Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Community Affairs References Committee
Out-of-home care

BRAYBROOK, Ms Antoinette, Chief Executive Officer, Aboriginal Family Violence Prevention and Legal Service Victoria, and National Convenor, National Family Violence Prevention Legal Services Forum

JACKSON, Mr Rodney, Deputy Chairperson, Victorian Aboriginal Child and Young People's Alliance

VINES, Ms Laura, Senior Policy Officer, Aboriginal Family Violence Prevention Legal Service


Evidence was taken via teleconference—

CHAIR: Information on parliamentary privilege and on the protection of witnesses and evidence has been provided to you. I know that you could not make it when we were in Victoria, so I really appreciate the fact that you could make time to appear today. I invite you to make an opening statement before we go to questions.

Ms Braybrook : Laura and I both have opening statements from our national submission and also from our Victorian submission.

CHAIR: That is fine. Go for it.

Ms Braybrook : I would like to acknowledge the traditional custodians of the land on which I am speaking to you today, the Wurundjeri people of the Kulin nation in Melbourne, and also acknowledge the traditional custodians of the land on which you are seated today and pay my respects to their elders both past and present.

I was born here in Victoria on Wurundjeri country. My grandfather and mother's line is through Kuku Yalangi in Far North Queensland. I have been the CEO of the Aboriginal Family Violence Prevention and Legal Service Victoria for 12 years and the National Convenor of the National Family Violence Prevention Legal Service forum for 2½ years. As I said earlier, Laura and I will both be speaking from a national perspective and from a Victorian perspective. I would also like to take this opportunity to thank the committee for providing us with an opportunity share our thoughts with you.

Speaking first as national convenor, I want to emphasise the disproportionate and escalating rates of Aboriginal and Torres Strait Islander children being placed in out-of-home care across this country nationally. National 2012-13 data indicates that, in comparison with other Australian children, Aboriginal and Torres Strait Islander children are 10 times more likely to be on care and protection orders and almost 11 times more likely to be in out-of-home care. Across Australia, Aboriginal and Torres Strait Islander children now account for almost 35 per cent of all children in care despite comprising only 4.4 per cent of the nation's child population. And this rate is increasing at an alarming pace. The number of Aboriginal and Torres Strait Islander children removed from their families and placed in out-of-home care increased by 98 per cent between 2006-07 and 2013-14. For non-Aboriginal children, the increase was 45 per cent. These statistics paint a profoundly concerning picture, a picture of a system failing to understand and adequately address the issues facing Aboriginal and Torres Strait Islander families.

The causes of Aboriginal and Torres Strait Islander children's overrepresentation in out-of-home care are undoubtedly complex. However, it must be recognised that family violence is one of the biggest drivers. We simply cannot produce out-of-home care rates for Aboriginal and Torres Strait Islander children without addressing family violence.

Family violence is one of Australia's biggest social issues. Thirty-one women have been killed as a result of violence against women in Australia since 1 January 2015. That is, in 14-and-a-bit weeks, 31 women have died. KPMG have calculated that violence against women and their children cost the Australian economy US$14.7 billion in 2013. Aboriginal and Torres Strait Islander women are vastly overrepresented among victim survivors of family violence and sexual assault. In comparison with other Australian women, Aboriginal and Torres Strait Islander women are 34 times more likely to be hospitalised as a result of family violence and 10 times more likely to be killed as a result of a violent assault. Family violence creates long-term damage to the mental and physical health and wellbeing of victim survivors. It contributes to vastly disproportionate incarceration rates for Aboriginal women and institutionalisation of children, as well as increased poverty, self-harm and self-medication with alcohol and other drugs. All of these consequences of family violence are, in turn, risk factors for child protection interventions and the removal of Aboriginal and Torres Strait Islander children.

Family violence is also the single greatest reason Australians present to homelessness accommodation services, with Aboriginal women being 15 times more likely to seek support from crisis homelessness services. From our on-the-ground experience, we are increasingly seeing housing insecurity as a catalyst for child protection intervention among Aboriginal and Torres Strait Islander families. In situations of family violence in Aboriginal communities, children are often removed when the department forms the view that one parent, usually the mother and the victim of violence, has not sufficiently protected her child from being exposed to violence against her. This decision that a woman is to blame for failing to protect her children is often founded on a series of flawed assumptions. These include: that police will believe an Aboriginal woman when she calls for help and act appropriately; that there is affordable housing women can access when they leave the family home; that women understand their legal rights and can work out how to access intervention orders and protective family law orders; that there are properly funded support services available to help women and their children in times of crisis and trauma; and that affected women are aware of these services.

Social research indicates time and time again that women experiencing intimate partner violence and their children are at significantly increased risk at the time of separation and following a woman leaving a violent relationship. There are ample cases in the media that show us just how serious, even fatal, that risk can be for both mum and the kids. Culturally safe and fully resourced support services for victims of family violence are crucial to reducing out-of-home care rates among Aboriginal and Torres Strait Islander children. These include holistic, specialist front-line legal services. They also include culturally targeted community legal education and early referral to independent legal advice for Aboriginal and Torres Strait Islander parents facing child protection intervention.

Sadly, in our experience we see too many Aboriginal and Torres Strait Islander women not being aware of their legal rights. They do not recognise child protection intervention as a legal issue until it is far too late and they are already facing child removal and out-of-home care placement. Access to specialist legal services increases the safety and wellbeing of Aboriginal and Torres Strait Islander victim survivors of family violence but legal services, especially the Aboriginal Family Violence Prevention Legal Service, have faced significant funding cuts and destabilisation in recent months.

I will touch briefly now on the Indigenous advancement strategy. Our written submission, provided in October last year, outlined concerns about the impacts of the Commonwealth Indigenous Advancement Strategy on the sustainability of the Family Violence Prevention Legal Service and on access to justice for Aboriginal and Torres Strait Islander victims facing child protection intervention. Last month, the Family Violence Prevention Legal Services were notified of the outcome under the Indigenous Advancement Strategy. Thankfully, all Family Violence Prevention Legal Services were successful in receiving funding to allow us to continue operating in the next financial year. While this funding outcome is an enormous relief and, in some ways, validates the importance of our services, there remain significant and highly concerning gaps. For example, the National Family Violence Prevention Legal Service program was effectively defunded under the Indigenous Advancement Strategy and now has no direct allocation of funding. This means that there is no transparency or guarantee of funding for the program for national recognition of the value of this model. The majority of the Family Violence Prevention Legal Services received only one year of additional funding extending significant funding uncertainty and its distressing impacts on staff and on our client. None of the members of the Family Violence Prevention Legal Services Forum received an increase in funding, despite increased demand and a significant rise in the hospitalisation of family violence reporting rates among Aboriginal and Torres Strait Islander women, despite a wealth of other evidence to support increased funding for culturally based specialist legal services.

The National Family Violence Prevention Legal Service continues its call on all levels of government to make secure long-term commitments to fund frontline family violence legal services for Aboriginal and Torres Strait Islander victim survivors, including increased investment and reinstatement of the Family Violence Prevention Legal Service program with a direct allocation of funding. Nationally, a much higher investment of resources is required to enable Aboriginal and Torres Strait Islander victim survivors of family violence to have appropriate access to justices, including legal advice and representation that recognises and addresses the unique circumstances and needs.

Relevantly, the final report of the Productivity Commission's inquiry into access to justice arrangements, released in 2014, found that there was a significant need for increased resourcing, for legal assistance services, including Family Violence Prevention Legal Services, and calls for an immediate funding boost of 200 million. I would like out a handover to Laura Vines to talk more specifically about the Family Violence Prevention Legal Service submission here in Victoria.

Ms Vines : In Victoria, there was a 32 per cent increase in Aboriginal children in statutory care in the last year alone. However, the Aboriginal Family Violence Prevention Legal Service Victoria has seen no increase in funding to address the primary contributor to this rise, being family violence. Police attendances at family violence incidents are a key catalyst for child protection notification. For example, in Victoria police reports of family violence against Aboriginal victim survivors have almost tripled in less than a decade. However, I again note that the Aboriginal Family Violence Prevention Legal Service Victoria has seen no corresponding funding increase to assist affected women to respond to these police and child protection notifications. Indeed, pursuant to the recent announcements under the Indigenous Advancement Strategy, the Aboriginal Family Violence Prevention Legal Service Victoria has received three-year recurrent funding at 2013-14 levels. That means zero increase from 2013 to 2018. It also means that cuts to our early intervention prevention work, which was sustained in 2012, will be carried forward for the next three years.

We cannot respond to increased demand and provide the long-term intensive assistance needed to address escalating out-of-home care rates without adequate resourcing. We cannot undertake long-term strategic planning without funding certainty. Adequate resourcing includes secure funding of not only the Aboriginal Family Violence Prevention Legal Service's front-line legal service work but also our early intervention and prevention activities and our policy and advocacy work.

Family violence prevention legal services have never received government funding for the policy, advocacy and law reform work we do. Yet without this crucial function, governments would be unable to harness the skills, experience and expertise of family violence prevention legal services. When we participate in inquiries such as this one, our advice is informed by our unique experience gained from delivering front-line services which are responsive to emerging community needs.

As the Aboriginal Family Violence Prevention Legal Service Victoria is under Aboriginal community control, our policy, advocacy and law reform work is founded on the expertise and aspirations of Aboriginal and Torres Strait Islander people. Our governance structures and culturally safe practices support the fundamental principle of self-determination and evidence-based best practice for delivery of effective services.

The Aboriginal Family Violence Prevention Legal Service Victoria provides front-line legal services to Aboriginal victim survivors of family violence and sexual assault and works with families and communities affected by violence. The organisation is not a gender-specific service; however, at last count, 93 per cent of our clients were women. In the child protection space, our clients are typically the mothers or grandmothers of children who have come to child protection authority's attention due to their mother's experience of family violence.

Family violence has been recognised as a key contributor to child removal for some time; however, it is only recently that data has come to light that illustrates the true extent of the relationship between family violence, specifically men's violence against women, and the removal of Aboriginal children.

In 2014, the Victorian Commissioner for Aboriginal Children and Young People commenced Taskforce 1000. This is a project to examine the case of each and every Aboriginal child in out-of-home care in Victoria. Preliminary findings from the first 250 cases examined by Taskforce 1000 indicated that men's violence against women was a primary driver in up to 95 per cent of Aboriginal children entering out-of-home care.

Between June 2013 and June 2014, our lawyers at the Aboriginal Family Violence Prevention Legal Service Victoria saw a 66 per cent increase in child protection cases. This is a startling indication of the increasing rates of Aboriginal families facing child protection intervention, and the link between family violence victimisation and child removal.

In Victoria, the Australian Institute of Health and Welfare data shows that Aboriginal children are 16 times more likely to be on care and protection orders in comparison with non-Aboriginal children. They are also 16 times more likely to be in out-of-home care. This rate of Aboriginal child removal in Victoria is now higher than at any time since white settlement, and these rates are rising.

In 2011-12, there were around 1,000 Aboriginal children in out-of-home care in Victoria, and that was around one in 11 of all Victorian Aboriginal children. By June this year, there will be an estimated 1,500 Aboriginal children in care in Victoria.

Between 2006-07 and 2013-14, the number of Aboriginal children admitted to care and protection orders in Victoria increased by 85 per cent. Compare this with the number of non-Aboriginal children admitted to care and protection orders which increased by only 38 per cent during the same period.

Finally, in addition to the matters raised in the national context, I would like to draw the committee's attention to one additional and deeply concerning issue—that is, the impact of recent legislative changes pursuant to the Children, Youth and Families Amendment (Permanent Care and Other Matters) Act. These reforms were passed in September 2014 and are expected to come into effect later this year. We predict that these changes will fast-track the increased removal of Aboriginal children into out-of-home care in a number of ways: firstly, by imposing a strict cumulative twelve-month window in which parents must resolve protective concerns and regain care of their children before children are placed on permanent care orders; and, secondly, removing the court's discretion to extend this time frame for any more than a further 12 months in exceptional circumstances. It is not clear whether recovering from family violence victimisation and complex, potentially intergenerational trauma would constitute exceptional circumstances for the purpose of that provision. Thirdly, the changes prioritise adoption over permanent care orders, thus removing all departmental responsibility and oversight. Finally, the changes remove court scrutiny of children on permanent care orders.

We are deeply concerned that these changes will disproportionately impact Aboriginal children and families, who are statistically more likely to experience complex trauma, such as family violence, that cannot be quickly resolved according to an abbreviated time line. In addition, we are concerned that these legislative changes will damage the care, cultural connection and wellbeing of Aboriginal children by significantly reducing departmental accountability towards Aboriginal children in care. For example, currently, if the department seeks to change a child's care placement, reduce parental or sibling access or permit a carer to relocate with a child, the department must obtain a court order and all parties to the matter must be notified and given the opportunity to appear at court and make submissions. Under the new legislative reforms, however, the department will be under no such obligations and will be able to carry on its duties unchecked by court scrutiny or any external confirmation of the child's best interests.

Given significant existing failings by the department to meet its statutory obligations towards Aboriginal children, we are concerned that a removal of court scrutiny will exacerbate the cultural dislocation of Aboriginal children in out-of-home care. By way of example of current departmental failings, a 2013 audit of 194 cases found that only eight per cent of Aboriginal children required by law to have a cultural plan actually had one in place. This means the department was breaching the rights of Aboriginal children in 92 per cent of cases.

Another example is the failure to convene Aboriginal family-led decision-making meetings, or AFDMs. Under section 12 of the Victorian Children, Youth and Families Act, the department is required to implement a set of decision-making principles that involve Aboriginal families in decisions related to the care and placement of Aboriginal children. The department has elected to do this through convening AFDMs. If convened early, these meetings can be highly effective in identifying appropriate kinship carers and ensuring extended Aboriginal family members can participate in important decisions about the care, placement and wellbeing of Aboriginal children. However, our organisation has seen cases where children unnecessarily languish in out-of-home care placements with unrelated non-Aboriginal carers, in some cases for years, because the department has failed to organise an Aboriginal family decision-making meeting to prevent that outcome. Thank you.

CHAIR: Thank you. Mr Jackson, would you like to make an opening statement?

Mr Jackson : Firstly, I would like to start off by acknowledging the traditional owners of the land which I live on today, the Wathaurong people, and pay my respects to our elders both past and present and also acknowledge the land on which you are presenting as the Senate committee today. I am currently the CEO of the Wathaurong cooperative in Geelong and also, as I said, the Deputy Chair of the Victorian Aboriginal Children and Young People's Alliance. As an introduction to the alliance, we consist of 13 Aboriginal community controlled organisations in Victoria involving and providing out-of-home care services for Aboriginal children and young people in our communities in Victoria. Our vision is to see Aboriginal children and young people have every opportunity to thrive and be raised safely in Aboriginal families and in their communities.

Strong Families, Striving Children, which is part of the Victorian Aboriginal Children and Young People's Alliance strategic plan 2015-18, is a solid indicator into the system's failure and areas in most need for improvement. As we have put in our written submission—made by the Commission for Young Children and Young People in Victoria—to the Senate inquiry, we would like to bring your attention to Koori kids: Growing strong in their culturesubmission, which is a plan for Aboriginal children in out-of-home care. This submission outlines the most recent data in Victoria, current reforms underway and the investment into this sector from the Victorian government, and the state of Victoria's rate of Aboriginal out-of-home care.

To follow on from the previous speaker, 17 per cent of children in out-of-home care are identified as being of Aboriginal and Torres Strait Islander background. Victoria is not compliant with the Aboriginal Child Placement Principle, a statutory requirement of which is that there be access to such things as good health, a streamlined process. As has also been noted, only eight per cent of Aboriginal children in care have cultural support plans. Under section 176 of the Children, Youth and Families Act, they should be on guardian support orders. Only seven per cent of Aboriginal children and young people are in out-of-care placements provided by the Aboriginal community controlled sector. The remainder are in placements provided by mainstream community service organisations or the Department of Human Services.

These statistics are simply appalling, and the alliance would like to see the majority of Aboriginal children in out-of-home care case managed by the Aboriginal community controlled organisations and culturally connected to their community and identity. Strategic priority 3 is to ensure that every Aboriginal young person, child and family, regardless of where they live in Victoria, has full access to a continuum of prevention, early intervention, placement and unified services delivered through the Aboriginal community controlled sector. It should also be noted that there is an overrepresentation of Aboriginal children in residential care in Victoria. The Victorian government has recently released $43 million for targeted care packages to move children from residential care into home-based care placements. Primary school age children and Aboriginal children are the priority cohort for this initiative. The alliance would recommend important consideration be given to prevention and early intervention strategies or services for vulnerable Aboriginal children and their families to slow the increase in the number of kids in care.

Strategic priority 5 is to build the capacity of Aboriginal families, communities and Aboriginal community controlled organisations to care for these children and young people and to reduce the number of Aboriginal children and young people in out-of-home care. The Commonwealth can have an influence by working with states to ensure that the national standards in out-of-home care are addressed. This will also assist in addressing the systematic issues. Again, the alliance endorses the recommendations made to the Commonwealth through the commission for children and young people to increase the carer support income, prioritise access to services including health, greenlight processes for children leaving care and strengthen educational opportunities.

Also, recently, as a case study we have recently looked at, we are aware of a young man who was placed in mainstream foster care as an infant. I will just call him Pete for the sake of this account. The mainstream agency was very much aware that Pete strongly identified as an Aboriginal person. Pete's dad was Aboriginal. The agency did not contact our Wathaurong Aboriginal Co-operative here in relation to Pete. Pete was a very sociable young man who was very proud of his Aboriginality. As he grew, he appeared to become somewhat desperate in his need for those around him to acknowledge and accept his Aboriginality. In early adolescence, Pete started to exhibit typical, if slightly extreme, adolescent behaviour. The agency struggled to embrace Pete's Aboriginality. It was easier for them to have him assessed as having a developmental delay or foetal alcohol syndrome and an intellectual disability. The agency still did not contact our Aboriginal cooperative. Pete became progressively isolated and angry. His long-term placement broke down. Pete became a client of the youth and justice system. Neither the agency nor the youth justice system contacted our cooperative again. The agency ceased caring for this man, who then became a client of the Department of Human Services disability services here in Victoria. A disability specialist contacted the Wathaurong cooperative in relation to Pete. I now had this young man who was 17 and, sadly, not known to our Aboriginal cooperative. Peter's life was then in chaos. The cooperative could not even, at this point, have assisted Peter to explore his Aboriginality and strengthen his cultural identity. The chaos seemed to overwhelm what supports he had. Peter was in and out of youth detention for a range of offences. The disability specialist organised for Peter to attend an Aboriginal focused youth rehabilitation facility in the Northern Territory. This was agreed between disability services and child protection as Peter's last real chance of getting on track. Pete was almost on a plane when disability services and child protection suddenly failed to reach agreement as to who was going to pay. Peter is now in jail. Peter's sister is being cared for under the child protection system and disability services. Nobody has contact with our Aboriginal cooperative regarding her status either.

There are just some sad stories that we have about how some of the engagement process has taken place. So we would like to ensure that the compliance with the Children, Youth and Families Act 2005 as it relates to Aboriginal children and young people, with an independently published and audited scoreboard to measure success and compliance, should be acted upon.

CHAIR: Thank you. We have only a short time for questions, but we did get some very comprehensive evidence. Senator Lines?

Senator LINES: I am very satisfied with the evidence, thank you.

CHAIR: I have just a couple of questions. Thank you for your comprehensive evidence; it is much appreciated. Ms Braybrook or Ms Vines, in terms of family violence, how much do the agencies acknowledge that it is actually domestic violence and family violence that is playing this role, and is there acknowledgement that, if they address the violence, you are going to be stopping those kids going into care in the first place?

Ms Braybrook : When you are talking about agencies, are you asking about the actual child protection workers?


Ms Braybrook : In our experience—and I will ask Laura to expand on this a bit as well—we have feedback from women in our community who use or have not yet used our service that they have been advised by child protection workers that they do not need a lawyer. On that basis, women are essentially signing their children away. I do not believe that family violence as the key driver is acknowledged through some of the work that we do by the workers, because if it was they would be linking the woman into the appropriate services to ensure that she is safe. Instead, we are seeing pressure put on the woman to leave their home and community otherwise they risk losing their children.

On the flip side of that, the woman is also experiencing pressure from community and her family to stay in the relationship and do whatever it takes to make it work. I will just hand over to Laura.

Ms Vines : If I could just add to what Antoinette said, I do not think there has been an acknowledgement within the department of how widespread family violence is. I previously mentioned in my opening statement the recent findings of the Victorian Aboriginal commissioner. He found that up to 95 per cent of cases of Aboriginal children in out-of-home care involved family violence. Before that data was released, I believe the existing data was departmental data, which said that it was around 64 per cent. So I think that shows there is some failure there within the department of properly identifying this.

We also get reports from our clients that the approach that they are getting from child protection workers is really quite a punitive approach to women where, rather than being offered support and seen as someone who has been victimised, they are treated as the wrongdoer and having put their child at risk and are to blame for what is happening to their child. The approach taken is really a much more punitive one instead of a supportive one that understands the pressures on that woman.

CHAIR: Can I just ask on that: it seems to me that two contradictory positions are being taken by community and society. We have a lot of focus now on domestic violence and being supportive of women and we have a lot of media around the 31 cases you have just articulated. But, on the other hand, you have got an element of a system that is also saying, 'You're to blame.'

Ms Vines : I think that is particularly prevalent in the child protection space when it comes to children. We see cases where sometimes the woman is equated as being as blameworthy as the man, even where she is the victim. We even see cases where the woman might be deemed to not have sufficiently protected her child by escaping or, even where she has separated, not being exposed to more violence and the child is removed and then placed with the father's extended family. So you are actually sending a message that, in effect, the perpetrator's family is more able to be trusted than the victim's family, which does send a really contradictory message to people.

CHAIR: We heard the term in the NT enabler and heard of a particular example where a woman was subjected to domestic violence. The term being used was: 'You're an enabler of violence against the children.' Is that term being used in other jurisdictions, as well as in the NT?

Ms Vines : I have not heard that being used in Victoria. I have in other contexts heard the term 'recidivist victim' being used, which obviously has a similar connotation. 'Recidivist' is used mostly by police in Victoria.

CHAIR: Thank you very much for your submissions and for your evidence today. It was very comprehensive and very useful to us. If we have more questions, would you be okay if we put some on notice?

Ms Braybrook : Yes.

Mr Jackson : Yes, that would be quite alright.

CHAIR: Thank you very much for your time and for being on phone conference. I know it is more difficult.