 2018, Bendigo SOCIT received a report from DHHS that XY had disclosed that she had been raped by her stepfather on two occasions and by a family friend, .195
On 23 April 2018, Detective Senior Constable Ben Manning (‘DSC Manning’) from the Bendigo SOCIT contacted Ms Jackson. XY was reluctant to speak to Police so it was agreed that it would be arranged for XY to speak to a counsellor from CASA prior to 192 BDAC Health Summary, CB 679-680. See also Case Note dated 20/4/2018 created by AP, PR 3855 and related Case Notes, PR 3848-3854.
195 Operation Tramless-2018 Investigation Notes, CB 1263.
making a statement to police.196 Police confirmed with CASA that Ms Jackson made contact that day.197
On 26 April 2018, Ms Jackson took XY to the Bendigo Multi-Disciplinary Complex (‘MDC’) to meet with CASA. 198 DSC Manning confirmed that XY attended the appointment with Ms Jackson and her school Aboriginal Liaison Worker, that very limited information was provided to the CASA counsellor and XY was on the list to receive follow up from CASA.199
Following XY’s disclosure of alleged sexual abuse by XY’s Stepfather, on 30 April 2018 Child Protection contacted SOCIT regarding XY’s disclosure.200 Child Protection states that SOCIT advised that they could not investigate XY’s Stepfather until XY had made a statement about him and until then, Child Protection would need to proceed with their own investigation.201
On 1 May 2018, following a consultation with the Principal Practitioner, Child Protection undertook investigations in relation to XY’s Stepfather. As part of this investigation, XY was interviewed by Child Protection Practitioners and AP concerning her disclosures made in relation to XY’s Stepfather and . During the interview, XY said that she did not want to tell workers about what she had disclosed about her stepfather.202
On 2 May 2018, as part of Child Protection’s ongoing investigations into the alleged sexual abuse by XY’s Stepfather, a home visit was conducted with police officers, during which XY’s Stepfather agreed to leave the family home voluntarily.203 Child Protection told XY’s Mother and XY’s Stepfather that there had been a report made in relation to a sexual assault at the property but did not reveal who had made the allegations.204 196 Operation Tramless-2018 Investigation Notes, CB 1263; Statement of Jacquii Jackson, CB 1188, [26].
197 Operation Tramless-2018 Investigation Notes, CB 1264.
198 Statement of Jacquii Jackson, CB 1190, [27]; Tramless 2018.
199 Operation Tramless-2018 Investigation Notes, CB 1264.
201 Ibid.
On 3 May 2018, Child Protection met with SOCIT and provided a copy of the transcript of XY’s interview on 1 May 2018.205 Also on that date, Child Protection met with CASA and was told XY had attended an initial CASA appointment but would need to wait three months before she would be allocated a CASA worker.206
On 3 May 2018, provided SOCIT with contact numbers for Child Protection workers AP and AY.207 That same day, Detective Sergeant Hallinan of SOCIT made contact with AY about XY and suggested to her that a case conference be convened later that day between Child Protection and DSC Manning.208
On 3 May 2018, DSC Manning and AY had a case conference in relation to XY’s complaints of sexual assault.209
On 4 May 2018, DSC Manning consulted with in relation to XY. Child Protection records state that DSC Manning advised Child Protection that due to the threemonth waiting period for CASA counselling, ‘he would likely try to get out to the home to meet XY in person as he does not want to retraumatise her 3 months from now when she is effectively engaging with CASA’. advised DSC Manning that she believed XY had issues speaking with male professionals due to her trauma past, however she was unsure how XY would engage with SOCIT.210
On 4 May 2018, XY’s Mother and XY’s Stepfather were served with a Protection Application.
On 7 May 2018, DSC Manning again spoke with Ms Jackson who said that XY was warming to the idea of engaging with police and was willing to attend for preliminary discussion and information about the police process.211
208 Operation Tramless-2018 Investigation Notes, CB 1264.
209 Operation Tramless-2018 Investigation Notes, CB 1264.
210 Case Note dated 4/5/2018 created by Darcy Gordon, PR 3837.
211 Operation Tramless-2018 Investigation Notes, CB 1265.
On 8 May 2018, Ms Jackson took XY to the MDC, and DSC Manning showed XY around and explained what would happen if she made a report to police. 212 Ms Jackson described DSC Manning as ‘fantastic’ and said he explained to XY she could make a statement.213 DSC Manning explained XY’s options, investigation and court processes, provided information pamphlets, and confirmed XY was on the waiting list to receive follow up from CASA. No offending was discussed on that occasion. DSC Manning noted that XY was very shy and further rapport and confidence was required before attempting a Visual and Audio Recording of Evidence (‘VARE’).214
On 14 May 2018, Ms Jackson contacted DSC Manning to arrange a time for a VARE.215
On 16 May 2018, XY made a VARE statement to DSC Manning at the Central Victoria SOCIT in relation to the alleged sexual offending by XY’s Stepfather. During the VARE, XY described seven incidents of rape alleged to have been committed by her stepfather between 2016 and 2017 at the family home. 216 At the conclusion of the VARE, XY requested that the matter not yet be investigated. It was determined that, given XY’s Stepfather was aware of the allegations, he would be interviewed, with further investigative considerations to follow.217 DSC Manning told XY that she did not have to do anything right now with her interview, but it was there now and if she ever wanted to press charges she could.218
Ms Jackson supported XY in making her VARE. She describes XY as being very conflicted about whether or not she wanted to press charges. XY was worried that if XY’s Stepfather went to jail her mother would be by herself with the kids. XY also told Ms Jackson that she stopped eating because of the sexual abuse perpetrated by XY’s Stepfather.219 212Operation Tramless-2018 Investigation Notes, CB 1265; see also Statement of Jacquii Jackson, CB 1190, [28].
213 Statement of Jacquii Jackson, CB 128, [84].
214Operation Tramless-2018 Investigation Notes, CB 1265; see also Statement of Jacquii Jackson, CB 1190, [28].
215 Operation Tramless-2018 Investigation Notes, CB 1265.
216 SOCIT Investigation Brief - Tramless 2018, CB 1176.
217 Operation Tramless-2018 Investigation Notes, CB 1266.
218 Statement of Jacquii Jackson, CB 128, [86].
219 Statement of Jacquii Jackson, CB 128.
On 17 May 2018, DSC Manning issued a family violence safety notice (‘FVSN’) on XY’s behalf against XY’s Stepfather.220
Also on 17 May 2018, XY’s Stepfather was interviewed by police. He denied the alleged offending.221 DSC Manning served the FVSN on XY’s Stepfather that day.222
On 22 May 2018, an interim intervention order was issued against XY’s Stepfather naming XY as the affected family member.223
On 22 May 2018, XY’s Mother provided a statement to police as part of their investigation into the alleged sexual offending by XY’s Stepfather. In her statement XY’s Mother said that she did not believe the allegations were true.224
On 21 June 2018, XY’s Stepfather had supervised contact with XY’s Mother and the children.225
On 28 June 2018, Ms Jackson met with AT and AP and told them that she could no longer care for XY.226 Ms Jackson states that she told Child Protection workers that they needed to find somewhere for her to go before the school holidays as she needed to take her kids away for the holidays to reconnect and get some respite.227
Child Protection attempted to obtain a placement for XY through various agencies without success.228
On 29 June 2018, an emergency placement was obtained for one week in Mildura.229 Ms Jackson states that when she was told by Child Protection of the Mildura placement, she told them that it was not suitable, including because XY would be unable to attend her various medical appointments in Bendigo.230
221 SOCIT Investigation Brief - Tramless 2018, CB 1177.
222 SOCIT Investigation Brief - Tramless 2018, CB 1266.
224 SOCIT Investigation Brief - Tramless 2018, CB 1201.
226 PR 3824; Statement of Jacquii Jackson, CB 130.
227 Statement of Jacquii Jackson, CB 131.
230 Statement of Jacquii Jackson, CB 131.
Child Protection ultimately decided not to send XY to Mildura, and XY remained with Ms Jackson while Child Protection commenced discussions with XY’s Father.231
From 2 July 2018, Child Protection attempted to make contact with XY’s Father. On 5 July 2018, Child Protection spoke to XY’s Father and told him that XY’s carer was no longer able to look after her. XY’s Father said that he would care for XY. Child Protection asked him whether there was anyone else he could nominate to care for XY, and XY’s Father suggested his mother, , or his brother and his wife.232
Child Protection approached , who was not able to care for XY, but said that he and his wife would like to have contact with XY.233
On 9 July 2018, a 12-month intervention order applied for by DSC Manning was granted to XY against her stepfather, XY’s Stepfather.234
On 16 July 2018, AP sent a text message to Ms Jackson informing her that Child Protection were looking at all available family options for XY.235 On 23 July 2018, a further text message was sent informing Ms Jackson that Child Protection were possibly looking at reunifying XY with her father.236
On 8 August 2018, XY made a second VARE statement to DSC Manning at the Central Victoria SOCIT in relation to the alleged sexual offending by XY’s Stepfather. During this VARE, XY disclosed that her stepfather had made her perform oral sex on an unknown male in a car while XY’s Stepfather was at his drug dealer’s house. XY alleged that her stepfather returned to the vehicle to collect XY and the money she had been given for sex, before walking home.237 During this VARE, XY also disclosed that she had been raped by in her bedroom at home. 238 Police chose to prioritise their investigation into the allegations made against XY’s Stepfather, rather than those made against , as the allegations against XY’s Stepfather were more serious and
237 SOCIT Investigation Brief - Tramless 2018, CB 1177.
238 SOCIT Investigation Brief – Modra 2018, CB 1618.
committed within the family environment.239 Police determined not to investigate the allegations against simultaneously with those against XY’s Stepfather so as to minimise the anxiety experienced by XY, who remained unsure about the extent to which she wanted police to respond to her complaints.240
On 10 August 2018, Child Protection decided to place XY with her father and his wife, .241 This decision was communicated to Ms Jackson on 13 August 2018, and to XY on 14 August 2018.242
On 15 August 2018, an office meeting was held for XY and Ms Jackson to meet XY’s Father and Ms . It was the first time XY had seen her father since she was 5 or 6 years old. XY and her father hugged and spoke for about 20 minutes, then XY went for a walk. Ms Jackson, XY’s Father and Ms then talked for over one hour about XY’s needs, and agreed to become Facebook friends so that they could further communicate about XY. Arrangements were made for XY to move the next day.243 XY’s school was informed of the new care arrangements.244 XY is placed with her father, XY’s Father
On 16 August 2018, XY moved into her father’s home, assisted by Ms Jackson.245
On 20 August 2018, XY’s Mother was advised that XY’s placement with Ms Jackson had ended, and that XY had been placed with her father. Child Protection records record that XY’s Mother ‘sounded very upset’ and asked if XY was ok.246
CAMHS records from September indicate that XY was having difficulties transitioning to her father’s home and missed Ms Jackson.247 239 SOCIT Investigation Brief – Modra 2018, CB 1631.
240 Ibid.
On 14 September 2018, XY’s Mother gave birth to her daughter Sister 1. 248 Child Protection monitored XY’s Mother and Sister 1 closely around the time of the birth and for several months afterwards.
On 21 September 2018, XY’s Mother contacted Child Protection to ask whether XY had been informed of the birth of her sister Sister 1. XY’s Mother requested that XY be asked whether she would like to have contact with XY’s Mother and all the children to meet her sister. AP of Child Protection indicated that she would let XY know and get back to XY’s Mother.249
On 29 November 2018, XY’s Stepfather was arrested by SOCIT investigators and interviewed for a second time in relation to the allegations made by XY. He denied all allegations and was released without charge.250
On 18 January 2019, XY commenced with a new CAMHS case manager, Tegan Harrison.
XY stated that she had not been eating recently, and wanted more support with meals.
Ms Harrison spoke to XY’s Father about this and he became defensive, saying XY was lazy and needed to make better choices.251
On 24 January 2019, Child Protection received a report in relation to XY, following an alleged family violence incident at home the previous day. Child Protection understood that Victoria Police were applying for an intervention order by way of Family Violence Safety Notice against XY’s Father.252 An intervention order was served on XY’s Father on 30 January 2019.253 Child Protection conducted a Protective Investigation into the matter. As part of the investigation, on 11 February 2019 XY was interviewed at school about the incident and her relationship with various family members.254
On 13 February 2019, Child Protection visited Ms Jackson’s home, unannounced, to ask whether she would be prepared to care for XY once again. Ms Jackson explained that she could not assist and reiterated that her family had embraced XY but had not received any
250 SOCIT Investigation Brief - Tramless 2018, CB 1177.
help or support from DHHS.255 On 15 February 2019, Ms Jackson telephoned AZ of Child Protection to express her disappointment for Child Protection’s actions in ‘trying to guilt her into taking on the care of XY’.256
On the evening of 13 February 2019, XY disclosed physical violence by her father, claiming that her father had punched her in the eye causing bruising. On 14 February 2019, XY attended a doctor’s appointment in relation to her eye. She told the doctor that she’d been in bed and got up to take her phone off the charger at 11:30pm when an argument occurred with her dad. She said her dad had a short temper and they quite often argued, but this was the first time he had hit her.257
Also on 13 February 2019, Constable Jacinta Morrissey interviewed XY about the incident. XY did not want to make a statement and did not consent to police taking photographs of her eye.258 On 5 March 2019, Constable Morrissey spoke with XY again and asked whether she had thought about the incident some more and whether she would like to make a statement, but XY declined to do so do and stated that she did not want the matter to go any further.259 That same day, Constable Morrissey interviewed XY’s Father in relation to the alleged assault and breach of intervention order; XY’s Father denied hitting XY.260 Police also took a statement from XY’s stepsister, who stated that XY had told her that she had slipped and hit her eye on a chair and that she did not believe that XY’s Father had hit XY.261 On 7 March 2019, XY made a formal statement of no complaint to police in relation to the incident.262 XY is placed with Peta Thompson
On 13 February 2019, as a result of the alleged assault by XY’s Father, XY was placed with Peta Thomson. Ms Thompson was a family friend, and XY and her daughter were school friends. XY’s Father agreed to this voluntary placement.263 A Commence Care
258 Statement of Jacinta Morrissey, CB 1683.
259 Ibid.
260 Statement of Jacinta Morrissey, CB 1683 – 1684.
261 Statement of , CB 1679.
262 Statement of XY, CB 1706.
Allowance application form for funding was made for Ms Peta Thompson to care for XY as a home-based kinship carer.264
On 14 February 2019, DHHS filed a Protection Application in relation to XY.265
On 14 February 2019, Child Protection met with XY’s Mother and informed her of XY’s move from XY’s Father’ house.266 During the visit, XY’s Mother stated that XY’s Father had always been a violent man and she never wanted XY in his care. XY’s Grandmother was present and advised that she was willing to have XY enter her care. Both XY’s Mother and XY’s Grandmother agreed that an Aboriginal Family-Led Decision Making (‘AFLDM’) meeting was needed for XY and they stated that they were happy to participate. XY’s Mother agreed that sibling contact would be beneficial for both XY and her siblings and said that she would like to see XY if XY wanted to pursue this.267
XY was informed that her mother would like XY to have contact with her siblings and with her if XY wanted it. XY seemed very surprised and said she would think about it.268
On 15 February 2019, Child Protection visited the home of XY’s Father to collect XY’s belongings. XY’s Father advised that he and his family wanted no further contact with XY or DHHS.269
Also on 15 February 2019, XY’s Father spoke to CAMHS and said he found a notebook/diary while cleaning out XY’s room which contains significant details about sexual abuse. CAMHS advised him to report this to police.270
On 18 February 2019, an AFLDM Referral was made. Under the heading ‘Purposes of AFLDM’ the following is stated: To begin discussion with family to explore options for XY which will provides stability and respite.
XY needs to feels she is believed and supported by her family to work with police and psychological services to begin to address the trauma.
To explore with family options for long term placement. – If no family options what will be required to maintain the placement and stabilise XY’s life to allow her to achieve her identified goals and address the trauma while being supported by family.
Support for regular sibling contact between XY and her siblings, both in the care of XY’s Mother and XY’s Father.
How do we repair relationship between parents and XY.
Educational options271
On 18 February 2019, DSC Manning contacted Child Protection to find out where XY was living so that he could visit her regarding the allegations made against XY’s Stepfather.272
Also on 18 February, XY’s Mother contacted Child Protection to get an update on XY.
XY’s Mother was told about a consultation for an AFLDM and was pleased that this was occurring.273 On 19 February 2019, XY’s Mother contacted Child Protection for more information about the consultation for the AFLDM. XY’s Mother became angry and said she wanted an AFLDM when XY was first taken out of her care, not now. She told Child Protection she wanted nothing to do with XY.274
On 20 February 2019, Detective Manning contacted Child Protection wanting to make a time to meet with XY.
On 26 February 2019, XY’s Mother told Child Protection she would attend the AFLDM but was not sure if it would be useful.275
On 1 March 2019, XY’s Mother contacted Child Protection and advised she wanted no responsibility for her child and was not prepared to attend court.276
Also on 1 March 2019, XY’s school counsellor informed Child Protection that XY’s Father had refused to give parental consent for XY to attend a school camp and that he did not want to be contacted by the school about XY.277
On 4 March 2019, the Protection Application was adjourned to enable XY to provide instructions to her lawyers, for Registrar’s letters to be sent to XY’s parents notifying them of the next mention, and for AFLDM to occur.278 The Magistrate made a notation that, ‘1. The mother is opposed to the child being placed with the maternal grandmother’; and ‘2. The mother does not wish to be a party to the proceeding on an ongoing basis.’279
Also on 4 March 2019, XY fainted at school.280
On 6 March 2019, BA of Child Protection made a referral to ACSASS in a document entitled ‘Areas of Concern.’281 A Commence Care Allowance form was also completed in respect of Peta Thompson as XY’s carer for XY for home-based care, kinship care – placement long term.282
On 7 March 2019, a Kinship Care Preliminary Part A assessment was completed by BA in respect of Peta Thompson.283
On 12 March 2019, Child Protection contacted XY’s Mother who said she would not be attending the AFLDM.284
On 13 March 2019, the AFLDM meeting was held, convened by of BDAC and attended by XY, XY’s Grandmother, BA, AX (AFLDM Convenor from Child Protection), Aunty Lyn Warren (Aboriginal Elder) and (XY’s cousin). Both of XY’s parents declined to attend the meeting and expressed to Child Protection that
280 PR 3504. See also CAMHS notes at MR 3119.
they did not want XY to live with them. During the meeting, XY’s Grandmother offered to have XY live with her in Swan Hill, and XY expressed that she would prefer to remain where she is in Bendigo. It was agreed that XY would remain living with Ms Thompson, while having contact with her grandmother and cousins. A further AFLDM was to be held in 3 months’ time to review family contact.285
In mid-March 2019, XY’s case was transferred from BA to another Child Protection Case Manager, ultimately AR.286
On 20 March 2019, XY’s Grandmother contacted AX, AFLDM convenor from Child Protection, wanting to have XY stay with her over Easter. 287 This placement was approved, with arrangements made for them to stay at a cabin in a caravan park.288 XY’s Grandmother requested that Aunty Lyn Warren not be involved in future AFLDMs. AX asked about XY’s Grandmother and XY's Country. XY’s Grandmother stated she believed her mother was Nari Nari and father Muthi Muthi however she would ask some of the people in her family to confirm.289
On or about 25 March 2019, a welfare worker at XY’s school spoke to Child Protection about an incident of alleged family violence in which XY had been pushed by Ms Thompson’s partner. XY was on school camp at the time of the call.290
On 29 March 2019, XY spent the weekend at a caravan park with XY’s Grandmother, funded by Child Protection, as XY’s Grandmother was living with XY’s Mother at the time and could not accommodate XY.291
On 2 April 2019, Child Protection met with Ms Thompson to discuss the complaint regarding her partner having pushed XY, her housing situation, and the terms of her kinship care of XY.292 285 PR 3391 and MR 1150. See also PR5783 regarding communications with XY’s Mother and XY’s Father prior to the meeting.
On 8 April 2019, Detective Acting Sergeant Sarah Miller spoke with XY in the presence of her carer Peta Thompson about a further disclosure interview and options in relation to the alleged sexual offending being investigated by police. Acting Sergeant Miller discussed options with XY and advised XY that given the new disclosures she had made since her original VARE interview, if they were proceeding with the investigations a further VARE would need to be obtained. XY told police she was struggling with the pressure/stress the police investigation was causing her and was considering making a statement of no further police action in relation to all matters currently under investigation. XY was to discuss options with Ms Thompson at home over the next few days and police would contact her on 11 April to ascertain how she wanted to proceed.293
On 11 April 2019, Detective Acting Sergeant Miller called Ms Thompson and Ms Thompson advised that she had attempted to speak with XY about whether she wanted the investigation to proceed but XY disengaged when she tried to talk about it with her.294
Following Child Protection consulting with ACSASS, 295 on 12 April 2019, XY and Ms Thompson met with AR. AR explained to XY and Ms Thompson that XY had to stay with her grandmother on the weekend and begin the transition to live with her grandmother.296 Later that day, Ms Thompson telephoned AR and told her that XY did not want to spend the weekend with her grandmother. Child Protection told Ms Thompson that it was important that weekend contact with the grandmother went ahead and that on Monday Child Protection would discuss it with XY again.297
Also on 12 April 2019, AR spoke to Tegan Harrison at CAMHS. Ms Harrison advised they were unsure whether CAMHS was the right service for XY, and that CASA may be better. Ms Harrison advised that XY and Ms Thompson often cancelled CAMHS appointments. Ms Harrison also advised that XY’s mood had improved since staying with Ms Thompson.298 293 SOCIT Investigation Brief – Modra 2018, CB 1620.
294 SOCIT Investigation Brief – Modra 2018, CB 1620.
On 15 April 2019, XY told AR that she did not enjoy being with her grandmother on the weekend. XY said that when she talked to her Nan about some things she changed the subject, those things being ‘stuff that’s gone on’. Child Protection explained to XY that staying with Ms Thompson was not a long-term option and if there is a willing family member, children must be placed with them.299
On 15 April 2019, Ms Thompson telephoned SOCIT and told Detective Sergeant Grigg that XY had decided that she wanted to proceed but did not want to make a further VARE until after the school holidays.300
Also on 15 April 2019, , a Kinship Care Worker from BDAC, contacted Child Protection to advise she was to be XY’s worker for the First Supports Program.301
On 17 April 2019, Ms Harrison at CAMHS telephoned Child Protection and advised that XY had not attended her appointment. Ms Thompson had apparently called CAMHS and stated that XY did not wish to attend anymore. Ms Harrison advised that CAMHS were ok with his and recommended XY continue with counselling at CASA, Headspace or a private psychologist.302 A discharge letter was sent to Dr Naren.303
On 18 April 2019, during the Easter weekend, XY told Ms Thompson that she did not want to stay at her uncle’s house as he was an ice user. This was reported to Child Protection, who made a phone call to XY’s Grandmother, who said that XY was fine and XY’s uncle would not be returning home that weekend. 304 That night, XY left her grandmother’s house with her cousins and . 305 XY did not return to her grandmother’s house and was reported missing to police. XY was staying with her cousins.306
On 23 April 2019, XY got a job at KFC.
300 SOCIT Investigation Brief – Modra 2018, CB 1621.
306 PR 3313 and PR 3319.
Also on 23 April 2019, Child Protection met with Ms Thompson regarding XY’s longterm care. Ms Thompson indicated that she would support XY living with her cousins, but not her maternal grandmother.307
Also on 23 April 2019, Child Protection received a CAMHS closure letter dated 16 April
The closure rationale included improvement in XY’s mood, stable weight, not attending the last three appointments, and Ms Thompson’s opinion that the service was no longer needed. XY’s overall risk was assessed as ‘low’.308
On 1 May 2019, AR of Child Protection referred XY to CASA for crisis care.309
On 4 May 2019, XY attended the Bendigo MDC with Ms Thompson and met with Detective Acting Sergeant Miller about her options. XY made further disclosures in relation to her stepfather, XY’s Stepfather, alleging that she fell pregnant after being raped by him and that he hit her in the stomach with a brick and killed the baby. During the meeting it was discussed that XY had never had any counselling with CASA and was currently on their waiting list. XY said she was making statements to protect her siblings.
XY indicated that she wanted to get some counselling prior to making a further statement, and that at that stage she wanted no further police action in relation to all other matters.310 Detective Acting Sergeant Miller obtained a statement from XY, in which XY stated that she did not want to make another statement to police about XY’s Stepfather and did not want police to investigate her first two statements any more at that stage because she was not ‘in the right head space’ and wanted to get some counselling. XY further stated that she understood she could come back and see police at any time to make another statement and have the matters investigated.311
310 SOCIT Investigation Brief – Modra 2018, CB 1622; Statement of XY dated 4 April 2019, CB 1404-1406.
311 Statement of XY dated 4 April 2019, CB 1404–1406.
solicitor advised the Court that she wanted the order to have the following notation: ‘The Mother does not wish to be a party to the proceedings on an ongoing basis’.313
On 7 May 2019, AR of Child Protection visited XY and Ms Thompson and informed XY about the court order and that the hearing had been adjourned for two months to allow a Cultural Support Plan to be completed. AR advised XY that the Court made an order for XY to have contact with her siblings and that Child Protection would work with the parties to arrange this. XY was happy about this. AR advised XY that they had referred her to CASA, but there was a six-month waiting list, so Child Protection would pay for a private counsellor to see XY. Ms Thompson advised that XY had met with BDAC First Supports that day, who were going to arrange a maths tutor for XY.314
On 8 May 2019, a consultation occurred between Child Protection and ACSASS.
ACSASS advised that they would not support XY being placed with her maternal grandmother, and advised it would be preferable that XY remain where she was and have contact with the family she chose (her cousins). Notes of the meeting recorded that XY was excited about seeing her family.315
On 21 May 2019, XY’s school counsellor, Chantel White, emailed Child Protection advising that XY has mentioned that her GP was wanting to change/cease her medication and indicated that she wanted to talk to a counsellor. Ms White stated this was a ‘big step for XY’ and recommended a clinical psychologist undertake the role.316
On 27 May 2019, XY overdosed on medication at home. She was found by her carer Peta Thompson and transported to Bendigo Hospital by ambulance. The Enhanced Crisis Assessment Team (‘ECAT’) assessed XY as depressed and recommended a priority referral to CAMHS be accepted and her medication reviewed. ECAT expressed concern with the current involvement of CASA, given the work involved and XY’s current mental state and recommended XY’s current state and depression should be the primary focus.317
On 28 May 2019, Child Protection contacted ACSASS practitioner AL about XY overdosing on medication and being admitted to Bendigo Health hospital overnight.318 AR of Child Protection visited XY at home. XY agreed that she was feeling depressed and said it was worse than before and said she wanted to speak to a psychologist. AR also spoke to XY about family contact. XY said she had been speaking to her cousins and wanted to have contact with her siblings.319
On 28 May 2019, CAMHS advised Dr Naren and Child Protection of the following recommendations for XY’s care: a. XY to commence therapy with a private psychologist.
b. XY to remain on the CASA waiting list until allocated.
c. XY to continue to attend her GP for medication review and prescriptions, with Dr Naren able to consult with a CAMHS Psychiatrist to discuss medication.
d. ‘Nil ongoing CAMHS involvement at this time’.320
Also on 28 May 2019, Child Protection advised XY’s father that XY had been taken to hospital overnight following an overdose, that she had been medically cleared by ECAT, and that they had re-referred XY to CAMHS. XY’s Father was angry that XY had not been going to CAMHS, as she had when she lived with him. XY’s Father advised he wanted to be kept up to date about XY but did not want contact with her yet.321 Child Protection tried unsuccessfully to contact XY’s mother.322
On 5 June 2019, XY’s school counsellor Chantel White emailed AR at Child Protection.
Ms White said she had completed a risk assessment on XY today and she was moderate/high risk, with suicidal thoughts still present, ongoing lowered mood and eating moderate amounts.323
320 PR 3240. See also PR 3244, 3246; MR 3216.
On 11 June 2019, Child Protection spoke to XY’s GP, Dr Naren, who said he was hoping to have XY’s medications reviewed by a CAMHS psychiatrist. Child Protection suggested XY be referred to private psychiatrist Dr Laura Barbosa at Sternberg Clinic.324 Child Protection worker AR emailed XY’s school counsellor Chantel White to update her on this development and advised that she would be on leave for two weeks and to contact AO in her absence.325
On 17 June 2019, Ms White sent a further email to Child Protection (to AO as AR was on leave). Ms White advised that XY continued to present as at risk, with current suicidal ideation, conflict with one of Ms Thompson’s children at home and at school, and being significantly behind at school. Ms White further stated that she spoke to XY about possible placements and the only one she could identify were her cousins, however, also indicated that she knew that would not be suitable due to their current situation. Ms White also asked when Child Protection could recommence regular care team meetings.326
On 18 June 2019, of BDAC emailed Child Protection to advise that he was XY’s new First Supports Worker, replacing and that he had been unable to reach XY’s carer ‘at this stage’.327
On 19 June 2019, XY was missing from fifth period, and her school was concerned about her mental health. She was subsequently found.328
On 25 June 2019, Ms White sent a third email to Child Protection (AO) highlighting concerns about her safety and urging an immediate assessment of XY by Dr Barbosa, to whom XY had been referred. Ms White asked Child Protection to advise when a care team meeting could occur .329
On 1 July 2019, an Interim Accommodation Order was made, with the same conditions in relation to sibling contact as were made on 6 May 2019.330 The Court noted that Child Protection was to consider whether the Family Reunification Order was viable or not.331
On 4 July 2019, CASA emailed Child Protection indicating that they would be closing XY’s file due to an inability to get in contact with XY and her carer. Contact with CASA was ultimately made by Ms Thompson at Child Protection’s request.332
On 10 July 2019, DSC Manning of SOCIT consulted with Lauren Wright of CASA about XY. DSC Manning advised that he believed XY would get a lot out of counselling at
On 17 July 2019, Ms White emailed Child Protection seeking an update about XY. She said XY found it upsetting to think about placement. Ms White’s concerns about XY’s risk continued, with XY having disclosed continued and increased frequency of suicidal ideas and deliberate self-harm over the holidays. Ms White also advised that XY had engaged in risky sexual activity.334
Also on 17 July 2019, XY attended an intake meeting with CASA. XY reported that she found it difficult to find a counsellor that matched well, and that she often felt anxious when having counselling and in the lead-up to attending.335
On 22 July 2019, Child Protection met with XY at school, with Ms White present. AR showed XY her Cultural Support Plan, which XY was happy with. AR told XY her mum had given Child Protection a ring for XY. XY did not want to see the ring and did not want to take it.336
As of 25 July 2019, XY was on CASA’s allocation list.337 330 PR 5748-5749.
333 CASA Case Notes, PR 8419.
On 30 July 2019, Child Protection sought feedback and endorsement from BDAC on XY’s Cultural Support Plan, noting that XY was happy with the plan.338
On 12 August 2019, XY’s carer, Ms Thompson, reported to Child Protection that XY was, ‘Really great actually. She’s really happy.’339
Also on 12 August 2019, of BDAC emailed Child Protection to advise that , XY’s First Supports Worker, was no longer working at BDAC, and that he would be looking after ‘the XY Family’ until they were allocated to a new worker.340
On 22 August 2019, Child Protection were given a letter that XY had written to her mother. In the letter, XY asked her mother to acknowledge the abuse by her stepfather, which she said would end up in court. XY also asked why her mother would not let her see her siblings. Child Protection determined not to provide the letter to XY’s Mother.
Child Protection stated its rationale as follows: XY’s Mother ‘has expressed feeling anxious and depressed and is frequently upset when speaking about XY’. XY’s Mother ‘has expressed that she does not believe XY and that XY’s lies are the reason that [Child Protection] are involved with her family’. Child Protection considered that providing the letter to XY’s Mother would therefore be detrimental to XY’s Mother’s mental health at that stage.341
On 28 August 2019, XY self-harmed with a razor. The following day, AR made a home visit to XY and Ms Thompson. Ms Thompson said she was ‘really angry’ at XY for selfharming, and believed she was doing this for attention. XY told Child Protection she did not feel comfortable staying with Ms Thompson over the weekend as she did not want her to be angry at her all weekend. XY agreed to spend the weekend with her cousins.342 XY is in the care of and
XY was happy with her cousins over the weekend and remained with them for the following week to attend her uncle’s funeral. Her uncle passed over the weekend
and XY was able to visit him in hospital before he passed. XY saw XY’s Mother and XY’s Grandmother at the hospital. XY also saw Sister 1 at the hospital.343
On 4 September 2019, Child Protection consulted with AL of ACSASS. AL advised Child Protection to have minimal contact with the family while they had Sorry Business. Child Protection sought endorsement of a change in XY’s disposition from a Family Reunification Order to a Care by Secretary Order. AL advised that as XY’s parents had both said they didn’t want her back and XY had said she did not want to return to their care, then this decision was endorsed as it was in the best interests of XY. 344
On 9 September 2019, an Interim Accommodation Order was made placing XY with Peta Thompson, with the same conditions in relation to sibling contact as were made on 6 May 2019.345
On 10 September 2019, Child Protection spoke with who advised that she and her sister would be willing to have XY permanently. Arrangements were made for XY to remain with her cousins, and her belongings collected from Ms Thompson’s house by Child Protection.346 Ms Thompson stated that she was shocked and surprised when XY was taken from her care, and that she and her family wanted XY to stay with them permanently. She says DHHS did not provide her with any explanation as to why XY was taken from her care.347
On 12 September 2019, Child Protection made a Safe Custody Application to the Children’s Court on the grounds that new facts and circumstances had arisen since the making of the Interim Accommodation Order on 9 September 2019. The Application was made noting:
• Child and Carer had disagreement and Child was placed with family for respite.
• CP assessed that the Carer was no longer suitable for Child to be placed with.
347 Statement of Peta Thompson, CB 160.
• Child placed with Maternal Cousins in an Aboriginal Placement.
• Child wishes to remain in this placement with Cousins.
• Cousins wishing for Child to remain with them.
• ACSASS endorsing this Aboriginal placement.348
DHHS or its nominee will supervise contact.’349 A notation on the court order states: The department is committed to making best endeavours to progress sibling contact on this IAO, however notes that the current family dynamics may pose difficulties for this occurring regularly.350
On 17 September 2019, Child Protection contacted Goldfields Psychology in relation to the Mental Health Care Plan from XY’s GP, Dr Naren.351
On 18 September 2019, a Care Planning Meeting for XY was held with XY, AR of Child Protection and AL from BDAC ACSASS in attendance. The meeting noted recent developments and a plan was made for Child Protection to apply for a Care by Secretary Order for XY.352
On 23 September 2019, Child Protection booked in appointments with a psychologist for XY at Goldfields Psychologist, with the first appointment scheduled for 12 November 2019.353
On 26 September 2019, XY’s Cultural Plan was given to her.354 The plan was already out of date, not reflecting her move from Ms Thompson’s care.
On 30 September 2019, a Care by Secretary Order was made. The order was to remain in force until 29 September 2021 or until XY turned 18 or married, whichever occurred first, with a review in 12 months’ time.355 The order was made in the absence of XY’s parents.356
On 3 October 2019, Child Protection arranged XY’s first counselling appointment with CASA, scheduled for 28 October 2019.357
On 7 October 2019, told Child Protection that things were going okay but they were unsure if they could provide care for XY long term.358
On 8 October 2019, Child Protection contacted Ms White, XY’s school counsellor, to update her on XY’s current care arrangement and the Care by Secretary Order, as well as the appointments arranged with CASA and a private psychologist for XY. Ms White advised Child Protection that XY had disclosed her interactions with her mother and her stepfather at her uncle’s funeral and that XY stated, ‘if Mum had of [sic] believed me I would still have a home and a family.’359
On 9 October 2019, Child Protection became aware (through Ms White, the school counsellor) that XY had taken a pregnancy test which returned a positive result (her GP subsequently confirmed a negative test). XY disclosed that she had been intoxicated at a party during the school holidays and passed out. When XY woke up a male said they had had sex.360 Child Protection reported the matter to Central Victoria SOCIT and liaised with Dr Naren and AL of BDAC.361
On 10 October 2019, AR of Child Protection met with and . AL from ACSASS was present. and said they loved having XY there but that they were struggling. They identified various concerns. Child Protection agreed to complete a First
360 PR 3004. See also PR 2996 regarding GP appointment and follow up.
Supports Referral and assist with new glasses and a dental referral for XY. A respite referral was also to be made.362
On 11 October 2019, Leading Senior Constable Fiona Whitty from Central Victoria SOCIT met with XY at school (with Ms White present) in relation to the alleged rape by an unknown male at a party. XY stated that she had attended a party on 27 September 2019 and had been told by an unknown male that they had sex but she did not remember the event. XY told police she did not want the police to investigate the matter and signed a statement to this effect.363 Ms White informed Child Protection that XY was upset later that day and was concerned about going home because her cousins did not know about the recent situation.364
On 14 October 2019, during a telephone conversation between AR and Ms White, Ms White suggested that XY would benefit from a psychiatric review as she felt XY may have a personality disorder. Child Protection agreed that a psychiatric review would be of benefit to XY and agreed to follow up. 365
On 15 October 2019, a Principal Practitioner Case Consultation was undertaken with AW and XY’s Child Protection Practitioner, AR and Supervisor AO. Outcomes of the consultation included the Child Protection Sexual Exploitation Practice Leader (‘SEPL’) meeting XY, referring her to CASA, and identifying a counsellor who could provide XY with long-term support.366
On 16 October 2019, a SEPL Consult was undertaken by BD, which recommended a Take 2 file review.367
On 17 October 2019, a Targeted Care Package Consultation was held between AR, her Team Manager and the Targeted Care Planner. The action items from that consultation were:
363 SOCIT Investigation Brief – Refeeding DHHS 2019, CB 1722.
• Explore if suitable for a kinship targeted.
• Can have tailored care support- May be able to pay for the mentoring.
• Consult to be sent to contracting to assess if XY is suitable for Kinship Target.
• First supports to be further explored.368
On 23 October 2019, Detective Sergeant Matthew Gildea consulted with CASA about XY. Detective Sergeant Gildea advised that XY had reported that she had been raped at a party in September, that a SOCIT investigation had been going ahead but XY had requested no further police action, and that he was going to consult with XY’s carer before closing the file.369
Later that day, Detective Sergeant Gildea spoke with Ms who advised that she supported XY’s decision to make a statement of no further complaint about the allegation that she had been raped by an unknown male at a party and that she would continue to work with CASA and DHHS to support XY.370
On or about 28 October 2019, Child Protection cancelled XY’s scheduled appointment with CASA due to XY’s referral to Take 2.371
On 5 November 2019, Child Protection cancelled XY’s first appointment with Goldfields Psychology which had been scheduled for 12 November 2019.372 On 8 November 2019, Child Protection cancelled the remainder of XY’s scheduled appointments.373
On 11 December 2019, AR forwarded a completed Take Two Referral for XY to AW, Principal Practitioner.374 Arrangements were made for Berry Street and Child Protection to meet in early January to discuss the referral.375
369 CASA Case Note, PR 8425.
370 SOCIT Investigation Brief – Refeeding DHHS 2019, CB 1723.
On 17 February 2020, the Berry Street Take Two Healing Childhood Trauma service (‘Berry Street’) accepted XY as a client.376 On 2 March 2020, Berry Street informed Child Protection that XY’s anorexia had returned and recommended immediate treatment by General Practitioner Dr Naren. 377 The Child Protection Practitioner undertook to arrange an appointment.378
On 2 March 2020, Child Protection completed a 15+ Transition Care Plan for XY.379
On 3 March 2020, another consultation occurred with SEPL BD regarding XY’s risk of sexual exploitation.380
On 11 March 2020, Child Protection picked XY up from school and conducted a home visit. and advised things were going really well, they had no concerns and wished for XY to keep living with them.381
On 30 March 2020, a Kinship Care Assessment (Part A) for XY was completed by AR.382 On around 31 March 2020, a Kinship Care Assessment (Part B) for XY was completed by BE and uploaded on CRIS.383 On the same date, BE followed up on enquiries about kinship brokerage funding for items such as a washing machine, bedroom furniture and tutoring for XY and in view of the developing COVID-19 health crisis and the stress that may have on the carers.384
On 16 April 2020, XY’s case worker, AR, submitted an endorsed Kinship Brokerage Package and Kinship Supports Referral for XY to , Kinship Engagement Co-ordinator (DHHS) for further funding for XY’s kinship care with and .385
On 17 April 2020, Child Protection approved XY’s one-on-one tutoring to be conducted online during the pandemic closures.386
On 23 April 2020, XY’s school provided Child Protection with XY’s Specific Learning Plan.387
In May 2020, Child Protection continued to negotiate funding for XY through Kinship Care Placement Support Brokerage and obtaining and submitting quotes for necessary items.388 On 25 May 2020, the Brokerage application was approved.389
On 13 May 2020, XY’s case management was allocated to BDAC, from Child Protection.390
On 20 May 2020, BDAC case workers AM and attended and ’s home to conduct a welfare check on XY, following concerns raised by Catherine McAuley College that XY had not been completing schoolwork or attending online classes for the previous six weeks (during COVID-19 lockdowns). XY was not present during the visit, as BDAC were informed that she was visiting with her grandmother.391
Between May and June 2020, XY’s personal journal entries discuss, at length, her declining mental health, desire to self-harm and suicidal ideation.392
On 3 June 2020, Take Two (Berry Street) provided an edited version of their Take Two Assessment of XY to Child Protection, requesting that an earlier version be deleted.393
On 11 June 2020, AQ (Child Protection) and BDAC exchanged phone calls. BDAC requested Child Protection conduct a welfare check on XY, and Child Protection responded that it was BDAC’s responsibility to do so as her case manager, unless the
390 Statement of AW, CB 2032.
matter was urgent.394 There is no record of any welfare check being carried out following this conversation.
On 12 June 2020, Child Protection spoke with to arrange delivery of new bedroom furniture and informed her of the school’s concerns.395
On 15 June 2020, Melissa Urquhart from Take Two contacted AM of BDAC regarding XY. AM responded on 16 June 2020 that she wanted XY to begin counselling ASAP, as XY had ‘noticed a slip in herself recently.’396
On 16 June 2020, AM of BDAC contacted Catherine McAuley College to advise that XY had reported a deterioration in her mental health and anxiety about returning to school.
On 19 June 2020, XY attended school but walked out of class following an outburst.
Attempts were made to contact her to conduct a welfare check. Colin Hogan of Catherine McAuley College estimated that XY’s school attendance for the year was at 59.4%, however he expressed doubt over the accuracy of this number due to difficulties with calculating attendance due to COVID.397
On 14 July 2020, XY (accompanied by ) presented to the Bendigo Health Adult Acute Unit. brought XY in after finding a suicide note in XY’s journal. XY was admitted to the unit and remained there until 16 July 2020.398 Her clinical notes include a statement by , that ‘When CAMHS closed they said they would refer her to a Psychologist but it never happened. She has not had counselling since CAMHS closed a year ago. She needs a counsellor or maybe group support’.399
On 16 July 2020, XY was placed at the Bendigo Health Youth Prevention and Recovery Centre (‘YPARC’) for the first time.400 She would return to YPARC a number of times before her death. XY’s initial YPARC stay concluded on 4 August 2020. On 3 August 2020, XY was informed that was relinquishing care as could no longer
monitor XY. XY was released the following day into her grandmother’s care.401 AM advised Child Protection that, ‘XY is happy to go to her grandmother’s XY’s Grandmother tonight, but I feel this is not a long term solution as it may not be sustainable depending on XY’s relationship with her grandmother, and the fact that her grandmother has contact with XY’s mother and uncles who XY herself has a poor/negative relationship with’.402
On 5 August 2020, in an Aboriginal Family Led Decision Making meeting with BDAC and Child Protection, the prospect of XY moving in with her Aunty was discussed.403 On 6 August 2020, Ashlee Lougoon of CAMHS informed AQ of Child Protection that XY was apprehensive about moving in with her Aunty because she did not really know her. XY remained ‘not super enthusiastic’ about remaining with her grandmother.404 AQ also spoke to AL of ACSASS, who expressed concern that XY’s Grandmother may have been exercising control over XY to convince her to stay.405
On 6 August 2020, XY consulted with Ashlee Lougoon of CAMHS. XY reported that generally, her mental health was poor.406 Child Protection liaised with CAMHS407 and AL of ACSASS regarding XY’s views. Child Protection and ACSASS agreed that they would allow XY to stay with her grandmother and not move to her aunt’s for the time being, provided her grandmother liaised with Child Protection, BDAC and CAMHS.408 On 12 August 2020, XY again met with CAMHS and reported an interest in attending an Aboriginal Girl’s group at BDAC, so that she could attempt to connect more with culture.409
On 13 August 2020, BDAC, as contracted case managers, provided a quarterly report to Child Protection regarding XY. The report recorded that the next three months would focus on, inter alia:
408 PR 2685 and 2682.
• Establishing connections with XY’s extended family and exploring respite options through holding an AFLDM.
• Referral to Better Futures to be completed.
• XY’s cultural support plan to be updated to reflect current placement etc.
• Establishing care team meetings with professionals involved, i.e. CAMHS/school to address needs/concerns.410
XY was briefly restrained while the blades were confiscated.412
On 26 August 2020, XY was discharged from hospital and commenced a stay at YPARC.413 During that stay, XY reported to a YPARC worker that she had received phone calls from her mother.414
Also on 26 August 2020, AQ recorded in XY’s CRIS file under subject ‘Rationale for Placement (ACPP)’, that ACSASS were consulted and endorsed XY to be placed with XY’s Grandmother.415
On 27 August 2020, a Care Team Meeting was held regarding XY with representatives from BDAC, Child Protection, CAMHS and Catherine McAuley College. It was noted in the meeting that, ‘XY has expressed difficulties living with her nan, including concerns around nan’s frequent contact with XY’s mother. XY is willing to live with her nan, as
414 PR 2602; PR 2613; Supplementary statement of XY’s Mother, 6 October 2023, [22].
she believes there are no other options. XY has expressed interest in living independently’.416
On 28 August 2020, XY remained in XY’s Grandmother’ care. On this date, Emma Botheras of YPARC disclosed to AQ of Child Protection that during her earlier stay, XY informed YPARC that her mother and stepfather visited XY’s Grandmother, and that XY found this distressing and tried to ensure she was out when they visited. XY also disclosed to YPARC that approximately one month prior, she was sexually assaulted at a house party by three unidentified males.417
Prior to 27 August 2020, SOCIT contacted Child Protection again and advised that they wished to speak with XY about whether she wished to pursue charges.418
On or around 28 August 2020, Detective Acting Sergeant Miller contacted YPARC and advised that police were hoping to visit XY in person to discuss what she wanted to do in relation to her allegations against her stepfather.419
Sometime between 28 August 2020 and 1 September 2020, XY spoke with SOCIT and decided that she wished to provide a new statement in relation to the allegations against her stepfather and have the matter investigated further.420
On 1 September 2020, AM of BDAC informed Child Protection that XY had informed Victoria Police (SOCIT) that she was willing to co-operate in its investigation of her stepfather. XY also expressed concerns with continuing to live with her grandmother, given her close relationship with XY’s mother and stepfather. 421 Also on that date, YPARC emailed BDAC and Child Protection to inform them that XY had been receiving phone calls from her mother that day and that XY believed they were due to her recent disclosures.422
422 PR 2602; Supplementary statement of XY’s Mother, 6 October 2023, [22].
On 8 September 2020, Detective Acting Sergeant Miller again referred XY to the Central Victoria CASA in respect of the allegations of sexual assault involving her stepfather.423 The next day, on 9 September 2020, SOCIT re-opened the Tramless-2018 investigation.424 On 10 September 2020, XY participated in a further VARE statement with Victoria Police (SOCIT), in which she recounted her allegations and provided new information that was not previously disclosed.425 Victoria Police conducted a further interview with XY’s stepfather.
On 11 September 2020, Child Protection emailed ACSASS (following a phone consultation) noting XY’s Grandmother had not been supportive of XY’s decision to press charges against her stepfather and that XY had decided she did not wish to return to living with XY’s Grandmother. Child Protection noted it supported this decision. The email also noted that XY did not want to live with her aunt and that BDAC had spoken to who was willing to send XY regular texts in the hope that this may build the relationship between them.426
On 18 September 2020, at a Case Planning meeting, XY expressed a wish to be granted an independent living arrangement at Solomon Street Residential Care, for a period of 12 months. XY also expressed interest in being linked with an Aboriginal mentor in the community who was not a member of her family.427 Notes from the meeting include that XY’s cousins, and , no longer wanted contact with XY.428 Prior to the meeting AM spoke to XY to gain her views on her case plan.429
On 22 September 2020, a further care team meeting was held with representatives of YPARC, Catherine McAuley College, BDAC and Child Protection in attendance. The meeting notes record that, ‘XY has appeared more happier/settled at YPARC and her mood has improved since knowing she has been accepted into Solomon Street’.430
On 30 September 2020, a case plan was made for XY, with actions table setting out significant decisions for care and wellbeing including XY’s views in the areas of care arrangements, contacts, cultural support, education, health care, and other significant decisions, with each domain noting the cultural considerations.431
Also created on 30 September 2020 was a ‘Child and Family Cultural Details’ document, which noted (among other things) that XY would benefit from having an Aboriginal mentor, that she was engaged with CAMHS on a weekly basis and attended BDAC medical clinic to support her health needs, and that her GP Dr Naren had recommended seeing XY on a monthly basis to support her health needs and review medication.432
On 12 October 2020, XY moved to Solomon Street.433
On 18 October 2020, XY informed Grace Owen of Solomon Street that she was actively suicidal and that she had a plan to end her life on a walk. XY was assessed by ‘Psych triage’, but not admitted.434
On 20 October 2020, XY consulted with CASA, reporting that she used drugs to ‘not feel numb’ and to forget the memories of her sexual assaults.435 The following day, XY disclosed an incident of self-harm by cutting to Solomon Street staff, which was triggered by an argument that XY had with her grandmother.436
On the evening of 21 October 2020, XY left Solomon Street and was uncontactable by staff. She was located later that night under the influence of alcohol, with some superficial self-harm cuts. XY remained at hospital overnight for observation.437
On 30 October 2020, XY spoke with Ashlee Lougoon of CAMHS. XY informed Ms Lougoon that she was travelling to Daylesford with a friend.438 The following day,
XY presented to Bendigo Health Emergency Department reporting an overdose of 10 doxycycline tablets. She was discharged the following day.439
On 3 November 2020, XY ingested caffeine pills, in a ‘spur of the moment’ decision to self-harm. XY presented herself via ambulance to Bendigo Hospital Emergency Department.440 On 4 November 2020, XY was again admitted to YPARC amidst ongoing concerns of her self-harming.441
On 4 November 2020, XY was moved again, this time back to YPARC.442 Her stay involved one instance of self-harm on 15 November 2020.443 On 16 November 2020, Ashlee Lougoon of CAMHS notified AQ of Child Protection that XY threatened suicide to YPARC’s staff psychiatrist if she was moved to Aunty ’s residence. YPARC informed CAMHS that they could not support her relocation to Aunty , but also held concerns about returning XY to Solomon Street as it was not staffed 24 hours a day.444
On 6 November 2020, a care team meeting was held with representatives of YPARC, BDAC, CAMHS, Child Protection and Solomon Street present. It was recommended that XY stay at YPARC for a week, but not for longer than two weeks, and a more specific safety plan to be developed if XY is to return to Solomon Street on discharge.445
On 12 November 2020, the Child Protection worker consulted with the Team Manager, AS regarding XY. AS recommended a consultation with ACSASS, to facilitate contact between XY and her aunt to promote their connection, and for XY to be added to the HRY (High Risk Youth) pre-panel.446
On 13 November 2020, a quarterly report by BDAC was completed which noted XY’s mental health had deteriorated significantly due to a number of factors including COVID439 MR 5603-5609.
19, placement breakdown, SOCIT involvement, and family dynamics/relationship breakdown.447
stated she would like to provide care for XY but was concerned how she would care for her whilst she was still working full time. She had not had contact with XY for approximately 3 years due to not wanting to cause conflict with XY’s Father. She said she would like to commence contact with XY, and also provided a list of other kin but noted she did not believe any of them had capacity to care for XY.448
On 18 November 2020, Child Protection put out a request for a one-week placement for XY to a number of residential care providers. The Summary of Important Requirements for this Placement included close monitoring of XY (including regular overnight checks) to watch for self-harm episodes, sharp objects to be locked away, and support for XY during the Victoria Police (SOCIT) investigation. 449 A number of organisations, including the Mallee District Aboriginal Service (including Swan Hill and Mildura), the Njernda Aboriginal Corporation and Anglicare (Bendigo and Northern Metro) all replied that they were unable to accept XY. 450 Due to the uncertainty regarding XY’s accommodation, and the stress this apparently placed upon her, Ashlee Lougoon of CAMHS emailed Child Protection on 20 November 2020 with her concerns that it was her ‘impression that XY is now at far greater risk than she ever has been at Solomon Street’.451
On 19 November 2020, XY was taken to the Bendigo Hospital Emergency Department by her friend ‘ ’ due to XY experiencing suicidal ideation.452
On 20 November 2020, XY stated she did not want to stay with her friend ‘ ’ and did not want to go to any other placement other than Solomon Street and that not having somewhere to go was making her want to kill herself. Child Protection explained that she
couldn’t go to Solomon Street overnight at the moment but could go for day programs and that Child Protection were doing their best to find her someone at the moment.453
On 24 November 2020, XY took acid with a fellow resident of Solomon Street. She was transported to hospital and stayed until the following day.454
On 26 November 2020, AQ of Child Protection met with XY and advised that she and AX (AFLDM) were considering holding an AFLDM meeting regarding having more contact with family members. XY stated she did not wish to attend. AQ asked whether XY wanted to engage in cultural activities or be engaged with a cultural mentor, which she declined. XY said she was interested in her culture but didn’t want to participate in anything at that time. XY also said she did not want to engage with BDAC and wanted to be case managed by Anglicare.455
On 27 November 2020, Solomon Street provided Child Protection with an updated detailed safety plan for XY residing at Solomon Street including doubling staff numbers at certain times, which Child Protection approved.456
Also on 27 November 2020, XY attempted suicide or self-harm by cutting. She was admitted to Bendigo Health Emergency Department, where she was treated. Either during her admission or the following day, she disclosed to ‘MIND Staff’ (presumably YPARC staff) that she had been raped by a 35-year-old male, posing as a 17-year-old, that day, who she met on Snapchat approximately two to three months earlier. The alleged rape occurred at the male’s house, and he used handcuffs to restrain her during the assault.
ASCO staff case notes indicate that XY was advised to report this to Victoria Police.457 Upon releasing her, XY returned to Solomon Street where she learned that her friend had died by suicide. XY then cut herself. Police were called and attended, and XY resisted until Police produced handcuffs, which caused her distress and she complied with their directions. XY was conveyed to hospital by ambulance pursuant to
section 351 of the Mental Health Act 2014.458 In the Emergency Department, XY told her attending nurse about the rape, however no rape kit was offered to her.459
On 30 November 2020, another SEPL consultation occurred with BD regarding XY’s risk of sexual exploitation. 460 A further safety plan was made for XY by Child Protection.461
On 1 December 2020, XY moved from the Bendigo Hospital Adult Acute Unit (‘AAU’) to YPARC on advice by the treating psychiatrist.462
Between 1 December 2020 and 3 December 2020, AQ of Child Protection spoke with XY’s Grandmother regarding XY returning to live with her. XY’s Grandmother refused to agree to Child Protection’s ‘bottom line’ that XY’s Grandmother not allow XY’s mother and stepfather to visit, and said that she could not manage XY’s self-harming behaviours.463
On 4 December 2020, AW of Child Protection prepared a case note in which he floated the possibility of XY’s admission to an adolescent psychiatric unit, which was supported by YPARC’s staff psychiatrist. AW noted that CAMHS psychiatrists had ‘admission rights’, and that CAMHS would need to initiate this process.464
On 8 December 2020, AQ from Child Protection met with XY at YPARC. YPARC staff Emily McDonnell and ‘Dev’ were present. AQ initially discussed XY’s allegation of rape perpetrated by the 35-year-old male. XY would only tell AQ his first name (‘ ’).
When AQ asked XY to accompany her for a drive to the area where XY suspected the rape occurred, XY refused. After being advised that Child Protection considered to be a risk to her (and others’) safety, XY became visibly distressed and began to shake.
AQ then changed topic, and informed XY that her paternal grandmother had agreed to take her into her home. XY again became upset, and refused to live with 458 Victoria Police ePDR Form dated 27 November 2020 at 20:10, CB 1760.
, saying she wanted ‘nothing to do with that side of the family’.465 On 11 December 2020, texted AX of Child Protection, informing him that she was reneging her agreement to accommodate XY due to ‘family issues and stress over it’.466
On 10 December 2020, AQ applied for an interim intervention order, on behalf of XY, against , in respect of her allegations of rape against him. XY provided the necessary information to AQ the day prior. 467 The interim order was subsequently granted468 and although it was delivered to XY at YPARC, clinicians did not provide it to her as she was not in a mental state to receive it.469 A final order was made on 11 January 2021.470
Also on 10 December 2020, XY was taken to the Bendigo Hospital Emergency Department by YPARC staff who were concerned for her wellbeing. 471 She was medically assessed and cleared for return to YPARC but YPARC were concerned about her escalating risk which required one-on-one support.472
On 15 December 2020, XY’s YPARC stay was extended due to the unavailability of a suitable residence for her to move into, and due to observations by YPARC’s staff psychiatrist that this uncertainty was causing XY distress.473
Also on 15 December 2020, a Kinship Engagement File Review was undertaken by Child Protection which looked at previous attempts to identify placements and respite placements, and to identify additional family. 474 This Review was updated on 17 December 2020.475
On 17 December 2020, BDAC case worker, AM spoke to XY to advise her that BDAC would be no longer case contracted for XY from 18 December 2020 and XY reported
that she was happy for BDAC to close.476 Prior to closure of XY’s management, AM completed a Better Futures Referral for XY.477
Neither attempt was successful.478 Child Protection, including the AFLDM convenor as well as BDAC, explored other family members as options for placements, but these were also unsuccessful.479 These efforts were made in consultation with ACSASS worker
The letter appears in XY’s medical records,481 but not on her contemporaneous Child Protection case file. It read as follows: Dear Child Protection, Solomen [sic] St, BDAC I would like to be treated as a mature minor. I am writting [sic] this letter out of frustration as I do not feel I am being properly validated, supported or cared for by your services. I would like this letter to be viewed as feedback on my behalf.
I identify as a proud Wemba Wemba women [sic] and would like the accociated [sic] support that a young Aboriginal female should be provided with further care. This is a human right.
I would like support with connecting with my aboriginal [sic] heritage, elders and community, I would like the aboriginal [sic] community to support me. My family connections with BDAC which has impacted my access to services which has resulted of disconnection to my people and community.
(Regarding Solomen [sic] St) I would like another chance please. I feel I am being punished for acting on my feelings. I feel restricted by some of the rules, like having to get police checks
everytime I stay overnight somewhere and being restricted to a certain amount of days or hours which I’m aware is not fully in your control but I would like to be treated like I’m independent as for from my understanding that’s what we’re working towards? I would be 100% open to making a new safety plan to try and reduce my risks and so I have a say in what supports me best.
(Regarding child protection) I don’t feel supported by you, I don’t feel you have my best interest at heart, all of your options with housing Solomen [sic] Street was the most supportive, and place of least risk, you removed me from there which has only created more unnecessary stress on me and has taken a toll on my mental health, I just very much feel like you are providing unclear directions. I would like to be treated as a mature minor, I believe I have the capacity regarding my accommodation and lifestyle choices.
Regards, XY
• Explaining child protection procedures and process in a child friendly manner.
• Including young person in care team.
• If young person doesn’t attend care team how information is passed onto young person.
• Listening to young person voice.482
On 23 December 2020, XY’s case management responsibilities returned to Child Protection.483
Also on 23 December 2020, short-term kinship accommodation at a schoolmate’s home was organised. XY resided in a caravan during this placement.484 XY then moved to the home of the schoolmate’s grandparents. XY was initially resistant because she did not know the grandparents. XY remained there until 31 December 2020, when a suicide note was found in XY’s room.485 XY was then admitted to Bendigo Hospital’s Adult Acute Unit, where she remained until 14 January 2021.
Upon XY’s release from hospital on 14 January 2021, XY was placed at Anglicare Victoria, Maison House.486 On 13 January 2021, XY expressed a preference to remain in hospital when Child Protection visited her with an Anglicare worker in hospital to discuss the placement, 487 however Child Protection case notes state that she ‘transitioned reasonably smoothly to the house and was engaging positively with staff and another [young person] in the house’.488 On 15 January 2021, AB of Anglicare visited XY at Maison House. XY expressed that she was feeling numb over the ‘unknown’, as this placement only lasted seven days and she did not know what would happen to her afterwards. Accordingly, XY could not enjoy herself at Maison House or feel a sense of belonging because she knew she would be moved. XY told AB that she would use drugs and possibly self-harm to relieve the stress.489
On 15 January 2021, CAMHS reported to Child Protection that they had caught up with XY and she presented as bright, chatty and humorous and more future focussed than she had been in months.490
On 21 January 2021, XY’s stay at Maison House was extended a further seven days.491 Also on this date, AQ of Child Protection and Ashlee Lougoon of CAMHS emailed each 483 Statement of AW, CB 2032.
other regarding XY’s desire to have contact with her younger siblings. AQ noted that XY’s parents had previously denied such requests, but that she would follow up as it ‘would be in XY’s best interests’.492
On 22 January 2021, XY’s placement at Maison House was extended to 28 January 2021.493 Anglicare Care Team Meeting Minutes for 21 January 2021 state that XY was enjoying her time at Maison House, and that ‘Containment at Maison is similar to what [XY] gets at YPARC – [Ms Lougoon] has advised that this is the best that she has seen XY and has been able to communicate with her around other options’.494
On 25 January 2021, Maison House staff contacted Child Protection regarding concerns about XY’s self-harm and drug use. On the same day, Maison House staff liaised with CAMHS worker Ms Lougoon regarding XY’s presentation, following Child Protection’s advice to do so.495
Also on 25 January 2021, Louise Gillman of CASA called AQ of Child Protection, and left her a voicemail. Ms Gillman then sent a text message to XY, stating that she was ‘just following up as [she] had not heard back from [XY]’. Ms Gillman asked XY if she would like to make an appointment for counselling.496 On 28 January 2021, XY’s CASA file was closed, due to her ‘Ceased contact with service’. The record indicates that XY attended two sessions with the service. Under Goals Achieved, the report stated ‘YES’.497
On 28 January 2021, Child Protection sent out an email seeking a placement for XY that day. Eight residential care providers, from all over Victoria, responded that they did not have capacity to accept her.498 That afternoon, AQ of Child Protection contacted XY to inform her that she had been approved to stay an additional night at Maison House. XY expressed her distress and frustration at Child Protection and AQ regarding the lack of certainty about her placement. XY told AQ that she did not understand why she could not
stay at Maison House long term, that she did not believe Child Protection and AQ were doing anything to help her and that ‘This is making me want to kill myself’.499
Also on 28 January 2021 , Program Manager Residential Services Anglicare contacted Child Protection asking for XY to remain at Maison House.500 On 4 February 2021, Child Protection confirmed that XY could remain at Maison House.501
On 2 February 2021, XY was still at Maison House. She left briefly that afternoon and returned, telling a staff member on her arrival that she had stood on the train tracks waiting for a train to arrive. XY expressed that the uncertainty regarding her placement was making her feel this way.502
On 8 February 2021, XY self-harmed by cutting. She bandaged the wounds herself and would not allow workers at Maison House to help her. Eventually, paramedics were called and arrived after 10pm. XY refused to accompany paramedics to Bendigo Hospital.
Victoria Police was called and arrived 30 minutes later. Police ‘convinced XY to go with the paramedics to hospital with no fuss’. At Bendigo Hospital, XY was assessed by the Enhanced Crisis Assessment Team. Early the following morning, XY returned to Maison House.503
Protection, AQ, who was advised there was no action police could take without the dealer’s name.506
Later in the day, XY was observed in her room with cutting wounds to her left arm.
Maison House staff helped XY clean her wounds. Hospital triage and the Anglicare Victoria After Hours service were notified. Hospital triage advised Maison House staff that there was no immediate need for medical attention and that they should continue to check on XY regularly and call back later if needed. Later again, XY was found unresponsive on the hallway floor. She was roused by Maison House workers and an ambulance was called. Paramedics took XY to hospital.507 On the same day, AQ of Child Protection referred XY to Youth Support and Advocacy Service Bendigo (‘YSAS’), with her consent.508
On 16 February 2021, XY received a phone call from ‘Tegan’ of CAMHS, who informed her that she had secured a placement at YPARC. Upon arrival at YPARC, XY told staff that she was doing okay, but did not understand why she was still feeling suicidal after knowing that she had a stable placement.509
On 21 February 2021, XY was admitted to Bendigo Hospital under an assessment order after absconding from Bendigo Hospital on 20 February 2021.510 She spent time in the Intensive Care Area / Adult Acute Unit and spoke to a psychiatrist. On 22 February 2021, the assessment order was revoked.511 XY then called staff at Maison House and told them that she wanted to return to that residence.512 On 23 February 2021, Maison House staff picked up XY from Bendigo Hospital and took her back to the residence. That evening, XY became upset again after receiving news that another (unidentified) friend had died by suicide. However, there was no incident of self-harm that night.513
AB of Maison House noted that XY appeared frustrated by the hospital’s decision to send her home, and that the nurse at Bendigo Hospital told XY that as she had not hurt herself, the nurse did not believe that XY was at risk.514
On 28 February 2021, XY spoke with residential staff about XY’s Mother’s comments to her on TikTok. XY also discussed the abusive messages she has received from XY’s Father.515
On 1 March 2021, of Maison House emailed AS, BC and AQ of Child Protection, informing them that XY indicated to Maison House staff that the previous day, she had had sex with an unidentified male, that she felt she had no connection or control, that the male seemed to be in it for himself and that she felt as if she had been raped, but had not asked him to stop. Later that day, XY disclosed to Maison House staff that she was becoming increasingly frustrated with health professionals disregarding her feelings and telling her that her self-harm was only superficial. XY revealed additional self-harming abrasions which she said she did with a broken shampoo lid. XY also disclosed to Maison House staff that she ‘just wants to die’ and that she planned to overdose. After refusing to accompany staff to Bendigo Hospital, XY made small cuts in her arms. Victoria Police were called and attended. Police accompanied XY in an ambulance to Bendigo Hospital. A doctor raised the prospect of XY transferring to the Austin Hospital, which agitated XY. She told the doctor that the last time she was at the Austin Hospital, she was made to strip search by a male with no female present.516 There is no record of any strip search of XY having been conducted at the Austin Hospital.
On 15 March 2021, XY met with Stephen Turner of YSAS. XY rejected his offer to assist her with reducing her substance use. No further appointments were made.517
On 16 March 2021, XY returned to Maison House after going out. She told staff that she had taken the drug, acid.518 Staff later found XY in her room with a very deep cut to her
518 Lysergic acid diethylamide, commonly known as LSD, PR 1410.
wrist. XY refused attempts to treat her wound or attend hospital. After some time, Victoria Police were called and attended the residence. Attending police were aware that XY had returned to the residence in a very heightened state after being out all day and stated that she had tried Ice and a short time later had been located in her bedroom with severe self-harm cuts and had stated to workers that she wanted to kill herself.519 Two male police members spoke with XY, in what the staff member (unidentified) describes as ‘firm, clear voices’. XY was asked repeatedly if she had any blades and she refused to answer. Police told XY that if she did not hand over the blades they would have to restrain her. XY did not reply. Maison House staff encouraged XY to hand over any blades so the police did not have to search her, which XY refused. The members then restrained XY with handcuffs, at which point she told them where the blades were located. A female member then arrived and searched XY, locating more blades.520 XY was taken to Bendigo Hospital, where she absconded and was picked up again by Victoria Police. Maison House staff attended Bendigo Hospital, and eventually XY was discharged back to Maison House, telling the staff member accompanying her that she felt the mental health team at Bendigo Hospital did not listen to her, and that ‘It’s like I have to kill myself to show them I’m sick’.521
XY returned to Bendigo Hospital on 18 March 2021 after she ingested 20 Panadol Rapid tablets and collapsed. She was discharged that day.522
On 19 March 2021, XY spoke to AB of Maison House (via telephone) and told her she planned to kill herself by going to the train tracks or hanging herself at the ‘old gillies building’. AB placed 15-minute welfare checks on XY, with a direction to follow her if she left the residence.523 AB also sent an email to Ashlee Lougoon of CAMHS and AQ of Child Protection stating that Maison House was single-staffed, having difficulty filling shifts, and that staff were not trained to deal with XY’s self-harming and Bendigo Hospital were turning her away when she wanted to be admitted. 524 The same day, Ms Lougoon reported to AQ that she had met with XY that day, and XY had asked to be
admitted to Bendigo Hospital Adult Acute Unit. Ms Lougoon informed XY that it was not an appropriate or therapeutic environment for XY, and instead CAMHS would look for an adolescent inpatient unit bed. XY was offered treatment options including discharge to Maison House with her input regarding safety planning, admission to the Austin Hospital which XY refused, or short-term treatment team follow up, which XY also declined.525 XY opted for Maison House.526
On 20 March 2021, XY was found in Maison House hanging by a shoelace or hoodie cord. She was unresponsive but conscious. She was taken to Bendigo Hospital, with Maison House staff also attending, and she absconded and was located by Victoria Police early the following morning. She was admitted to Bendigo Hospital, with a plan to move her to an adolescent inpatient unit in Melbourne later that morning.527
On 21 March 2021, XY remained in Bendigo Hospital. Child Protection notes indicate that Bendigo Hospital staff would not tell Anglicare whether XY would be admitted. The Child Protection On Call service contacted Bendigo Hospital to give consent for information to be shared with Anglicare.528 On 23 March 2021, XY was placed at the adolescent inpatient ward at Austin Hospital. She was upset by this. AU of DFFH suspected that XY was upset because of her previous disclosure concerned an alleged strip search during a previous admission.529 On 26 March 2021, of Maison House, Ashlee Lougoon of CAMHS, and others in XY’s extended care team met to discuss her stay at Austin Health. AU of DFFH asked whether XY could be placed in accommodation in Melbourne, specifically with mental health supports, following her discharge. Ms Lougoon noted that she was not aware of any therapeutic long-term residences available within the mental health service system that could accommodate
assertive case management approach that was integrated with other multidisciplinary services, including residential care’.531
On 30 March 2021, of Child Protection emailed AB, whose role as Residential Care Team Leader included responsibility of ICMS, seeking accommodation for XY at YPARC upon her imminent discharge from Austin Hospital. The importance of XY being given some certainty about her accommodation was raised.532 Later that day, an ICMS worker picked up XY from hospital and drove her to YPARC. Visits to Maison House during that stay were also discussed.533
31 March 2021 was XY’s 17th birthday. AC of ICMS emailed Child Protection and CAMHS, informing them that ICMS staff took XY out to dinner for her birthday, where XY expressed regret over upsetting Maison House staff during her recent suicide attempt.
XY described it as a ‘BPD moment’ (borderline personality disorder moment).534
On 8 April 2021, AC of ICMS emailed AQ of Child Protection and AL of ACSASS, inviting AL to conduct a joint visit with XY.535 Principal Practitioner AW requested the Aboriginal State-wide Principal Practitioner, Ruby Warber, attend the upcoming AFLDM meeting.536
On 23 April 2021, a ‘Kinship Engagement / Closure Summary’ was uploaded to CRIS which noted that ‘CP advised that XY declined to engage with family and relevant services for any relationship building, cultural [connections], etc’. Follow up required included: ‘CP to re-consider the potential kinship respite carer (willing to consider longterm placement) that the Loddon Kinship Engagement team found, once relationships and connections with XY and relevant family members have been carefully planned, supported and successful over time’, and ‘CP to consider further AFLDM consults, liaison with BDAC ACSSAS Worker to reconnect with the potential kinship carers and liaise between them and XY. CP may re-refer to Loddon Kinship Engagement team once XY and family members agree to further explore kinship options and for any relevant 531 Statement of AW, CB 2032.
carer supports’.537 In an email from (DFFH) to AQ (DFFH) on 24 April 2021, Ms stated ‘You or anyone from CP may re-refer to us in future once CP assesses further kinship finding is recommended and/or XY is agreeing to reconnect with family’.538
On 29 April 2021, in an AFLDM consult meeting, participants from Child Protection, ACSASS and Anglicare discussed slowly reintroducing XY to culture and family. A tentative plan was set to reconvene in late May 2021.539
On 4 May 2021, XY had a phone consult with Ashlee Lougoon of CAMHS. XY reported that she had abstained from self-harm for two weeks, but had relapsed and felt that she was back at ‘square one’. Ms Lougoon discussed the possibility of a circuit-breaker stay at YPARC, which XY agreed to consider.540 On 7 May 2021, XY spoke with Ms Lougoon again and disclosed that she had spent almost all of the money in her bank account on, and then taken a number of Xanax and, although her memory of the episode was blurry, she believes she went to a park and cut herself deeper than she had intended. XY was picked up by Victoria Police and taken to hospital, where ECAT assessed her. The ECAT assessor made a comment to XY that her cuts ‘weren’t the worst they’ve seen’, which XY reported made her feel unvalidated.541
Between 7 May 2021 and 10 May 2021, XY had her ‘circuit breaker’ stay at YPARC.542
On 11 May 2021, residence workers (believed to be Maison House) picked up XY from a park where she was intoxicated. When back at the residence, XY self-harmed with blades. Victoria Police were called to attend in response to a suicidal female harming with a razor blade. Members directed XY to surrender her blade, and she refused. XY then self-harmed in front of the members by cutting into her right arm, drawing blood.
Police then tried to take the blade from XY, without success. Police then deployed capsicum spray on her and restrained her with handcuffs. XY was provided with
aftercare.543 Paramedics then arrived.544 ECAT assessed XY at Bendigo Hospital as not being at imminent risk and discharged her with a plan for CAMHS continued management545 as it would be ‘counterproductive’ to keep her overnight.546 On 12 May 2021, Child Protection consulted with AL of ACSASS regarding this incident.547
On 25 May 2021, XY and AC of Anglicare met with AL of ACSASS at the offices of BDAC. Participants discussed culture, including the Wemba Wemba people and XY’s totem, the Nightjar Bird. Plans were made to continue to engage XY with culture.548
On 26 May 2021, XY informed Maison House staff that, the night before, her exboyfriend ‘ ’ held a gun to her head. XY self-harmed later that evening and did not go to hospital. AB, in her capacity as Residential Care Team Leader responsible for Maison House, wrote to AQ of Child Protection that she had instructed staff to report the gun issue to Victoria Police, and XY was advised to photograph her injuries as evidence.549 A few days later, in a disclosure made to Ashlee Lougoon of CAMHS, XY provided more information about her interaction with . Ms Lougoon noted that while XY described as an ex-boyfriend, Ms Lougoon noted that he was more likely a person in an ‘illegal, exploitative relationship’ with XY. XY reported that hassled her until she relented and went to his place where ‘not good things’ happened. XY was resistant to involving Victoria Police, fearing it would make it worse.550
On 30 May 2021, Maison House staff found a suicide note in XY’s journal. XY was not at the residence. After engaging Victoria Police, XY was located at a playground, hanging by a shoelace and unconscious (police and medical records indicate XY called police herself).551 Police arrived at the scene around 6:19pm and XY was immediately cut down by police and after a few seconds she commenced breathing but remained unconscious.
Police requested an ambulance attend the scene as soon as possible and monitored XY’s 543 Victoria Police LEAP Incident Report, CB 1138; PR 996-997.
pulse and breathing until an ambulance arrived. 552 XY was transported to Bendigo Hospital Emergency Department.553 The following day, XY reported to Ashlee Lougoon of CAMHS that she was ‘pissed off’ that her suicide attempt did not succeed.554 On the same day, CAMHS and Maison House discussed line-of-sight monitoring for XY, but it was agreed that would only be reasonable when her mental state appeared lowered (she had presented in good spirits earlier in the day).555
On 1 June 2021, ACSASS, ICMS, Child Protection and a number of other participants met to discuss XY’s recent suicide attempt, the possibility of XY re-engaging with culture and her mother. AL of ACSASS suggested unpacking this with XY to determine if, at this time, this would do more harm than good.556 Another meeting occurred the next day between Child Protection, Anglicare, CAMHS and the Department of Education.557 On 5-6 June 2021, during a stay at YPARC, XY told CAMHS staff that her mother had contacted her, and she got ‘lured in’ with a phone call with her siblings.558 On 9 June 2021, XY reported to Ashlee Lougoon of CAMHS that the messages from her mother started off ‘nice’ but descended into denials of XY’s trauma when her mother told her that she was not raped.559
On 9 June 2021, the Care Team Meeting notes record that ‘AFLDM booked for this Friday’.560
On Saturday 12 June 2021, Maison House staff found XY in the bathroom with several deep cuts. XY reluctantly agreed to go with paramedics to Bendigo Hospital for stitches.561 While there, Maison House staff and XY spoke with ECAT and were told that because XY was engaged with CAMHS, XY was better off ‘holding out’ until her meeting with CAMHS on Tuesday. XY expressed frustration at this, and said, ‘What if I do something before then? I could easily kill myself in that time’. XY and Maison House 552 Statement of Senior Constable Todd Deason, CB 257 – 258.
staff continued to express concerns to ECAT and were told again to ‘hang on till Tuesday’.562
On 16 June 2021, Child Protection, ICMS, CAMHS met with Tim McCormick of Better Futures, in part to discuss XY’s transition to life outside care as she approached her 18th birthday.563
On 18 June 2021, XY self-harmed again. As she was blocking the door and not letting Maison House staff in, Victoria Police were called and attended. When members were talking with XY, Maison House staff saw her try to pick up a blade. A female member restrained her. Paramedics arrived and sedated XY. She was taken to Bendigo Hospital, with a Maison House staff member also attending, where her wounds dressed and then she was discharged. Later that evening, XY disclosed to a Maison House worker that it was the three-year anniversary of her miscarriage, after the rape by her stepfather.564
On 21 June 2021, XY and a Maison House worker drove past a house in Eaglehawk. XY said she was raped in that house when she was 14 years old, from which XY suffered vaginal tears and an STI. XY stated that it was the first time she was sexually abused by someone outside her family. XY told the Maison House worker that she had not reported the rape because the person who raped her had assaulted a number of other girls, and that ‘There were people doing a run through of [his] house with shovels, baseball bats and guns anyway’. The Maison House worker reported the rape disclosure to Victoria Police.565
Between 25-26 June 2021, XY went to Melbourne to visit a friend. When she returned to Maison House, she complained of drug withdrawal having gone off her medication during her trip. After a self-harming episode on 28 June 2021, paramedics and Victoria Police were called. XY self-harmed again in the ambulance trip to Bendigo Hospital and was restrained both in the ambulance and again at the hospital.566 The Maison House worker reported that Victoria Police told them that XY had become aggressive in the ambulance and that she had to be restrained, which the worker was surprised to hear
because there was no history of violence, by XY, towards people. 567 AQ of Child Protection again consulted with AL of ACSASS regarding this incident.568 On 29 June 2021, XY requested a circuit breaker stay at YPARC, as advised by CAMHS to Anglicare and Child Protection. This was arranged569 and XY stayed at YPARC until 1 July 2021.570
On 3 July 2021, XY self-harmed again at Maison House. Paramedics and Victoria Police attended,571 and XY willingly accompanied them to Bendigo Hospital. XY received 19 stitches and spent the night in the Adult Acute Unit572 and was discharged back to Maison House.573
On 5 July 2021, an across-agency monthly clinical meeting was held. Participants included CAMHS psychiatrist Dr Patrick Johnson, CAMHS case manager Ashlee Lougoon (and her manager, Belinda Crossley), from BDAC and AW from Child Protection. They discussed whether XY may have been leaving clues before her suicide attempts, such as her leaving her diary open for staff to find suicide notes, or her calling Victoria Police to let them know she was going to make a suicide attempt.
Participants also discussed the prospect of XY participating in traditional healing practices and ceremonies. An action item was made for Anglicare to follow this up with ACSASS.574 On the same date, AQ consulted with AL of ACSASS, who asked that Anglicare be reminded to contact ACSASS when there was an incident after hours, which was then done.575
575 PR 573 and 571.
was then taken to Bendigo Hospital.576 Upon her release the following day, Maison House staff report expressing their frustration with Bendigo Hospital for continuing to release XY when she is brought in. An unidentified person involved in XY’s care at the hospital told Maison House staff that ‘Sadly one day XY will be successful in killing herself’.577 This was subsequently reported to ACSASS.578
On 13 July 2021, XY went to stay at YPARC. She remained there until 16 July 2021, self-harming the night before her release.579 On 16 July 2021, XY had planned to visit with friends but that was cancelled due to COVID lockdowns. XY complained that she wanted to remain at YPARC, but there was no capacity for her. CAMHS consulted with YPARC and was content for XY to return to Maison House, as she would be well supported there.580
Also on 13 July 2021, CAMHS (participant unidentified) and Child Protection (AW) met to discuss the possibility of admitting XY to the adolescent inpatient care at Austin Health.
CAMHS did not support this idea, as it was unlikely to reduce her medium- to long-term risk, and because exposure of young people with borderline personality disorder to mental health facilities ‘can establish a pattern to dependency into adulthood’.581 Events of 18 July 2021 (date of death)
On 18 July 2021, XY met her friend ZA outside Maison House. XY returned ZA’s bong to her.582
Later that afternoon, XY told Maison House worker AA that she was going on a walk.
AA noted that XY was allowed to go on unsupervised walks as long as she checked in every 30 minutes.583
582 Statement of ZA, CB 87.
583 Statement of AA, CB 2012.
CCTV obtained during the course of the coronial investigation captured XY on foot, travelling south.584
At 5.27pm, XY sent a text message to AA of Maison House, in which XY said ‘I’m sorry it was none of your guys fault it wasn’t anyone’s fault I just can’t do it’.585 AA made multiple, unsuccessful attempts to reach XY by phone, save for one successful attempt where XY informed AA that she was at the Golden Square primary school. AA did not know if XY meant the abandoned school or the actual school, so she directed Victoria Police to both. AA states that Victoria Police told her that there was a fence around the abandoned school and they could not immediately gain access.586
At the time, there were three primary school sites in close proximity in Bendigo – the former Golden Square Primary School on Laurel Street, the operating Golden Square Primary School on Maple Street and the Violet Street Primary School.587
At 5:32pm, ESTA received a 000 call from AA reporting XY missing.588
At 5:40pm, Sergeant Mick McCrann was dispatched in relation to 000 calls made by AA.589
At 5:48pm, Senior Constable Paul Lethlean (‘SC Lethlean’) and Leading Senior Constable William Edwards (‘LSC Edwards’) left the police station to search for XY.590
At 5:49pm, Sergeant McCrann contacted SC Lethlean and LSC Edwards by radio to coordinate the search and asked the members to call AA and get an update on where XY may be.591 584 CCTV photographs, CB 385 – 386.
585 Further statement of AA, CB 2012; PR 6948.
586 Further statement of AA, CB 2012-2013.
587 This information is available through Google; see also, references to three school sites in Statement of Mick McCrann, CB 220; Statement of Paul Lethlean, CB 225; Statement of William Edwards, CB 229.
589 CB 551; statement of Mick McCrann, CB 220.
590 Statement of Paul Lethlean, CB 225.
591 Ibid; see also Statement of Mick McCrann, CB 220.
At 5:53pm, SC Lethlean called AA for information. AA told SC Lethlean that a carer was out looking for XY but they did not know which school she was at.592 SC Lethlean spoke with AA again on the phone at 5:54pm.593
SC Lethlean and DSC Edwards patrolled around the Laurel Street primary school site (i.e. the former Golden Square Primary School) and then the Maple Street school site.
SC Lethlean and DSC Edwards spoke with Sergeant McCrann at the Maple Street school site. After speaking with Sergeant McCrann, they returned to the Laurel Street school site (i.e. the former Golden Square Primary School) to search for XY.594
Sergeant McCrann patrolled what he refers to as the Vine Street (presumably Violet Street) and Maple Street schools on foot and in his vehicle for some time.595
Shortly after 6:04pm, SC Lethlean jumped the 6ft high chainmesh fence surrounding the Laurel Street primary school and conducted a search of the premises, without success.596 SC Lethlean walked around to every building around the property and looked in the windows where he could and in the bushes between the buildings and checked every doorway. He observed that the only building that he could gain entry to was a shelter shed type building which was fitted with a roller door, but the door was not open enough for him to climb through.597 There were big glass windows he could shine a torch through but he could not view anyone inside. At 6:09pm, SC Lethlean received another call from AA while he was still searching the school yard.598 At around 6:18pm, SC Lethlean completed his search and advised ESTA of this.599
Between 6:18pm and 6:21pm, Sergeant Mick McCrann called XY’s phone three times.600
At 6:21pm, Sergeant McCrann made phone contact with XY. Sergeant McCrann asked XY questions about her whereabouts, welfare and whether he could help her. Sergeant McCrann said words to the effect that he really wanted to try and help XY, that he was 592 Statement of Paul Lethlean, CB 225.
593 Ibid.
594 Ibid.
595 Statement of Mick McCrann, CB 220.
596 Statement of Paul Lethlean, CB 225.
597 Ibid.
598 Ibid.
599 Ibid.
600 Statement of Mick McCrann, CB 221.
not going to arrest her and that he just wanted to talk to her. XY replied, ‘No it’s done’ and ‘I’m not going to be alive’ in response to his questions. XY then ended the phone call.601
At 6:22pm, Sergeant McCrann called Sergeant Michael Pain, regarding the possibility of triangulating XY’s mobile phone in an effort to locate her. Sergeant Pain suggested calling the police station to obtain assistance including from the PACER (Police, Ambulance, Clinician, Emergency Response mental health clinician) at the station.602
At 6:24pm, Sergeant McCrann spoke with Sergeant Michael Delaney about his conversation with XY and PACER possibly calling XY to make contact. Sergeant Delaney undertook to ‘contact PACER to establish contract/build information with a view to phone triangulation’.603
At 6:28pm, Sergeant McCrann spoke with Acting Senior Sergeant Peckham. The pair discussed that XY’s suicide threats may not meet the criteria to obtain phone triangulation, however it was agreed that they would wait for further information from Sergeant Delaney and PACER to determine this.604
At 6:35pm, Sergeant Delaney spoke with Jan McNeil, PACER Clinician. Ms McNeil informed Sergeant Delaney that she was familiar with XY, specifically that she knew of XY’s suicide attempt at the playground on 30 May 2021.605
At 6:49pm, Constable James Dempsey, performing watchhouse keeper duties at Bendigo police station, received a call advising that Supervising Sergeant Michael Pain had instructed him to begin preparing missing person reports in respect of XY.606
Shortly after 6:49pm, Constable Dempsey called AA, who provided him with a description of what had happened with XY and a physical description of what she was wearing. Constable Dempsey asked AA if they would be applying for a safe custody 601 Ibid.
602 Statement of Mick McCrann, CB 221.
603 Ibid CB 222.
604 Ibid.
605 Statement of Michael Delaney, CB 250.
606 Statement of James Dempsey, CB 243.
warrant and AA advised they were not.607 Constable Dempsey started preparing the missing person reports.608
Sometime around 7:00pm, Constable Dempsey received information that XY had sent a Snapchat to her friend ZA standing on some train tracks and saying sorry. Constable Dempsey rang ZA and sought further information from ZA but she could not provide any.609
At 7:00pm, Sergeant Delaney contacted the Senior Sergeant, Online Supervisor at the Police Communications Centre. He detailed his concerns for XY and was instructed to complete a triangulation request and forward it to ‘Our 265, then 150 for approval’.610
At 7:30pm, Sergeant Delaney forwarded a completed triangulation request to Acting Senior Sergeant Peckham (the Bendigo 265). The two then spoke, and Peckham confirmed he would forward the request ‘onto the 150 for approval’.611
At 7:38pm, Acting Senior Sergeant Peckham emailed the Triangulation Request to Inspector Bruce Thomas (the 150 on duty).612
At 7:43pm, Inspector Thomas emailed Acting Senior Sergeant Peckham and advised the request had been authorised and sent off to D24.613
At 8:09pm, the triangulation was activated and Sergeant Delaney received a call from the Online Supervisor at the Police Communication Centre, advising that the triangulation request was approved but ‘unfortunately [XY’s] phone was switched off’. The Online Supervisor said they would keep trying and continue to keep Sergeant Delaney informed of the results of the triangulation.614 607 Ibid CB 244.
608 Ibid.
609 Ibid.
610 Statement of Michael Delaney, CB 251.
611 Ibid.
612 Email from Acting Senior Sergeant Peckham to Inspector Thomas, CB 584.
613 Email from Inspector Thomas to Acting Senior Sergeant Peckham, CB 584.
614 Statement of Michael Delaney, CB 252.
At 8:13pm, AA located a suicide note in XY’s room, with an empty blister pack of Oxycodone.615 The suicide note read ‘I’m sorry, I wish things could be different but I’m done’.616
At 8:24pm, Constable Dempsey contacted AA again enquiring about the signing of a media release and providing a photo of XY for the release. AA told Constable Dempsey about the suicide note and the missing Oxycodone.617
A short time later, AF of Maison House attended the police station to sign the media release and provided two photos of XY to Constable Dempsey. Constable Dempsey asked about the status of applying for a safe custody warrant and was told it had not been applied for.618
At or around 8:46pm, AF signed the media release authority.619
At 9:00pm, Sergeant Delaney directed Constable Dempsey to create a media release with the information about XY that Victoria Police had obtained from AA and other Maison House staff.620
At 9:03pm, Sergeant Delaney liaised with the Online Supervisor at the Police Communications Centre again and was told that XY’s phone was still switched off and they were not having any luck but that they would continue trying and notify Sergeant Delaney of any changes.621
At approximately 9:05pm, Constable Dempsey sent off the information for the media release to the Police Media Unit. 622 Sergeant Delaney states that this occurred at 10:25pm.623
At approximately 10:13pm, AF and XY’s friend ZA arrived at the abandoned Golden Square primary school (Laurel Street site). The two had been driving around for some
617 Statement of James Dempsey, CB 245, [13].
618 Ibid [15].
620 Statement of Michael Delaney, CB 252.
621 Ibid.
622 Ibid CB 245, [16].
623 Ibid CB 252.
time before then, attending the places XY was known to frequent. ZA led AF through a hole in the fence, near the train tracks. They went to the building where ZA had, earlier that evening, heard what she thought was a man snoring while searching for XY.624 ZA opened the door and told AF that XY was inside, dead. The time was 10:31pm.625
At 10:46pm, paramedics arrived at the abandoned Golden Square Primary School. First Constable Hicks took off his police vest and managed to fit through the gap in the door and, along with a paramedic, cut XY down from the rope. XY was confirmed deceased.626
At about midnight, police attended XY’s Mother’s home in Huntly to inform her of XY’s death, but she already knew. XY’s Mother had found out about XY’s death on Facebook, when she saw a post by Victoria Police stating that they had found XY deceased. A few days later, a member of Victoria Police visited XY’s Mother and apologised for the way she found out about XY’s passing. The police officer told XY’s Mother that they were busy, and someone had wrongly put it up on Facebook.627
In closing submissions, Counsel on behalf of the Chief Commissioner of Police advised that after becoming aware that XY’s passing had been published on social media in error, the Victoria Police Media, Communications and Engagement Department took a number of steps to prevent such an error occurring again, namely: a. The day after the post was published, on 19 July 2021, an email was sent to all Victoria Police media staff to remind them of the correct practice around promptly taking down such notifications.
b. On 20 July 2021, a further email was sent to the Victoria Police social media team reminding them Victoria Police should not post anything when a missing person has been located without express permission from their manager.
624 Statement of ZA, CB 92.
625 Statement of AF, CB 180.
626 Statement of Lachlan Hicks, CB 233; Statement of Troy Allan, CB 266.
627 Statement of XY’s Mother, CB 38.
c. Discussions were held with media staff and the social media team to ensure that the policy was understood, with specific reference to the post regarding [XY’s] passing.
CONSIDERATION OF SYSTEMIC ISSUES Self-Determination628
The inquest heard that there was broad acceptance from both the experts and the interested parties that the legislative framework, policies and practises applicable to Aboriginal children in the child protection system needed to continue to evolve toward effecting the principle of self-determination.629
The fulcrum of that legislative framework is found at section 18 of the Children, Youth and Families Act 2005 (Vic) (‘CYFA’). That section empowers the Secretary of the DFFH to delegate certain functions and powers with respect to children who are the subject of Children’s Court protection orders to the principal officer of an Aboriginal agency, with the agreement of the Aboriginal agency and the principal officer, and having regard to the views of the child and their parent if they are able to be reasonably obtained. This is known as the Aboriginal Children in Aboriginal Care program (‘ACAC’).
By way of background, Bendigo & District Aboriginal Co-operative (‘BDAC’) is an Aboriginal agency able to receive delegations under section 18, as is the Victorian Aboriginal Child Care Agency (‘VACCA’). Njernda Aboriginal Corporation is currently in the process of being authorised to receive section 18 delegations, referred to as the ‘pre-authorisation phase’.630
Many benefits accrue to Aboriginal children and young people being cared for by the Aboriginal community through organisations such as BDAC. According to BDAC, these include an increased reunification rate compared to mainstream child protection services, 628 See Scope of Investigation at [3] & [7] and Scope of Inquest at [3] & [6].
629 See T 49-50, 168, 181-182, 354-355, 460-461, 500-503.
630 T 457. See also Yoorrook Report (fn 17) 116.
a higher closure rate, a holistic and culturally sensitive approach and no contended matters with regard to reunification.631
Previous reports, including the Commission for Children and Young People’s Always was, always will be Koori children report from 2016632, have recognised the benefits and improved outcomes for Aboriginal children cared for by Aboriginal communitycontrolled agencies and the Aboriginal community more generally.633 Dr Krakouer also referred to research from 2016 which identified the difference between non-indigenous workers seeing cultural connections as one of many hierarchical needs, compared to Aboriginal agencies and workers seeing cultural connection as a fundamental primary need for Aboriginal children in out-of-home care.634
The Yoorrook Report acknowledged previous reports which showed that services ‘designed, controlled and delivered by the Aboriginal community’ have the greatest potential to produce the best outcomes. In particular, Yoorrook found that ‘the transfer of child protection case management and service functions to the Aboriginal Children in Care program has also led to better outcomes for those children and families compared to DFFH management’.635 Significantly, according to the Yoorrook Report, 83% of First Peoples children are reunified with their parents or family when case managed by an Aboriginal Community-Controlled Organisation (‘ACCO’) under a section 18 authorisation compared to 64% when case managed by DFFH Child Protection.636
In relation to XY, BDAC was offered a section 18 delegation, but did not accept the authorisation due to XY’s ‘particularly high acuity of care needs’ and BDAC having inadequate resources or capacity to meet those needs at that time.637 Dr Krakouer gave evidence that, in her opinion, had the section 18 authorisation been accepted by BDAC 631 Statement of Raylene Harradine, CB 978.
632 Commission for Children and Young People, Always was, always will be Koori children – Systemic inquiry into services provided to Aboriginal children and young people in out-of-home care in Victoria (October 2016).
635 Yoorrook Report (fn 17) 80, citing Commission for Children and Young People, Our Youth, Our Way: Inquiry into the Over-Representation of Aboriginal Children and Young People in the Victorian Youth Justice System (Report, 2021) and State of Victoria, Response to Yoorrook Justice Commission Issues Paper 2: Call for Submissions on Systemic Injustice in the Child Protection System, 17 March 2023.
636 Yoorrook Report (fn 17) 24, citing State of Victoria, Response to Yoorrook Justice Commission Issues Paper 2: Call for Submissions on Systemic Injustice in the Child Protection System, [46].
637 Statement of Raylene Harradine, CB 979.
and had BDAC been resourced appropriately to be able to care for XY’s needs, expanded service provision from BDAC could have been provided to XY, and XY’s cultural needs would have been given greater attention.638
Dr Krakouer said that the inability to appropriately resource complex cases is not an issue that is unique to BDAC. She said that, despite the policy objective of section 18, ‘when the resourcing isn’t available to an Aboriginal community-controlled organisation it can then impact practice outcomes and outcomes for Aboriginal and Torres Strait Islander children and families’. Dr Krakouer described this as ‘a systemic issue that really warrants further attention’.639
Mr Widdicombe, the current CEO of BDAC, gave evidence that at the time BDAC was considering a potential section 18 authorisation for XY, BDAC’s program was in its infancy and lacked the capability, rather than necessarily the financial resources, to handle a case of XY’s complexity. Mr Widdicombe said that now, or even 12 months ago, BDAC would have been able to accept such an authorisation.640
There was evidence before this inquest as to various initiatives that are already being undertaken by the Victorian Government through DFFH to transition children in the child protection system into the care of Aboriginal Community-Controlled Organisations (‘ACCOs’). For example, Ms Corin of DFFH described a range of services which are in the course of being implemented under Wungurilwil Gapgapduir.641 Established in 2018, which I note is prior to XY’s passing, Wungurilwil Gapgapduir is a tripartite partnership between the Victorian Government, Victorian Aboriginal community and community service organisations directed to improving outcomes for Victorian Aboriginal children and families. Key objectives of Wungurilwil Gapgapduir include a commitment to ensuring ‘culturally competent and culturally safe services for staff, children and families’ 638 Statement of Jacynta Krakouer, CB 3721; T 59.
641 Attachment SC -5 to statement of Simone Corin (4 November 2022): DFFH, ‘Wungurilwil Gapgapduir: Aboriginal Children and Families Agreement and Strategic Action Plan An agreement and strategic plan’ (April 2018), CB 2339-2394. (‘Wungurilwil Gapgapduir’).
and a commitment to have all Aboriginal children and young people in out-of-home care under the care of an ACCO.642
In addition, Ms Corin gave evidence that through the Aboriginal Children in Aboriginal Care initiative (‘ACAC’), which operationalises section 18 of the CYFA, DFFH is providing resources to support ACCOs to gain the skills and capability to become authorised for the purposes of section 18 in a self-determined way. Ms Corin also gave evidence of the ‘pre-authorisation process’ whereby ACCOs have the ability to supervise a lesser number of children pending full authorisation.643
Recently, in October 2023, the Community Protecting Boorais pilot commenced, which allows ACCOs to conduct investigations of reports made in child protection cases, therefore becoming involved and supporting Aboriginal children and families as soon as a report to Child Protection is made.644 BDAC and VACCA have received funding to undertake this pilot.645
In addition, new positions have been created in Loddon Child Protection, including an Aboriginal Cultural Advisor and a Child Protection Specialist. The role of the Child Protection Specialist is to support BDAC and other ACCOs to improve their practice capability in relation to section 18 authorisations as a ‘critical friend’.646 In Loddon, the position manages the Transfer of Aboriginal Children (‘TAC’), being those subject to case contracting, such as XY, and the ACAC (or section 18) children.647 Mr Chapman 642 CB 2339. See also statement of Simone Corin, CB 2050-2051 and Appendix A; Yoorrook Report (fn 17) 83.
644 Exhibit E - DFFH, ‘Table of changes in relation to Child Protection policy and legislation since Simone Corin’s witness statement 4 November 2022 (20 October 2023) 5. (‘Exhibit E - Table of changes in relation to Child Protection policy and legislation’) 645 Yoorrook Report (fn 17) 198.
646 Statement of AW, CB 2036. See also T 456-461 (Chapman and Widdicombe).
647 T 457:5-11. The distinction between the programs is detailed in Ms Lomas’s responsive report at CB 36153616 (definitions omitted): ‘The Aboriginal Children in Aboriginal Care (ACAC) program and the Transitioning Aboriginal Children (TAC) are two (a legislative and a policy) mechanisms supporting the transfer of responsibility and decision-making for Aboriginal children in Child Protection and care to ACCOs. The ACAC program is a priority for the Department and is the first program of its kind in Australia.
The Act under section 18 enables the Secretary of the Department to authorise the principal officer of an Aboriginal agency to preform (sic) specific functions and powers conferred to the Secretary in relation to an Aboriginal child subject to a protection order [ACAC]… TAC is the transfer of case management and case contracting of Aboriginal children on contractible orders in care to ACCOs. Case contracting is a policy approach whereby Child Protection contract a funded agency to perform the case management tasks and functions within an identified case plan, except for the case plan decision making, which remains with Child Protection.’
confirmed that there is a planned evaluation of the program likely to commence in 202425.648
For completeness, Mr Chapman added that there are currently two AFLDM conveners within the Loddon Area, who report to the Aboriginal Children in Aboriginal Care Specialist position. The latter represents a ‘central point’ to coordinate AFLDM work and the case planning function for Aboriginal children in the local Child Protection team.649 He also identified the Reunification Panel as a related initiative: a collaborative forum in which BDAC participates, depending on the location of the child who is the subject of the meeting.650 As Mr Chapman explained, the panel provides Child Protection with an opportunity to hear feedback and criticism from cross-sectoral practitioners, including ACCOs. 651 The ACAC position-holder is a ‘key’ member of the panel, and brings together the various aspects of case planning under one ‘umbrella’, in order to see the ‘connections and alignments between the work that we’re trying to achieve’.652 The position also performs an internal function, in that it connects with the Office of Professional Practice and draws on central practice guidance.653
While it is positive to note the progress that is currently being made to improve the experience of Aboriginal children and families within the Child Protection system, and to move towards a self-determined model, it is too early for me to make any assessment as to the effectiveness of these programs, most of which are in their infancy.
A self-determined system cannot be built instantly; it requires continual resourcing, gradual capacity building, and sustained knowledge transfer to develop the confidence of ACCOs to accept authorisations to care for children such as XY. As Mr Widdicombe affirmed in evidence, if the process is rushed, ‘we may not do it right’. Mr Widdicombe also reflected on the ‘vast improvements’ in this space since XY’s passing, attributing
these to the ‘willingness of the Department’ and to the expansion of capability within
Mr Chapman eloquently drew a distinction between a child’s ‘eligibility for authorisation and their suitability’.655 While some children might be eligible for transfer to an ACCO, they might not be suitable, due, for instance, to the complexity of the child’s case or to the fact that they are out of area. However, Mr Chapman noted that the reasons for unsuitability have reduced over time as section 18 programs have ‘matured’. 656 Mr Chapman described the process for identifying suitable children as a ‘rigorous, lineby-line, child-by-child discussion’, which draws upon information from the DFFH and the ACCO, and which ‘take[s] into account the views of the child and family as well’.657
It is readily apparent that this process would present risks for the child if it were not managed carefully, although this must be also balanced against the immediate risk the child is experiencing. This tension encapsulates the difficult balancing exercises continually required within the child protection system.
As noted in the Yoorrook Report, Victoria is currently ‘less than halfway towards meeting the Wungurilwil Gapgapduir 2021 target for all First Peoples children in care to be transferred to the ACAC program’.658 In addition, as the Yoorrook Report pointed out, the rate of Aboriginal children in state care in Victoria remains the worst in Australia, currently 102.2 per 1,000.659 Therefore, there remains a long way to go in improving the experience of Aboriginal children and young people in Victoria’s child protection system.
Closing submissions made on behalf of XY’s Mother, Senior Next of Kin, pointed out that delegating to ACCOs the functions of the current child protection system will not in itself realise self-determination, because that system is itself is ‘a deeply flawed product
658 Yoorrook Report (fn 17) 200.
659 Ibid 117.
of colonisation practices of ‘protection’ and child removal […] which is by its nature fundamentally at odds with culturally appropriate care’.660
That's quite a Western construct to see the child in isolation.661
While certain Western cultures such as Denmark, Belgium and Sweden utilise ‘family support’ models of child protection,662 Dr Krakoeur’s point is well made in relation to the child protection systems operating in former English colonies, such as Australia.
For this reason, having investigated XY’s case and heard from First Nations experts and other stakeholders, I endorse Yoorrook’s Recommendation 1 regarding selfdetermination within child protection. While ultimately, standalone legislation will be required to enable at-risk Aboriginal children to be properly cared for by their communities without losing access to their culture, it would be premature in this transitionary phase to make any more specific comment than that.
Nonetheless, in this transitionary context, it is obviously vital that the current initiatives in place and the ACCOs responsible for overseeing them (including BDAC in this case) are adequately funded and resourced now and into the future to have the capability and capacity to accept case management responsibilities for First Peoples children and families, particularly in light of the ACCOs’ increased responsibilities within Victoria’s child protection system as it moves towards a self-determined model. As the Yoorrook report noted: ACCOs need the workforce and resources to scale up. This becomes more urgent as ACAC organisations also take on the role of the State in investigating child 660 XY’s Mother, Senior Next of Kin, ‘Final Submissions on behalf of XY’s Mother’, 9 February 2024, [43], [53]. (‘XY’s Mother Final Submissions’)
662 Price-Robertson, Bromfield & Lamont, International approaches to child protection: What can Australia learn?, CFCA Paper 23 of 2014, Australian Institute of Family Studies, Australian Government, 1 and 3.
protection cases. While investment has occurred in recent State budgets, if ACCOs are to become simultaneous investigator, case manager and carer, significant resources will need to flow to ensure the sector does not take on the State’s broken child protection system without the resources to deliver better outcomes.663 Recommendation 1
b. in collaboration with ACCOs including BDAC, ensure that ACCOs are adequately funded and resourced to have the capability and resources to accept section 18 authorisations, including in cases involving Aboriginal and Torres Strait Islander children and young people with complex needs.
Cultural Connection664
664 See Scope of Investigation at [1(d)], (e)], [2(i)(iii)], [3], [4] & [7]; and Scope of Inquest at [2(h)(iv)], [3], [4] & [6].
665 XY’s Mother Final Submissions (fn 660) [12]; citing evidence of Dr Newton at T 48.
666 Ibid [13].
While it must be acknowledged that XY’s own attitude towards active engagement with her culture fluctuated and was influenced by a range of factors, this needs to be understood as a common and normal response from a young person beginning to make choices about their life, in response to their own lived experiences.
The Aboriginal Independent Expert Panel expressed the view that the specific details of care provided to XY through DFFH and its contracted providers (other than BDAC) was not culturally connected and failed to recognise culture as a protective factor against suicide.667 None of the interested parties disputed this opinion, although the DFFH made submissions on this point that I have set out below.
The expert reports of Dr Newton and Dr Krakouer contained many examples of ways in which the care provided to XY through DFFH and service providers was not culturally connected. Some examples include: a. failing to prioritise XY’s relationships, connections and contact with her family and the Wemba Wemba community; b. neglecting XY’s relationship with her mother and siblings; c. underutilisation of the Aboriginal Family Led Decision Making process; d. failing to provide XY with a timely and up to date cultural plan; e. failing to provide XY with a cultural mentor, despite her request; f. failing to identify XY’s social and emotional needs (including her cultural needs) as essential and synonymous with meeting XY’s physical, psychological and emotional needs; and g. failing to ensure that return to Country visits were organised and took place.668
Legal representatives on behalf of XY’s Mother submitted that a fundamental barrier to XY maintaining connection to culture was the tendency by caseworkers to only consider
668 Statement of BJ Newton, CB 3086-3087 & 3107-3109; Statement of Jacynta Krakouer, CB 3720-3728.
XY as an individual, rather than the need to strengthen her relationships to community, culture and family.669 They submitted: [A]n aspect of the failure by DFFH and service providers to meaningfully engage with and support XY’s family was the failure to recognise and respond appropriately to their experience of intergenerational trauma. This failure can be attributed in part to what the AIEP described as ‘a parent-deficit, parent-blaming approach by child protection systems, as opposed to how families can be supported in these contexts’.670
BDAC witnesses gave examples of occasions where the cultural expertise and advice provided by XY’s Aboriginal Child Specialist Advice and Support Service (‘ACSASS’) case manager, was misunderstood, ignored or misrepresented by DFFH and other service providers.671 They also gave evidence that meetings between care team professionals were often culturally inappropriate.672 Unfortunately, it appears that there has been little improvement in this regard. According to BDAC: The ongoing challenges of peer-to-peer cultural safety, and the respectful consideration of cultural advice persists. BDAC are yet to witness any discernible positive systemic changes addressing these concerns since XY’s passing.673
Rather than asserting any mala fides on the part of the DFFH and service providers for this ongoing trend, BDAC inferred that the inadequate utilisation by decision makers of ACSASS is primarily due to its scarcity and the high demands on ACSASS workers.
Currently, the ACSASS service at BDAC has funding to resource only two full-time ACSASS workers, who provide advice and support in relation to decisions to be made, and about culturally appropriate intervention and service delivery for all Aboriginal children within the child protection catchment area of Bendigo.674 Further, ACSASS provide information to the family regarding what their rights and responsibilities are, and 669 XY’s Mother Final Submissions (fn 660) [18].
670 Ibid [20], citing T 43.
671 Statement of Raylene Harradine, CB 1870; Statement of AL, CB 3261-3263; T 392.
672 Statement of Raylene Harradine, CB 1870-1871; Statement of AL, CB 3263-3264; T 391-392 673 Exhibit N – Dallas Widdicombe, ‘Responses to questions taken on notice on behalf of the Bendigo and District Aboriginal Corporation (BDAC)’, 10 November 2023, [2].
674 BDAC witness AL, a former ACSASS practitioner, stated that she was responsible for up to 500 Aboriginal children at a time across the Loddon catchment area where ACSASS is delivered by both Njernda Aboriginal Corporation and BDAC: CB 3264. See also T 398:9-25.
what services are available to them. The service is collaborative, and workers are available 24 hours per day, 7 days per week, according to a rotating roster. Given that there is only funding for two full-time ACSASS workers, all after hours consultation must be overtime, and this service becomes very limited where ACSASS workers take their entitled leave.675
Addressing this issue requires a substantial increase in ACSASS workers and service capacity.676 As set out above, the inquest was assisted by, and did not seek to duplicate, the work of Yoorrook. Relevantly on this topic, with regard to the use and resourcing of ACSASS, the Yoorrook Report found the following: a. ACSASS is not consulted on all matters in which it should be involved;677 b. There is significant under-utilisation of ACSASS at the intake phase of child protection interventions, where consultations occurred in only 17% of cases in the 2021-22 period,678 as well as at the investigation phase, where consultations occurred in only 63% of cases in the same period;679 c. Identification of Aboriginality is crucial to meeting legal obligations for consultation with ACSASS on child protection decisions; and680 d. There is a large-scale failure to consult with ACSASS and hold Aboriginal Family Led Decision Making meetings.681
Additionally, Yoorrook heard evidence that: a. ACSASS is underfunded and cannot keep up with demand; and682 675 The roles and responsibilities of the ACSASS worker are outlined in the statement of Raylene Harradine, CB 1867-1869.
676 T 397-398; Exhibit N - Dallas Widdicombe, ‘Responses to questions taken on notice on behalf of the Bendigo and District Aboriginal Corporation (BDAC)’, 10 November 2023, [9].
677 Yoorrook Report (fn 17) 136.
678 Ibid, see footnote 90, 45.
679 Ibid 160.
680 Ibid 156.
681 Ibid 160.
682 Ibid 160.
b. Critical information from ACSASS is not directly presented to decision-makers in reports. Instead, it is summarised in Child Protection’s account of the advice in its report. Magistrates have expressed frustration about not receiving ACSASS advice directly.683
(a) maintain and develop the child’s Aboriginal identity; and
(b) encourage the child’s connection to the child’s Aboriginal community and culture.685
Section 176 further specifies that a child’s cultural support needs may vary, depending on, among other things, how connected they are to their Aboriginal identity and whether they are placed within their own Aboriginal community, with another Aboriginal community or with non-Aboriginal carers.686 Yoorrook found that as at the end of March 2023, only 67 percent of Aboriginal children in care for more than 19 weeks had a cultural plan.687
While acknowledging that the care provided to XY was not sufficiently culturally connected, the DFFH submitted that it would be ‘overly simplistic to characterise the actions of Child Protection as devoid of awareness of the importance of culture’.688 With respect, the evidence of the Aboriginal Independent Expert Panel (‘AIEP’) was never so absolute, but rather amounted to a reasonably long list of specific deficiencies that they identified upon review of the case materials.
683 Ibid 163.
684 CYFA ss 166(3)(b), 176.
685 CYFA s 176.
686 Ibid.
687 Yoorrook Report (fn 17) 114, 123 [endnote 29], noting that the requirement to have a cultural plan within 19 weeks is not a legislative requirement.
688 DFFH, ‘Responsive submissions on behalf of the Secretary to the Department of Families, Fairness and Housing, 9 February 2024, [29]. (‘DFFH Responsive Submissions’)
The DFFH further submitted that, while Counsel Assisting probed the Child Protection Stakeholder Panel witnesses about the extent to which, and the ways in which, XY’s care was culturally responsive, no precise definition of ‘culturally connected care’ was put to the witnesses and, accordingly, I should be cautious in attributing weight to any inference of concurrence to be drawn from Counsel Assisting’s submission that the witnesses did not dispute the opinion.689
I am not persuaded by the DFFH submission here, and note that their witnesses had both permission to be in court during the evidence given by the AIEP, and access to the transcript of that evidence, when Dr Krakouer referred to and paraphrased part of her expert statement,690 which provides the following cogent explication: Best-practice culturally connected care for Aboriginal and Torres Strait Islander children and young people who are subject to Child Protection involvement in Victoria and/or placement in out-of-home care requires active efforts to be demonstrated by providing ongoing opportunities for, and linkages to facilitate, meaningful cultural connections for the child or young person.
Best-practice requires a relational approach to support Aboriginal and Torres Strait Islander children and young people’s journeys of culturally connecting while living in out-of-home care, or subject to Child Protection involvement. A relational approach to culturally connected care prioritises, and includes, relationships, connections and contacts with Aboriginal and Torres Strait Islander people, particularly family and people from the child or young person’s mob group.691 [My emphasis]
691 Statement of Jacynta Krakouer, CB 3716, [32]-[33]. (Original emphasis included)
holistically addressed. This is also the spirit of the Yoorrook Justice Commission’s Findings.
Ms Kirstie-Lee Lomas, Statewide Principal Practitioner from the DFFH Office of Professional Practice, eloquently articulated the multifactorial complexities associated with improving the DFFH’s offerings of culturally connected care. She began by acknowledging in her evidence that the care provided to XY was, on the whole, not sufficiently culturally connected; 692 had it been, the Court would have heard ‘an experience of her living out her… very proud identity as a… Wemba Wemba Aboriginal young person in all aspects of her life’.693
As Ms Lomas identified, ‘systemic racism’ represents a structural impediment to the realisation of culturally connected care,694 and this must be combatted not only within Child Protection, but at a ‘much broader State and population level’. 695 By way of example, Ms Lomas emphasised the importance of dismantling systemically racist patterns of thinking within the education system, as these necessarily inform how all adults, including Child Protection practitioners, ultimately approach their work. 696 Notwithstanding the prevalence of unconscious biases, Ms Lomas affirmed her reflection from her written statement about the noble intentions of Child Protection practitioners, stating they ‘come to the work to do their very best’. 697 She added that the Child Protection Practitioner workforce is principally social-work qualified, and they seek to work with families in a manner which is consistent with that training.698
Relatedly, Ms Lomas reiterated the centrality of the need for a ‘relational approach’ in achieving culturally connected care for First Nations children. 699 In this respect, the DFFH’s evidence echoed that given by the AIEP. As Dr Krakouer explained, underpinning the relational model is an ‘understanding that people are the conduits of culture and people hold cultural knowledge to impart to other people’.700 According to
Ms Lomas, Child Protection practitioners grapple with a ‘real, live tension’ between investing in families and developing ‘relationships, genuine engagement, partnership, all of those things which are foundational to culturally connected care’, on the one hand, and discharging their plethora of other responsibilities and functions, on the other. 701 Ms Lomas’s reflection was that resourcing constraints and the inclination towards ‘compliance-driven casework’ 702 can compromise the quality of the relationships practitioners are able to craft with families. As Ms Lomas observed, Child Protection Practitioners ‘do their very best in a very complex, very pressured system’.703 A corollary of these observations was that, in practice, Child Protection Practitioners require more time with all families, including Aboriginal families, in order to develop relationships which lead to better outcomes.704 Ms Lomas also agreed with the proposition I put that enhancing ‘staffing levels and the retention rates and experience of those staff’ would foster the adoption of relational approaches, and would in turn, counteract compliancedriven casework.705
Further, while it did not always manifest in XY’s case, there is evidence elsewhere of adoption of best practice culturally connected care for Aboriginal Children in Victoria.706 In this sense, Child Protection is already equipped with some strong practices: the challenge they face is standardising the uptake of such models throughout Victoria in order to achieve ‘consistency’.707
The inquest considered whether there was a disjuncture between the DFFH’s theoretical or ideal position in respect of culturally connected care, the realisation of which Child Protection strives towards, and the empirical, real-world landscape in which the various policies are to be implemented, which is a multifactorial - and a far more complex and nuanced - question. Ms Lomas affirmed as follows:
707 T 366:16-24. BDAC witness AL concurred at [22] in her statement at CB 3263.
a. The Department is statutorily bound to provide ‘ongoing opportunities and linkages to facilitate cultural connections’ for children and young people.708 b. Child Protection’s policies, including those set out in the Child Protection Manual, stipulate that cultural engagement must be prioritised — even if this was not always XY’s experience.709 c. It is Child Protection’s ‘intent’ to adopt a relational approach to culturally connected care which foregrounds relationships with members of the child’s community, even if this objective is not always wholly realised. 710 As Ms Lomas acknowledged, at points, XY did not enjoy the benefit of this relational approach; however, a number of contextual factors and ‘barriers’ influenced this outcome.711 d. The reconceptualisation of culture as something which is produced and reproduced through people, and the allied recognition that people hold and transmit cultural knowledge, is not uniquely a task for Child Protection, but is a shift which must be achieved by the ‘broader system and population’. 712 According to Ms Lomas, ‘we need an understanding of culture in the way that’s described through Yoorrook, that’s described by the AIEP’, which is shared across society — both within Child Protection and across the State.713 e. Cultural plans are ‘part of… the fabric of Child Protection’ and a key component of the way it does its work.714 While these need to be attended to in a timely manner, Child Protection Practitioners contend with the challenge of balancing this priority against all other work they are required to undertake.715 f. Similar constraints apply in respect of return to country visits: while the Child Protection Manual and other Departmental literature underscore the importance
of these, and prescribe ‘vehicles’ for their realisation, such as AFLDM meetings, they are not always accorded the highest priority in ‘a very busy and pressured system.’ 716 This does not, however, derogate from Child Protection’s understanding of their importance to Aboriginal children and young people.717 g. ACCOs are acquiring increasing involvement in the care of Aboriginal children who would otherwise be engaged with Child Protection. By virtue of amendments to the CYFA, and specifically the conferral of investigative powers upon Aboriginal agencies under section 18, ‘the system is headed in the right direction’.718 h. Legislation governing Child Protection conceives of cultural connection as a fundamental and primary need for children in out-of-home care, even if the significance afforded to culture in XY’s case was not always consistent with what Child Protection ‘would have expected to see’.719
Ms Lomas also confirmed, in direct response to my questioning, that ‘more staff would mean… that our practitioners didn’t need to work with as many families at… once’; this, in turn, would have the effect of increasing their capacity for meaningful and effective work, including undertaking cultural planning, and adopting a culturally informed and relational approach to case work.720
There was broad agreement among the Aboriginal Independent Expert Panel and interested parties that systemic improvements were feasible and were already in train.
In response to the AIEP’s enumerated ‘tangible’ ways in which culture could find expression in the care of Aboriginal children and young people, Ms Lomas set out the ways in which these concrete expressions of culture already feature in the Child Protection’s practices:
a. The DFFH displays Aboriginal and Torres Strait Islander flags, as well as Aboriginal artwork in reception areas. As part of their cultural planning activities, Aboriginal children enjoy culturally appropriate music and television, and experience traditional food, holidays, and other cultural events, such as NAIDOC Week.721 b. The conceptualisation of culture manifested by the DFFH is inevitably and intrinsically informed by dominant social discourses. As such, Ms Lomas explained that developing a recognition of the ‘deeper’ aspects of culture will require high-level, structural change, as well as a commitment to ‘partnering… incredibly closely with’ ACCOs: a dynamic which has been successfully achieved in the Loddon Area.722 c. While the DFFH employs Aboriginal cultural mentors, this practice could be expanded, particularly as mentoring can usefully facilitate the relational approach to case work.723 In this case, AL often performed the role of being XY’s cultural mentor;724 it was also proposed at one stage that XY be mentored by Fiona Gray.725 d. Participation in public cultural events, such as NAIDOC Week and the National Aboriginal and Torres Strait Islander Children’s Day is ‘preferenced… for a lot of children.’726 e. Opportunities for Aboriginal children and young people to connect with community comprise part of the cultural planning undertaken by Child Protection. These are increasingly accessible, in part due to the advent of reliance on new technologies, as necessitated by the pandemic.727
724 FNID (fn 116) [294].
Anglicare Victoria has also already taken steps toward improving the provision of culturally connected care for young people in their residential care houses and under its case management. Those steps include: a. the adopting of a Cultural Safety Policy; b. the establishment of the Cultural Safety Executive Committee; c. prominent displays of Aboriginal art and the Aboriginal flag in all residential care houses; d. the building and maturing of relationships with ACCOs through joint endeavours such as the Care Hub and in section 18 matters; e. the employment of cultural mentors; f. the BY leadership program; g. the dedicated cultural space Darrango yan-dhan; and h. participation in NAIDOC week and other cultural events.728
While the DFFH submitted that certain aspects of the recommendation below were unnecessarily duplicative of existing policy, BDAC’s closing submissions highlighted the continuing gaps between theory and practise in this area with sufficient strength to persuade me that the best course is to make the recommendation as I had foreshadowed, and expose the adequacy of the responses to the ongoing scrutiny provided by the mapping of the interested parties’ responses against recommendations. This course will enable future scrutiny in subsequent inquests, commissions or other reviews, should the deficits identified by the AIEP persist.
Recommendation 2
ACCOs) review their current policies and practices and implement any changes that are needed to enhance their capacity to provide culturally connected care, including by: a. implementing aspects of culture (that can easily be accessed by non-Aboriginal people) such as displaying the Aboriginal and Torres Strait Islander flags, displaying Indigenous artwork, engaging with Aboriginal music and TV, learning about Aboriginal food/holidays/language etc; b. recognising the deeper levels of culture that are not accessible by nonAboriginal people and being guided by Aboriginal and Torres Strait Islander people about these – by taking on board advice from ACCOs, Aboriginal practitioners within your organisation and building relationships with the wider Aboriginal community; c. employing Aboriginal cultural mentors and having them available to both staff and young people in their care (particularly in residential care); d. developing a close relationship with, and being led by the child or young person about their own levels of cultural connection and how they would like to further connect to culture, and providing those opportunities; e. having a presence at, and taking children and young people to, public events such as NAIDOC week and National Aboriginal and Torres Strait Islander Children’s day; and f. providing opportunities for Aboriginal children and young people to connect with community online (for example, via Facebook).
729 Exhibit N – Dallas Widdicombe, ‘Responses to questions taken on notice on behalf of the Bendigo and District Aboriginal Corporation (BDAC)’, 10 November 2023; BDAC, ‘Bendigo and District Aboriginal CoOperative Closing Submissions, 9 February 2024, [28]-[38]. (‘BDAC Closing Submissions’)
Recommendation 3
That ACSASS be sufficiently funded by the Victorian Government to: a. enable full compliance with sections 10, 11 and 18 of the CYFA, so that all decision makers at all critical points in time have full and frank access to Aboriginal specialist advice; and b. ensure all service providers who have contact with Aboriginal children have free and reliable access to Aboriginal specialist advice, so that no Aboriginal child is placed in a position where they do not have cultural supports around them.
As I have set out above, the Aboriginal Independent Expert Panel was clear that a relational approach by child protection workers towards children and their families is a crucial precursor to providing culturally connected care.
The AIEP also recommended that all staff providing case management or residential care services to Child Protection clients undertake cultural awareness and antiracism training.
In her evidence, Dr Krakouer highlighted the importance of going further than superficial cultural awareness training modes, where there may be an implication that ‘someone who is not of that culture, can simply develop an awareness of somebody else's culture in a one-off training session and then walk away with expertise’.730 Dr Krakouer preferred the term ‘cultural humility‘, which ‘ensures that people understand that they are lifelong learners, and that you can never really develop expertise in someone else’s culture’.731 Dr Krakouer also emphasised the importance of antiracism training to unlearn the harmful stereotypes that are perpetuated about Aboriginal and Torres Strait Islander people.732
b. all Child Protection staff and DFFH executives undertake regular, mandatory cultural safety training; and c. completion rates for training be published by DFFH annually.733
Evidence was given as to current training provided by DFFH to Child Protection Practitioners and planned improvements to be introduced as part of its induction program from April 2024.
The DFFH has established an Aboriginal Cultural Advisor (‘ACA’) role734, which is an identified position for Aboriginal applicants only. There are 17 or 18735 positions across Victoria, located in the various catchment areas. Mr Chapman described these as ‘inward-facing’ positions, as distinct from the ‘outward-facing’ Aboriginal Children in Aboriginal Care positions, which are established only in those areas which have authorised section 18 ACCO providers.736 The objective of the ACA role is to ‘improv[e] cultural safety within the Child Protection workforce and their practice’. 737 They provide education as to some of the ‘mistakes’ which non-Aboriginal people are at risk of making, and about how to engage in a culturally appropriate way with Aboriginal families.738 In the Loddon Area, the ACA position now also provides an oversight and coordination function in relation to the development of cultural plans for Aboriginal children living in care services. An initiative developed by the ACA position in the Loddon Area is the Yarn About Practice series, a series of ‘internal practice reflections’ which ‘create a culturally safe place to share knowledge and ideas and improve practice with Aboriginal children and families.’739 Those sessions, some of which were held on country and others, in the office, 740 were said to be well-attended. 741 In addition, the ACA position-holder accompanies Child Protection Practitioners on select home visits to support dialogue with 733 Yoorrook Report (fn 17) Recommendation 14, 31. Noting that Yoorrook’s recommendation regarding training does not apply to other service providers within the child protection system, such as Anglicare.
734 CB 2036, at paragraph 37.1.
families,742 acting ‘as a bridge between practitioner…, and family and community’.743 Mr Chapman gave evidence that a position of this nature would have been instrumental in fostering XY’s connection with the Wemba Wemba community, stating ‘this role would assist us to do that much better, and in a much more… systemic way as well.’744
In addition, DFFH’s Child Protection learning hub now contains resources to assist practitioners working with Aboriginal children and families.745
Local initiatives designed to increase cultural literacy and humility are also underway in the Loddon Area, including: a. Child Protection staff have undertaken cultural reflection sessions, which deal with issues including white privilege and unconscious bias.746 b. On-country sessions with Child Protection Practitioners, facilitated by the Senior Cultural Advisor, and offering an experience designed to ‘challenge’ staff in relation to their practice and their engagement with Aboriginal children and families.747 c. Participation in cultural events, such as Aboriginal Children’s Day, p providing an opportunity for staff to be ‘immersed with community’748 d. The Wirrigirri (Messenger) Program: an inter-Departmental, ‘opt-in’ initiative with local teams, including in Loddon, which delivers a series of culturally informed and reflective programs throughout the year. 749 The program underscores the ‘importance of non-Aboriginal people taking ownership of, and responsibility for, reconciliation and a commitment to ongoing cultural learning.’750
Anglicare employees undergo a one-off online cultural awareness training program, developed by First Nations people, as part of their induction training, which is in addition to any training undertaken as part of an employee’s TAFE studies.751 BDAC provides its employees with local cultural awareness training, as well as being a provider of face-toface training for external stakeholders. 752 Victoria Police has had mandated cultural awareness training for sworn officers since May 2022, which approximately 12,000 (of approximately 16,000) sworn officers have undertaken to date. There is currently no requirement for refresher training, although this may be considered once all sworn officers have completed their initial training.753
On this point, both DFFH and Anglicare submitted that certain aspects of the recommendation below were unnecessarily duplicative of existing programs. I will, however, make the recommendation as I had foreshadowed, which will in turn engage the interested parties’ obligation to respond. The adequacy of the responses can thereby be more efficiently scrutinised in subsequent inquests, commissions or other reviews, should the deficits identified by the AIEP persist.
Recommendation 4
ii. the continuing systemic racism and paternalism inherent in child protection work today that must be identified, acknowledged and resisted; iii. the value of First Peoples family and child rearing practice; iv. upholding human rights including Aboriginal cultural rights; and v. the strength of First Peoples families and culture and culturally appropriate practices; and b. such training includes mandatory refresher training; and c. such training is designed and delivered by a First Peoples business or consultant on a paid basis.754 Cultural Planning755
When done properly, the formulation, implementation and ongoing review of an Aboriginal young person’s cultural plan provides perhaps the most tangible tool for engagement and connection with their culture. Sadly, the inquest heard evidence that these plans were missing in many cases, often delayed, template driven and formulaic, and frequently out of date. The latter characteristics were, unfortunately, all features of XY's plan, which was dated 15 September 2019.
As discussed above, the CYFA requires a cultural support plan to be prepared for each Aboriginal child in out-of-home care that is aligned with the case plan for the child.756 The statutory purpose of a cultural plan is to (a) maintain and develop the child’s Aboriginal identity, and (b) encourage the child’s connection to the child’s Aboriginal community and culture.757 754 The wording of this recommendation adopts the language of Yoorrook’s Recommendation 14, Yoorrook Report (fn 17) 31.
755 See Scope of Investigation at [1(d)], [1(e)], [2(a)], [2(i)(iii)] and [7] and Scope of Inquest at [2(h)(iv)] & [6].
756 CYFA, ss 166(3) & 176.
757 CYFA, s 176(3).
DFFH policy requires a cultural plan be in place within 19 weeks following a child entering out-of-home care.758 XY’s cultural plan759 was provided to XY on 26 September 2019, almost two years after XY’s removal from her family home. It had not been reviewed or updated prior to XY’s passing.
The Aboriginal Independent Expert Panel was critical of the cultural plan prepared in relation to XY. In particular, they noted that XY’s cultural plan: a. was not prepared in a timely manner; b. was out of date by the time it was provided to XY, in that it focused very much on Peta and the placement with Peta Thompson (despite that placement having ended shortly prior to XY being provided with her cultural plan); c. the genogram was difficult to read; d. the list of goals and tasks did not include any accountability, milestones or review dates to ensure their implementation; and e. the plan inappropriately described XY’s cousins as her cultural mentors.
A senior Aboriginal woman or elder would have been a more appropriate cultural mentor for XY.760
761 Statement of Jacynta Krakouer, CB 3717, [35].
c. provide ‘an individual plan to (re)establish or maintain cultural connections, such as contact arrangements with family members, plans for Return to Country with Elders and family members from the same mob group as the child or young person’.762
The cultural support plan that DFFH prepared in relation to XY failed to meet all of these best practice measures.
The Department accepted that XY’s cultural plan was not prepared in a timely fashion but noted that XY’s cultural plan was in the process of being updated at the time of her passing.763 Further, while Mr Widdicombe ‘expressed concern that cultural support plans were still ‘not good enough’,764 he himself attributed this outcome, in part, to time and procedural pressures, stating ‘I am the person that signs them off, but… it is a [tick-a-]box.
I’m… pressured to sign them off for court’.765 This evidence highlights the importance of adequate staffing and resourcing in a system which says that it aspires to provide culturally attuned and relational case management to the children in its care.
In relation to the DFFH’s policy of providing Aboriginal children with a cultural plan within 19 weeks, Ms Corin gave evidence that compliance with that requirement is currently at 67% and conceded that there is therefore ‘still clearly room for improvement there.’766 Certain new approaches, especially those piloted in the Southwest, have seen an uplift in compliance to 89%.767
Ms Corin confirmed in her evidence that the DFFH monitors compliance with cultural planning requirements through both internal reporting and through reporting to the Aboriginal Children’s Forum. 768 The Forum convenes the ACCOs across Victoria involved in delivery of children and family services, Community Service Organisations, 762 Statement of Jacynta Krakouer, CB 3718 [36]-[39].
766 T 436:1-4. See also Yoorrook Report (fn 17) 24.
and the DFFH, and is responsible for overseeing the realisation of Wungurilwil Gapgapduir.769
Wungurilwil Gapgapduir is anchored by five objectives, the first of which is to ‘[e]nsure all Aboriginal children and families are strong in culture and proud of their unique identity’.770 Ms Corin gave evidence that cultural plans comprise one of the action items within that objective, and that since XY’s passing the Forum has established ‘improvement targets to increase compliance.’771 At the September 2023 meeting of the Aboriginal Children’s Forum, participants agreed that the approach to cultural plans should be reconsidered through the Aboriginal-led Statewide Cultural Planning Forum (to be held in 2024), to consider how the current model can be improved and redesigned to increase quality and compliance of initial and review plans and support culturally appropriate implementation.772
In XY’s case, her cultural support plan contained a genogram, 773 which, though potentially a valuable component of the plan, was ‘not particularly readable’.
Dr Krakouer remarked that she struggled to be able to see the different names and wondered ‘whether XY would have struggled to make sense of [it] as well’.774 Ms Corin explained that the DFFH is currently adopting ‘new software that will give greater functionality in preparation of those genograms’ and will enable additional storage, and more detailed components, such as images, contacts, places, and education history, to be recorded within the genogram.775
770 Wungurilwil Gapgapduir (fn 641) 8.
772 T 437:1-11; Exhibit E - Table of changes in relation to Child Protection policy and legislation (fn 644) 12.
773 CB 506-507, a graphic representation of a family tree.
776 Exhibit H – DFFH, ‘SAFER Children framework guide: The five practice activities of risk assessment in child protection (October 2021) 7, figure 3. (‘Exhibit H – SAFER guide’) The SAFER children framework is the risk assessment approach for Victorian child protection practitioners. When it commenced on 20 November 2021, the five SAFER children framework activities of risk assessment replaced the four Best interests case practice model risk assessment activities. Child protection practitioners use the SAFER children framework to guide their risk assessment and risk management.
the use of — and enhanced the dynamism of — the actions table, which is attached to a child’s case plan.777 Ms Corin stated that the goals and tasks that are associated with cultural planning should also be reflected in a child's actions table,778 which is embedded within the CRIS779 system and is far more easily updated than the cultural plan.780 She added that ‘within the actions table there are review dates for certain goals and tasks and the accountability within the actions table is also very clear.’781 The DFFH also gave evidence that while there was an actions table in relation to each version of XY’s case plan,782 the actions table now occupies a separate tab in the CRIS system, and so ‘works more effectively as a “live” document’.783 That is, since SAFER commenced, actions tables have been presented in a more accessible and easily updateable format, a development which answers some of the concerns about XY’s cultural plan.
The establishment of the ACA role also evidences progress in this space since XY’s passing. The position-holder represents the ‘central point’784 of supervision over cultural support plans, and works with Child Protection Practitioners in the Loddon Area to strengthen both their rigour and quality.785 They also oversee compliance, assist with identifying children who require a cultural plan, guide practitioners as to the content of the plan, and facilitate connections with ACCOs. 786 By ensuring cultural plans are continually updated and kept relevant, the ACA role guards against the kind of obsolescence which XY’s plan suffered from as a result of her transitions between placements.787
Loddon Area has also introduced a number of practice improvements to cultural planning for Aboriginal children. Its ‘learning lunch’ series, which comprised five hour-long sessions, examined both the ‘development and… implementation’ of cultural support
779 Client Relationship Information System, the client information and case management data system used by Child Protection.
782 For example, see actions table related to version 5 of XY’s case plan at PR 1883.
783 Exhibit M – DFFH responses to question on notice, 3 November 2023, [6]-[7].
plans.788 The sessions were ‘very well-attended’, with each drawing an audience of approximately 15 to 20 practitioners.789 Separately, the Loddon Area hosted one session on compliance for Child Protection managers, which 20 staff attended, 790 and three sessions for case management practitioners, with 33 in attendance.791
Mr Chapman also affirmed the indispensability of the Loddon Area’s practice of colocating with Aboriginal staff from BDAC and Njernda Aboriginal Corporation to the quality of cultural planning. As he explained, ‘every week… one of the ACCOs is in our office… for ACSASS consults [and] also… cultural support plan consults,… and other pieces of work that relate to case planning.’792 This program manifests an ‘experiential’ approach to learning and development: staff benefit from a ‘co-located, embedded experience’, and enjoy a unique opportunity to work with their colleagues at ACCOs ‘in a way that maybe they otherwise wouldn’t have.’793
Finally, the DFFH submitted that any recommendations here should be cognisant of the considerable work already underway, and the additional resources which have been procured and allocated - within both the DFFH and the ACCO sector - to improve cultural planning practices within Child Protection. Consistently with the approach I have taken above in relation to new initiatives the efficacy of which has not yet been assessed, I intend to make the recommendation as foreshadowed in the draft form circulated, and create a footprint of accountability through the formal response mechanism, which will assist evaluation of all the initiatives in any future inquest or other inquiry.
Recommendation 5:
b. review and revise all relevant training courses and programs: to improve its workforce’s understanding of the importance of cultural plans and improve the quality, timeliness, implementation and monitoring of cultural plans for Aboriginal and Torres Strait Islander children in out-of-home care. In particular, DFFH should ensure that cultural plans: c. are individually tailored; d. involve the child or young person and their family in their creation and review; e. are updated regularly (at a minimum, annually or when placement or other significant circumstances change); f. provide a plan to (re)establish or maintain cultural connections, such as contact arrangements with family members, plans for Return to Country with Elders and family members from the same mob group as the child or young person; g. include SMART goals with clearly defined accountabilities, either as part of the cultural plan or an actions table supporting the child or young person’s case plan; and h. include a legible genogram.
795 Ibid citing Victorian Aboriginal Legal Service, ‘Submission to the Yoorrook Justice Commission, Child Protection’, November 2022, 28, 45 (VALS’ Submission to Yoorrook).
Recommendation 6
Culturally appropriate mental health supports796
As discussed above, in formulating the scope of inquest I was conscious of the need to avoid duplicating the work of the Royal Commission into Victoria’s Health System and to avoid cutting across reforms that are currently being implemented in its wake. I did, however, wish to explore the interface between Child Protection and the mental health system where relevant in XY’s case, because where the DFFH is in a position of parental responsibility,797 it is part of that role to understand any mental health services that the young person is engaging with, to form a view about whether those services are fit for purpose, and, where necessary, to advocate or arrange for the young person to receive better care.
Concerning the management of XY’s mental health, I accept that the dynamism of XY’s case must be borne in mind, and that it would be an oversimplification to accept or suggest that DFFH was always passive or inactive in responding to her needs.798 However, as a generalisation, the coronial brief revealed many instances where Child Protection practitioners did not understand the purpose, or the limitations, of the available mental health care, or if they did understand its shortcomings, they did not thereupon revisit their primary obligation to act in XY’s best interests and pursue other pathways toward getting her appropriate care.
For this reason, the Aboriginal expert witnesses were asked to review XY's access to mental health treatment through a cultural lens. In her report, Professor Pat Dudgeon explained that Aboriginal people require, at the very least, culturally safe mental health care.799 She considered that XY did not receive culturally safe and appropriate mental health treatment and noted that XY ‘was not provided the necessary cultural supports and 796 See Scope of Investigation at [2(d)], [2(i)(i)], [8], [9], [10] and Scope of Inquest at [2(h)] [7], [8].
797 CYFA, s 3(1).
798 See annexure to DFFH Responsive Submissions (fn 688), ‘Summary of psychological supports for XY’.
799 Statement of Pat Dudgeon, CB 3657.
the care was not provided under a social and emotional wellbeing lens which we know and understand to be effective for optimal health and reducing risk for suicide’.800
Professor Dudgeon explained that social and emotional wellbeing (‘SEWB’) is a collectivist, comprehensive and holistic approach to health care, and is widely accepted to be more culturally appropriate for Aboriginal peoples.801 The features of effective and culturally grounded SEWB measures that guard against Aboriginal youth suicide include: a. a strength-based approach - that is, being Aboriginal is seen as a strength; b. cultural safety; c. holistic care, which addresses both psychosocial supports and the influences of social determinants of health, including unemployment, education, poverty, and racism; and d. the inclusion and empowerment of Aboriginal knowledges and community in suicide prevention efforts.802
Regarding the SEWB concept, Dr Krakouer agreed that it ‘is a more culturally appropriate way of understanding Aboriginal health including mental health’.803 She considered that SEWB prioritises ‘the strength and resilience of Aboriginal and Torres Strait Islander people’ in a way that was ‘quite distinct’ from Western understandings of mental health.804
Dr Newton added that it is important to recognise culture as a safeguard for children’s mental health and wellness, and that the absence of culture as a safeguard increases the risk of children’s mental health and wellbeing deteriorating.805 She noted that this is seen in many children in care.806 That ‘cultural discontinuity and lack of access to culture 800 Ibid CB 3669. See also generally statement of Pat Dudgeon, CB 3669-3673.
801 Ibid CB 3658.
802 Ibid CB 3662-3664, 3680.
806 Ibid.
(cultural exclusion) are associated with negative psychosocial outcomes for Aboriginal and Torres Strait Islander peoples’ was also raised by Professor Dudgeon in her report.807
In regard to culturally specific approaches in the Emergency Department (‘ED’), Mr McNeill and Associate Professor Tune gave evidence that an Aboriginal health liaison officer is available and is very frequently engaged either at a patient’s request or if staff feel they may be helpful.808 Patients are asked if they identify as Aboriginal as a standard question when registering on arrival at the ED.809 XY’s Aboriginal background was reasonably well known in the ED.810 However, Exhibit C (being a further statement by Associate Professor Tune addressing the extent to which XY had contact with an Aboriginal Hospital Liaison Officer during her presentations at Bendigo Health) revealed that there are only three such recorded contacts, despite XY’s many visits there.811 Although it is noted in the statement that the practice would be for XY to be offered such contact on each admission, this is the extent of the contact recorded in the records.812
AL suggested that it may be possible, either before going into hospital or at least when en route, for Child Protection practitioners to make suggestions, foster support, or directly contact an Aboriginal health liaison worker at the hospital on behalf of the child they are protecting.813
Ms Lomas reflected that while the Child Protection system ‘had a good understanding of [XY’s] mental health in the context of the Western sense,’ it did not understand her health in a holistic, culturally grounded way. 814 Ms Lomas also expressed the view that pathologising XY was ‘not helpful’,815 and posited that the application of a Social and Emotional Wellbeing framework, as articulated by Aboriginal mental health expert guidance, would have resulted in a different conceptualisation of XY’s needs. 816 In 807 Statement of Pat Dudgeon, CB 3657.
811 Exhibit C – Supplementary Statement of Associate Professor Philip Tune, 30 October 2023, [2.1]. XY attended the Emergency Department at Bendigo Hospital on approximately 28 occasions in the period 3 August 2020 until her passing (see MR 1283-1296).
812 Ibid [2.3].
response to questioning as to whether the DFFH had shifted away from adopting Western medical health approaches to children and young people with presentations like XY’s, Ms Lomas stated that she doubted that such was ‘all within the Department’s control.’817 She continued: ‘I think it… relates to… the evidence that I’ve already given in terms of the whole system and population understanding… culture… and addressing systemic racism’.818 While Ms Lomas explained that she had witnessed that type of care provided by ACCOs, she stated that she did not believe it features within mainstream services.819
As to the role of Child Protection in ensuring XY had access to culturally safe supports during her hospital attendances and other interactions with mental health services, Mr Chapman adverted to the natural limits of the DFFH’s ability to control the way external service providers engaged with XY and her cultural needs, stating ‘We’ve heard evidence that YPARC felt that their services were culturally safe… [T]here are complexities associated with after hour admissions and the fact that the hospital has carriage of its own resources and how they’re deployed.’ 820 While Mr Chapman acknowledged that the DFFH ‘potentially’ could have ‘advocated’ for the service providers to use their resources to meet XY’s needs, he added, ‘that is a shared responsibility across… the whole of the system that had supported XY’, including the DFFH, the practitioners, and ‘everybody who had contact with XY in many respects.’821
Mr Chapman also outlined some of the new developments in the Loddon Area, which have improved cohesion between the DFFH and health providers, stating ‘the Principal Practitioner of the Area… has actively worked to strengthen the relationships at that senior level with the clinical staff at Bendigo Health.’822 For this reason, Mr Chapman expressed confidence that ‘these sorts of issues, if escalated… to that level, would be looked at and hopefully resolved in a timely… way’.823 In relation to whether internal changes have been made within the DFFH to ensure that Child Protection practitioners or subcontracted carers presenting with children to health services identify their unique
needs, Mr Chapman explained that it is ‘just standard practice’. 824 Relevantly, the Medical Stakeholder Panel witnesses gave evidence that XY was ‘well-known’ by CAMHS, Bendigo Health Emergency Department, and YPARC to be an Aboriginal young person,825 which tells against any notion that communication about XY’s cultural background was deficient.
In terms of improvements to the DFFH’s advocacy for children and young people as they access health services, Mr Chapman reiterated earlier evidence about the critical role of the Senior Multi-Agency Panel and the Better Connected Care initiative in ensuring cross-sectoral integration in the Loddon Area, stating ‘these are opportunities for us to intervene on the first front… earlier and at a more senior level… on the second front in a more systems… response.’826 Mr Chapman also acknowledged the impact of COVID19 during the period in which XY presented frequently to Bendigo Health, explaining that ‘it shifted everything that happened around us and… was a very dynamic time’.827 Ms Lomas observed in her statement that, from April 2020, COVID-19 restrictions meant that XY was often alone during hospital attendances.828 Mr Chapman further referred me to the various recommendations for the Loddon Area that have flowed from the DFFH’s Office of Professional Practice Review829 of XY’s case, including that the Loddon Area senior leadership group prioritise ‘[e]ngagement of specialist and other support services through joint planning, care teams and client advocacy.’830 This recommendation was included in the Loddon Area’s practice priorities for 2023.831
In relation to questioning about whether Child Protection considered ‘institutionalising’ XY, Mr Chapman reflected that the issue was ‘complicated… in some respects… because that gateway to those sorts of settings are through the mental health system. They’re not through us.’832 As Mr Chapman explained, Child Protection ‘take[s] guidance’ from mental health practitioners. 833 Additionally, in response to evidence given by
829 As described in the statement of Kirstie-Lee Lomas, CB 3593-3607.
Mr Oerlemans of Anglicare about consideration given to private inpatient facilities, Mr Chapman explained that he was of the understanding that there was only one inpatient adolescent unit in Victoria but that it did not cater for high acuity children such as XY834 — this being the Albert Road Clinic.835 As Mr Chapman affirmed in evidence, ‘there was really no facility that could have assisted XY at the time.’836 In this connection, Ms Corin made reference to the new statewide child and family centre, while noting that this will provide care for children aged zero to eleven at a sub-acute level,837 and thus would not have been of assistance to XY during adolescence, though may have been during childhood.
Adopting a prospective lens, Ms Corin gave evidence about a program currently being considered, which would involve ‘embed[ding] mental health advisors within the Department… to be able to advise and support Child Protection Practitioners’ both in terms of identifying and responding to their mental health needs, and in navigating and accessing the mental health system. 838 Such a team would avail Child Protection Practitioners — who ‘aren’t mental health clinicians’ — of specialised, expert advice.839 Ms Corin also confirmed that the Department is ‘actively’ working with Department of Health colleagues to identify ‘opportunities… for reform’ to support children and young people in care.840
In response to a draft of the recommendation that follows (Recommendation 7), the DFFH submitted that such recommendations would be more appropriately directed to the Department of Health.841 While I accept that government departments have specific areas of remit, I consider that this points to the very issue that the scope was exploring: that a person standing in the shoes of a parent cannot bureaucratically sidestep their
839 T 563:5-6; see also Exhibit E – ‘Further table of initiatives in relation to Child Protection, relevant to mental health and wellbeing, following the evidence of the AIEP and Mental Health Panel, not previously included in Simone Corin’s witness statement 4 November 2022 or table dated 20 October 2023’, item (C). (‘Exhibit E – Further table of mental health and wellbeing initiatives’) 840 T563:7-13; Exhibit E – Further table of mental health and wellbeing initiatives (fn 839), item (B).
841 DFFH Responsive Submissions (fn 688) [124].
responsibility by pointing to another department with an overlapping responsibility.
People will fall between the cracks this way.
Recommendation 7
that a young Aboriginal or Torres Strait Islander person is admitted with mental health issues.
d. develop and implement systems to ensure that young Aboriginal and Torres Strait Islander people with acute and/or chronic mental health conditions are provided prompt and ongoing mental health assessment and treatment, and ensure that this is done in ongoing consultation with appropriate Aboriginal input, such as ACCOs like BDAC, and take all steps open to ensure these ACCOs are appropriately funded to enable that work to occur.
This recommendation was broadly endorsed by XY’s Mother, BDAC and Bendigo Health.843 Risk assessment and risk management844
In relation to DFFH’s risk assessment and management processes, Ms Lomas accepted the propositions drawn from the Department’s written statements that the risk assessments conducted in XY’s case by Child Protection were ‘commonly superficial and episodic’ and did not adequately consider the cumulative harm experienced by XY throughout her life or the impact of cumulative harm on her emotional, psychological and physical health.845
In speaking to the improvements made by DFFH since XY’s passing in this respect, Ms Lomas gave an in-depth explanation of the Department’s new SAFER children framework,846 which commenced on 20 November 2021.847 Ms Lomas described the key features of the SAFER children framework, as follows: a. The outer layer, being the Child Protection Role and Mandate: this includes statutory obligations and the Multi-Agency Risk Assessment and Management Framework (‘MARAM’), which emerged from the Royal Commission into 843 XY’s Mother Final Submissions (fn 660) [66]-[68]; BDAC Closing Submissions (fn 729) [1]; Bendigo Health, ‘Closing submissions on behalf of Bendigo Health’, 9 February 2024, [11]-[12].
844 See Scope of Investigation at [2(b)] and Scope of Inquest at [2(c)].
845 T 651:1-4; Statement of Kirstie-Lee Lomas, CB 3595-3596; Statement of AW, CB 2033.
846 See Exhibit H - SAFER guide (fn 776).
Family Violence.848 Ms Lomas reflected on how XY’s case, and in particular, the position of XY’s Mother, would likely be conceptualised differently applying the MARAM lens, as it is understood now, stating ‘the system would likely have responded to them different in relation to them being identified as victim/ survivors of family violence.’849 b. The next layer, Supporting Our Practice: this includes the Child Protection Manual, case recording system, the role of Principal Practitioners, and reflective practice.850 c. The third layer, Professional Judgement: this contemplates a ‘recommitment to professional judgment as the model for how we undertake risk assessment in Victoria’. Ms Lomas observed that, unlike some jurisdictions, Victorian Child Protection ‘has never subscribed to structured decision-making… We’ve always believed that professional judgment and… allowing and enabling, empowering our practitioners to bring their knowledge, skills and experience to the work that they do, including risk assessment, and the decisions they make is really important'.851 d. The central layer, SAFER, is the ‘new’ aspect of the framework that commenced on 20 November 2021: ‘they are the five practice activities of risk assessment… and management in Child Protection’.852
853 Exhibit H - SAFER guide (fn 776) 7, figure 3.
the CRIS system, which would then be supplemented by further, similar data, to enable Child Protection to ‘build the picture of… evidence across the course of time, which is a really important point when we think about the building of information as it relates to cumulative harm.’854 b. A, being analyse information and evidence to determine the risk assessment: guided by the Best Interests Case Practice Model,855 actions under the analysis component of the Framework involve interrogation of the vulnerability of the child…[,] severity of harm, likelihood of harm and safety’.856 The consequent judgment then requires an evaluation of the consequence and probability of harm to the child.857 Ms Lomas stated that the application of this dimension may have resulted in improved outcomes in XY’s case: ‘we would have seen a much different articulation of XY’s experience of that harm and the severity…[and] we would’ve seen an indication of what that harm meant for XY in terms of impact on her.’858 c. F, being formulate a case plan; and d. E, being enact the case plan: Ms Lomas explained that Child Protection seeks to link case planning and associated actions with the risk assessment.859 In this connection, Ms Lomas referred to the expert evidence about the importance of having an ‘action focused approach’ in a case like XY’s.860 She elucidated how Child Protection uses actions table as ‘a very tangible… live way of working, not only with children and families themselves, but other… care teams.’861 e. R, being review: Ms Lomas explained that risk assessment is reviewed at least annually for children on protection orders, and more frequently when considering the prospect of reunification.862
855 T 658:26; Exhibit H – SAFER guide (fn 776) 8, figure 4.
Further, in relation to XY’s eating disorder, Ms Lomas concurred with the conclusion of the Office of Professional Practice that this condition ‘was not well understood’.863 She went on to observe that ‘the symptom may have been acknowledged but the seeking of information and assessments regarding what may have been the cause or what sat behind that particular disorder could have been very different.’864 Ms Lomas explained that, because Child Protection practitioners are not clinicians, their role extends to identifying ‘signs, factors of concerns (sic), other issues that might require specialist advice, assessment or treatment’.865 She considered that XY’s eating disorder was ‘one of the signs that we would ask of our practitioners, expect of them, to pick up as flags, call them red flags if you like… that should prompt one to be curious’ about whether there is a ‘need to seek further information or advice that’s outside the expertise and the knowledge that a practitioner may hold.’866 While these ‘flags’ were identified at certain points, Ms Lomas accepted that they ‘possibly’ were not at others.867 Ms Lomas also noted that the Child Protection Manual contains advice about management of mental health concerns, including ‘prompts around eating disorders’.868
In response to questioning from Counsel Assisting as to the prominence of culture in the SAFER framework, Ms Lomas stated that ‘this is not the be-all, end-all… of what we provide Child Protection’,869 and noted that the document is ‘a dynamic framework’ which will be revisited over time.870
In closing submissions, the DFFH also drew my attention to the following aspects of the SAFER children framework, which they submitted reflect a ‘cognisance of the significance of culture, particularly in respect of Aboriginal children and young people’:871
871 DFFH Responsive Submissions (fn 688) [129].
a. An artwork by Dixon Patten, titled Man Yeann Lidj (‘Embrace a Child’ in Gunnai/Jurnai Language), which was specifically designed by Mr Patten for SAFER, is featured on page i of the SAFER guide.872 b. Cultural needs are factored into the ‘F’ component of the rubric, with a view to having these integrated in case planning.873 c. The guide articulates the ‘shared vision’ of Wungurilwil Gapgapduir, being a commitment to ensuring that ‘all Aboriginal children and young people are safe, resilient, thriving and living in culturally rich, strong, Aboriginal families and communities’, and sets out the seven principles developed as part of Wungurilwil Gapgapduir to inform the work of Child Protection.874 d. The SAFER framework contains targeted instructions for interacting with Aboriginal children and families, including that observations about their circumstances should ‘always be culturally sensitive and informed, respect Aboriginal people and the historical context of harm caused while making observations with child safety in mind as the priority, and be informed by cultural advice from the ACSASS, ACCOs and Aboriginal people themselves.’875 e. Culture is regarded as one of the three domains in which children live their lives, interposing family and community.876 Sexual Assault Supports and Subsequent Referrals877
873 Exhibit H – SAFER guide (fn 776) 7, figure 3.
874 Ibid 9.
875 Ibid 30.
876 Ibid 23, 40.
877 See Scope of Investigation at [1(f)], [2(i)(ii)] and [6], and Scope of Inquest at [2(h)(iii)] and [5].
Video-Audio Recordings of Evidence (‘VARE’) in connection with the sexual offending she disclosed.878
Dr Krakouer gave evidence that it would have been appropriate in XY’s circumstances to have an Aboriginal person working with the police to be there at the time of the SOCIT investigations and for a female SOCIT officer to have taken the VAREs.879
AL agreed, stating, ‘this is clearly women’s business,’ being interviewed by a white male may have affected XY's ability to ongoingly engage with the process.’880 She concluded, ‘it’s culturally unsafe’.881
Mr Widdicombe’s evidence on this topic was as follows: I think it's really important to have culture at the forefront…any proper cultural awareness training would say that it would be common sense to have a female deal with women's business and a male deal with men's business. I think that…the alleged offender being a white male, having a white male [police officer] probably wouldn't make much sense to me.882
Superintendent Kearney gave evidence of the practical limitations of Victoria Police human resources. He said that ‘SOCITs are extremely busy…If we were to try and defer half the work to the female workforce, we might not get our job done in an efficient manner’.883 He later gave evidence that 30% of sworn police members in Victoria Police are female, approximately 50% of SOCIT detectives are female and over 90% of sexual assault complainants are female.884 Within a workforce of 19,000, only 139 employees identify as Aboriginal or Torres Strait Islander.885
On an interpersonal level, Detective Senior Constable Benjamin Manning (‘DSC Manning’) conducted the SOCIT investigations and VARE processes with as much
sensitivity, dignity and respect as was possible in those difficult circumstances.886 There were delays in the process, but these were explicable judgement calls when consideration was given to prioritising particular investigations among the various allegations, XY's welfare at various moments in time and her fluctuating willingness to proceed with the complaints.887 Further, while DSC Manning took the lead in the investigative work, some of the other investigators who worked with XY were female.888
While the Chief Commissioner acknowledged and accepted the expert evidence that it is generally preferrable for female police officers to deal with ‘women’s business’, Victoria Police already have a general policy (albeit not specific to Aboriginal females) that sexual offence complainants should be interviewed by a police member of the same gender where practicable and unless the complainant requests otherwise.889
The Chief Commissioner also acknowledged the importance of having an Aboriginal liaison officer available to Aboriginal sexual assault complainants. This is already reflected in Victoria Police policy.890 Finally, the Commissioner acknowledged that there was no evidence of an Aboriginal liaison officer being present with XY during the SOCIT investigations, nor of one being requested but being operationally unavailable.891
In short, while the Chief Commissioner closed the inquest submitting that the organisation already had in place sufficient policies and procedures to deal with a vulnerable female Aboriginal child such as XY,892 those procedures did not in XY’s case deliver the culturally safe and gender-appropriate resources she needed. Further, this failure could not be fully explained by human resource limitations, given that the majority of SOCIT investigations are logistically as well as emotionally complex, and so need a 886 Jacquii Jackson, who was XY’s carer at the time she made her VAREs, described DSC Manning as ‘fantastic’ in his conduct of the investigations and interactions with XY; see statement of Jacquii Jackson, CB 128.
888 Constable Jacinta Morrisey; Detective Acting Sergeant Sarah Miller and Leading Senior Constable Fiona Whitty: see e.g. FNID (fn 116) [102], [127], [140], [183], [225].
889 Chief Commissioner of Police, ‘Submissions of the Chief Commissioner of Police’ (9 February 2024) [13] (‘CCP Closing Submissions’); citing Victoria Police Manual – Sexual Offence Investigations, CB 2855 [2.5].
890 T 595:5-12; CCP Closing Submissions (fn 889) [17], citing Annexure 1 to CCP Closing Submissions, Victoria Police, ‘Code of Practice for the Investigation of Sexual Crime’ (2016), 15 [6.1.1].
891 CCP Closing Submissions (fn 879) [18].
892 Ibid [23] – [24].
pre-arranged resource allocation rather than being spontaneous and therefore limited to the available resources on hand.
Recommendation 8
That Victoria Police: a. make every effort to increase the number and availability of Aboriginal and Torres Strait Islander people it employs; b. make every effort to employ Aboriginal and Torres Strait Islander people in SOCITs; c. increase the number and availability of Aboriginal liaison staff in its dealings with young Aboriginal sexual assault complainants; d. as a matter of policy, when dealing with female Aboriginal sexual assault complainants, make available a female police officer to conduct VAREs and lead contact with the complainant, unless the complainant requests otherwise or it is not practicable; e. improve its cultural awareness training as it relates to dealing with female Aboriginal sexual assault victims, including by incorporating reference to ‘cultural humility’ as described by Dr Krakouer.
The inquest also considered whether the DFFH, in loco parentis, should have more actively supported XY during and after her complaint processes. In response to questioning about this, Mr Chapman acknowledged that ‘Child Protection should have coordinated with police more strongly’ and that Child Protection has a role in advocating for children in their interactions with police; however, he noted that Child Protection was not ‘the lead agency’ in that setting. 893 Mr Chapman also drew my attention to the Protecting Children Protocol, which establishes principles for Child Protection’s engagement with Victoria Police. As Mr Chapman explained,894 while the AIEP levelled some criticism at the DFFH for being absent during the VARE, this course was dictated
by the Protecting Children Protocol, which, at the relevant time, stated: 895 ‘Child protection practitioners should be present to view the interview and take notes from the monitoring room.’896 Child Protection practitioners or ACAC case managers are also not permitted to view the VARE recording after the interview is completed.897
More generally, and adopting a state-wide lens, Ms Lomas described the relationship between Victoria Police and Child Protection as ‘a partnership that works well’ and one that is ‘collaborative’898 in nature.
Dr Robson’s evidence was that XY was reluctant to disclose the true nature and extent of her sexual abuse to CAMHS899 and also to CASA.900 Psychological appointments for XY with CASA and Goldfields Psychology were cancelled by Child Protection in October and November 2019.901 Child Protection referred XY to the Take Two Berry Street service, which Dr Robson described as ‘a collaboration of services that is designed for young people in out-of-home care’ 902 suitable ‘for people with more complex presentations’903 compared with private psychology referral in the community.904
Dr Newton observed that DFFH’s response to XY’s allegations of sexual assault lacked urgency and an appreciation for the seriousness of XY’s declining mental health and untreated child sexual abuse trauma. She considered that the referrals were made too late and were inadequate.905 She opined that there were ‘large gaps in XY’s continuity of care for her mental health which were caused by casework decision-making’.906
Dr Newton gave further evidence that upon XY’s disclosure of sexual assault it would have been best practice to consult ACSASS workers ‘in how to manage that disclosure,
896 Attachment 10 to Exhibit M - DFFH responses to questions on notice (3 November 2023): DFFH, ‘Protecting Children – Protocol between Department of Human Services – Child Protection and Victoria Police’ (June
897 Ibid.
901 See FNID [191]-[192].
905 Statement of BJ Newton, CB 3102 [117]; T 72:9-73:8.
906 Statement of BJ Newton, CB 3102 [118].
particularly with…XY's family…as they would have been able to provide…[a] culturally responsive…approach to how to…how to deal with that.907 Dr Newton stated that DFFH should also have supported Jacquii Jackson in how to respond in a way that was best for XY,908 and should have supported XY’s access to sexual education, supports or other intervention.909
Mr Chapman agreed with Dr Newton that there was a lack of urgency in the DFFH’s response.910 In closing submissions, DFFH also accepted that ACSASS could have been consulted, 911 albeit that this would have fallen outside of the usual advisory role of ACSASS.912 Mr Chapman recalled the Principal Practitioner’s desire to ‘make sure that the right service was involved with… XY from a mental health perspective.’913 However, he acknowledged that Child Protection should have placed greater priority on procuring a referral for XY, sought specialist advice about managing the disclosures, and should have explored appropriate Aboriginal services.914
Looking to the future, Mr Chapman reiterated the benefits of a ‘relational case practice’, and spoke of an appetite within the DFFH to embrace that approach, so as to enable Child Protection practitioners to develop more meaningful relationships with children.915 In terms of specific systems improvements designed to enhance the DFFH’s ability to respond to children who have experienced sexual abuse, Mr Chapman referred to the following: a. The introduction of ‘senior clinical liaison meetings with CASA’, which involve the Principal Practitioners and the Child Protection Director in the area, and commenced in late 2021 or early 2022;916
911 DFFH Responsive Submissions (fn 688) [106].
912 At T 335:2-6, AL described ACSASS as a ‘consultatory service… that consult with the Department in regards to any significant decisions…[and] in making recommendations regarding those significant decisions.’
b. The Framework for Trauma-Informed Practice, which is a ‘whole of system framework’ which embodies a ‘shared vision of what trauma-informed practice looks like for service users… and those who deliver it.’ 917 Mr Chapman explained that the Framework articulates ‘principles and practice domains… associated with trauma, contains practical advice on working with children and young people, individuals and families.’918 c. The establishment of Aboriginal Sexual Assault Healing Services across five areas, which are being delivered by ACCOs. These, Mr Chapman explained, ‘provide a culturally… responsive and safe sexual assault support service… based on holistic healing principles.’919 d. Consideration is being given to the integration of mental health advisers within the DFFH. They would work closely with Child Protection Practitioners to advise and guide them in relation to mental health considerations.920
On 4 July 2021, a referral to an AHLO was made after an overnight stay in the Adult Acute Unit, but it is not apparent from the records whether contact was made prior to her discharge.922
919 T 580:21-28; Exhibit E – Further table of mental health and wellbeing initiatives (fn 839), item (E).
922 Exhibit C – Supplementary Statement of Associate Professor Philip Tune (30 October 2023) [2.1]-[2.2].
923 See Royal Commission into Victoria’s Mental Health System (Final Report: Summary and recommendations, February 2021) Recommendation 33, 69.
emotional wellbeing of Aboriginal peoples requiring and seeking mental health support and treatment.924 He also explained that: a. The Aboriginal mental health traineeship program involves the introduction of ten Aboriginal Mental Health Traineeships across eight Area Mental Health and Wellbeing Services, including Bendigo Health. ‘Bendigo Health has already supported one trainee to complete the traineeship, and the staff member is now an ongoing member of the mental health workforce’;925 and b. The Koori Mental Health Liaison Officer (‘KMHLO’) Program - Bendigo Health has employed a KMHLO working across mental health inpatient services. It has recently received funding to establish a KMHLO in child and youth community services. That person will be based in the CAMHS service but will also have capacity to support youth services.926
Recommendation 9
b. DFFH continue to fund and develop Aboriginal sexual assault healing services delivered by ACCOs.
c. DFFH implement practices for appropriately urgent action and follow up with the Department of Health, and/or its service providers, to ensure young 924 Statement of Philip Tune, CB 2886, [11.4]-[11.8].
925 Ibid [11.7]; also T 228:31-229:7 and T 265:3-16.
926 Ibid [11.8]; also T 228:26-30 and T 256:19-31.
927 BDAC Closing Submissions (fn 729) [1].
Aboriginal people in its care presenting with allegations of sexual assault are receiving culturally appropriate mental health intervention.
d. DFFH develop and implement processes for appropriate support for out-ofhome carers who are dealing with young people suffering the mental health effects of sexual assault.
e. Bendigo Health consider developing and implementing integrated Aboriginal and Torres Strait Islander worker and lived experience workers within the Bendigo health system itself.
Drug and Alcohol Support928
In February 2021, XY was referred by Child Protection, with her consent, to Youth Support and Advocacy Service Bendigo (‘YSAS’), a specialised drug and alcohol support service. 929 She met with Stephen Turner of YSAS on 15 March 2021, but declined his offer to assist her with reducing her substance abuse. 930 No further appointments with YSAS were made.931
Ms Lomas’s gave evidence as to the role of the SAFER framework in assisting Child Protection to respond to drug and alcohol risk. Ms Lomas explained that under the new framework, drug and alcohol use would be considered a ‘factor’, signifying a potential indicator of adverse outcomes,932 increasing the likelihood of harm to a child.933 That factor would then be reflected in CRIS, along with the Child Protection Practitioner’s analysis of the risk landscape. Ms Lomas explained: ‘we require our practitioners to actually articulate... what is the information we hold about that?... is it that… XY has started to experiment with marijuana use, and that’s the first piece of information we hold about that factor?’ 934 Ms Lomas went on to explain how the system enables Child Protection to ‘add additional information’ in order to ‘build the picture of… evidence 928 See Scope of Investigation at [2(e)] and [7] and Scope of Inquest at [2(d)].
929 FNID (fn 116) [273].
930 FNID (fn 116) [279].
931 Ibid.
across the course of time’.935 The DFFH submitted that this approach produces more holistic insight, which is critical in assessing cumulative harm and also assists Child Protection to recognise problematic and harmful behaviours.936
Ms Lougoon’s evidence was that XY resisted referrals to drug and alcohol support. She considered that XY was aware that substance abuse was harmful to her mental state overall but viewed it as an effective coping strategy to escape her distress.937
Associate Professor Tune’s evidence was that he believed Bendigo Health had adequately cared for and treated XY’s alcohol and substance misuse, noting that several discussions were had with XY regarding substance abuse,938 and active attempts were made to engage XY with drug and alcohol services. 939 Associate Professor Tune added that, from a medical perspective, substance misuse is a serious concern for any patient – and of particular concern in a case like XY’s940 – and is actively screened for when patients engage with health services.941 He considered XY to be between the ‘pre-contemplative’ and ‘contemplative’ phases of willingness to consider she had a substance abuse problem and being able to choose to address her concerns.942
A ‘natural barrier for engagement’ noted by Associate Professor Tune is that drug and alcohol treatment requires the engagement of a separate additional service provider.943 He also considered that XY may have had a more positive outcome if she had access to Aboriginal-based services, whether that was a peer worker of an Aboriginal background who had overcome substance misuse, or a drug and alcohol service run by Aboriginal people.944 In this regard, Associate Professor Tune stated that there a number of initiatives now underway or planned as a result of the Royal Commission into Victoria’s Mental Health System, including the establishment of a Koori Mental Health Liaison Officer in
936 DFFH Responsive Submissions (fn 688) [139].
937 Statement of Ashlee Lougoon, CB 3275 [6.4].
938 Statement of Philip Tune, CB 2881 [3.10].
939 Ibid [3.11]-[3.12]; T 227:25-228:19.
child and youth community services, and a commitment to expanding the mental health workforce through Aboriginal mental health traineeships.945
The DFFH advised me that the Department of Health has carriage of or control over the provision of many of these services, although obviously, where the person in need is a child, this does not absolve the DFFH of its responsibilities.
It is apparent from the evidence I heard at inquest that, while services do exist to address drug and alcohol use, and they were offered to XY, none of those services are yet tailored towards the special needs or vulnerabilities of Aboriginal people. In other areas of social work, services have more successfully been provided when they have been designed and delivered by Aboriginal organisations on behalf of the communities they represent,946 and this appears to be a gap in the current treatment offerings.
Recommendation 10
Suicide Prevention, Safety and Planning947
It was often the case for XY that the people best placed to notice and monitor her ‘symptoms’ of poor or declining mental health were non-medically trained Child Protection staff and service providers.
In her report, Dr Krakouer noted that ‘[t]here is no indication that residential care workers possess mental health first aid training, such as Applied Suicide Intervention Skills Training, and are trained or capable of engaging in conversation about suicidal ideation 945 Statement of Philip Tune, CB 2886, [11.4]-[11.8]; also T 228:22-229:9, T 256:19-31 and T 265:3-16.
946 See evidence of Dallas Widdicombe at T 358:11-21, T294-21; see also Commission for Children and Young People, Our Youth, Our Way: Inquiry into the Over-Representation of Aboriginal Children and Young People in the Victorian Youth Justice System (Report, 2021) Finding 1.
947 See Scope of Investigation at [1(b)], [2(a), (b), (d), (i), (j)], [8], [9], [10] and Scope of Inquest at [2(b), (c), (h), (i)], [7], [8].
with XY as a form of suicide prevention.’ 948 Dr Krakouer considered that Child Protection ‘had a responsibility to ensure that residential care workers possessed Applied Suicide Intervention Skills Training (‘ASIST’) so that an immediate response to suicidal ideation, concern or risk could be undertaken by residential care workers on-site when XY needed help, support and de-escalation immediately.’949
The DFFH explained that once mental health issues become acute, provision of services and service options fall within the remit of the Department of Health,950 but this raises the question of how any emerging mental health issues might be managed before they become acute.
Dr Krakouer’s evidence was that all of XY’s carers should have undertaken some form of mental health first aid training.951 Associate Professor Tune agreed that residential workers ‘should have the capacity to convey a compassionate human response’,952 and they should definitely have some form of mental health first aid training.953 He noted, however, that it would not be fair and reasonable to expect someone at the level of responsibility of residential care workers ‘to have the capacity to apply the sorts of skills provided by Applied Suicide Intervention Skills Training’,954 which is aimed at people from a clinical background.955
BDAC and Anglicare strongly supported their staff, not just at the coalface, but also those in case management positions, having some level of mental health first aid training.956
The DFFH witnesses gave evidence of the various initiatives designed to support children in out-of-home care with suicidal ideation. Ms Corin confirmed that the DFFH funds ‘CALM Conversations’ training for residential care workers, which is delivered by the Centre for Excellence in Child and Family Welfare (‘Centre for Excellence’).957 Training 948 Statement of Jacynta Krakouer, CB 3736 [100].
949 Ibid [102].
950 DFFH Responsive Submissions (fn 688) [146(a)].
956 BDAC Closing Submissions (fn 729) [1-2]; Anglicare, ‘Submissions on behalf of Anglicare Victoria’ (13 February 2024) [40]-[41] (‘Anglicare submissions’).
courses were held in July, September, and October 2023.958 Ms Corin added that the Department of Health also provides ASIST, which was offered to residential care workers, and that the Centre for Excellence is currently examining how ASIST might be integrated within the broader Residential Care Learning and Development Strategy for residential care workers.959
For kinship and foster carers, the DFFH offers training through the Carer KaFÉ, a consortium program overseen by the Centre for Excellence, Kinship Carers Victoria, and VACCA.960 The platform offers training for trauma-informed care and responses to selfharm, and it has previously included suicide prevention training. It also contains links to online resources, including Federal Government and Emerging Minds mental health resources, and referrals to remote and in-person training. The platform makes mental health first aid training available, though Ms Corin acknowledged that this would be at carers’ ‘own cost or costs supported by Department allowances.’961 Ms Corin indicated that the consortium is currently considering the future training schedule and acknowledged that there was an opportunity to consider whether mental health first aid might be provided as part of that program going forward.962
Additionally, Ms Corin referred to the further table of mental health initiatives filed on behalf of the DFFH, and specifically to roundtables which have been held as part of the development of Victoria’s new suicide prevention and response strategy, (‘the new strategy’)963 one of which focussed on children and young people at increased risk of suicide.964 Separately, she added, as part of the consultations informing development of the new strategy, consideration has been given to the unique needs of Aboriginal children and young people in consultation with Aboriginal organisations, and these findings will
963 A Victorian Government initiative to develop a ‘comprehensive whole-of-government, community-wide, evidence-informed, systems-based approach […] to effectively prevent and respond to suicide in the Victorian community: see https://engage.vic.gov.au/the-victorian-suicide-prevention-and-response-strategy.
964 T 687:19-688:5; Exhibit E – Further table of mental health and wellbeing initiatives (fn 839), item (D).
inform the DFFH’s future practices and policies for suicide prevention in respect of this cohort.965
Recommendation 11
That DFFH: a. in association with its ACCO partners, the Department of Health and Bendigo Health, urgently consider how existing mental health services and new mental health service options could be developed to provide care that is accessible to and culturally appropriate for Aboriginal and Torres Strait Islander young people with complex mental health needs; b. offer funded mental health first aid training for all out-of-home carers, or, at minimum, for out-of-home carers caring for children and young people with mental health concerns, and make such training available in accessible locations in regional Victoria.
In a similar vein, with respect to mental health crisis management, the AIEP considered that a better coordinated response between the hospital, the Aboriginal community (including people working at BDAC), medical and mental health services in the
community (including CAMHS), and those providing direct care to XY should have been in place, so that all members of XY’s care team understood how to implement the safety plan and support XY when she was experiencing suicidal ideation or a desire to selfharm.966
Recommendation 12
967 BDAC Closing Submissions (fn 729) [1]-[2]; XY’s Mother Final Submissions (fn 660) [69].
968 XY’s Mother Final Submissions (fn 660) [70].
971 XY’s Mother Final Submissions (fn 660) [73].
emphasis where safety plans concern Aboriginal and Torres Strait Islander young people; and b. DFFH and service providers ensure that any ‘line of sight monitoring’ policies mandate consideration by carers of compelling surrounding circumstances, such as patterns of escalation in suicidality risk, risk of exposure to identified triggers of a self-harm event, and the young person’s recent behaviour and affect.
Better Support for Carers972
In a coronial impact statement which she read aloud to the Court at inquest, Ms Jackson gave a heartfelt account of the difficulties she faced in caring for XY while juggling her own family’s needs, stating: I had this little girl living in my home, needing a loving family and I loved her so much but it wasn't enough to save her.
[…] The highly stressful life we all lived for almost 12 months, blindly navigating our way through the best we could, would have been so much better for all of us if we had support from the department. I believe had we have gotten the help I so desperately requested on so many occasions that XY would still be alive today and living in my home as another member of my family.973
973 Jacquii Jackson, Coronial Impact Statement (1 November 2023); T 723:24-26, 724:29-725:6.
975 Ibid.
c. DFFH not responding, or not responding in a timely way to attempts by carers to contact Child Protection, including at times of crisis;976 d. mental health training and therapeutic supports for carers;977 e. support for carers specifically focusing on managing XY’s disclosures of alleged sexual abuse;978 f. provision of respite, including improved processes for approval of extended family members to provide respite;979 and g. follow up with carers following XY’s hospital admissions.980
The AIEP expressed the opinion that, had appropriate support been provided to XY’s kinship carers, this could have prevented breakdown of the carer relationships and may have led to carers maintaining an ongoing relationship with XY following breakdown of the placement. Instead, XY’s carers felt so unsupported by DFFH that they felt unable to sustain a relationship with XY after the placement came to an end.981
DFFH witnesses accepted that Child Protection and the broader system could have provided more supports for XY’s carers and agreed with the AIEP’s comments in this regard.982 Mr Chapman offered an apology to XY’s kinship carers for the DFFH’s lack of support.983
Previous reviews have identified the need for improved supports to be provided to kinship carers, and for DFFH to more actively monitor kinship placements to ensure their stability. In 2016, the Commission for Children and Young People found that ‘kinship carers require increased advocacy, support, assistance, training and education to provide culturally safe and trauma informed care to Aboriginal children requiring out-of-home
982 Responsive statement of Kirstie-Lee Lomas, CB 3624 [51]; T 623:15-18, 631:12-20.
care’.984 Despite changes following the 2016 report, the Commission for Children and Young People found again in 2019 that many kinship carers do not receive adequate levels of support.985 More recently, in June 2022, the Victorian Auditor-General’s Office report on the performance audit of the kinship care model made twelve recommendations directed to DFFH, including in relation to improving its monitoring of kinship placements and enhancing access by carers to financial support.986 DFFH has accepted the recommendations and is currently ‘working on addressing’ them.987
The Yoorrook Report recommended that the Victorian Government address barriers to First Peoples becoming carers for First Peoples children in the child protection system, including by ‘ensuring kinship carers have appropriate access to training, support, and services at a level that is at least equivalent to the training, support and services offered to foster carers.’988
DFFH witnesses gave evidence of several initiatives that have been introduced since XY’s passing. These include the introduction in October 2022 of a Care Support Help Desk989 and increased funding to improve respite support.990 I note also the significant Victorian Government investment in these initiatives in the 2021-22 and 2022-23 State Budgets.991 In relation to a young person with high acuity needs like XY, Mr Chapman acknowledged that there remains a lack of clinical respite options, and it would still be challenging to find a respite carer, although he believed that the improvements now in place would make the identification of a respite placement more likely.992 There is also now funding available for additional training for kinship carers through the Carer KaFÉ.993 These programs are still in their infancy, and I accept it is too early to make any 984 Commission for Children and Young People, ‘Always Was, Always Will be Koori Children: Systemic Inquiry into Services Provided to Aboriginal Children and Young People in Out-of-Home Care in Victoria’ (Inquiry Report, 2016)13, Finding 7; cited in Yoorrook Report (fn 17) 183.
985 Commission for Children and Young People, ‘In Our Own Words: Systemic Inquiry into the Lived Experience of Children and Young People in the Victorian out-of-Home Care System’ (Report, 2019) 44, Finding 31; cited in Yoorrook Report (fn 17) 184.
986 Victorian Auditor-General’s Office, ‘Kinship Care’ (Independent Assurance Report to Parliament, June 2022), available at www.audit.vic.gov.au/report/kinship-care.
987 Statement of Simone Corin, CB 2048-9 [28].
988 Yoorrook Report (fn 17) 33, Recommendation 20.
991 Statement of Simone Corin, CB 2048 [24]-[25].
assessment as to whether they are likely to improve the supports provided to kinship carers.
Recommendation 13
Accommodation Instability and other Residential Services issues994
Uncertainty regarding her accommodation was an issue that XY often expressed concern about and which she had indicated caused her significant distress.995 Ms Lomas described the period following the breakdown of XY’s two kinship placements in 2019, when the ‘pressure on practitioners to find placements was immense’, and acknowledged that ‘[p]rofessionals and XY herself said not knowing where she would live and be cared for was the source of significant distress for her’.996
Dr John Cooper, XY’s treating psychiatrist during YPARC admissions, opined that ‘accommodation and carer instability had a profound impact on XY’s mental health’.997 Similarly, Ms Lougoon’s evidence was that in her experience, ‘XY’s lack of permanent and stable accommodation had a significant detrimental impact on her mental health’.998 She stated that ‘XY explained to me that she was often distressed at the thought of having no stable accommodation’ and ‘[her] accommodation instability was often a barrier to her being able to engage in a therapeutic way as she was often in crisis’.999 994 Scope of Investigation at [2(a), (f), (g), (h)] and Scope of Inquest at [2(a), (e), (f), (g)].
995 See, e.g., FNID (fn 116) [241], [258], [270].
996 Statement of Kirstie-Lee Lomas, CB 3600 [37].
997 Statement of Dr John Cooper, CB 3268 [3.10].
998 Statement of Ashlee Lougoon, CB 3272 [3.2].
999 Ibid.
Dr Robson’s evidence was that providing safe and stable accommodation would have been a very important part of XY’s care,1000 and that the difficulty in finding adequate kinship accommodation was a setback in the provision of care.1001 Dr Robson noted that mental health services do not provide residential facilities for young people and the only potentially available service was Solomon Street (where XY had briefly stayed).1002 Dr Robson’s evidence was that it was ‘quite clear’ that if XY had more stable and consistent accommodation and carers, that would have led to an improved outcome.1003 He stated that there had been no changes to the provision of accommodation since XY’s death and that mental health services are never going to provide accommodation.1004 While the provision of safe accommodation is an important factor in discharge from an in-patient unit or step-up/step-down facility, the responsibility of finding that accommodation and sustaining it resides with Child Protection.1005
This is because it is accepted medical practice that although a person presenting in an acute phase of suicidality might be admitted as an inpatient or subject to orders under the Mental Health Act 2014 (now enacted as the Mental Health and Wellbeing Act 2022),1006 if a person is experiencing ongoing and long-experienced chronic symptoms, it is usually not appropriate for them to reside long-term in an inpatient setting such as a hospital.
Sadly, at the time of XY’s interactions with mental health services, there were no therapeutic long-term residences available within the mental health system that could accommodate her.1007
1006 And noting that, when necessary, appropriate orders were made, such as the Temporary Treatment Order (MR 7395) and Inpatient Assessment Order (MR 7391) made on 21 March 2021.
1007 See FNID (fn 116) [284]; PR 1358.
in no small measure to multiple placements ending and the period of placement uncertainty and instability.’1008
Ms Lomas agreed with that analysis, albeit caveating her evidence with a reminder that she was not a clinician.1009 Ms Lomas also clarified that XY would have experienced a fear of abandonment purely by virtue of the fact that she was in out-of-home care, although in her case this was also compounded by the complexity of her family dynamic.1010 More generally, the profound personal impact of placement instability on XY was acknowledged by the DFFH witnesses in their statements.1011
In oral evidence, BDAC highlighted the importance of case workers having a ‘plan B’ in the event that a child’s current placement is unsuccessful. Mr Widdicombe explained that BDAC’s practice when case managing children aged around ten or above is to discuss the ‘plan B’ with the child, so as to provide a sense of stability from knowing where they are to live next if their current placement doesn’t work out.1012 Such discussions generally occur within the AFLDM process.1013 This does not appear to be an approach used by DFFH, whose focus remains on ‘stability for long-term arrangements’ for children, 1014 but in his oral evidence, Mr Chapman accepted that this type of contingency planning made common sense.1015
In relation to expanding placement options, Ms Corin confirmed in her evidence that the 2023-24 State budget allocated funding to continue placements in 19 homes and fund six additional homes across the State which adopt a two- and three-bed therapeutic residential care model.1016 Three of those are led by ACCOs.1017 According to Ms Corin, the therapeutic homes engage educational, vocationalist, specialist skills coaches, as well as Aboriginal cultural support as guided by the ACCO in the non-ACCO led homes.1018 1008 Statement of Jacynta Krakouer, CB 3732 [91].
1011 Responsive report of Kirstie-Lee Lomas, CB 3624 [51]-[52]; Statement of Nathan Chapman, CB 3632 [46].
1016 T 510:7-18; Exhibit E - Table of changes in relation to Child Protection policy and legislation (fn 644) 6.
The design takes into account the complex needs of children and young people in residential care and their experiences of trauma.1019
Ms Corin also affirmed that the Victorian Government will invest $100.4 million over four years to provide all children in residential care with access to therapeutic supports by 2025/26, thereby providing young people with more options for comprehensive support.1020 While these therapeutic residential homes are not designed specifically to address mental health concerns, the KEYS (Keep Embracing Your Success) model is so intended. 1021 KEYS residences are homes for adolescents across the state with challenging behaviours or emotional or mental health issues, who are in or are likely to move into residential care.1022 There are six such homes across in Victoria, one of which is ACCO-led, by VACCA.1023 These are designed to ‘provide culturally safe, traumainformed… responses’,1024 and feature a ‘multidisciplinary’ team including a ‘mental health worker, psychiatrist, drug and alcohol worker… community… and family engagement worker’.1025
As a service provider, Anglicare made the observation that the KEYS model of residential care service was useful but that access to resources and expertise, and a limited workforce, were issues in regional areas.1026
These improvements are vital because, as the weight of the evidence in this matter has confirmed, when a person experiences continual states of crisis due to a lack of stable accommodation, that person is unlikely to be able to engage with or benefit from psychological treatment that might otherwise assist in addressing the underlying trauma or conditions giving rise to distress and suicidality.1027
1020 T 512:16-23; Exhibit E - Table of changes in relation to Child Protection policy and legislation (fn 644) 6.
1027 Statement of Ashlee Lougoon, CB 3272 [3.2]; Statement of John Cooper, CB 3269 [4.3]; Statement of Matthew Large, CB 3232 [309].
On these topics, BDAC was able to assist me with valuable lived experience insights. In closing submissions, BDAC endorsed1028 the Yoorrook findings that: a. the current residential care model is not culturally appropriate;1029 b. residential care staff are often ill-equipped to respond to the complex needs of children and young people with a history of trauma;1030 and c. Aboriginal-led services provide better holistic care to First Peoples children in out-of-home care and mitigate harms of child removal.1031
BDAC’s Chief Executive Officer, Mr Widdicombe, elaborated: ...the missing link for us is a residential care model, not a residential care home. I have some experience with an ACCO led residential care model in Mildura, and the hardest part of that was there was one home. I think that it needs to be a model, so it can be balanced, and we can find where young people are suitable, rather than trying to put everyone in the one home.1032
In response to questions relating to improvements in residential care design going forward, he added: I think co-design's important, but I just want to emphasise that it's got to be Aboriginal-led. These are our children and a lot of the times our complexities that we need to work through. I think over particularly the last five years we've proven that we can do it, so I think it's really important for it to be Aboriginal-led. But also, I understand that it's hard to fund us for everything straight away and it takes a while for us to gather momentum, so where we can't be funded, I think co-design's super important.1033
Accordingly, I make the following recommendation.
1028 BDAC Closing Submissions (fn 729) 3-5 [8].
1029 Yoorrook Report 194.
1030 Yoorrook Report 194-5; citing Commission for Children and Young People, ‘Out of Sight: Systemic Inquiry into Children and Young People Who Are Absent or Missing from Residential Care’ (Report, 2021) 94.
1031 Yoorrook Report 197.
Recommendation 14
Towards more effective ‘relational’ case management1034
The Aboriginal Independent Expert Panel was highly critical of DFFH’s case planning, case management and transition planning in relation to XY. They concluded it did not address XY’s relational, cultural, therapeutic or wellbeing needs. Dr Newton said: DHHS’s approach to XY’s care was reactive, and placement-centred. As such the focus was always on solving the problem of XY having a placement, doing minimal active casework with XY, her family or carer in between, and then waiting for XY’s ‘complex needs’ to become too much before requiring another placement. This approach took precedence over relationship focused practice which invested in the network of care to support XY in an ongoing way.1035
Dr Newton and Dr Krakouer expressed the opinion that DFFH’s case management of XY was not in her best interests in the following specific ways: a. DFFH did not respond to early significant concerns for the family; b. did not provide any opportunities for XY to attend family counselling and did not re-establish contact with her mother or siblings while XY was in out-ofhome care; 1034 Scope of Investigation at [2(a), (g)], [7] and Scope of Inquest at [1], [2(a), (g)], [6].
1035 Statement of BJ Newton, CB 3084 [46].
c. did not address XY’s therapeutic needs for trauma relating to child sexual abuse; d. did not prioritise XY’s connection to culture and family while she was in care; e. did not forward plan for XY’s long-term stability and wellbeing; f. did not adequately use the AFLDM model; g. did not adequately support XY’s carers; and h. did not ensure that XY had access to culturally safe and sensitive supports throughout her admissions to hospitals and interactions with police.1036
In addition, Dr Krakouer opined that the ‘best interests principles’ and the ‘decisionmaking principles’ enshrined in sections 10 and 11 of the CYFA as it was at the time of XY’s passing 1037 were not effectively upheld in XY’s case. 1038 Dr Krakouer also expressed the opinion that the DFFH applied a narrow understanding of the Aboriginal and Torres Strait Islander Child Placement Principle (ATSICPP)1039 by restricting its application only to placement decisions, thus ignoring the remaining four elements of prevention, participation, partnership and connection.1040 Dr Krakouer acknowledged that this understanding of the ATSICPP reflected the narrow focus of sections 13 and 14 of the CYFA as it was at the time of XY’s passing.
In closing submissions, the DFFH acknowledged that the Department’s ‘internal guidance has long recommended consideration of the other four principles’1041, and noted that the new section 14 of the CYFA,1042 which will commence on 1 July 2024, makes statutory provision for the four additional principles at the core of the ATSICPP:1043 1036 Statement of BJ Newton, CB 3088-3098; Statement of Jacynta Krakouer, CB 3729-3730, [82].
1037 Version No. 125, Version incorporating amendments as at 26 April 2021.
1038 Statement of Jacynta Krakouer, CB 3722-3723 [52]-[55].
1039 A framework designed to promote policy and practice to reduce the over-representation of Aboriginal and Torres Strait Islander children in the child protect system. See Australian Institute of Health and Welfare, https://www.aihw.gov.au/reports/child-protection/atsi-cppi-2018-19/summary. See also Clare Tilbury, ‘The Aboriginal and Torres Strait Islander Child Placement Principle: aims and core elements’ (June 2013) at https://www.snaicc.org.au/wp-content/uploads/2015/12/03167.pdf.
1040 Statement of Jacynta Krakouer, CB 3722-3724 [52]-[59].
1041 DFFH Responsive Submissions (fn 688) [79].
1042 Amended by s 5 of the Children and Health Legislation Amendment (Statement of Recognition, Aboriginal Self-Determination and Other Matters) Act 2023, which received Royal Assent on 27 June 2023.
1043 DFFH Responsive Submissions (fn 688) [78]; T 517:19-28.
Prevention principle (1A) An Aboriginal child has a right to be brought up within the child's family and community.
Partnership principle (1B) The Aboriginal community to which the child belongs and other respected Aboriginal persons have a right to participate in the making of a significant decision in relation to an Aboriginal child under this Act.
(1C) Representatives of the Aboriginal community have the right to participate in the design and implementation of child protection and community services relating to Aboriginal children and their families under this Act.
Participation principle (1D) The parents and members of the extended family of an Aboriginal child have a right to participate, and to be enabled to participate in an administrative or judicial decision-making process under this Act that relates to that child.
Connection principle (1E) An Aboriginal child has a right to develop and maintain a connection with the child's family, community, culture, Country and language.
Ms Corin stated in her evidence that extensive work is currently underway within the DFFH in relation to ‘training and readiness’ to ensure that the further principles can be implemented from 1 July 2024.1044 She added that the Beginning Practice Program’s now engages with all five elements of the ATSICPP, as does the CRIS system.1045
During the inquest itself, the DFFH did not dispute Dr Krakouer’s opinions regarding sections 10 and 11 of the CYFA, nor did they elicit direct contradictions from their own witnesses. Those witnesses did, however, provide the useful context that I have set out below. For the avoidance of doubt, on my part, I received Dr Krakouer’s evidence as
expert social work opinion, and not as any ‘ultimate issue’ legal conclusion on the appropriate statutory interpretation of any aspect of the CYFA.1046
The lack of effective case management and holistic, long-term planning was detrimental to XY.1047 It was also inconsistent with a Social and Emotional Wellbeing framework, which is a more culturally appropriate approach to health and wellbeing for Aboriginal and Torres Strait Islander people.1048
In her evidence, Ms Lomas adverted to the possibility of incorporating the Social and Emotional Wellbeing Model, as advocated for by the AIEP witnesses, into the Looking After Children framework: the practice framework applicable to children in out-of-home care in Victoria.1049 Such a synergy, Ms Corin considered, would accord Child Protection an ‘opportunity… to automatically be thinking about the cultural needs of Aboriginal children very differently’.1050
The Aboriginal Independent Expert Panel was also critical of the ‘ritualism’ they observed in the manner in which child protection practitioners engaged in XY’s case.
Dr Newton described ritualism as follows: Ritualism is manifest through compliance, where caseworkers are so overwhelmed by performing to system requirements, that critical thinking and intuitive and active casework skills are often sidelined for automatic and ‘tick-a-box’ processes such as attending and notating meetings, and filling in forms. This extends to … sourcing [out-of-home care] placements reactively to a crisis or emergency removal. This is demonstrated clearly in XY’s case.1051
1047 Statement of Jacynta Krakouer, CB 3729 [80].
1048 Statement of BJ Newton, CB 3092 [74]. See also Statement of Pat Dudgeon on Social and Emotional Wellbeing, CB 3658-3660, 3670.
1051 Statement of BJ Newton, CB 3080 [16].
happened without actually deeply engaging in active case work ... specifically ... for the family that you’re working with.1052
Dr Krakouer agreed with these observations, adding that, in her opinion ‘the bureaucracy and paperwork requirements of caseworkers can interfere with their ability to actually establish relationships with the people that they work with’.1054 In addition, in her opinion, there was also a tendency by caseworkers to see the child as the primary client, whereas for Aboriginal and Torres Strait Islander children, in order to achieve the best outcomes ‘it is crucial that you work with the whole family because children are not detached from their family and community context’.1055
For instance, when considering the role afforded to XY’s mother, the Aboriginal Independent Expert Panel expressed the opinion that DFFH did not adequately consult XY’s Mother on key decisions concerning XY, nor provide adequate support to XY’s Mother to assist her in reaching decisions about XY’s wellbeing, despite the legislative requirements of sections 10 and 11 of the CYFA.1056
For its part, the DFFH acknowledged in its evidence various constraints, including time pressures and statutory reporting requirements, on Child Protection Practitioners’ ability
1053 Statement of AL, CB 3264 [28].
1056 Statement of BJ Newton, CB 3105-6 [135]-[139]; Statement of Jacynta Krakouer, CB 3738-3741 [110]- [118] & [123]-[129].
to cultivate and maintain deep relationships with the children in their care and their families.
In response to questioning about the prioritisation of and engagement in longer-term strategic planning in XY’s case, Ms Lomas discussed the shortcomings of what she described as ‘compliance-driven casework’, being the ‘tension that exists for practitioners in terms of spending the time with children and families, that they come to the work to do, and the administrative requirements… in terms of recording’. 1057 Ms Lomas expressed the view that ‘Child Protection Practitioners are… bound by too many procedures’.1058
Ms Lomas acknowledged the importance of enabling its practitioners to work in a way that is consistent with the relational approach, which, in relation to Aboriginal children and young people, DFFH accepted was key to providing culturally connected care.1059 However, Ms Lomas also highlighted the importance of ensuring that the administrative and recording components of a caseworker’s role are undertaken,1060 some of which are required by statute. She added that the Client Relationship Information System ‘holds part of the life story of… children and young people who are known to Child Protection in Victoria’.1061
In response to questions I asked, Ms Lomas agreed that better staffing levels, retention rates and experience of Child Protection staff would foster the adoption of relational approaches and would, in turn, counteract compliance-driven casework. 1062 Indeed, increasing staff levels seems to be an obvious way to improve Child Protection Practitioners’ capacity to form better relationships with the young people it is manifestly trying to help.
Counsel Assisting made the closing submission that there is something fundamentally wrong with the Victorian child protection system if practitioners (however hardworking and well intentioned they are) are so focused on the ritualistic or compliance driven
1059 T 364:4-26; DFFH Responsive Submissions (fn 688) [33].
aspects of their work, that they are unable to engage in meaningful casework and build relationships with children and their families. 1063 They further submitted that this fundamental problem further highlights the importance of child protection services being provided to Aboriginal and Torres Strait Islander children and families by ACCOs and the Aboriginal and Torres Strait Islander community.1064
Without the efforts of these workers, most of these vulnerable children would not be as safe. The submission concluded that while the DFFH accepts, and indeed welcomes, constructive recommendations, it vigorously refutes any unwarranted criticism of the Child Protection Practitioners, who strive to keep Victorian children safe.1065
1063 Counsel Assisting the Coroner, ‘Counsel Assisting’s Closing Submissions’ (8 December 2023) [89].
(‘Counsel Assisting Closing Submissions’) 1064 Ibid.
1065 DFFH Responsive Submissions (fn 688) [60].
1066 See Recommendation 16 below.
Connection with family and Aboriginal Family-Led Decision Making1067
The Aboriginal Independent Expert Panel was also highly critical of DFFH for their failure to facilitate connections between XY and her family, and their failure to adequately utilise the Aboriginal Family-Led Decision Making (‘AFLDM’) model. The Panel was also critical of their treatment of XY’s mother.1068
Despite the complicated relationship that existed between XY and her mother, the Aboriginal Independent Expert Panel identified many missed opportunities for DFFH to have facilitated contact between XY and her siblings, mother and grandmother.1069
One such occasion was when XY’s Mother asked DFFH to provide XY with a ring on her behalf. Approximately one month later, XY wrote a letter to her mother. Despite this clear opportunity for reconnection, the AIEP opined that DFFH took a paternalistic view and decided to ignore the expressed wishes of the family when they decided not to give XY’s letter to XY’s Mother because it would be too detrimental to XY’s Mother’s mental health.1070
Another opportunity for reunification was during the two years from May 2018, when XY’s stepfather had moved out of the family home. During this time, XY’s Mother made multiple attempts to reconnect with XY despite the sexual abuse allegations.1071
Mr Chapman conceded that there were missed opportunities to encourage and foster XY’s relationships with significant adults in both her maternal and paternal families and that the Department should have worked more strongly to preserve XY’s family connections despite the challenges that existed.1072 Such concessions also featured in his written statement.1073
In his oral evidence, Mr Chapman went on to describe the challenging context with which the DFFH was confronted. Mr Chapman explained that ‘Child Protection needs to 1067 See Scope of Investigation at [1(e)], [2(a)] and Scope of Inquest at [2(a)], [2(h)(ii)].
1069 T 85:27 - 92:28; Statement of BJ Newton, CB 3088-3092 [66]-[71].
1073 Statement of Nathan Chapman, CB 3633 [54].
strike… a careful balance… between the competing tensions of XY’s connection to family, which is absolutely a protective factors (sic),… on many, many fronts but also protecting her from further harm’, here referring to evidence concerning her likely feelings of abandonment and the invalidation of her claims of child sexual assault.1074 The delicate nature of this balancing exercise was also described in Mr Chapman’s written statement, where he observed that although ‘the Department should have made better efforts to engage XY’s family’, a ‘fundamental distrust of the Department, coupled with complex family dynamics, made this extremely difficult’. 1075 However, Mr Chapman accepted that when XY’s mother did seek contact with XY, the DFFH ‘should have dropped everything’ in order to facilitate this.1076
Mr Chapman’s assessment was that, in managing the ‘competing tensions… Child Protection had swung too far in one direction at the expense of another direction and the benefits… that sat at the other end of that spectrum.’1077 He added that navigating the evolving dynamics in XY’s family was far from straightforward, stating ‘I think the dynamic was changing… on a very regular basis. So… how that tension was being balanced on one day would probably look very different on another day.’1078
The only AFLDM meeting held in relation to XY occurred on 13 March 2019,1079 some 18 months after XY was removed from her family home. Child Protection case notes indicate that XY’s Mother told Child Protection that she wanted an AFLDM when XY was first taken out of her care, not in early 2019.1080 This led to the first AFLDM going ahead without XY’s Mother. The closing submissions on behalf of XY’s Mother reflect that, in her view, this delay set up a wall between her and XY, which she feels made XY think she did not have a mother.
1075 Statement of Nathan Chapman, CB 3633 [54].
The Aboriginal Independent Expert Panel expressed the opinion that, had the AFLDM model been used appropriately, it could have been utilised: a. prior to XY’s removal, to support XY to remain in the family home; b. following XY’s removal, to involve the family in coming up with potential solutions for respite options, multiple carers or provision of carer support; c. to enlist further support from the Wemba Wemba community; d. to provide for or establish plans for sibling contact, including by having the siblings attend a meeting; e. to enable forward planning; and/or f. to establish family counselling.1082
In closing submissions, XY’s Mother agreed with the AIEP’s observation that ‘the absence of family for an AFLDM] meeting…signals that the process is not familyled’.1083 She agreed with BDAC that a more flexible approach should be adopted in terms of how and when AFLDMs take place.1084 Further, and in line with the evidence of the AIEP,1085 XY’s Mother submitted that I should consider making a recommendation to loosen referral criteria so that other agencies, not just the DFFH, are able to make referrals for AFLDMs, including, most importantly, ACCOs that have been delegated powers pursuant to section 18 of the CYFA. I am persuaded that there is merit in making that recommendation.
Recommendation 15
1083 T 105:16-19; XY’s Mother Final Submissions (fn 660) [30]-[31].
1084 T 538:5-11, 540:9 – 541:25; XY’s Mother Final Submissions (fn 660) [33].
With reference to the minutes of the AFLDM meeting held on 13 March 2019,1086 the Aboriginal Independent Expert Panel also expressed the opinion that the manner in which the AFLDM was conducted, particularly in relation to the opening indication by DFFH as to the Department’s ‘bottom line’, was ‘quite culturally inappropriate and insensitive to the family in the spirit of an AFLDM‘.1087
BDAC gave evidence that, in their experience, Child Protection frequently commenced the meeting by referring to DFFH’s bottom line, which BDAC agreed was culturally inappropriate.1088 BDAC also emphasised that AFLDM meetings should be less formal, provide an opportunity for the family to have a yarn and be led by the Elders present.1089 BDAC highlighted the need for a flexible approach to be adopted in terms of where and how AFLDM meetings take place, in order to encourage young people and families to participate in their own AFLDMs. An example was given of AFLDMs being conducted around the fire pit at BDAC.1090
Yoorrook also found that AFLDM meetings were often not held, held late or not culturally safe.1091 Yoorrook recommended that DFFH ‘urgently take steps to ensure full compliance with its obligations to convene an Aboriginal Family Led Decision Making meeting before making any significant decision about an Aboriginal child, and record the outcome’.1092
The DFFH acknowledged in evidence that XY’s first AFLDM meeting should have been held much sooner, and that the 18 months which elapsed between the date XY was placed in out-of-home care and the date of the first AFLDM meeting represented a lengthy delay.1093
1091 Yoorrook Report158.
1092 Yoorrook Report 32, Recommendation 16(a).
As to whether it is commonplace to have ‘bottom lines’ in an AFLDM meeting, DFFH supplied the Court with the AFLDM Guidelines of July 2019. 1094 Those Guidelines provide that ‘During the consultation, the child protection practitioner will need to provide […]‘clarification of minimum requirements that will promote the child’s safety, wellbeing and development and key issues that are to be addressed through AFLDM’, which are ‘often referred to as bottom lines’.1095 While the phrase could be expressed in a more culturally sensitive way, the material illustrates that the purpose of these ‘bottom lines’ is to centralise the interests of the child throughout the AFLDM process and to focus participants’ attention on the objectives of the process. Relevantly, the Department’s responses to questions on notice also confirmed that the Guidelines were developed in consultation with Aboriginal people and organisations. 1096 Further, the Guidelines reflect the DFFH’s clear recognition that the role of Aboriginal Elders in the AFLDM process is ‘critical and integral’ to the design of the AFLDM forum in any particular child’s case.1097
DFFH witnesses gave evidence of several local and State-wide initiatives since XY’s passing that are aimed at improving the uptake of AFLDM processes for Aboriginal children and young people. First, Mr Chapman referred to his earlier evidence1098 about strengthening collaboration between ACCOs and Loddon Area Child Protection, including through co-location.1099
Second, Mr Chapman referred to the creation of an additional AFLDM practice leader position in April 2022 (which is identified for Aboriginal applicants only).1100 He added that AFLDM practice leaders now receive automated CRIS alerts when a substantiation of harm is recorded in a case, thereby notifying the practice leader that an AFLDM is required in a ‘really timely way’.1101 Upon receiving the alert, the AFLDM practice leader arranges a consultation with the Child Protection Practitioner and the case planner 1094 Attachment 1 to Exhibit M - DFFH responses to questions on notice (3 November 2023): ‘Program guidelines for Aboriginal family-led decision making (AFLDM) – Including program requirements and practice guidance (July 2019). (‘AFLDM guidelines’) 1095 Ibid 19.
1096 Exhibit M - DFFH responses to questions on notice (3 November 2023) [10].
1097 AFLDM Guidelines (fn 1092) 23-24.
to prepare for AFLDM.1102 Mr Chapman acknowledged that the streamlined CRIS alert system is only activated upon initial substantiation, but explained that AFLDM practice leaders continue to have opportunities for input at later stages in Child Protection’s involvement, such as by participating in the reunification collaborative panel, the High Risk Youth Panel, the intensive infant response panel and undertaking reviews of AFLDM activities.1103 Mr Chapman noted that, additionally, the specialist Aboriginal Children in Aboriginal Care position supervises the ‘AFLDM process and the timeliness of it’.1104
Mr Chapman also agreed with AL’s view that the AFLDM process should permeate the life of a case, ‘particularly at key decision-making points.’ 1105 He confirmed that systematising CRIS alerts throughout the life cycle of Child Protection’s intervention, and especially at critical junctures in the case, would be helpful. 1106 On this point, Ms Lomas reflected that careful consideration needs to be given to economising and prioritising alerts, as they are more readily dismissed when too abundant.1107
Ms Corin outlined a number of statewide strategies aimed at improving uptake of AFLDM procedures. Ms Corin explained that since January 2022, one focus of the suite of Wungurilwil Gapgapduir 1108 reporting requirements has been compliance with AFLDM obligations.1109 Ms Corin stated that DFFH recognises that there is ‘work that we need to do’ about the consistency of that reporting, and that work commenced in late 2022 to analyse the ‘reporting mechanism and also to look at a refresh of the AFLDM guidelines’.1110 She added that this work has been paused while the Yoorrook Justice Commission is underway.1111
1108 Wungurilwil Gapgapduir (fn 641). Implementation of Wungurilwil Gapgapduir is overseen by the Aboriginal Children’s Forum which comprises representatives from Victoria’s ACCOs, Community Service Organisations and the Victorian Government: Statement of Simone Corin (4 November 2022), Appendix A,
1111 Ibid.
Ms Corin also outlined how the transfer of decision-making authority to ACCOs, including in respect of AFLDMs, could enhance AFLDM outcomes by providing more opportunity for local decision-making, and added that ‘there is some work that is being done at the moment to look at how the… model might be better… considered in an… integrated… manner locally.’1112 Ms Corin identified Njernda and Goolum Goolum as examples of ACCOs undertaking AFLDM during the intake phase. She stated that this initiative ‘is showing promise’ in its capacity to divert children from entering out-ofhome care. 1113 Ms Corin also confirmed that the Department is considering a recommendation from the Yoorrook Justice Commission Interim Report that AFLDM and ACSASS should be engaged earlier in Child Protection’s involvement.1114 Early Intervention and Improving Case Management Practices for Aboriginal and Torres Strait Islander Children and Young People
Raylene Harradine, who provided a statement on behalf of BDAC as their former CEO, gave the following evidence to the Yoorrook Justice Commission: When a First Nations family comes to the attention of the Department, it is crucial to provide wrap-around, supportive services immediately to guarantee a coordinated response that meets their needs. In the initial stages, implementing structured, supportive services pre-emptively can help prevent the need for invoking statutory child protection measures. 1115
Yoorrook, at recommendation 8(a), has called for the Victorian Government to ‘work with Aboriginal organisations to develop a consistent definition of early help, early intervention and prevention that aligns with the perspectives of First Peoples’.1116 This inquest was illustrative of the need for culturally appropriate, resourced and targeted intervention for a Wemba Wemba family.
1112 T 535:12-25; Exhibit E - Table of changes in relation to Child Protection policy and legislation (fn 644) item
1114 T536:17-23; see also Yoorrook Report 32, Recommendation 16.
1115 Yoorrook Report (fn 17) p. 131; citing Witness Statement of Raylene Harradine to the Yoorrook Justice Commission (29 May 2023) 6 [30].
1116 Yoorrook Report 29, Recommendation 8(a).
This is to ensure that the system is not overwhelmed at the tertiary end of the service spectrum, at which point it operates in a ‘crisis mode’ like it did when managing XY.1117
Pragmatically, it is also more cost-effective than waiting until a child is separated from family and culture, and in crisis.
Finally, XY’s Mother submitted that I should also explicitly endorse recommendation 8(a) from the Yoorrook Justice Commission, and that any recommendation endorsing it should note that a definitional agreement of ‘early intervention’ with First Nations communities should be met with concomitant funding. This is to ensure that early intervention services delivered by ACCOs are appropriately resourced to deliver for their communities.1119
In relation to early interventions, the DFFH submitted that while Child Protection had limited interaction with XY’s family in respect of several — especially early — reports, the Department witnesses explained in evidence that this is referable to the design of the Victorian Child Protection system.
Mr Chapman explained that Child Protection is the ‘statutory part’ of a spectrum of services delivered by the Children and Family Service System: 1120 ‘[i]t’s the very… tertiary part of the system, and there’s an entire range and suite of other services,… universal or primary services,… that are in place hopefully to prevent families coming into contact with the statutory component of the system.’ 1121 In addition to these mainstream supports, Mr Chapman identified that there are ‘targeted or secondary
1118 XY’s Mother Final Submissions (fn 660) [39].
1119 Ibid [42].
services which include parenting and family services, and those that respond to specific needs, including family violence, socio-economic disadvantage, housing disability, alcohol and other drug use, etc.’1122 Accordingly, responsibility for family support service provision by the Victorian Government ‘does not sit entirely’ with the DFFH.1123
1124 Under s 28 or 29 of the CYFA.
family and child… to continue after Child Protection has ceased its involvement.’1129
Mr Chapman’s evidence on this point supplies helpful context to the evidence of the AIEP to the effect that the DFFH should have referred XY’s Mother and XY’s family to universal services, such as playgroups, earlier in the course of their interactions.1130 According to Mr Chapman, while it is ‘absolutely’ a part of Child Protection’s role to offer such referrals,1131 Child Protection was not in ‘direct contact with the family’ in respect of the nine earliest reports which were closed at intake phase.1132 Mr Chapman also observed that ‘the universal system itself has referral pathways and mechanisms … for families that might be experiencing vulnerability at different points’.1133 Mr Chapman stated that whereas the Child Protection system sits at the ‘crisis end’ of interventions, the goals of early intervention and prevention are primarily achieved by the ‘entire child and family wellbeing system that sits before it.’1134
Ms Corin’s further table of mental health and wellbeing initiatives1135 outlined some more recently available supports for children and families, many of which are led by the Department of Health: a. Children’s Health and Wellbeing Locals, which ‘provide access to multidisciplinary paediatric health, mental health and family services for children aged 0-11 years who are experiencing developmental, emotional, relational and behavioural challenges, and their families’, and which include group-based parenting programs;1136 b. Group-based parenting programs within Child and Youth Area Mental Health and Wellbeing Services, which seek to ‘build the skills and confidence of
1132 T 691:6-7. The nine reports which were closed at intake phase included the reports of 19 October 2007, 1 September 2010, 12 June 2012, 7 May 2014, 14 April 2015, 29 June 2915, 4 February 2016, 14 August 2016, and 12 April 2017.
1135 Exhibit E – Further table of mental health and wellbeing initiatives’ (fn 839).
1136 Ibid 1, item (A).
parents to support children experiencing mental health and wellbeing challenges’;1137 c. The Statewide Child and Family Centre, which provides ‘subacute, residential services for families with a child aged 0-11 years who is experiencing major behavioural, emotional and relationship difficulties’, through ‘flexible, familycentred therapy and support from child and family mental health specialists’;1138 and d. Early Help Family Services, which deploy family services practitioners within universal services, including schools, early childhood services and health services ‘to identify and engage families with emerging needs’, and involve provision of ‘individualised and group-based support such as parenting education and support groups’. Early Help Family Services are delivered in all 17 of the DFFH’s areas, including seven sites where ACCOs are providing leadership or partnership to trial programs.1139
Child Protection Manual redesign
Ms Lomas considered that such a redesign could assist with addressing ‘compliancedriven’ casework and the concerns expressed by the AIEP around ‘ritualism’. Ms Lomas explained that in early 2023, the DFFH engaged an independent contractor to ‘design a future blueprint for the manual…. with the aim of clearly defining the role of the Child Protection… practitioner and their functions, to be more accessible and contemporary 1137 Exhibit E - Table of changes in relation to Child Protection policy and legislation (fn 644) 2, item (F).
1138 Ibid item (G).
1139 Ibid item (H).
and meaningful… to children and their families,’1140 and with a view to creating a manual ‘that is culturally aligned and promotes self-determination for Aboriginal people’.1141
Ms Lomas confirmed that the redesign process involved consultation with Community Service Organisations through the Centre for Excellence in Child and Family Welfare, and with ACAC providers through the Aboriginal Initiatives Unit within the DFFH.1142 She also confirmed that the proposed changes are likely to ‘reduce the volume of paperwork’ which Child Protection Practitioners are obliged to complete, and agreed with my observation that the redesign seeks to ‘streamlin[e]’ compliance with statutory recordkeeping ‘without jettisoning its key function’.1143
At this stage, the business case is being developed and government investment would be required to support the redesign of the child protection manual consistently with the blueprint developed.1144 High-Risk Youth Panel
In response to questions about the effectiveness of the Child Protection High-Risk Youth ('HRY’) Panel, Mr Chapman gave evidence that, in XY’s case, the ‘panel at that time was operating in the way it’s designed’.1145 Specifically, he stated, it was ‘undertaking the type of collaborative role of bringing together… external agencies with the [D]epartment to really look at the risk issues and the planning.’1146 Mr Chapman went on to explain that the HRY Panel has ‘a geared approach’, with an ‘internal facing conversation to scope which children would go to the external facing panel’, and identified that XY’s case passed through that process several times.1147 Multi-Agency Senior Governance Meetings
DFFH witnesses also gave evidence about the introduction, in December 2021, of ‘multiagency senior governance meetings’ facilitated by Loddon Child Protection, which
are able to be convened ‘as and when required’ in relation to young people living in residential care who present with the most complex and high-risk behaviours. 1148 Mr Chapman stated that these meetings are not a regular process, but a ‘mechanism that we initiate… for probably the most top-tier children… where the system is stuck’.1149 and are able to be initiated ‘to bring the most senior people from the sector and government together to really problem-solve some of the wicked issues that the system is grappling with’. Since XY’s passing, three such meetings have been convened.1150
Mr Chapman explained that the forum is a ‘highly authorised environment… where we have… all of the levers possible available to us that we can activate… to find alignments between systems, to find where we… might have to think creatively or activate funding to make something happen.’1151 This can involve attendance and contribution of external medical experts. 1152 Mr Chapman confirmed that XY’s case ‘would have been… absolutely in scope for that sort of response.’1153 As to acquiring insight into whether a particular child’s case involves the kinds of features warranting this kind of intervention, Mr Chapman described how ‘mechanisms like the High-Risk Youth Panel, and also our client incident management system, CIMS, is also mechanisms (sic) that we use to review and to give us windows into these sorts of triggers.’1154
Mr Chapman also confirmed that subcontracted service providers can initiate a meeting of the Multi-Agency Senior Governance network.1155 Loddon Area’s Local Site Executive Committee
Additionally, Mr Chapman gave evidence about the cross-government Local Site Executive Committee. The initiative ‘operates at a senior level to bring together key government agencies and… sector colleagues… to look at the system issues… in that 1148 Statement of AW, CB 2034-2035 [28]-[29]. The DFFH noted by way of clarification that the Multi-Agency Senior Governance Network is a Loddon Area initiative, and is available in respect of all children within the Department’s care, not only those in residential care: DFFH Responsive Submissions (fn 688) 31 [66].
1150 T 476:1-18. See also T 475:20 – 479:9.
area.’ 1156 The Loddon Area’s Local Site Executive Committee also comprises representation from BDAC, Njernda, Anglicare and MacKillop Family Services. 1157 Mr Chapman indicated that the purpose of the Committee is not to consider individual cases, but to ‘look at the systems issues to find better alignments and better opportunities for streamlining and for… better outcomes for people.’1158 Care Hub model
Ms Corin explained that the model is being piloted in Loddon Area, and involves a ‘multidisciplinary, multi-agency team’ providing ‘early assessment, planning and wrap-around supports to children and young people who are first time entrants into care.‘.1159 Agencies involved include Anglicare (as the lead agency), Bendigo Community Health Services, the Salvation Army, YSAS, Berry Street, BDAC and Njernda, 1160 The ‘primary objectives’ of the model include family reunification, reducing time spent in care, and promoting placement stability.1161 Ms Corin gave evidence that 53 of the 163 clients who had utilised the Care Hub to date were Aboriginal children, 16 of whom had returned home by the time their case with the program closed.1162 Wungurilwil Gapgapduir
are safe, resilient and can thrive in culturally rich and strong Aboriginal families and communities’.1163
Ms Corin noted that a new strategic action plan was developed to implement the objectives of the program for the period of 2021-2024, with associated funding.1164 Ms Corin’s stated that the realisation of Wungurilwil Gapgapduir to date has seen ‘the expansion of… children authorised to Aboriginal agencies [pursuant to the Aboriginal Children in Aboriginal Care program under section 18 of the CYFA]… as well as… the progression of Community Protecting Boorais’.1165 Ms Corin observed that ‘there is significant variation across the state in terms of readiness of ACCOs’. 1166 She also referred to early intervention and support initiatives including the ‘rapid response and diversion programs’ funded through the Department, and to ‘trialling the AFLDM process at an earlier point’.1167 Ms Corin’s reflection was that if those initiatives had been available to XY, many would have been ‘of assistance’, particularly cultural connectedness through an ACCO.1168 Community Protecting Boorais
Ms Corin also detailed a pilot program known as Community Protecting Boorais, which facilitates Aboriginal-led investigation of Aboriginal children and young people reported to Child Protection. The pilot, which was enabled by the passing of the Children and Health Legislation Amendment (Statement of Recognition, Aboriginal Selfdetermination and Other Matters) Bill 2023 (Vic), which modified section 18 of the CYFA to allow ACCOs to support Aboriginal children and families as soon as a report to children protection is made. In the 2023-24 State Budget, the Victorian Government invested $13.7 million to expand the pilot of the Community Protecting Boorais for up to 348 children by 2026-27.1169 Ms Corin noted that the pilot commenced in October 2023, ‘so it is too early to tell… the outcomes that we will see from that.’1170 However, 1163 Statement of Simone Corin (4 November 2022), Appendix A, CB 2050-2051 [3]; see also Wungurilwil Gapgapduir (fn 641).
1165 T 502:22-28. See also [737] of these Findings.
1169 Exhibit E - Table of changes in relation to Child Protection policy and legislation (fn 644) 2, item (B) and 5, item (F).
as Ms Corin observed, ‘that’s a significant… piece that has been undertaken and led by the ACCOs and really brings Aboriginal ways of working, and a relational approach to working with the children and families.’1171 According to Ms Corin,1172 the expanded authorisation of ACCOs under section 18 could have significantly improved the approach taken in XY’s case because it enables ‘engagement at the earliest point… postnotification of… a Child Protection report [following intake].’1173 Family Preservation and Reunification Response
Finally, Ms Corin described the development of the Family Preservation and Reunification Response, which commenced in respect of Aboriginal families in August 2021, with delivery provided by ACCOs. The program consists of a ‘range of… modules’, which seek to ‘restore fractured and fragmented relationships, healing… from trauma’, with a ‘relational approach to practice’ as a ‘a key element.’1174 The program deploys ‘dedicated child protection navigators’ who identify children likely at risk of entering out-of-home care, and then work alongside family services and child protection to mitigate that risk (to achieve the goal of preservation).1175 The navigators also work towards reunifying families with children already in out-of-home care.1176 The program is structured with a ‘lead practitioner who then works with the family and brings that together.’1177 Ms Corin observed that the program has been evaluated and, since its inception, has seen 14% fewer Aboriginal children in care.1178 Recommendation to support ongoing improvement of case management and case planning practices1179
While I was attempting to draw together the prevention opportunities relating to Child Protection’s case management practices, the interested parties were afforded an
1172 Note, the transcript indicates that this evidence was given by Ms Argiropoulos, but that is an error.
1173 T 505:18-22, noting that the transcript erroneously indicates that this evidence was given by Ms Argiropoulos.
1179 See Scope of Investigation at [2] and Scope of Inquest at [2].
opportunity to consider recommendations proposed by my Counsel Assisting in closing submissions.1180 These included the following: Recommendation [X]: Noting Yoorrook’s recommendation that the Victorian Government ‘transfer decision making power, authority, control and resources to First Peoples, giving full effect to self-determination in the Victorian child protection system’, 1181 in our submission, your Honour should consider making a recommendation that DFFH significantly upscale the capability, competence and support of all persons working within the child protection system to ensure that they are able to: a) comply with sections 10, 11, 12, 13 and 14 of the Children, Youth and Families Act 2005; b) adopt a relational approach to child protection work which prioritises the practitioner’s ability to relate to the child and their families over compliancedriven measures; and c) engage in effective case management and case planning, including long-term planning and transition planning.
In particular for this purpose, DFFH should: d) review and revise all relevant policies, procedures, guidelines and like documents; e) review and revise all relevant training courses and programs; and f) ensure, to the greatest extent possible, that it has appropriate staffing levels and is able to retain experienced child protection practitioners.
Significantly, this recommendation was supported by XY’s Mother and BDAC.1182
The DFFH submitted that the proposed recommendation was broad in scope and ambiguous in its guidance. They submitted that: 1180 Counsel Assisting Closing Submissions (fn 1063) [92].
1181 Yoorrook Report 26, Recommendation 1.
1182 XY’s Mother Final Submissions (fn 660) [35]; BDAC Closing Submissions (fn 729) [1]-[2].
a. by virtue of the Department’s executive mandate, it is already responsible for ensuring the competence and capability of its staff to comply with statutory obligations, adopt a best-practice relational approach, and engage in effective case management; b. the training programs described in evidence and submissions were indicative of the extensive resources and supports already delivered to Child Protection staff; and c. implementation of the recommendation would be unnecessarily repetitive.1183
Finally, the Department submitted that this recommendation is excessively goal-oriented and somewhat idealistic, in that it overlooks the myriad obstacles to recruiting and retaining experienced Child Protection Practitioners, many of which are beyond the control of the Department. The DFFH also noted that it has already developed internal strategies to improve recruitment and retention outcomes within Child Protection.
The Department’s work shows a considered commitment to improving Child Protection case management of Aboriginal children, and that is to be commended. However, many of the improvements described above and in evidence were so new at the time of the hearing and closing submissions that they cannot yet be said to have had the impact that I accept the Department earnestly desires. For that reason, I have decided to make the recommendations in the form supported by XY’s Mother and BDAC, and thereby require the Department to respond to them through the formal response process, by which time they will have had an additional opportunity to track sufficient data to be able to report on their success or otherwise in implementing my recommendations.
Recommendation 16
I recommend that DFFH significantly upscale the capability, competence and support of all persons working within the child protection system to ensure that they are able to: a. comply with sections 10, 11, 12, 13 and 14 of the Children, Youth and Families Act 2005; b. adopt a relational approach to child protection work which prioritises the practitioner’s ability to relate to the child and their families over compliancedriven measures; and c. engage in effective case management and case planning, including long-term planning and transition planning.
In particular for this purpose, DFFH should: d. review and revise all relevant policies, procedures, guidelines and like documents; e. review and revise all relevant training courses and programs; and f. ensure, to the greatest extent possible, that it has appropriate staffing levels and is able to retain experienced child protection practitioners.
XY’s Voice1184
The Aboriginal Independent Expert Panel expressed the opinion that DFFH did not adequately involve XY in decision-making about her circumstances.1185
As I have set out in the Charter section of this Finding, XY had an internationally and domestically recognised right to voice priorities and preferences for her care,1186 and she did so.
The DFFH, as a public authority, had obligations under section 38 of the Charter. First, recall that the Department had a substantive obligation not to act in a way that is incompatible with a human right, unless it could demonstrate that it was reasonable and 1184 See Scope of Investigation at [2(f)] and Scope of Inquest at [2(e)].
1186 See Charter s 17; ICCPR article 24(1); CRC article 3.
justifiable to do so. Second, the Department had a procedural obligation to properly consider XY’s human rights, which involved hearing her voice and properly considering her views under s 17(2). Without these obligations, her Charter right would be empty. I will focus on two examples: her letter of complaint to the Department, and the Children’s Court sibling access orders.
1188 CRC article 12; see also Human Rights Committee General Comment 20, [3].
The DFFH’s response to XY’s letter was summarised in an internal complaints report.1190 It is apparent from that document that rather than listening to XY’s voice and using her letter as an opportunity to develop a collaborative approach with her,1191 the DFFH responded to XY’s letter by reminding her of the importance of attending their care team meeting (so she could presumably repeat the views she had just offered in her articulate letter) and reminding her of Child Protection practices and procedures in regard to decision-making. The ‘Actions Taken’ section of the internal report concluded ‘No system or organisational changes or action’, without any further explication being offered by the author.1192 This evidence suggests that the Department failed to take XY’s views into account and thereby limited her right, because it was not in her best interests to not have her views taken into account.
The AIEP considered that the DFFH’s approach was ‘highly inadequate’ because it shifted the responsibility back onto XY, suggesting that if she didn’t feel supported, she had to take actions to change her behaviour. Instead, DFFH should have validated XY’s concerns, which were her subjective truth, and talked to XY about how she would like to take things forward and how she would like DFFH to respond.1193 A concerted effort
1191 Ibid.
1192 PR 5489-5492; FNID (fn 116) [258]-[259].
1193 T 134:12-23; Statement of BJ Newton, CB 3098 [95]; Statement of Jacynta Krakouer CB 3731 [87(c)].
could then be made to consider whether her voice could be actioned. A response like this to her voice could have represented a reasonable and demonstrably justified attempt to protect and promote her rights, even if the Department did not actually end up doing what she wanted them to do. Instead, they shifted the responsibility back to XY and told her to change her behaviour. This suggests that the limits imposed on XY’s rights by the Department were not demonstrably justifiable.
In his oral evidence, Mr Chapman clarified that the report recording Child Protection’s response to XY’s letter was ‘internal documentation.’1194 XY was not provided with the document, rather, the matters listed were discussed with her through dialogue.1195 I accept that, but this added context for the document means it is at least a candid internal encapsulation of the Department’s managerial style.
In relation to the topics actually raised in XY’s letter, there are no documented attempts to action her wishes, nor any recorded explanations offered to her about why that was not possible for some reason. This suggests that the public authority failed to engage with XY’s voice as required by the best interests principle within the right, which in turn limited XY’s right to a voice. For instance, accommodation placement decisions fall squarely under the substantive obligation to not act or decide matters in a way that is incompatible with her rights. If the Department could not properly listen to her, and ‘being heard’ is part of the content of the right, then the right has been engaged and limited. There was no evident reasonable or demonstrably justifiable reason for this limitation. The absence of such reasonable and demonstrable justification can be interpreted as a substantive breach of her right to be heard – and indeed a procedural breach too.1196
The Department acknowledged in its closing submissions that more could have been done to respond to XY's complaint.1197
The DFFH also accepted the AIEP’s criticisms that XY’s voice was not sufficiently heard,1198 and acknowledged that ‘[t]he service system struggled to listen to XY and
1196 Certain Children (No.2) at [490]-[500].
1197 [162].
1198 Statement of Kirstie-Lee Lomas, CB 3599-3600 [36]-[37]; T 601:29 – 603:133, T 609:27-29.
accept her reality of her experiences and subsequent frustrations’ in relation to some of the placement decisions made.1199 This further supports procedural, if not substantive, unlawfulness under section 38(1) of the Charter.
There is a similar lack of engagement with XY’s voice insofar as the DFFH failed to action the Children’s Court Family Reunification Order (FRO) 1200 and Interim Accommodation Orders, where those orders provided for XY to have contact with her siblings.1201 These orders reflect the Children’s Court’s independent distillation of what was in the child’s best interest at that time.
The Children’s Court Decision Sheet1202 records that the ‘DHHS will consider whether the FRO is viable or not’ and the Department did not appeal any of the orders.
XY had expressed her desire to see her siblings on numerous occasions,1203 including in her heartfelt letter of August 2019 to her mother, pleading, …For so long you wouldn't let me see the kids, why?... 1204
While XY’s willingness to engage with either of her parents fluctuated, she was steadfast in expressing her desire to have contact with her siblings.1205 The AIEP explained that for a young Aboriginal person in XY's position, contact with siblings would be protective from a mental health perspective and culturally safe from a First Nations perspective.1206 So, it was objectively in the best interests of XY to have contact with her siblings. She repeatedly and actively expressed this wish, which was well within the scope of her Charter right to have decisions made in her best interests, and her right to participate in the process by which decision affecting her were made.
Yet my review of the substantial volume of Protection Records in this matter, with the assistance of the interested parties, has not been able to identify an earnest attempt at enabling sibling access, nor an articulated rationale for why that was not possible at 1199 Statement of Kirstie-Lee Lomas, CB 3599.
1201 See PR 5560, 5565, 5572, 5603, 5732, 5743, 5749, 5755.
1203 See PR 1667, 2195, 2572, 3247, 3858, 3263, 3265; MR 1144.
1205 See PR 3860, 3858, 3263,3265; MR 1144.
1206 See T 80:28 – 81:7; Statement of BJ Newton, CB 3086 [55]
certain times, nor what alternative legitimate statutory objective the DFFH was pursuing by this inaction.
This failure speaks to the DFFH’s substantive obligation to act compatibly with XY’s rights and its procedural obligation to give ‘proper consideration’ to XY’s voice. While Child Protection actively considered whether to pass this letter on to XY’s Mother, and documented that they believed it would be too detrimental to her mental health to do so,1207 there is no record of Child Protection nonetheless considering, nor attempting to facilitate, XY’s court ordered sibling access through other safer avenues, such as by utilising extended family, the Aboriginal community or even discrete DFFH supervision networks or mechanisms. These avenues could potentially have circumvented the obstacles to sibling access that the dangers of exposure to her stepfather and XY’s Mother’s periodic unwillingness to cooperate represented.
The Children’s Court order was reflective of XY’s best interests, which means that her s 17(2) rights were engaged. The failure of DFFH to execute the order limited her rights.
Whether the limitation was reasonable and demonstrably justified in part turns on minimal impairment of her rights. The failure to consider alternative pathways or strategies to implement the court orders means that there were potentially less restrictive means reasonably available to Child Protection, which may have provided justification for the limitation on the rights.1208 Instead, there was no reasonable and demonstrable justification for their inaction on this front. It was unlawful in a substantive sense for the Department not to attempt to comply with the sibling access court order (which by definition was in XY’s best interest) without demonstrating that it was reasonable and justifiable under section 7(2) to act in this way. Accordingly, the Department acted in a way that was incompatible with XY’s right, and thus acted unlawfully under section 38(1).
1208 Certain Children (No 2) at [473] – [475].
38 obligations. In short, it was unlawful in a substantive sense not to comply with the sibling access court order, and procedurally unlawful to not have documented proper consideration of the issue. Both represent a breach of XY’s human right to be heard in relation to decisions that affect her.
This lack of effective engagement and response by the Department to her specific sibling contact wishes across the years in which the DFFH stood in loco parentis, contributed to XY’s incremental disillusionment with the Child Protection system, which, in the absence of any substitute support network, was obviously contrary to her own best interests as a vulnerable young person.
Mr Chapman conceded in both his statement and his oral evidence that the Department ‘should have made better efforts to …maintain sibling contact…’ 1209 Ms Lomas also conceded that XY’s ‘…voice and experiences were not always heard or validated’ within a system under significant strain.1210
As an aside, I note that in Certain Children (No 2), Dixon J held that asserting strain on public resources ‘fell well short in demonstrating that resources were inadequate for the provision of less restrictive means.’1211 Despite that strain, it is glaring that a government department did not more energetically pursue compliance with a court order or, at the very least, document in some detail why that outcome was not possible in this particular case at certain particular times, especially where it was contrary to the expressed wishes of the child whose best interests they were obliged to keep foremost in mind.
To sum up, these two failures by the DFFH to actively consider XY’s views about her own best interests constitute an unjustified and disproportionate limitation of XY’s Charter right to the protection of her best interests as a child,1212 and thereby constitute unlawfulness under section 38(1) because the Department acted in a way that was incompatible with her right. There was no demonstrable justification here because the attempts, or failures, to action her voice were not documented. Nor are any reasonable rationales for not pursuing sibling access recorded. They are disproportionate because
1210 CB 3624 at [49], 3597 at [26].
1211 Certain Children (No 2) (fn 66) [473].
1212 Charter, ss 7(2) and 17(2).
without access to, or hope of obtaining, the quality of life XY had herself articulated, far greater resources were continually expended as she lurched from crisis to crisis, without a long-term solution in sight.
I accept the AIEP’s characterization of this conduct as a pattern of resignation1213 and passivity1214 on behalf of those obliged and resourced to act in XY’s best interests. For instance, it is a notable contrast to the later sibling access issue that when hearing XY's voice required no action from the Department, such as early on following XY’s removal from home, when XY expressed she was not ready to have contact with her family, Child Protection accepted this stance at face value and did not arrange contact. 1215 Such resignation and passivity are hallmarks of procedural unlawfulness, where a public authority has a procedural obligation to give proper consideration to human rights when making a decision. They are also suggestive of substantive unlawfulness. When XY’s own views about her best interests ought to have been listened to and given due weight in accordance with her age and maturity under section 17(2) of the Charter, and additionally required positive action on the part of the Department, she instead received resignation and passivity in breach of her rights in a manner that was not reasonable or demonstrably justified.
In plain English, while no single individual was solely responsible, I conclude that the cumulative effect of the DFFH’s lack of action in pursuit of, and lack of documented consideration of XY’s voiced care goals, unjustifiably breached her human right to such protection from her legal guardian as was in her best interests whilst she was still a child.
In the language of the Charter, the Department acted in a way that was incompatible with XY’s human right, and when making decisions the Department failed to give proper consideration to XY’s human right.
1214 Ibid CB 3098-3099 [97], [100]; Statement of Jacynta Krakouer, CB 3730-3731 [83]-[85].
1215 Statement of BJ Newton, CB 3098 [97]; T 86:25 – 86:8; PR 3968.
The Victorian Government must amend the Commission for Children and Young People Act 2012 (Vic) to: a) specifically establish the role of the Commissioner for Aboriginal Children and Young People in the same way that the Principal Commissioner for Children and Young People’s role is provided for in the legislation b) provide the Commissioner for Aboriginal Children and Young People with the same statutory functions and powers as the Principal Commissioner insofar as these powers relate to Aboriginal children and young people in Victoria c) expressly provide the Commissioner for Aboriginal Children and Young People the function to receive and determine individual complaints from or relating to First Peoples children and young people concerning their treatment in child protection, including out of home care, and d) give the Commissioner for Aboriginal Children and Young People and the Principal Commissioner rights of intervention in legal proceedings relating to a child or young person’s rights under the Charter to be exercised at their discretion.
These roles and powers must be appropriately resourced.1216
This inquest proceeded concurrently with Yoorrook’s proceedings, so I did not have the opportunity to consider expert opinions or submissions on the form of this recommendation. However, I have reproduced it here as it would self-evidently provide a mechanism for independent scrutiny in cases where children do not believe their voices are being heard, which would in turn improve transparency and accountability in favour of vulnerable children.
DFFH witnesses assisted me with evidence of several initiatives directed to improving participation by young people like XY in care decisions. Mr Chapman described the Care Teams Improvement Project, a Loddon initiative that seeks to ‘systematise how we actually hear… their voices’ and ‘construct care teams in a much more child-friendly 1216 Yoorrook Report 29, recommendation 7.
way.’1217 Mr Chapman also gave evidence about ‘My Views’, a state-wide initiative designed to improve Child Protection’s engagement with children and young people’s perspectives. My Views is a booklet which has been designed in collaboration with children, and which represents a ‘resource to help practitioners have the conversation with children to hear what are the issues that are… current for them’ and facilitates a ‘guided conversation’. 1218 Ms Corin referred to the DFFH’s Placement Planning Refresh,1219 which examines how the Department’s guidelines ‘consider the needs and the views of young people’ in matching them to placements.1220 Aspects of the SAFER children framework are also directed towards amplifying the voices of children who have contact with Child Protection.1221
Recommendation 17
That DFFH review and revise its relevant training courses and programs with a focus on improving Child Protection Practitioners’ skills in engaging with children and young people, so as to hear, acknowledge, understand and give weight to a child’s experience and expressed views in their subsequent decisions and actions.
I note that both XY’s Mother and BDAC expressed support for this recommendation.1223 1217 T 610:15-25.
1219 Exhibit E - Table of changes in relation to Child Protection policy and legislation (fn 644) 10, item (K).
1221 Exhibit H – SAFER guide (fn 776) 7, 35, 70.
1222 DFFH Responsive Submissions (fn 688) [164].
1223 XY’s Mother Final Submissions (fn 660) [7]-[8]; BDAC Closing Submissions (fn 729) [1]-[2].
At its best, a coronial inquest can provide a space where the voice of the dead can guide, and even help, the living.1224
XY’s passing has shown us the importance of that voice being heard, pointing us towards the protective features of self-determination, cultural connection and loving homes as a wellspring, not just for vulnerable children, but for all of us.
I commend XY’s Mother and the other interested parties for embracing the prevention focus I brought to what was otherwise an undeniably sad and unfortunately not unique set of circumstances.
Finally, I wish to express my condolences to XY’s family and their communities for their loss.
1224 Mortui vivis praecipiant means ‘Let the dead teach the living’.
Pursuant to section 73(1) of the Act, I order that this finding be published on the internet.
I direct that a copy of this finding be provided to the following: XY’s Mother, Senior Next of Kin XY’s Father, Senior Next of Kin Peta McCammon, Secretary of the Department of Families, Fairness and Housing Professor Euan Wallace, Secretary of the Department of Health Chief Commissioner of Police, c/- MinterEllison Anglicare Victoria, c/- Hall & Wilcox Bendigo Health, c/- HWL Ebsworth Lawyers Bendigo & District Aboriginal Co-operative, c/- HQ Law Australian Community Support Organisation, c/-K & L Gates Dr Thileepan Naren, c/- Avant Law Dr BJ Newton, Expert Witness Dr Jacynta Krakouer, Expert Witness Professor Patricia Dudgeon AM, Expert Witness Associate Professor Robert Parker, Expert Witness Liana Buchanan, Principal Commissioner for Children and Young People Meena Singh, Commissioner for Aboriginal Children and Young People Hugh de Kretser, Yoorrook Justice Commission
Lee Forace, Social Services Secretary, Community and Public Sector Union Adjunct Professor Muriel Bamblett, Victorian Aboriginal Child Care Agency Aboriginal Justice Caucus Victorian Aboriginal Community Controlled Health Organisation Coroner’s Investigator, Leading Senior Constable Wendy Turner Signature: SIMON McGREGOR Coroner 19 June 2024
APPENDIX C - SCOPE OF INVESTIGATION IN THE CORONERS Court Reference: COR 2021 3810
The factors contributing to XY’s poor mental health at the time of her passing including: a. clinical diagnoses; b. stressors contributing to self-harm and suicidal ideation; c. impacts of COVID-19 lockdowns; d. absence of cultural connection; e. familial/kinship isolation; and f. sexual abuse reported by XY.
The adequacy of care, treatment and services provided to XY including ,where applicable, their oversight by the Department of Families Fairness and Housing (DFFH), between 2017 and her passing, concerning: a. the effectiveness of XY’s case planning and case management including provision of an appropriate level of supervision and monitoring; b. the level of appropriate risk assessment and risk-management; c. the effectiveness of XY’s care and transition planning including support offered to XY in relation to being moved out of care before she turned 18; d. the extent to which XY’s mental health treatment needs were addressed and treated; e. the extent to which XY’s drug and alcohol use was addressed and treated; f. the extent to which XY was involved in decision-making including decision-making relating to:
i. placements with whom she wished to live; ii. engagement in drug and alcohol treatment; and iii. rules applicable to XY when she was absent from her residential placement.
g. the level of support provided to XY’s out-of-home carers; h. the impacts of placement instability on XY’s mental health; i. the adequacy of XY’s supports addressing her: i. mental health; ii. trauma history; and iii. cultural needs; and j. the adequacy of information-sharing, care planning and communication between Child Protection and the other services involved in XY’s care.
The adequacy of care offered and provided to XY by Bendigo and District Aboriginal Co- operative (BDAC) as an authorised agency under section 18 of the Children Youth and Families Act 2005 (Vic).
The adequacy of care offered and provided to XY by the Aboriginal Child Specialist Advice and Support Service (ACSASS)
The adequacy of counselling and care offered and provided to XY during her schooling from the commencement of the 2017 school year.
The adequacy of counselling and support provided through Victoria Police to XY following her disclosures of sexual abuse, including by CASA and
The extent to which XY’s care, treatment, and Cultural Plan was culturally competent and culturally safe.
Whether culturally grounded suicide prevention strategies were considered and/or available for XY.
The circumstances of XY’s attempted suicides and self-harm episodes from January 2021 onwards, and the adequacy of the response from: a. health care providers; b. mental health care services; c. Child Protection;
d. Anglicare Victoria; and e. Victoria Police.
The circumstances of XY’s admission to and discharge from the Youth Prevention and Recovery Care (YPARC) facility on 16 July 2021.
The response of Anglicare Victoria staff when XY went missing from Maison Residential Care House on 18 July 2021.
The response of Victoria Police in conducting a search for XY on 18 July 2021.
APPENDIX D – SCOPE OF INQUEST IN THE CORONERS COURT Court Ref: COR 2021 003810
The extent to which Child Protection were responsive to opportunities to engage with and provide support to XY and her family.
The adequacy of the care and services provided to XY by Child Protection and other services under its auspices between 2017 and her passing, including: a. the effectiveness of case planning and case management; b. the adequacy of supervision and monitoring; c. the adequacy of risk assessments and risk management plans; d. the extent to which XY’s drug and alcohol use was addressed and treated; e. the extent to which XY was involved in decision-making, including in relation to her care, treatment, and residential placements; f. the impacts of placement instability on XY’s mental health and social and emotional wellbeing; g. the level of support provided to XY’s carers; h. the adequacy of XY’s supports addressing her: i. mental health; ii. social and emotional wellbeing; iii. trauma history; and iv. cultural needs; i. the adequacy of information-sharing, communication and coordination between Child Protection and the other services involved in XY’s care.
The adequacy of care and case management provided to XY by Bendigo and District Aboriginal Co-operative.
The adequacy of care provided to XY by the Aboriginal Child Specialist Advice and
Support Service (ACSASS).
The adequacy of Victoria Police’s response to XY following her disclosures of sexual abuse to SOCIT.
The extent to which XY’s care, treatment and cultural plan was culturally competent and culturally safe.
Whether culturally grounded suicide prevention strategies were considered and/or available for XY.
The adequacy of the response to XY’s attempted suicides and self-harm episodes from January 2021 from: a. Child Protection; and b. Anglicare Victoria.
APPENDIX E – RECOMMENDATIONS Recommendation 1 a. That DFFH work towards transitioning all Aboriginal and Torres Strait Islander children and young people in the Victorian child protection system to the care of an ACCO, pending the transfer of decision-making power, authority, control and resources to First Peoples communities as recommended by Yoorrook.
b. That DFFH, in collaboration with ACCOs including BDAC, ensure that ACCOs are adequately funded and resourced to have the capability and resources to accept section 18 authorisations, including in cases involving Aboriginal and Torres Strait Islander children and young people with complex needs.
Recommendation 2 That DFFH, Anglicare and other organisations providing services to Aboriginal and Torres Strait Islander children and young persons in out-of-home care (other than ACCOs) review their current policies and practices and implement any changes that are needed to enhance their capacity to provide culturally connected care, including by: a. implementing aspects of culture (that can easily be accessed by non-Aboriginal people) such as displaying the Aboriginal and Torres Strait Islander flags, displaying Indigenous artwork, engaging with Aboriginal music and TV, learning about Aboriginal food/holidays/language etc; b. recognising the deeper levels of culture that are not accessible by non-Aboriginal people and being guided by Aboriginal and Torres Strait Islander people about these – by taking on board advice from ACCOs, Aboriginal practitioners within your organisation and building relationships with the wider Aboriginal community; c. employing Aboriginal cultural mentors and having them available to both staff and young people in their care (particularly in residential care); d. developing a close relationship with, and being led by the child or young person about their own levels of cultural connection and how they would like to further connect to culture, and providing those opportunities;
e. having a presence at, and taking children and young people to, public events such as NAIDOC week and National Aboriginal and Torres Strait Islander Children’s day; and f. providing opportunities for Aboriginal children and young people to connect with community online (for example, via Facebook).
Recommendation 3 That ACSASS be sufficiently funded by the Victorian Government to: a. enable full compliance with sections 10, 11 and 18 of the CYFA, so that all decision makers at all critical points in time have full and frank access to Aboriginal specialist advice; and b. ensure all service providers who have contact with Aboriginal children have free and reliable access to Aboriginal specialist advice, so that no Aboriginal child is placed in a position where they do not have cultural supports around them.
Recommendation 4 That DFFH engage with its stakeholders to review their existing training programs so as to ensure that: a. all frontline and executive staff employed by agencies that provide child protection, case management and/or residential care services under DFFH’s auspices, including but not limited to Anglicare, provide their staff with regular, mandatory cultural awareness and antiracism training covering issues including: i. the history of colonisation and in particular the impact of ‘protection’ and assimilation policies; ii. the continuing systemic racism and paternalism inherent in child protection work today that must be identified, acknowledged and resisted; iii. the value of First Peoples family and child rearing practice; iv. upholding human rights including Aboriginal cultural rights; and v. the strength of First Peoples families and culture and culturally appropriate practices; and
b. such training includes mandatory refresher training; and c. such training is designed and delivered by a First Peoples business or consultant on a paid basis.
Recommendation 5 That DFFH: a. review and revise all relevant policies, procedures, guidelines and like documents; and b. review and revise all relevant training courses and programs to improve its workforce’s understanding of the importance of cultural plans and improve the quality, timeliness, implementation and monitoring of cultural plans for Aboriginal and Torres Strait Islander children in out-of-home care. In particular, DFFH should ensure that cultural plans: c. are individually tailored; d. involve the child or young person and their family in their creation and review; e. are updated regularly (at a minimum, annually or when placement or other significant circumstances change); f. provide a plan to (re)establish or maintain cultural connections, such as contact arrangements with family members, plans for Return to Country with Elders and family members from the same mob group as the child or young person; g. include SMART goals with clearly defined accountabilities, either as part of the cultural plan or an actions table supporting the child or young person’s case plan; and h. include a legible genogram.
Recommendation 6 That the DFFH, in consultation with the Attorney General, explore the viability and utility of granting the Children's Court supervisory powers over Aboriginal young people’s cultural plans.
Recommendation 7 That DFFH: a. in consultation with the Department of Health and Bendigo Health, develop and implement more focused Social and Emotional Wellbeing approaches to the treatment of Aboriginal and Torres Strait Islander young people requiring mental health diagnosis and treatment, and do so in consultation with Aboriginal CommunityControlled Organisations such as BDAC, and that appropriate and ongoing training be provided to clinical and Child Protection staff to support these approaches; b. in consultation with the Department of Health and Bendigo Health, develop and implement systems for the cultural support of Aboriginal and Torres Strait Islander young people admitted to hospital for acute and other mental health episodes, to ensure that Aboriginal health liaison officers are actively made available to the young person at the time of admission and that that cultural connection is available beyond crisis admissions; c. in consultation with the Department of Health and Bendigo Health, take appropriate steps to ensure that its practice of offering contact with an Aboriginal Health Liaison Officer upon admission is effected on each occasion that a young Aboriginal or Torres Strait Islander person is admitted with mental health issues.
d. develop and implement systems to ensure that young Aboriginal and Torres Strait Islander people with acute and/or chronic mental health conditions are provided prompt and ongoing mental health assessment and treatment, and ensure that this is done in ongoing consultation with appropriate Aboriginal input, such as ACCOs like BDAC, and take all steps open to ensure these ACCOs are appropriately funded to enable that work to occur.
Recommendation 8 That Victoria Police: a. make every effort to increase the number and availability of Aboriginal and Torres Strait Islander people it employs;
b. make every effort to employ Aboriginal and Torres Strait Islander people in SOCITs; c. increase the number and availability of Aboriginal liaison staff in its dealings with young Aboriginal sexual assault complainants; d. as a matter of policy, when dealing with female Aboriginal sexual assault complainants, make available a female police officer to conduct VAREs and lead contact with the complainant, unless the complainant requests otherwise or it is not practicable; e. improve its cultural awareness training as it relates to dealing with female Aboriginal sexual assault victims, including by incorporating reference to ‘cultural humility’ as described by Dr Krakouer.
Recommendation 9 That: a. DFFH, in consultation with the Department of Health, clarify respective roles, fund and ensure facilitation of early, intensive and culturally appropriate mental health intervention for young Aboriginal people in its care presenting with complex mental health problems and allegations of sexual assaults.
b. DFFH continue to fund and develop Aboriginal sexual assault healing services delivered by ACCOs.
c. DFFH implement practices for appropriately urgent action and follow up with the Department of Health, and/or its service providers, to ensure young Aboriginal people in its care presenting with allegations of sexual assault are receiving culturally appropriate mental health intervention.
d. DFFH develop and implement processes for appropriate support for out-of-home carers who are dealing with young people suffering the mental health effects of sexual assault.
e. Bendigo Health consider developing and implementing integrated Aboriginal and Torres Strait Islander worker and lived experience workers within the Bendigo health system itself.
Recommendation 10 That the Department of Health, DFFH and Bendigo Health coordinate culturally appropriate drug and alcohol support for young Aboriginal and Torres Strait Islander people who present with drug/alcohol misuse, including by adequately funding and liaising with appropriate ACCOs such as BDAC and/or suitable family/community supports.
Recommendation 11 That DFFH: a. in association with its ACCO partners, the Department of Health and Bendigo Health, urgently consider how existing mental health services and new mental health service options could be developed to provide care that is accessible to and culturally appropriate for Aboriginal and Torres Strait Islander young people with complex mental health needs; b. offer funded mental health first aid training for all out-of-home carers, or, at minimum, for out-of-home carers caring for children and young people with mental health concerns, and make such training available in accessible locations in regional Victoria.
Recommendation 12 That: a. DFFH develop measures to improve coordination between stakeholders in the development and implementation of safety plans, with a particular cultural emphasis where safety plans concern Aboriginal and Torres Strait Islander young people; and b. DFFH and service providers ensure that any ‘line of sight monitoring’ policies mandate consideration by carers of compelling surrounding circumstances, such as patterns of escalation in suicidality risk, risk of exposure to identified triggers of a self-harm event, and the young person’s recent behaviour and affect.
Recommendation 13 That DFFH ensure that kinship carers: a. have access to training, support, and services that are appropriate to their circumstances; b. are aware of and receive assistance accessing financial supports; and c. are aware of the existence of the Care Support Help desk and how to access it.
Recommendation 14 That: a. the KEYS or like model of residential care services continue to be rolled out in regional Victoria and that such services for young Aboriginal and Torres Strait Islander people be developed in consultation with ACCOs such as BDAC; b. ACCOs be prioritised as the preferred organisation to deliver residential care in the tender process for allocating funding, with quality of care and best practice outcomes given a higher priority than economic rationalisation in the tender process.
Recommendation 15 That DFFH extend AFLDM referral powers to organisations providing contracted case management services to DFFH and to ACCOs exercising delegated powers pursuant to section 18 of the CYFA.
Recommendation 16 Noting the Yoorrook Justice Commission’s recommendation that the Victorian Government ‘transfer decision making power, authority, control and resources to First Peoples, giving full effect to self-determination in the Victorian child protection system’, I recommend that DFFH significantly upscale the capability, competence and support of all persons working within the child protection system to ensure that they are able to:
a. comply with sections 10, 11, 12, 13 and 14 of the Children, Youth and Families Act 2005; b. adopt a relational approach to child protection work which prioritises the practitioner’s ability to relate to the child and their families over compliance-driven measures; and c. engage in effective case management and case planning, including long-term planning and transition planning.
In particular for this purpose, DFFH should: d. review and revise all relevant policies, procedures, guidelines and like documents; e. review and revise all relevant training courses and programs; and f. ensure, to the greatest extent possible, that it has appropriate staffing levels and is able to retain experienced child protection practitioners.
Recommendation 17 That DFFH review and revise its relevant training courses and programs with a focus on improving Child Protection Practitioners’ skills in engaging with children and young people, so as to hear, acknowledge, understand and give weight to a child’s experience and expressed views in their subsequent decisions and actions.
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