BAK & Anor v Chief Executive, Department for Child Protection & Ors [2025] SACAT 68

BAK & Anor v Chief Executive, Department for Child Protection & Ors [2025] SACAT 68 | Case summary | Zoe

[35]

The decision relates to a little girl, currently 5½ years of age, who is under the guardianship of the CE of DCP until she reaches the age of 18. The child was initially placed under a short-term guardianship order by the Youth Court. A long-term guardianship order was made when the child was about eight months old.
The child has her biological father's surname and a beautiful first name.
The child's first name was given to her, at birth, by her mother. Sadly, that is essentially the extent of the biological mother's involvement in the child's life, as the child was removed from her mother's care in the hospital, by officers of the Department, shortly after her birth (under s 41 of the CYPS Act). The birth mother has had virtually no contact with her daughter since that time, despite some efforts by the Department to attempt to arrange contact.
The child is described by her current foster mother (DTY) as a loving, outgoing and active child, who enjoys playing outside on play equipment and trampolines, drawing and reading books. The evidence reveals that the child enjoys playing imaginative games, dancing with her three young foster siblings at her foster carers' house, and that she loves helping to look after her youngest foster sister. She enjoys attending church with her foster family every Sunday. She goes to a local primary school, which her older foster brother also attends.
The evidence shows that the child has been having contact visits with her paternal grandparents (and her father) since the child's paternity was established. Recently the access visits with the paternal grandparents have increased in frequency and duration (extending to overnight visits).
The evidence shows that the child enjoys interacting with her father and her paternal grandparents at the grandparents' house. When she goes to her grandparents' house she enjoys playing in the garden, going to swimming lessons and baking cakes, and she sometimes plays dress-ups with her biological dad, XZG. She also enjoys playing with her maternal cousins, when contact is arranged with them by 'BAK' (paternal grandmother) and with the maternal grandmother (QBO).[4]
When the child is emotionally heightened or anxious. she spins around in circles and engages in other repetitive behaviours.[5] Sometimes these behaviours are exhibited when the child returns from access visits with her paternal grandparents. The child told her case worker that she spins because it makes her feel safe.[6]
The child's foster mother reports that the child shows sensory sensitivities and that she can struggle with social interactions, particularly with new people or environments. The child struggled with starting school and has recently exhibited some difficulties when parting from her foster mother and entering the classroom in the morning (the school has developed some strategies to assist the child with that transition). There is a suggestion that she may have autism spectrum disorder (ASD) or attention deficit hyperactivity disorder (ADHD). She has recently been referred for an assessment about these issues.

[36]

The following facts are not in dispute. The s 41 removal decision was made because .. ......................................................................................................................................................................................................................................................................................................................................................
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The child has been in two separate foster placements since her removal from her birth mother.
The child's paternity was unclear at the time that she was removed from her mother, so this meant that departmental 'scoping' for paternal family members suitable as kinship carers could not occur. We accept that there was no suitable maternal family member who could provide care at that time,[7] so the child was initially placed in a short-term placement with an approved (non-kinship) foster carer.
The first approved foster carer could not continue to provide care after about three weeks, so the child was then placed with approved carers, the second and third respondents.
The child's birth mother is Aboriginal, ..........................................................
The child's biological father and the applicant paternal grandparents identify as Caucasian.
The foster parents are not related to the child and are not Aboriginal. The current placement is therefore a 'non-kinship/non-Aboriginal placement'. The placement with the foster parents was initially described in DCP documentation as a 'short-term placement', but it has become a 'long-term placement' over time.
The child has been residing with her foster family continuously since she was two and a half weeks old (18 days of age); she has continued to reside with them whilst the recent placement decision has been under review in the Tribunal. This means that the child has now been in the placement with her foster parents for nearly 5½ years.
The child now has three foster siblings aged 7, 4 and 2 (the foster parents' biological children); the youngest two foster siblings were born after the child was placed with the family.

[37]

The BAK and IVU are the paternal grandparents of the child; their son, XZG, is the biological father of the child. They are represented in these proceedings by Mr B McCloud of counsel.
The paternal grandparents have been seeking to have the child placed with them by the Department since the child's paternity was confirmed, when she was about eight months old. The paternal grandparents were initially unsuccessful in their application to be approved as kinship carers, in January 2021,[8] but they are now approved as respite and long-term (specific child only) carers for the child, and there is no suggestion that there are any concerns by any party about their ability to care for the child.[9]
In early 2024, after they were successfully approved as carers (following the carer reassessment), a senior officer of the Department decided, under delegation, to move the child from her previous placement, and to place her in a new placement with the paternal grandparents.[10]
The foster carers were aggrieved about, and sought an internal review of, the initial placement decision. On internal review, the placement decision was subsequently reversed by an Acting Executive Director of the Department[11] (acting as a delegate of the Chief Executive). That decision was based on an assessment and review report prepared by Ms Claire Simmons.[12]
The paternal grandparents now seek a review, in the Tribunal, of the decision as reversed; they say that the initial decision prior to internal review is the correct decision and are asking the Tribunal to decide that their granddaughter should reside with them whilst she remains under the Guardianship Order.
The foster parents have been joined as respondents in these proceedings; they want the child to remain in the placement with them, i.e., they agree with the reversed decision, which they say is the correct or preferable decision. The foster parents are represented in these proceedings by Mr N Gabriel of counsel.
The first respondent, the CE of DCP (represented by Ms E Denbigh of counsel), now supports the ongoing placement of the child with the foster parents, even though the first respondent made an initial decision (via her delegated officers, in early 2024) that the child should be moved from that placement to live with the applicant grandparents.
The CE of DCP now argues that the child should remain in the non-kinship placement with the foster parents. The first respondent says that the initial decision was not correct, and that the delegated decision-maker failed to consider and weigh up all the relevant considerations under the CYPS Act.
What should be clear from that background, and what became more apparent on the review, is that various senior officers of the Department held, and continue to hold, different opinions about what the correct or preferable decision should be in this matter.
This is not a reflection on the professionalism of those officers. It is merely a reflection on the fact that the relevant issues in this matter are finely balanced, particularly since the competing care options for the child are excellent and given that the child has a demonstrated a secure attachment to both her foster mother and, to a lesser and/or developing sense, to her paternal grandmother.[13]
Understandably, the respondents and the child's grandparents are very emotional about the potential outcome of this review.
This decision has been very difficult for the Tribunal, as it is not alleged that either the foster parents or the paternal grandparents would be inappropriate carers for the child. There are no allegations or concerns that either of the potential carer families would provide anything other than optimal care for the child in a safe and loving environment. We are tasked with determining the preferable decision.

[39]

We have taken evidence from many lay witnesses, several departmental officers and three psychologists, over eight days of hearing. Two of the psychologists, and some of the departmental officers, hold different opinions about the best placement decision for the child, reflecting the difficulty of the decision.
The paramount consideration under the CYPS Act is to ensure that children are protected from harm. Harm is defined in s 17 of the CYPS Act as "physical harm or psychological harm" not including "emotional reactions such as distress, grief, fear or anger that are a response to the ordinary vicissitudes of life".
On balance, we consider the current risk of significant psychological harm to the child if she is moved away from a placement with her long-term foster carers far outweighs the potential future risk of psychological harm to the child if she is not placed with her biological grandparents.
That is, we have decided that the future psychological harm[15] that the child may suffer from not being moved to reside in a kinship placement does not outweigh the risk of psychological harm if her attachment to her foster parents is now disrupted (with an associated separation from her foster brother and sisters). We consider that the future risks of harm can be mitigated by the child having ongoing contact with the applicants, her father and her maternal relatives.
Therefore, we have concluded that the preferable decision is to substitute a decision under s 37 of the SACAT Act that the child should not be moved to a placement with her paternal grandparents but should remain in the current placement with her foster parents (effectively this affirms the initial decision as reversed on internal review). We accept that this is a discretionary decision; either decision would be legally 'correct'.
We have substituted a decision on review because there were some obvious process errors in the initial decision-making by the Department, and because the evidence before us now is much greater than that which was before the initial decision-makers.
These are the reasons for our decision.

[42]

In this case the Tribunal was reviewing a (purported)[17] placement decision as reversed on internal review under s 157 of the CYPS Act. It is accepted by the parties, and we agree, that the Tribunal has jurisdiction to review a reversed decision in such circumstances and that the applicants have standing to seek a review, as they are aggrieved by the initial decision as reversed.[18]
As discussed by Hughes J in KJS v Chief Executive of the Department for Child Protection & Anor[19] s 158 of the CYPS Act is expressed in such a way that indicates that the reviewable decision is 'the decision', following the process of internal review, and not the decision on internal review. The internal review is not described as a 'decision' in s 157 of the CYPS Act and the outcome of the internal review is not a separate decision. This means there is only one substantive decision, which is the decision as to whether to place the child in a particular placement.
In a review under s 34 of the SACAT Act the Tribunal is to give appropriate weight to the decision of the initial decision-maker.[20] It is therefore necessary, as the first step, for the Tribunal to identify the placement decision (as originally made and after internal review), to understand the reasons for the initial decision at both stages of the process, and to identify who made it and when. This is necessary so that we can understand the reasoning of the initial decision-maker(s) to determine whether it was legally correct, and whether we should place any weight on the initial decision on review.
Given that the decision as originally made is the initial step in the decision-making process, we do not agree with the submission made early in the case, by the Department, that the reasons for the original placement decision are of limited relevance (because they submitted, the decision was clear on the case notes and was eventually reversed on internal review).[21] Neither do we agree that determining the identity of the decision-maker, the date of, or the reasons for the initial placement decision is peripheral to the Tribunal's task.[22]
We do not agree that the reasons for the initial decision are clear on the case notes. In fact, we do not consider that the case notes clearly set out when the initial decision was made or by whom. Further, we note that in the Index to the Book of Documents (DCP1) the Department identified the internal review reasons as the statement of reasons for 'the decision'. We do not agree with that contention for the reasons set out above.
Mr McCloud, counsel for the applicants, contended at the outset of the review that the original placement decision (prior to internal review) was the correct decision. For that reason, he submitted that it would be relevant and of assistance to the Tribunal to hear from the original decision-maker on the review.[23]
We accept that the initial decision and the reasons for that decision are of significant relevance to the applicants' case. Accordingly, we requested that the person who appeared to be the original decision-maker (Mr Thelning) be made available to give evidence to the Tribunal on the review. We also requested that the Department make the Principal Aboriginal Consultant (Ms Yazarae Greenwood) available to give evidence, as she was present at the meeting where the relevant factors about placement were discussed. Ms Greenwood's evidence is particularly relevant to the ATSIC Placement Principle in s 12 of the CYPS Act.

[44]

Because we must at least consider both stages of the decision-making process, it is also necessary to consider whether the initial decision-maker had the relevant delegated authority to make the decision. If the decision-maker did not have the lawful authority to make the decision, that may be a good basis for the Tribunal to find that the decision was not 'correct' and ought not to be confirmed on review.
The issue of the validity of child placement decisions made by persons purporting to exercise delegated authority under s 84 of the CYPS Act has been considered by the Tribunal in two recent matters. [24]
In the matter of GKZ v Department for Child Protection & Anor[25] President Hughes J found that the decision purported to have been made under s 84 of the CYPS Act (a placement decision and a concomitant placement termination decision) had been made by a person who was not authorised by delegation to make that decision.[26] President Hughes went on to determine that, as the decision was made in the exercise of power beyond the decision-maker's authority, it must be set aside, having concluded that the defect could not be cured under s 83 of the SACAT Act[27] and neither could the presumption of regularity be invoked.
The Tribunal found, in that matter, that there was no valid decision left to review, and the purported decision was subsequently set aside, bringing the SACAT proceedings to an end.
In KJS v Department for Child Protection[28] the Tribunal again considered the question of whether the decision-maker had the delegated authority to act under s 84 of the CYPS Act. The Tribunal accepted that the decision-maker needed to have the delegated authority to place a child (and concomitantly to terminate the previous placement).[29] In that matter, the decision-maker was found to have acted within the authority of the delegation. The decision, being a valid decision, proceeded to a full merit review in SACAT.
In the current matter, the respondent was requested by the Tribunal on day one of the proceedings[30] to identify the initial decision-maker and to satisfy the Tribunal as to that person's authority to make the placement decision. This is because these issues were not immediately apparent from the documents filed by the Department in its Books of Documents.
Counsel for the Department tendered an instrument of delegation at the request of the Tribunal.[31] We are satisfied that persons holding the position of 'Supervisor, Child Protection Office' and 'Manager, Child Protection Office', in addition to various Executive Directors, Directors, Lead Practitioners, Managers and Practice Leads (but not every person holding that role description) had the delegated authority to make a placement decision under s 84(1)(a) of the CYPS Act at the time of the decision. The Deputy Chief Executive also holds this delegated authority, and the Chief Executive is, of course, the repository of the power.

[46]

There was some confusion on the evidence adduced at the hearing as to whether a departmental officer attached to the Noarlunga Office made the initial placement decision, or whether someone in the Executive of the Department simply directed the Manager or Supervisor of the Office managing the case to make the decision (regardless of any relevant considerations).
Unfortunately, the Department did not identify this issue at the commencement of proceedings on day one of the hearing, nor in its opening on day four. This only became apparent to the Tribunal panel as the hearing progressed.
If we find the latter factual premise to be correct, it could be argued that neither the individual in the Department's Executive, nor any subordinate case officer who acted on the direction of his/her superior to give effect to that direction, in fact made 'a decision'. This is because a 'decision' at law requires a thought process, that is, a "proper, genuine and realistic consideration" or an "active intellectual process" undertaken by the decision-maker by weighing up relevant statutory and factual considerations to achieve a considered, unfettered outcome in furtherance of his or her statutory function.[32]
The process of 'making a decision' requires the decision-maker to fully engage with the task.[33]
If we find that a decision had in fact been made by someone from the Executive of the Department (and then simply relayed to a case officer with a direction to act on it), the Tribunal will need to be satisfied of that person's identity, his or her specific authority to make the decision and, if possible, to understand the reasons for that decision.
Alternatively, if we find that the decision (i.e. an active engagement with the decision-making process), was in fact made by an officer from the Noarlunga office, either with or without an appropriate delegation, on the mistaken understanding that a direction had been given to make it, then we might find that this was the placement decision, but that issues of validity and confusion in the mind of the decision-maker should reduce the weight that we should attach to the original decision.

[47]

The documentary evidence placed before us by the Department about when the initial placement decision was made, and by whom, is scant and contradictory. There is no clearly documented decision-making process for the placement decision and no detailed written reasons for the original placement decision.
On day one of the proceedings Ms Denbigh, counsel for the Department, submitted that the decision was made "in consultation with quite a number of people" and that the reasons for decision were "reflected in the case notes around that time, particularly the case note on 15 December 2024" (p 152 BoD).[34] This submission was made even though the relevant case note does not refer to a decision being made on that date.[35] Ms Denbigh confirmed that the case note was 'approved' by Supervisor Stuart Thelning, for the purpose of C3MS.[36] However, there is no notation to indicate that this approval signified that Mr Thelning was also approving a placement decision for the child on that date. Further, it was not suggested to us, by counsel for the Department, on day one of the proceedings, that Mr Thelning was the actual decision-maker.[37] Nor was there any mention, at the commencement of proceedings, that the decision was understood by some departmental officers as having been made "under direction" from an executive officer of the Department.
However, in the Crown Solicitor's additional written submission (provided after the close of evidence and oral submissions),[38] it is stated that the Department's position has "always been" that the decision (to place the child with the paternal grandparents) was made in consultation with a number of experts in the Department and that Mr Thelning was the person who held the delegation and gave effect to the decision.[39] The respondent says the evidence for the decision is in a record of a meeting held on 15 January 2024 (when the case direction changed), in subsequent meetings on 17 and 19 January 2024 (when the decision was communicated orally to the parties), and in the final letter sent to the foster parents on 19 February 2024. It is submitted that that position is consistent with the evidence before the Tribunal and is reasonably arguable.
The Members of the Tribunal take the view that it would have been preferable for the confused decision-making process, the possibility of an Executive direction, and the subjective understanding of Mr Thelning, to have been clearly identified by the Department at the outset of the proceedings.[40]
Because of the confusion as to the identity of the decision-maker, and as to what the initial reasons were, the Tribunal required the Department to make DCP Supervisor, Mr Stuart Thelning, available as a witness.[41]
In evidence, Mr Thelning stated that he did not make the ultimate placement decision at the meeting on 15 January 2024.
He stated that the decision to change the child's placement was an Executive direction given through his manager (Ms Perks), approximately a month after the carer assessment had been completed.[42] He stated that he was aware that the paternal grandmother had met with the Chief Executive and the Deputy Chief Executive in 2023 and he thought it "must have been one of those two people" who had given the direction about placement. We find that Mr Thelning did not speak directly to the CE or the Deputy CE to verify his understanding about the alleged direction.
This assertion about the decision having been made because of an Executive direction is also contained in the departmental case notes at page 193 of the BoD (record of a meeting chaired by Stuart Thelning, dated 15 March 2024) and at page 44 of the Supplementary BoD (email from Nick Ratsch to the DCP Briefing Unit dated 4 April 2024 - referencing the case notes).[43]
We also note that, in the letter written by Mr Thelning (in his capacity as Acting Manager, Noarlunga Office) to KNH and DTY on 19 February 2024 to confirm the new placement decision, Mr Thelning stated "Chief Executive Jackie Bray is aware and supportive of this decision". We observe that the statement in that letter that the Chief Executive 'supported the decision' is not evidence that the Chief Executive in fact directed that the decision be made.
Due to the confusion about the identity of the decision-maker, the Department tendered an affidavit, at our request, containing some additional evidence about the identity of the initial decision-maker. The affidavit[44] submitted by the Department on 16 April 2025 reveals that extensive searches were conducted to attempt to find any documentary support for the asserted direction, and to identify whether any member of the DCP Executive made the initial placement decision. We accept that no direct evidence could be located about this topic.
In that affidavit, the recollections of Mr Thelning's Manager at the Noarlunga Office, Ms Rebecca Perks, are set out. Ms Perks said she "considered it was Mr Reilly who had made the decision", but she concedes that she never spoke to Mr Reilly directly about this, in order to confirm that the direction had come from him. She 'believed that [the paternal grandmother] had shown Mr Thelning an email from Mr Reilly to [the paternal grandmother]' to support this, but the paternal grandmother (through her counsel) said she did not receive an email from the Deputy Chief Executive about this. (Mr Thelning did not give evidence about receiving or seeing such an email.)
Ms Perks confirmed that she attempted to speak to Mr Reilly to confirm this, but she was not successful in so doing. Ms Perks concluded by stating that "the Noarlunga Office still implemented ordinary practice, including their own assessment at a social worker level."[45] We assume that Ms Perks means that the appropriate officers in the Noarlunga Office conducted their own assessment about the appropriate placement decision.
Ms Perks' manager, Mr Akash Segal, and the Chief Executive, Ms Jackie Bray, are quoted in the affidavit as stating that they did not make or give any directions about a placement decision for the child. Mr Rohan Davison-Bennett, Acting Executive Director of Child and Young Persons Services at DCP deposed in the affidavit that he did not give the direction.
The Deputy Chief Executive at the time, Mr Adam Reilly, has left the Department and was not interviewed about this topic. We did not require him to be called as a witness on this collateral issue. Extensive searches of Mr Reilly's email communications failed to reveal any directions or any emails to BAK stating that the child was to be placed with the paternal grandparents.
Based on the evidence before the Tribunal, no-one employed within the Department takes ownership for making the decision.
The Department concedes that the identity of the decision-maker is not clearly recorded, nor identified in any document, and that there is no individual who subjectively accepts that they made the original placement decision.[46]
The Department also concedes that, in the absence of any additional evidence, there is an available inference, based on the affidavit of Rohan Davison-Bennett, that the former Deputy Chief Executive directed that the original decision was to be made.
However, the Department does not contend for that inference to be drawn.
The Department contends for a finding that Mr Stuart Thelning made the initial decision, even though he did not agree with that proposition in his sworn evidence at the hearing.
No further submissions were proffered by the applicants' counsel or the foster parents' counsel on this topic.[47] We observe that counsel for the other parties have conducted their cases on the understanding that a valid initial placement decision had been made by an officer or officers of the Noarlunga Office.

[49]

We are satisfied that there is no documentary or other direct evidence from any witness to demonstrate that the former Deputy Chief Executive, Mr Adam Reilly, gave a direction to the case management team at the Noarlunga Office to make the initial placement decision for the child (i.e., to change her place of residence to live with her paternal grandparents).
Whilst we accept that both Ms Perks and Mr Thelning thought that this was the case, we are unable to find that there was such a direction from the DCP Executive. We note that neither of those individuals spoke directly to Mr Reilly to confirm their understanding about a direction. We consider that it is conceivable that they formed this belief, because they were aware that the paternal grandmother had met with the DCP Executive in 2023, and that she had Executive support for a new carer assessment to occur.[48]
Irrespective of what they thought had occurred, Ms Perks said that the Noarlunga Office implemented ordinary practice, including their own assessment about the appropriate placement decision. Mr Thelning also gave evidence that, if he did not agree with the decision, he would have said so.[49]
We accept the Crown Solicitor's submission that Mr Thelning would have objected to such a decision, if he had an issue with it. We also accept that a decision can be made by an administrative decision-maker, even though he or she is subjectively unaware that he/she is making it.
However, to reach the conclusion that a decision was made by Mr Thelning, we need to be satisfied that the purported decision-maker gave proper, genuine and realistic consideration to the relevant statutory and factual considerations, and that the decision was unfettered.
Having considered the relevant case notes and the evidence of Mr Thelning about what was discussed at various meetings, we conclude that:
- A new placement decision was contemplated by relevant officers in the Noarlunga Office at a meeting on 21 December 2023 (where there was a discussion about a 'potential decision' and an action plan was agreed for consultations).[50] A trial period of three months to increase contact arrangements was agreed. Another action proposed was that "further assessments [would be] made in consultation with PAC, Practice Lead and Psychologist."
- Despite the abovementioned proposed actions, a new placement decision was made following consultation with some of the relevant officers at the meeting at the Noarlunga Office on 15 January 2024.[51] The meeting was attended by (some of the) relevant senior departmental officers[52] including the Principal Aboriginal Consultant, the Practice Lead, the Case Supervisor and the Manager of the Office. However, contrary to the Department's accepted practice about complex placement decisions, no-one from DCP Psychological Services had been consulted or was in attendance.
- The purpose of the meeting on 15 January 2024 was stated to be for "a placement discussion" about the child. The discussion at the meeting was directed towards the pros and cons of a placement move for the child, increasing access for the grandparents and supporting the current carers through a placement transition.
- Some relevant (but not all) statutory considerations were discussed at the meeting, including the principles of intervention, timely decision-making and a discussion about culture. The case note indicates that the placement principles under the legislation were discussed including that 'if both carers are good, kin offers the biological connection on both sides to support kin and culture". There was a discussion about: "factoring [in] the current carers to continue to have an ongoing relationship with [the child] into the transition and future planning. This will help mitigate trauma for [the child]".
- The 'Actions' outlined in the meeting notes indicate that the decision to move the child to live with the foster parents had been made and was now to be actioned.
- A briefing minute dated 4 April 2024 to the DCP Briefing Unit (written by Practice Lead Nick Ratsch) refers to the consult records for 'the decision' (which we understand to be the 15 January 2024 meeting minutes) and states "DCP has undertaken kinship carer assessment of [the paternal grandmother], and as soon as [the paternal grandmother] was approved as a carer, the decision to transfer [the child] to [the paternal grandmother] was affirmed".[53]
We accept the Crown Solicitor's submission that the outcome of the meeting on 15 January 2024 resulted in a change in case direction, to give effect to a new placement for the child by planning for her transition to live with her paternal grandparents. Shortly thereafter, meetings were held with the paternal grandparents (on 17 January 2024) and the foster parents (on 19 January 2024), where the decision to change the child's placement from one with the foster parents to one with the paternal grandparents was conveyed to all of them by Mr Thelning.
In the absence of any other evidence, we are satisfied that the placement decision was made in consultation with the departmental officers who were present at the meeting on 15 January 2024, and was approved and ratified by DCP Supervisor, Mr Thelning. Mr Thelning held a delegation from the Chief Executive to make decisions about the placement of the child and later took all of the necessary steps to implement the decision, including communicating it to the parties and planning for her transition.
We find that the decision was made by DCP Supervisor Mr Stuart Thelning, with the appropriate delegated authority. We are not satisfied that the decision was made by anyone in the Executive of the Department, or under an Executive direction.

[51]

For completeness on this topic, had we found that someone in the Executive[54] made the placement decision we would have found that such a person held the appropriate delegation to so act (being a person more superior to the Supervisor and Manager of the Noarlunga DCP office and whose role is mentioned in the instrument of delegation).
Had there been any remaining question about whether a valid decision had been made we accept that, whilst the Tribunal is obliged to determine whether the decision is the correct or preferable decision, it is not obliged, on a merit review, to determine whether the original decision was legally valid (i.e., in this case - whether the decision-maker held an appropriate delegation). Despite this challenge having been taken in previous DCP merit reviews in SACAT (and entertained), we agree with the Crown Solicitor's submission about this proposition as a matter of law.
We accept that the Tribunal has the power to review invalid decisions on a merit review and that this is not a barrier to the Tribunal's review jurisdiction.[55] As discussed by the President of the Tribunal, Hughes J in Robusto Investments Pty Ltd v Essential Services Commission of South Australia[56] a finding of invalidity in this respect would only go to the question of the weight the Tribunal should attach to that decision.
Importantly, there is a line of Federal Court authority in support of the proposition that, if there is a purported decision in exercise of power conferred by a relevant Act affecting the interests of the person seeking the review, there is jurisdiction in a Tribunal conferred with the power to review administrative decisions to undertake the review; it matters not whether the decision is made by someone without lawful authority.[57] This is because the purpose of a merit review is to allow the Tribunal to correct error and substitute a new decision where error is detected.[58]
We note that this approach promotes the objects of the SACAT Act in s 8 and the flexible approach to the conduct of Tribunal hearings set out in s 39 of the SACAT Act. We also observe that a generous attitude should be taken to what is a purported reviewable decision under the CYPS Act (given the subject matter of the statute and the human rights affected), and that we should not become bogged down in technical legal arguments but should exercise our review power where there is a worthwhile controversy to be adjudicated.[59]
This is the same practical approach that the Administrative Appeals Tribunal adopted in two matters where the purported decision-maker was the Commonwealth Department of Family and Community Services. The AAT concluded that it should assume that a decision had been made by the Department of Family and Community Services in those matters, even though no formal record of the decisions could be located.[60]

[56]

In response to their obligations as the decision-maker under s 35 of the SACAT Act, the Department has provided to the Tribunal a folder of documents (the Book of Documents - BoD).
Volume 1 of the BoD contains confidential material that was not disclosed to the parties, and which is subject to a non-disclosure order.[64] A redacted version of that information has been provided to the applicants and the second and third respondents in Volume 2 of the BoD (open/redacted books of documents).[65] Most of the documents in the respective books of documents are case notes and other records from the Department's case files regarding the child.
In the course of the review, the Tribunal has been provided with the following further documentary evidence (marked A1 - A9) tendered by the applicants:
- Affidavit of the paternal grandmother, BAK, dated 11 September 2023;
- Letter from Anglicare Community Services date 10 April 1997
- Facebook message from the father's twin brother to his mother, the paternal grandmother, dated 02 September 2016
- Photo-Book - the child with paternal and maternal families
- Affidavit of the paternal grandfather, IVU, dated 11 September 2024;
- Affidavit of the maternal grandmother, QBO dated 11 September 2024
- Affidavit of the child's father, XZG, dated 11 September 2024
- Psychological report of Fiona Fallo dated 24 February 2025;
- An article entitled "Attachment goes to court: child protection and custody issues" co-authored by 70 experts in the field (referred to as the Forslund et al article);
The paternal grandparents gave evidence at the review hearing and called the following witnesses to give evidence: the child's father, the maternal grandmother and psychologist Ms Fiona Fallo.
In addition to Volumes 1 and 2 of the Books of Documents (DCP1 and DCP1A), the first respondent (CE of DCP) tendered the following documents (marked DCP2 - 17):
- A Supplementary Book of Documents
- Affidavit of Ms Chelsea Petrucci, case worker, dated 17 March 2025
- Foundational Theories and Knowledge Attachment, DCP Practice Paper
- ATSIC Placement Principle, DCP Practice Paper
- Instrument of Delegation under CYPS Act
- Psychological Report of Ms Claire Simmons dated 20 March 2025
- CV of Ms Claire Simmons
- CV of psychologist Ms Jessica Webster
- Academic articles provided by Claire Simmons (Bundle of 4)
- Aboriginal Family Support Services (AFSS) Recognised Organisation Consultation (ROC) response 28 November 2019 (Emergency placement)
- AFSS ROC cultural response 4 December 2019 (Short term placement)
- Email chain dated 16 March 2023 associated with a ROC
- Referral to AFSS ROC (Long term placement) 16 March 2023
- Manual of practice place a child or young person in care chapter (pp 42-45)
- Placement Principle: A Guide to Support Implementation (SNAICC)
- Role description of Principal Aboriginal Consultant (PAC)
The Department also called Ms Chelsea Petrucci, case worker, to give evidence at the review hearing.
The second and third respondents tendered the following documents (marked R 1-4):
- Affidavit of the foster mother
- Kindergarten report page 3
- Photo booklet, the child with her foster family and others
- Email to Christopher Lyndon, DCP case worker, 24 January 2024 (two pages)
The foster mother also gave evidence at the review hearing.

[61]

A 2021 carer assessment (conducted when the child was only one year of age) found that the paternal grandparents were unsuitable to be approved as long-term kinship carers for the child.[67]
In 2021, the assessor identified concerns about aspects of the paternal grandparents' parenting of the paternal grandmother's twin boys, who were conceived during her earlier brief relationship with their biological father and who were born when she was aged 16. The child's father was one of the twins. The other twin was sadly murdered in 2016.
The paternal grandmother commenced a relationship with her husband at the age of 18, when the boys were two years old, and she gave birth to a third son, EKS, when the twins were four years old.
The paternal grandparents gave evidence in the Tribunal about the care concerns noted when they were raising the twin boys and their explanation for those concerns.
The paternal grandmother says the twins exhibited very difficult behavioural problems at a young age and she had significant difficulties managing their behaviours (when she was aged in her late teens and early twenties). The twins' behavioural and learning difficulties continued when they were at school, and they were both eventually diagnosed with ADHD.
The 2021 assessor noted that there was a period when the twin boys were placed in respite foster care in 1993. We accept the paternal grandmother's evidence about the reasons for the respite placement (which was at the recommendation of CAFHS), ..... ..................................................................................................................[68] ...........................................................................................................................................................................................................................................................................
We also accept that the paternal grandmother's first de facto relationship was marked by significant domestic violence, which the twin boys witnessed. There were other concerns raised by professionals about the paternal grandparents' parenting of the twins in 1996 and 2001 .................................................................................... ............................ The twin boys subsequently lived elsewhere during their teens, as the paternal grandparents were not prepared to have them living in their home. ................................................................
We find that there are not, and never have been, any concerns raised, or difficulties with, the care provided by the paternal grandparents to their youngest child, EKS. He has not exhibited the behavioural issues exhibited by the twins.
Other issues of concern for the 2021 assessor were that the paternal grandmother had some significant health concerns in 2019 and 2020 (being hospitalised and subsequently receiving outpatient treatment for 18 months), and that the paternal grandfather was assessed as not being fully supportive of the application at the time (citing health concerns for his wife, and financial issues). The assessor noted that "[the child] requires a home with emotionally available and nurturing carers, which is not viable without commitment from both partners within the relationship."
Sadly, the paternal grandmother's son (the twin brother of the child's father) ............ ....................... Understandably, this had a significant detrimental effect on the family, particularly on the paternal grandmother, who has been receiving ongoing support from her GP and a counsellor. The paternal grandmother has been heavily involved in the ....................................., but we accept that she will be winding down that involvement now, to focus on caring for her granddaughter.
We accept the evidence of the paternal grandparents and the child's father about the parenting difficulties with the twins from 1987 - late 1990s and find that there are various explanations which mitigate any concerns. We take into account the twins' ADHD diagnoses, the young age of the paternal grandmother when she conceived the boys, the lack of any support provided to her when the boys were very young, and the emotional and psychological impact on the boys (resulting in behavioural problems), ...............................................................
We are satisfied that we have heard much more detailed evidence about these issues on review and find that the 2021 assessor (and Ms Claire Simmons during the internal review) reached an incorrect perception about, and/or placed too much weight on, the historical care concerns regarding the paternal grandparents' parenting of their twin boys.
The original assessor recommended that the paternal grandparents not be approved as kinship carers "at this time". The assessor stated: "as the relationship with , [the paternal grandparents] and [the child] progresses over time it may then be reassessed in the future in terms of the caring role [the paternal grandparents] were able to provide ... Whilst the assessment does not support authorisation, it is the assessor's opinion ... that the development of a relationship between [the paternal grandparents] and [EKS] would provide [the child] with the family connection and sense of belonging that is important to a child who has been separated from her parents and is essential in developing a secure sense of self. It is recommended that the relationship between [the child] and her grandparents be supported in order for a natural grandparent- grandchild relationship to develop. Over time ... allowing for unsupervised short-term care options on a more informal basis."
The paternal grandparents disputed the outcome of the first assessment and sought an internal review but were apparently told by DCP that, as no final decision had been made on their kinship care application, they had no right of review. Significant delays ensued, with a follow-up reassessment process.[69]
The paternal grandmother was unhappy with the delays and relentlessly petitioned DCP for a formal carer reassessment between 2021 - 2023.

[66]

Extensive evidence was provided orally and by way of affidavit from the applicants. It is unnecessary to set it all out in detail in our statement of reasons, but we have taken it all into account. We were very impressed by the evidence of the applicants, who we assessed as honest and reliable witnesses. It is apparent that they love their granddaughter very much and are both passionate about wanting her to be placed in their fulltime care.
We note that the paternal grandmother has undertaken various parenting courses, plus courses to further her understanding of Aboriginal culture and history. She has proactively developed a strong, trusting relationship with the child's maternal grandmother and has taken steps to ensure that the child has contact with her maternal grandmother and other appropriate members of her extended maternal family.[74] The paternal grandparents recognise the importance of the child's Aboriginal culture, and we accept that they will take appropriate steps to further the child's connection to her Aboriginal culture. [75]
The child calls the applicants 'Nan [ ]' and 'Pop'. She has her own bedroom at their home, which is a good-sized house, well-maintained, and with a large backyard. It is apparent that the applicants take pride in their home. Photographs were produced to the Tribunal, showing the proposed living arrangements for the child should she be placed with the applicants and picturing her engaging in various activities with the paternal grandparents and their extended family (and with the child's maternal extended family).[76]
Contact arrangements between the paternal grandparents and the child were initially limited and supervised, but this has increased over time to regular unsupervised access, including some instances of overnight access (which commenced in August 2024). We note that the contact arrangements are frequently changed to accommodate the needs of the child (for example contact with the paternal grandparents was reduced after the child commenced school, in order to assist with that transition process).
A great deal of information was presented to the Tribunal about the access visits with the paternal grandparents, and how those visits impact on the child. We are satisfied that the child enjoys her time with grandparents, but she sometimes gets tired and fractious after a busy weekend of activities. We accept that recently the child's behaviour has been more elevated at access handovers and following access visits.[77]
We heard evidence about the quality of the relationship between the paternal grandmother and the child, which we find to be very good. Apart from providing for all the child's personal care needs when she stays with them, the paternal grandmother appears to dote on her granddaughter and enjoys doing activities with her, such as craft, cooking and exploring in their garden. The child has many toys, clothes and possessions at their home, including a bike, and there is a trampoline and a set of monkey bars in the backyard. The paternal grandparents take the child to regular swimming lessons, which she obviously enjoys.
We accept that the quality of the relationship between the paternal grandmother and the child is trusting, loving, strong and very positive. This is supported by the attachment assessment conducted in May 2024 by psychologist Ms Jessica Webster.[78] We find that the child views her paternal grandmother as a 'safe haven'; i.e., a person whom she trusts and would seek out in a situation where she is feeling scared, anxious or wary.[79]
The quality of the relationship between the child and her paternal grandfather is also very good, but not as close as that which exists between the child and her grandmother. We note that the paternal grandfather sees himself as being 'more in the background', leaving the hands-on caregiving role to the paternal grandmother. Nevertheless, we find that the quality of their relationship is also loving and comfortable.
A positive, secure relationship between the child and her Pop was noted by psychologist Ms Jessica Webster (the child volunteering that she loved her paternal grandfather and likes to sit on his lap).[80]
We find that the child views the paternal grandparents as her loving grandparents and that she enjoys spending time with them.

[67]

The child's biological father gave evidence in the Tribunal. Some of his evidence was taken in private, as it related to his personal experience ........... when he was placed in respite care as a child.[81] We recognise that he had a distressing and traumatic experience as a child, when placed in respite care. We also accept that this may negatively affect his views of the foster care system in SA.
Again, it is unnecessary to set out all of his evidence in detail in our statement of reasons, but we have taken it into account. We find the child's father to be an honest witness, and we accept his evidence.
After a long period where he had very limited access to his daughter,[82] he has recently started to have some regular contact with the child, supervised by his parents at their home. There have been occasions where he has been unable to attend those visits, for illness or other reasons, and a period where he missed contact because he was, again, .......................................................................
The child's father supports the child being placed with his parents so that she can be brought up in a family-based kinship placement. He does not want her to be brought up in non-kinship foster care. He recognises that he is personally unable to care for his daughter, but he firmly believes that she is better off living with her extended paternal family, where she will have the ability to form deep connections with his parents, his brother and with himself, together with her maternal family.
We accept that the child's father has a positive and loving relationship with her and that she has a secure and positive attachment to him. They enjoy playing games together, riding bikes, going out on activities and playing in the backyard. Our assessment of the evidence is that their relationship is good, but is more akin to a sibling relationship, probably due to their limited contact opportunities. Ms Jessica Webster observed that the child volunteered one positive feeling towards her father during the Family Relations Test.[83]
We accept that any placement decision should not exclude the child's father's ongoing contact with his daughter.

[68]

The applicants called the maternal grandmother as a witness in support of their case.
We appreciated hearing from her during the Tribunal hearing, as we considered it important for us to hear the views on the placement decision from a member of her maternal family.
As with the other witnesses, it is unnecessary to detail all of the maternal grandmother's evidence, but we summarise it here, having taken it all into account.
The maternal grandmother is a member of the ........... cultural group, which is an Aboriginal cultural group in central NSW. She told us that she also has European heritage. She says she was initially told that she was not Aboriginal because she was "so white".[84] The maternal grandmother said that, because of her light complexion, she has a good understanding of the nuanced difficulties that are experienced by "light-skinned" Aboriginal people in Australia, particularly in terms of identity, racism (from both Aboriginal and non-Aboriginal people),[85] and where exactly they fitted into society and culture. She said that, as the child is also "so white", it is important that she have ongoing contact with her as she matures, so that the maternal grandmother can provide some 'lived experience' guidance to her granddaughter about these issues.[86]
The maternal grandmother said that, after a time, her birth mother moved to SA, where the maternal grandmother was born. She was placed in foster care at a young age and was then adopted by her foster parents. She said that her adoptive parents adopted her as a "present" for her 6-year-old brother. She had an unhappy childhood and said that her adoptive mother mistreated her, and that she also experienced abuse by a health professional.
The maternal grandmother told us about the identity issues which she experienced as a young woman, because of not being brought up in her biological family. She said she had no understanding for some time of her cultural background, or of who she was, or how she fitted into "the general population". She did not gain that understanding until she met some Aboriginal people, and realised that she fitted in, or "gelled", with them.[87]
The maternal grandmother is concerned that the same confused identity issues will happen to the child, if she remains in non-kinship care with non-Aboriginal people.
The maternal grandmother met and married her husband,[88] a member of the ............ ................... cultural groups from SA. Whilst they had a somewhat troubled relationship, they had six children together, including the child's mother.
The Tribunal Members were very moved to hear of the maternal grandmother's traumatic childhood and her many difficult life experiences.
The maternal grandmother said that she and her daughter have had a difficult relationship over the years, and rarely see or speak to each other now. ................... .................................................................................................................... .............
The maternal grandmother is an approved foster carer, and has the full-time care of another grandchild, (the son of one of her other daughters). ................................. .............................................................. Due to her age and her other caring duties, she is not able to offer to be a carer for the child. The maternal grandmother would like to have a rest from caring duties and do some travelling now. She told us she just wants to be a loving grandmother to the child.
The maternal grandmother gave evidence in support of the child being placed with the paternal grandparents and not remaining in the "foster care system".
The maternal grandmother is strongly supportive of the paternal grandparents as 'good people', 'loving grandparents to [the child]' and good role models. She spoke positively of their significant efforts to engage with her and other members of the maternal family, and with the child's Aboriginal culture and heritage.
The maternal grandmother said that there are problems with foster care, and that they are well known. She also stated in her affidavit that: Our family is going through generational trauma. I am part of the stolen generation, along with my mother and my grandmother and now [the child] is a victim of the stolen generation. I hope for this to stop by placing [the child] into the care of her biological family.[89]
We recognise that the maternal grandmother has had a difficult life, and that relating her past life experiences to the Tribunal was likely to have been an emotional and challenging experience for her. Whilst we do not doubt the accuracy of her evidence on those issues, we observe that much of her evidence, about what she considers to be now in the child's best interests, is influenced by her own early experience in the foster care system (and as an adopted child), and by her understanding of the significant difficulties and traumas faced by her own mother and grandmother in the past.
We recognise that historical experiences of racism (together with the State's removal of Aboriginal children from their parents), has resulted in significant trauma and loss for many Aboriginal people. We also realise that the concept of "the Welfare" as the adversary of Aboriginal people still pervades the thinking of some Aboriginal people in Australia.[90] The maternal grandmother continues to hold those views, which we consider affects how she interacts with the Department and its employees on some occasions. As a result, she apparently finds it difficult to engage with several social workers employed by the Department (including the child's current case worker).[91]
We heard evidence about an angry interaction directed towards the foster mother by the maternal grandmother at a kindy event when the child was present. We accept the evidence provided by the foster mother and paternal grandmother about what transpired at that event. While we acknowledge the depth of the maternal grandmother's anger, loss and trauma, resulting in her views about the 'foster system' and the Department, we also suggest that it is not in the child's interests to be exposed to indiscriminate displays of unrestrained emotional outbursts and hostility, directed either towards the current foster carer or to the DCP social workers managing [the child]'s case. In our view, due to her uncontrolled emotions, the maternal grandmother exhibited uncalled-for anger and incivility in her interaction with the foster mother at the kindy event, and with Ms Petrucci in a phone call voice message left after the event.[92]
While recognising the significance of what is described by the maternal grandmother as "generational trauma", concerning the historical experiences of herself and her relatives, the Tribunal is careful to consider the placement decision for the child within her own context.
We find that the evidence clearly demonstrates that the child is in care because she was exposed to the risk of suffering serious harm, due to the evidence-based care concerns .................................................................................................................... ............ These are the issues that required the intervention of the State under the CYPS Act. The child has not been "stolen"; she has been protected from harm. We also accept that the child was not placed at an early stage, or at all, with a member of her maternal Aboriginal family because the Department was unable to identify anyone suitable or available when its relevant officers undertook 'scoping' for placement options.[93]
We accept that the maternal grandmother's continued supervised contact with the child is in the child's best interests and will promote the principles set out in ss 11 and 12 of the CYPS Act. We agree that the maternal grandmother's continued involvement in the child's life is important, as she will provide an important connection to the child's rich Aboriginal culture and heritage and enhance her sense of identity.

[71]

The foster father elected not to give evidence; however, he attended each day of the hearing. We understand that he works full-time ...................., and is very involved in the local ......... church, which the whole family regularly attends. We accept that the foster father is strongly in support of the decision to leave the child in his and his wife's care.
We heard at length from the foster mother, who also spoke to her affidavit. It is unnecessary to set out her evidence in detail, but we have taken it all into account.
We found the foster mother to be an impressive, intelligent and honest witness. Due to her university studies in social work, she has a good understanding of the issues involved in this decision.
The foster mother spoke of her deep love for the child and told us that she views her as her daughter, noting that she has been in the foster parents' full-time care since just 18 days of age (i.e., for nearly 5 ½ years). The foster mother says that the child is "embedded" in their family and considers their home as her home.[94] However, the foster parents have explained to the child that she has two families, namely a "birth family" and a "foster family".
The child refers to her foster mother as "mum" and to her foster father as "dad". She refers to her foster siblings as her 'brothers and sisters'.
Before having children, the foster mother studied social work and worked as a pastoral care worker at various primary schools. She undertook a six-month placement at DCP (Families SA) during her studies, and she then held a job briefly as a rostered care worker in a residential care home. This experience inspired her to suggest to her husband that they put themselves forward to DCP to be approved as foster carers, as her observation of the experience for children in residential care was not positive. The foster mother left her employment to be a "full time stay-at-home mother" dedicating her time to raising the child and her three biological children.
The child was placed with her foster family the day after they were approved as carers and is the only child to have been placed in their care. They are supported by workers from Lutheran Care foster care support.
When the child was placed with them, the foster parents already had a son who was then nearly two years of age. The foster mother told us that she and her husband had decided not to continue with expanding their own family after being approved as carers - intentionally 'making room' for a foster child in their family, so that any foster child would feel like part of the family and not feel like 'an afterthought'. Right from the outset, the foster mother said she wanted any foster child "to grow up with siblings and to be embedded in that family culture and to be part of it."[95]
After the child was placed with them, the foster parents went on to have two more daughters (born approximately two years and four years respectively after the child was placed with their family). The children in their household are now aged 7½, 5½ (the child), 4 years and 4 months, and 2 years and 2 months. The child is particularly close to the youngest child (this is borne out by the Bene Family Relations Test conducted by psychologist Jessica Webster - the youngest child in the foster family given the second highest number of positive affirmations by the child, after the foster mother).[96]
We heard a lot of evidence about their family life and how closely attached the foster mother considered that the child was to each member of her family, including the extended family on both sides. A photo book was tendered, which visually demonstrated some of the child's experiences in her foster family.
We understand that the foster mother is also a regular attendee at the local ......... church and that the family attends church together each Sunday; we infer that this is an outing that the child enjoys and would not want to miss out on.
A lot of the content of the foster mother's affidavit and her oral evidence was focussed on the child's behaviours on her return from access visits with the paternal grandparents. The foster mother directed some negative comments towards the paternal grandmother about how she does not share information with her about what the child does on access visits. We find this criticism to be unfounded. The paternal grandmother reports about access visits in detail to the Case Worker, Ms Petrucci, after each access visit.[97]
In our view, this overly close focus by the foster mother on the child's responses to access visits likely reflects her anxiety about the prospect that the child may be removed from their care. In our view, some of the child's reported reluctance to leave for access visits with her paternal grandparents (and conversely by her paternal grandmother) may be influenced by the subconscious anxiety exhibited by her foster mother about those visits. We note that both the paternal grandparents and the foster parents will be anxious about the outcome of these proceedings, and that this will no doubt impact on their interactions regarding contact. We find that the contact visits with the paternal grandparents have been an overwhelmingly positive experience for the child. However, there is no doubt that, given her age, she will be tired if those visits are too frequent, long, or 'jam packed' with activities. Those are issues we leave for consideration by the child's case workers and the Contact Access Review Panel.
We accept that the child has recently exhibited some dysregulated and unusual behaviours prior to and after access visits. We find that this this is likely to be indicative of the continued stress of the proceedings on the foster parents and the paternal grandparents, and the fact that the child is detecting that anxiety.
The child has recently started school, which is the same school as her older foster brother attends. The foster mother said this is a school with a higher population of Aboriginal children than other schools, which was an important consideration for them. We accept that the child has settled well into school, after an initial period where she was somewhat reluctant to part from her foster mother. The foster mother said that the child is looking forward to her younger foster sisters starting at the same school.
Prior to school the child attended a kindergarten which apparently has an "Aboriginal focus". The foster parents chose that kindy deliberately because of that focus on First Nations people, and they also chose to send their other children to the same kindy, so that the child would not feel 'any different' from her foster siblings.
The foster mother said that it is important to them that the whole family understands and engages with 'Aboriginal culture'. They attend "culturally positive events, including reconciliation and NAIDOC events", plus cultural events at the library, where they have made a "connection with senior indigenous women and we buy [the child] culturally appropriate books".[98]
The foster mother said that she and her husband are strongly committed to promoting the child's understanding of her culture, and they understand that this is important to her self-identity. They feel that they provide at least the same level of cultural support as the paternal grandparents (who are also not Aboriginal).
We find that the foster parents (as with the paternal grandparents) are taking active and positive steps to ensure (as much as is possible, given that none of them identify as Aboriginal) that the child understands and engages with her Aboriginal cultural heritage and identifies as Aboriginal.
We accept that the child has a very deep connection with, and a healthy, secure attachment to the members of her foster family, and that she views her foster parents as her psychological parents and their children as her siblings.
We accept that the quality of the relationship between the foster mother and the child is secure, trusting, loving, strong and very positive. This is supported by the attachment assessment conducted in May 2024 by psychologist Ms Jessica Webster.[99] We find that the child views her foster mother as her psychological mother and her primary 'safe haven'; i.e., a person who she trusts and would seek out in a situation where she was feeling scared, anxious or wary.[100]
We find that the relationship with the foster father is also loving, positive and strong.[101]
We accept that the child loves her siblings deeply, having grown up with them as part of her psychological family in the foster home for over five years. The child clearly has a very strong bond with her foster brother and sisters. She is particularly attached to her youngest foster sister. We refer to the attachment assessment report provided by Ms Jessica Webster, and to various interviews conducted with the child.[102]
We have no doubt that the child would be significantly distressed (at the very least) if she was removed from the foster parents' long-time care. We find that she would also be significantly emotionally affected if she were now removed from her school (which we consider would be likely to occur should she be transitioned to the paternal grandparents' household).

[72]

Ms Denbigh, from the Crown Solicitor's Office, relied on the documentary evidence provided to the Tribunal, contained in the three Books of Documents and the documents annexed to DCP case worker, Ms Chelsea Petrucci's affidavit. The Crown also called Ms Petrucci to give evidence, mainly to detail how the child had been coping with recent increased and overnight access arrangements with the paternal grandparents. The Department also called Ms Claire Simmons to give evidence to the Tribunal.
The Department's current position is essentially that as stated in the Internal Review decision (although noting that a vast amount of additional evidence has been adduced on review).
The reviewer (Mr R Davison-Bennett relying on the report of Ms Simmons) found that, in making the decision to place the child in the paternal grandparents' care, rather than that of the foster parents, the Department placed insufficient weight on the psychological risks of moving the child from her current placement with the foster parents, given the strength of her attachment to them.
The Department's position may be summarised as follows:
1. The initial decision to place the child with the paternal grandparents did not place sufficient weight on the fact that the child's placement with the foster parents is in a safe, nurturing, stable and secure environment (as required by s 11 of the CYPS Act).
2. The initial decision to place the child with the paternal grandparents, failed to place sufficient weight on the fact that the foster parents have become the child's psychological parents, and their children, her psychological siblings. The initial decision failed to give sufficient weight to the child's love of and attachment to her foster mother in particular, as required by s 8(1)(b) of the CYPS Act, the Foundational Theories and Knowledge Attachment Practice Paper[103] and the Permanency Planning Practice Paper.
3. After the initial decision was made an attachment assessment was conducted by Ms J Webster. This demonstrated that the child has a very strong primary attachment to her foster mother. Due to the strength of that attachment, removing her and placing her with her paternal grandparents will disrupt that relationship and is likely to cause the child significant psychological harm. Accordingly, the initial decision is inconsistent with the principle stated in s 7 of the CYPS Act.
4. The psychological harm to the child caused by a move in placement cannot be sufficiently mitigated by a careful transition process; this is unlikely to be achieved given the length of time the child has resided with the foster parents.
The internal reviewer, and the Department on review, acknowledge that there were a number of deficiencies in the Department's initial decision-making process, for example: in the initial decision, the Department failed to consider the issue of a young person's attachment needs (as set out in the Attachment Practice Paper), or to recognise the positive impact of permanency and stability for children as required by s 10(1)(a) CYPS Act. The reviewer found that there was an unreasonable delay in the eventual approval of the paternal grandparents as kinship carers, however, a change in placement for the child now is not consistent with the principles of timely decision making and intervention.

[92]

Normally we would place significant weight on the decision of the original decision-maker in a review of a placement decision under the CYPS Act, due to the considerable expertise of departmental officers in child protection and their knowledge of the relevant facts.[108] In this case, however, we have considered a vast amount of additional material on review, so, effectively, we are considering the matter afresh.
We are also satisfied that aspects of the initial decision-making process miscarried.
Apart from the fact that there is no considered statement of reasons for the original decision (and that the delegated decision-maker thought he was acting under a direction), we are satisfied that the original placement decision, made on 15 January 2024, was based on an inadequate consideration of the relevant factors under the CYPS Act.
Of concern, we note that there was no input by psychological services at the meeting on 15 January 2024 and, accordingly, no proper consideration of attachment issues and the potential psychological harm that the child might suffer from a placement move.
Given the length of time that the child had been in the placement with the foster parents, we find that the initial decision-making process miscarried, because there had been no attachment assessment conducted prior to the decision being made (this did not occur until 19 May 2024 by Ms Webster - at the request of senior departmental psychologists).[109]
Further, the Department's officers failed to consult with the approved carers or the potential carers before making the decision, as required by the CYPS Act (s 11(c)). The meetings that were held with the paternal grandparents and the foster parents on 17 and 19 January were not arranged to consult with them about a potential decision, but to advise them that a decision had been made.
We find that there was a failure by departmental officers at the meeting on 15 January 2024 to properly consider or engage with the principles set out in s 7, s 8(1) and s 11 of the CYPS Act.
The Department concedes on review that the original placement decision was wrong, as the decision-maker failed to reflect on all of the relevant considerations under the CYPS Act. Further, the paternal grandparents' counsel, Mr McCloud, agrees that these omissions occurred.
We also find that there were some errors in the factual findings made and, in the conclusions, reached by the internal reviewer, Ms Simmons, particularly around the suitability of the paternal grandparents to be approved as carers. We consider that the reviewer placed a disproportionate reliance on the outcome of the paternal grandparents' initial carer assessment report conducted in 2021. We also consider there was an inadequate discussion or consideration of the ATSIC Placement Principle by Ms Simmons during the internal review.[110]
Accordingly, while we have taken them into account, we have placed little weight on the reasons for the initial placement decision, or on the decision as reversed on the internal review.

[112]

Ms Webster stated in her report that attachment is the psychological bond that forms initially between an infant and a primary caregiver. This bond develops with the infant's experience of the caregiver.
Attachment theory focuses on the relationship forged between an infant and a primary caregiver. An attachment relationship is not "transferred" from one attachment figure to another. However, it is accepted that children can form multiple attachment relationships, such as with extended family members or key people involved in the care of the child.
A 'secure' attachment relationship is developed when a caregiver is consistently available to meet the infant's care needs, responding to the care needs sensitively and effectively. If a caregiver does not provide this type of care to an infant, their attachment relationship is described as being 'insecure'.
Through the optimal exchange between an infant and their caregiver, the infant comes to develop an internal working model of who they are, their relationship with others, and knowledge that they are safe and that they are able to explore and learn. These internal working models are critical for a child's development across most domains, including social, emotional, behavioural and academic.
There are different stages through which attachment is considered to develop over a child's first four years: the 'pre-attachment phase' being when a child is in the first three months of age; between three and eight months, where the child is thought to move into a phase of "recognition and discrimination" i.e., where they are able to differentiate between the primary caregiver and others; from eight months through to three years where the infant begins to demonstrate a clear preference for the primary caregiver in the "active attachment" phase; and the final stage, "partnership", where a child solidifies their attachment relationship, and they can communicate their needs verbally to a caregiver.
Given her age, the child is in the final stage of attachment with her primary caregiver(s).
Ms Simmons and Ms Fallo did not disagree with these views about attachment theory, although Ms Fallo described this concept slightly differently in her report and evidence. We will canvass this below.

[114]

As a result of her assessment, Ms Webster's evidence was that the child had formed a secure attachment relationship with her foster parents and that she seemed to have a warm and positive relationship with her siblings in that placement.
Her view was that the child has her primary source of care and positive affection from her foster family, but that she has experienced consistent contact and a warm interaction with her paternal grandmother, and, through this contact, she has been able to develop connections with other members of her biological family, including her father.
She opined that as the child has had regular contact with her paternal grandmother since she was a baby she has developed a good relationship with her paternal grandmother and seeks her out for comfort, suggesting that she has a capacity to form a secure attachment relationship with her. It may be that the beginnings of such a relationship are already in place between the two. The nature of this relationship could be built as an attachment relationship, with increased care responsibility and time spent together (noting that this assessment was conducted in April 2024 and that access has increased, we accept that the relationship between the two of them is now much stronger).
She also found that the child seemed to be very comfortable in both homes.
Ms Webster concluded that the child is a psychologically healthy child, who has developed a secure attachment to her foster mother and is developing a secure attachment relationship with her paternal grandmother. Ms Webster stated that the child has her strongest relationship with her foster mother (her primary caregiver or primary 'safe haven').[116] The child has formed a secure attachment relationship with her foster parents, and views them as her psychological parents.
We accept Ms Webster's opinion on these matters, which accord with our observations of the witnesses and our reading of the documents. Ms Simmons and Ms Fallo relied upon this attachment assessment when giving their evidence.

[124]

The Department also relied upon the evidence of Ms Claire Simmons, clinical psychologist.
We accept that Ms Simmons is an extremely experienced psychologist having worked in the child protection system for over 27 years. She was first registered as a psychologist in 1987 and obtained her Master of Clinical Psychology in 1995-1996. Ms Simmons is currently employed as the Director of Student Support Services with the Department for Education but was previously the Lead Practitioner, Quality and Practice, DCP from March 2018 to June 2024. That role included working in partnership with the Director of Quality and Practice and the Director of Aboriginal Practice to establish and maintain continuous improvement processes about DCP's practice and providing high level clinical and strategic advice to DCP's senior executive group regarding complex cases and issues. Ms Simmons had been involved in preparing many of the Department's practice and policy papers.
We accept that Ms Simmons is a highly experienced DCP clinical psychologist with relevant practical experience providing clinical psychology services to children and young children, their families and carers. Ms Simmons has worked with and assessed children at all stages of their experience in the foster care system, including prior to, during and after transitions into care and within care placements. We accept that Ms Simmons' experience is particularly pertinent to the practical impact on children under the guardianship of the CE of DCP regarding placement changes or transitions when in foster care.
We also note that Ms Simmons provides training in attachment, developmental trauma, managing complex behaviours and various other topics, for both staff and carers. We accept that the longevity of her work in child protection means that she has been able to observe the short and long-term impact, on children and young people in care, of decisions about placement changes and associated transitions. She has had the opportunity to apply available research and to continue to refine her practice as new research becomes available.
Ms Simmons' opinion is that removing a child from a safe, loving and nurturing home causes both short and long-term negative psychological impacts. Ms Simmons (like Ms Webster) disagrees with Ms Fallo's opinion that, while short-term impacts can be reasonably predicted for the child, she will not suffer any ongoing impacts or psychological harm.
Her report and evidence on this topic can be summarised as follows:

[125]

Attachment disruptions have both short and long-term psychological impacts on children. These are reflected as emotional regulation and long-term relational and social functioning impairments. It is unlikely that, in the child's case, such emotional impacts will only be short-term. Even if the child is placed with capable new carers, the child is likely to sustain long-term emotional and social difficulties and may struggle to form trusting relationships given her experience of a cessation of her primary attachment relationships (with her long-term foster carers).
- Some children never recover from a disruption to primary attachment figure and are diagnosed with attachment-based difficulties. In her report, Ms Simmons relies on a chapter on attachment disruptions in a publication 'Handbook of Attachment' (Kobak, Zajac and Madsen, 2016) where the authors state: "... attachment disruptions represent a severe threat to the attachment bond and constitute a significant risk for the development and maintenance of psychopathology".
- She also relies on an article by Dr Sara McLean[121] where she states: "Holding the belief of attachment as a relationship skill that, once mastered, is 'transferable" and can be applied to subsequent relationships does not appear related to any theoretical ideas from the attachment literature. However, its implications for the child could be a minimising of the child's need for enduring attachment bonds and a denial of the potentially devastating impact of placement breakdowns and placement drift on the child". (McLean, Riggs, Kettler and Delfabbro, 2013) (Our emphasis)
- A child's relationship, with each of their attachment figures, is unique. Attachment relationships (or skills) are not easily or readily 'transferable', even in cases where children have formed organised and secure attachment relationships with their current carers. This is because the ending of a primary caregiving relationship impacts on a child's template for attachment relationships and therefore impacts all future relationships.
- Children can of course form multiple attachments (which they organise into a hierarchy), but it cannot be argued that the child's current attachment relationships with her lifelong psychological parents are equivalent to, or interchangeable with, her relationships with her grandparents, despite their long-term contact with her.
- The relationships that result from 'spending time' with a child, even frequently (such as with a grandparent), are not comparable to the attachment bonds that are formed between the child and its psychological parents, based on their ongoing provision of nurturing, sensitive and predictable caregiving on a day-to-day basis.
- Ms Simmons was somewhat critical of Ms Fallo's over reliance on aspects of the 'Forslund et al' article[122] and she expressed caution about the Tribunal drawing incomplete, or mistaken, conclusions from that article (as summarised by Ms Fallo), i.e., (to paraphrase) that significant harm will not be caused from disrupting the child's primary attachment relationship(s). In particular, Ms Simmons referenced the following excerpts from the article which she opined support her opinion about serious harm being caused from disrupted attachment when moving a child from a long term, stable foster placement:

[130]

Ms Fallo is a registered clinical psychologist in Australia and has been in private clinical practice since 2002. She has a First-Class Honours degree in Bachelor of Psychology (Flinders University) (1999) and a Master's Degree in Clinical Psychology (University of Adelaide) (2001). Ms Fallo has received academic awards for outstanding achievements and her Master's thesis was titled "Impacts of Maternal Trauma on Attachment" (2000). Her area of expertise is in the translation of empirical findings to clinical practice and in the assessment and treatment of mental illness. Further details of her qualifications and expertise are included in her report.
We note that Ms Fallo has not worked in a child protection setting, counselling children in care. Nor has she had extensive experience with managing placement transitions for children in foster care. Although, we do recognise that Ms Fallo has some experience in transitions in care, particularly involving Aboriginal families. Her main area of practice is in counselling adults who have had a past negative experience from being raised in the care system as children.
Ms Fallo acknowledged that she had not made a clinical assessment of the child, the foster parents or the paternal grandparents. In this regard, she relied on the clinical assessment contained in Ms Webster's report and the material provided to her in the referral by Mr McCloud. She has subsequently read Ms Simmons' report.
Ms Fallo said there is a low risk of harm for the child in the short or long-term if she were to transition to the care of the paternal grandparents. Ms Fallo said: "it is reasonable to predict that the child will most likely experience grief sadness and longing, the desire to be with her foster carers and in addition, the behavioural expressions of anger and/or withdrawal in the short term. These emotional experiences would be most unlikely to be harmful or cause long-term damage because the child's attachment needs would be met by the [paternal grandparents] and supported by information sharing between the [foster parents] and [the paternal grandparents] which would enable the child to manage the separation adaptively.'
Ms Fallo acknowledged that the child has a strong attachment to the foster parents. However, she said that children can maintain secure attachments with multiple carers if they have enough time together, and that the development of a new attachment is not necessarily detrimental to an existing attachment. Ms Fallo said that, while attachment is important, it is not the only factor to take into account, in a matter such as this. She said that the quality of care being received by the child is more important than the level of attachment, and that the ability of a (new or proposed) carer to provide a 'safe haven' for the child is also a significant factor.
Ms Fallo said that, due to the mitigating factors which arise in this particular case, in her opinion, the risk of harm to the child in placing her with the paternal grandparents is low. She said the impact on the child would only be short-term and would be most unlikely to be harmful or cause long-term damage, because her attachment needs would be met by the paternal grandmother and supported by information sharing between the foster mother and the paternal grandmother.
Ms Fallo placed significant emphasis on the following factors as mitigating any risk of long-term harm to the child as a result of transitioning her to a placement with the paternal grandparents:
- The child is reaching the normal developmental milestones, she is physically healthy and she is psychologically healthy.
- She has developed a healthy attachment to the foster parents and a healthy attachment style.
- She has commenced developing a healthy attachment to the paternal grandparents, particularly the paternal grandmother, and the they are approved as suitable carers for the child (any health concerns no longer existing and other historical parenting concerns having been addressed).
- The paternal grandmother is capable of providing the child with a safe haven, and there are no other concerns about their care. It is highly likely the child will develop a secure attachment to the paternal grandmother (if she not already done so).
- Appropriate and sensitive transition arrangements will minimise any risk of harm to the child, who already has a significant level of familiarity with the paternal grandparents. The paternal grandparents have indicated a willingness to adopt similar routines and activities for the child, including by keeping her in her current school.
- There is an absence of conflict between the paternal grandparents and the foster parents - they both want what is in the best interests of the child. Although, she acknowledges a transition process will not be easy for them, and they may need short-term therapy.
- The paternal grandparents and the foster parents are willing to cooperate and so there can be an "overlap of caregiving", during which the paternal grandparents can seek guidance from the foster parents about issues as they arise. If there is an overlap of caregiving between the foster carers and the grandparents during the transition, and then some contact with the foster carers is maintained afterwards, the risk of harm to the child will be appropriately mitigated. Ms Fallo emphasised that "the overlap is important".
- Both the paternal grandparents and the foster parents are well placed to manage themselves and their lives to continue to prioritise the child.
- The transition would occur pursuant to a proper plan, and over a period of time, so that the child can be monitored, and any regression can be addressed.
- Any transition should include therapy for the child, the paternal grandparents and the foster parents.
Ms Fallo said that the low risk of harm (from disrupted attachment with the foster parents) does not warrant a decision to not place the child in kinship care, because of the benefits of placing her with her biological family. Ms Fallo said that kinship care will provide the child with long-term benefits, which outweigh any risk of harm arising from the disruption of her attachment to the foster parents.
Ms Fallo disagreed with Ms Simmons' reasoning in relying on certain research in support of her conclusions (that the child is likely to suffer serious harm if she is placed with the paternal grandparents). Ms Fallo said that the circumstances in some of the research quoted were not analogous to the circumstances in this matter. In particular, Ms Fallo noted that the alternative studies involved situations where children lost their access to a caregiver through bereavement, deprivation or trauma, or in unplanned, chaotic circumstances and where the loss resulted in children's emotional needs not being met.
Ms Fallo referred to the Forslund et al article, where the authors suggest that courts can place too much emphasis on attachment theory when making decisions about custody and care of children. They make the following observations, which we have considered:

[132]

b) Attachment is not the same thing as attachment quality. Attachment refers to an affectional bond in which a child is motivated to seek and maintain proximity to, and comfort from, particular familiar persons. Children are born with a predisposition to develop this motivation in relation to significant others who have been sufficiently present and responsive, and this is usually their caregivers. The motivation is governed by an attachment behavioural system - when the attachment system is activated (e.g., by fear) then the child will seek out an attachment figure. Secure attachment relationships are indicated by behaviour that suggests that a child expects the attachment figure will be there in times of need.

c) Attachment relationships are built over time, through recurrent interactions with caregivers, and depend on the opportunity to develop expectations regarding the attachment figure's accessibility and responsiveness.

d) Human children are vulnerable and depend on their caregiver's support for a long time, and the capacity to develop attachment relationships appears to be universal in humans.

e) Children can develop and maintain secure attachment relationships with multiple caregivers simultaneously, if they have sufficient time together and the caregivers respond in ways that provide a safe haven for the child in times of need.

f) Attachment researchers generally hold the view that humans evolved with the expectation of a (limited) number of attachment relationships with particular, familiar people who can be turned to in times of need. Multiple caregivers and a network of attachment relationships have been found to constitute a protective factor in child development. Each attachment relationship is important, with children gaining benefits from having more than one safe haven.

g) Children's attachment relationships with all their regular caregivers are important. It is unclear whether more time should be allocated to a particular caregiver early in life to assist with cognitive development. The authors urge practitioners to consider pertinent contextual circumstances in settling arrangements for children and to strive for continuous contact with both caregivers (e.g., both parents in a custody dispute) wherever possible. It is also important for a child to transition gradually to spending more time with a caregiver who may previously have had little contact with a child.

h) While there has been significant research undertaken about attachment and, while that research is useful generally, it has limited sensitivity and specificity for predicting individual children's development or predicting individual children's caregiving. However, secure attachment is generally a protective factor in human development. But attachment quality always interacts with other factors conveying risk and protection.

[136]

We are satisfied that the child's primary attachment figures are her psychological parents (foster parents) and that she is psychologically embedded with them in the foster family with her three young siblings.
We prefer the opinion of Ms Simmons and Ms Webster on this issue in the context of all the evidence before us.
We are not persuaded by Ms Fallo's opinion that the risk of harm to the child, by removing her from the care of the foster parents, is low, given that the paternal grandmother is capable of providing the child with a 'safe haven' and that there are no other concerns about the future proposed care. We appreciate that her opinion regarding the risk of harm being low was also provided in the context of a successful transition being achievable (which we address below). In our view, the quality of the proposed caregiving relationship that the paternal grandmother (and the paternal grandfather) will likely provide, is just one factor in this assessment, but that there are other more persuasive reasons not to move the child.
Our assessment is that the risk of harm to the child, through the disruption of her attachment relationship with her primary caregiver(s) (and the consequent significant losses she will be required to endure from losing her siblings, her home and likely also her school/schoolfriends), is much higher than that suggested by Ms Fallo, for the reasons expressed by Ms Simmons.
We also take into account (although as a much lesser consideration, as this is not yet confirmed), the likely additional risks for the child in any attempted move/transition due to her particularly vulnerable coping abilities, given that an autism/ADHD diagnosis has been mooted and is currently being explored.
We rely on the combined clinical experience of Ms Simmons and Ms Webster, who both have extensive experience working with children in the care system.
We are well satisfied that there is a high risk of significant psychological harm to the child by moving her out of her long-term foster care placement now.

[141]

a) Family members are committed to caring for biological children in the long term and there are risks with placement breakdowns in foster care. However, she conceded that the quality of care provided by the foster parents and their commitment to the child, together with the quality of the attachment relationship means that it is unlikely that this foster placement will break down. > > b) The main risk for the child will be difficulties with identity formation. She said: "Identity is central to psychological well-being across the lifespan and one's biological relatives feature in the formation of identity. The child's ability to form realistic and balanced internal representations of their biological family members is critical for healthy identity formation. The intimate experience of being raised with biological family supports the development of balanced internal representations of biological relatives, as noted by Ms Webster, who states that a child raised with biological family gains more information about their family, which can "offset the child's imagined understanding of their parents". > > c) Lack of an adequately integrated self-perception complicates emotional regulation and relationships in adulthood. Ms Fallo states: "These identity disturbances mean that children raised outside the biological family unit are more likely to develop unrealistic expectations of others in adulthood, more likely to experience mistrust, dissatisfaction and emotional disturbances and, as noted by Ms Webster are more likely to have "increased feelings of loss, disappointment, rejection, self-blame, or abandonment". This is irrespective of any healthy attachments experienced with foster carers." > > d) Ms Fallo did not consider that simply having access or contact with her biological grandparents would be sufficient to ameliorate any identity related issues, as contact opportunities with her family can only be superficial at best. > > e) For the child, there was also the loss of an assumed right for her to be raised within her biological family. She said that, in the long-term, the loss of such an opportunity may be experienced by the child as an injustice, with corresponding thoughts and feelings of grief (including anger and victimisation). > > f) As the sense of injustice develops, the psychological consequences can be difficult to manage and may not be sufficiently mitigated by the positive experiences of being placed in non-kinship care. This may manifest in the future as mental health issues for the child. For the child, there is the possibility in the future of a 'perceived injustice' if she is not transferred to her grandparents' care. Ms Fallo said this was particularly more so in this case, given that there was evidence on the file, and in the material provided to her, that the registered organisation, AFSS, held concerns that the Department was not properly pursuing or scoping for a family-based placement. Ms Fallo was of the view that, if issues of injustice do arise for the child, they will be in addition to the unmitigated complications regarding identity formation. In Ms Fallo's opinion, the degree of risk of long-term psychological harm arising from this child being placed outside of her biological family unit is significant. > > g) Her conclusion is that, whenever possible, placement within the extended biological family should be promoted and prioritised, as this leads to the lowest risk of long-term psychological harm. > > h) Ms Fallo said this was particularly important for the child, given that she was an Aboriginal child. She said the internal review report and Ms Simmons' subsequent report did not focus enough on this issue. Ms Fallo referred to the ATSIC Placement Principle and the hierarchy of preferred placements recognised in that principle to maintain cultural connections. She said it was well accepted that the hierarchy prefers placement of an Aboriginal child with biological family over non-familial foster care. She said that moving the child to live with her non-Aboriginal grandmother better meets her cultural needs.

[144]

In the review hearing, Mr Thelning, DCP senior social worker, gave evidence at the request of the Tribunal.
Mr Thelning is not a psychologist, but he is a trained social worker with many years of experience as a supervisor, and a substantial body of social work experience to draw from, particularly in relation to Aboriginal families. Mr Thelning's evidence is that, at the meeting in January 2024, he had supported, and he continues to support, a placement decision to move the child to reside with her paternal grandparents.
Mr Thelning considers that the child should be placed with her biological family because, in his experience, a child who is placed in kinship care is likely to have fewer mental health issues when the child is older, because they are less likely to have issues about their identity.
He also said that the care provided in a child's biological family is likely to be more stable, particularly in difficult times such as during adolescence. Mr Thelning is also of the view that the placement with the paternal grandparents will enable the more regular and relaxed contact for the child with her maternal family, which will enhance the child's connection with her Aboriginal culture and heritage.
He said that the sense of belonging and identity from a placement in kinship care, cannot be overestimated, and is reflected in the CYPS Act and the ATSIC Placement Principle. He supported the views that the Principal Aboriginal Consultant, Ms Greenwood had put forward at the meeting on 15 January 2024. He was aware of the recent decision of the Tribunal relating to a similar scenario, where the Tribunal concluded that the child would be less psychologically harmed if she were moved to reside with a member of her biological family.[127] He agreed that he had referred to the case when he wrote to the foster parents in February 2024, confirming the new placement decision for the child, but he said that the SACAT case was not the overriding factor in the decision to move the child. Mr Thelning agreed with the proposition that each case needed to be determined on its own facts and circumstances.
Mr Thelning said that he considers the risk of harm to the child (if she is placed with the paternal grandparents) is low, due to the mitigating factors in this case. He said that the child had a good relationship with, and the beginnings of a secure attachment to, her paternal grandparents.
He was more optimistic than Ms Simmons that a well-planned transition with the involvement of the foster parents and the paternal grandparents could occur. He said he had been involved in successful transitions within the care system. He acknowledged that there would be issues for the child, because of the rupture of her attachment with her foster mother in particular, but he said that disrupted attachment issues were only one part of the picture. He said it was relevant to consider the future issues for the child when she becomes an adult, when she becomes a mother and a partner and when questions arise, such as the importance of family and culture. Mr Thelning said that attachment issues are a very strong part of these considerations, but it is just one part of a holistic situation for the child. He said the issues about her identity formation and connection to kin were a particularly important consideration, given that the child is an Aboriginal child.
Mr Thelning conceded that he did not really know the child or the parties, when he attended the meeting in January 2024, as the case had recently been transferred from the St Mary's office to the Noarlunga office.[128] He was therefore applying general social work principles, and his training and experience in a child protection framework, when concluding that a placement move was the correct decision in the child's case. He conceded that there was no psychologist present at the January 2024 meeting, and that there had not been an attachment assessment at that time. However, Mr Thelning still maintains that the child should be moved to live with the paternal grandparents. But he agreed that he had not had the benefit of hearing the extent of the evidence presented to the Tribunal.
Mr Thelning acknowledged that a decision such as this is a difficult decision, which involves a balancing exercise, regarding the magnitude of each risk. He also acknowledged that there are different views held within the Department as to the extent of each risk, and whether they can be mitigated, but, in this matter, he considers that the benefits to the child of moving her to live with her biological family outweighs the benefits of maintaining her placement in the foster placement. He considers that any risks of harm to the child, as a result of disrupting her attachment to the members of her foster family, can be mitigated.

[146]

In the review hearing, Ms Yazarae Greenwood, Principal Aboriginal Consultant (PAC), gave evidence, at the request of the Tribunal. We considered it important for us to hear from the PAC in this matter, given that we need to make a decision about the weight to be placed on the ATSIC Placement Principle, and the important considerations contained in s 12 of the CYPS Act.
Ms Greenwood is a trained social worker and has been practising for six years, including in her role as a senior social worker and supervisor. Her role as the PAC includes implementing the ATSIC Placement Principle within DCP. Ms Greenwood gave evidence with little notice, and by telephone, given that she was currently on leave from the Department. Only the Tribunal members and counsel were present. We were grateful to Ms Greenwood for making herself available at short notice.
Ms Greenwood was at the meeting on 15 January 2024 when consultation took place about the placement decision for the child. It was necessary for Ms Greenwood to be at the relevant meeting, because the Department's Practice Paper[129] about the application of the ATSIC Placement Principle makes it clear that decisions about the placement of Aboriginal and Torres Strait Islander children should include meaningful consultation by DCP with PACs. Section 84(3)(a) of the CYPS Act requires the Chief Executive to have regard to the ATSIC Placement Principle, if the decision involves an Aboriginal child such as this child.
Ms Greenwood gave articulate, powerful and moving evidence in support of her opinion that the child should be transitioned to the care of her biological family, where she can have meaningful contact with members of her maternal Aboriginal family, and not remain just as a 'foster kid' in non-kinship care.
Ms Greenwood said that Aboriginal children under guardianship orders are meant to be supported to maintain or re-establish connection with their birth family, particularly their Aboriginal families, so that they can be raised within culture, learn language, develop their understanding around their family tree and their kinship connections. She said this is important, so that, later in life, they can know how to return to their Aboriginal nation group and their local community, and have connections established and be welcomed back. It also supports, she said, "our young people to have safe and healthy relationships later, because they understand who they are related to in the community".[130]
Observing that the maternal grandmother is not able to care for the child, she said she is in support of the placement of the child with her paternal grandparents, because they are her biological family. Ms Greenwood has been instrumental in supporting the maternal grandmother and the maternal family to have contact with the child, by working with the paternal grandmother. She said: "this makes me feel very proud. It's a significant experience, a milestone if you will, for [the child]. She's having contact with [the maternal grandmother] as well as her maternal auntie, [the maternal grandmother's] youngest and one of her youngest children. And she's also having contact with her maternal cousins and they're learning ............ language as a family. [The paternal grandmother], [the maternal grandmother], [the child] as a family unit. They're learning ............ language, which is [the child's] Aboriginal nation group. It's beautiful for [the child]."[131]
Ms Greenwood continued her evidence by stating: "It's not solely the placement principles and the legislation. It's a lot broader than that. It's more layered and sacred for Aboriginal kids to be raised with kin".[132]
Ms Greenwood is supportive of the fact that the Department has been successful in maintaining contact for the child with her paternal family, but she observed that this has not been as positive or successful with the maternal family (her Aboriginal kin). She spoke positively of the fact that the paternal grandmother has been able to build a relationship with the maternal grandmother and is able to engage in a therapeutic conversation, whereby they can reflect on their difficult circumstances but show up in an emotionally attuned way for the child.
We consider it necessary to set out some of Ms Greenwood's evidence in full about the nuanced benefits for an Aboriginal child of being brought up with kin. She said:

[147]

"It's also the way that Aboriginal people who could form connections with those families and contact becomes a natural thing where it's no longer family contact as determined by the Department, but it's just family time ... [The child] is now reportedly delighting in that relationship that she has with both of her grandmothers. It's natural. It's also the way that Aboriginal people who could form connections with those families and contact becomes a natural thing where it's no longer family contact as determined by the Department, but it's just family time. They can go to the swimming pool, they can go to the park, they can have a family dinner. It's a very natural mindset and it leads [the child] away from being institutionalised as a guardianship child. It's now a family matter, and I wholeheartedly believe [the child] deserves that. > > She deserves a natural family arrangement where cultural identity doesn't have to be an add-on. It is intertwined into her daily life, with two grandmothers who communicate openly, who negotiate and return to country, who learn language together and who guide [the child]. It's also deeper. It is around [the child] seeing herself in the people who are raising her. Small things like [the child] realising that she looks like her maternal cousins, something that she's never had before. It's a beautiful moment with grandparents and aunties and cousins and [the child] moving away from a foster care system and moving away from being a DCP guardianship kid. Now, she's just a granddaughter. > > Being raised within kin is nuanced. It is mannerisms and likes and learning lingo which could be considered Aboriginal language. It's a lot more intricate and special for our kids to grow up in, and not every Aboriginal kid has that opportunity, but on this occasion, [the child] does. It's all too often that our kids end up in non-Aboriginal foster care placement. Culture is an add-on, and it's outsourced to a carer support group rather than an internal resource within a family unit. [The child] has that. > > [The paternal grandmother] has consistently shown up for [the child], and the minute we say, look hey she's got maternal family, she's an Aboriginal kid, you know, what can we do to support [the child] in that space, then the grandmothers are communicating. They're arranging family time, they're learning language. There's a big commitment there. Not every family member or foster carer will do that off their own back. It's recognised as important. [The child's] no longer [the child], a kid in foster care placement. She's a .......... ....................... She's not just Aboriginal. She comes from a nation group. She's got strong matriarchal lines and that's being recognised and that's what's articulated. It's therapeutic for [the child] to be raised in that narrative"

[157]

As detailed above, Ms Fallo opined that a successful transition process was readily achievable in this case. She considers that appropriate and sensitive transition arrangements will minimise any risk of harm for the child, and she is optimistic of the likely success of a transition in this case.
Ms Webster said that a clear transition plan could mitigate the potential for severe psychological harm. She postulated that a clear transition plan would have to be formulated in consultation with all involved parties. It would be necessary for everybody to embark upon the process positively, and both the foster parents and the paternal grandparents had apparently expressed their desire to ensure that the child does not experience undue distress, and that they are all committed to working together as a family group to support her. The paternal grandparents had spoken of wanting to maintain the child's contact with the foster family.
Ms Webster said that, at all times, it is imperative for the child to be provided with a safe, predictable care environment, and that the paternal grandmother may benefit from psychological therapy to support her with the care of the child, with gradual involvement of the child in therapy as well.
In her evidence, Ms Webster agreed that the reports about the child's recent elevated behaviours prior to, and after, access could be due to the child detecting the foster parents' understandable anxiety around the proceedings/access, and that this could explain the child's behaviours. Whilst these behaviours were clinically significant, she surmised that they did not constitute a diagnostic condition, and that they could be transient.
Ms Webster did not consider that there were 'alarm bells' ringing about any potential significant harm arising from a transition, or that it would be 'too dangerous' to embark upon. Whilst Ms Webster was of the view that there was a risk of harm arising from a transition, she was also of the view that, theoretically, the risk could be mitigated. She agreed that the child enjoyed a safe and loving relationship with the paternal grandparents, which could be built upon.
However, Ms Webster conceded that she has not had any practical experience in transition planning or transition teams within the Department. She conceded that her opinion about a successful transition being achieved was entirely theoretical.
Ms Simmons' view is that there is a real likelihood that a transition will not be successful in this case.
Ms Simmons is critical of the suggestion that a safe, gradual, organised transition will be possible for the child. She says this is not consistent with her extensive experience attempting to achieve therapeutic transitions in matters where children have needed to change care placements. Even in circumstances where a child is healthy, and both current and future carers voice their commitment and co-operation, she said transitions often result in negative, if not devastating, consequences for the children (and often for both the former and the new carers).
Ms Simmons' view is that children often become increasingly distressed as they begin to understand the consequences of decisions made about changing their care arrangements. In her experience, this distress is often minimised, or ignored, by the future carers to whom the child is moving (and often by DCP, if they are committed to that process). She said this is not intended as a criticism of future carers, but an observation that adults often have difficulty accepting that their own wants and needs are inconsistent with a child's. Occasionally, very attuned and selfless carers are able to acknowledge the child's distress, and choose to cease the transition plan. However, it is common for transition processes to continue, despite a child's distress.
Additionally, Ms Simmons opined that being involved in a transition process is highly distressing for both the former and the new carers and requires a very significant emotional and logistical commitment that, over time, may begin to impact other children, adult relationships and tasks of daily living. She said that given these difficulties, commitments to facilitating and supporting increasing contact visits understandably wanes and carers' exposure to a child's distress (without the ability to protect them from it) leads to transitions being accelerated, essentially to meet adults' needs. In addition, conflict often arises between the current and new carers, and plans are adjusted in a manner that is very rarely consistent with the child's needs.
Ms Simmons' main concerns are:
- Children moved to new placements may experience a further placement breakdown, in some circumstances when their new carers realise that they are unable to meet the child's needs (if they were not fully apparent at the time decisions were made about placement moves).
- During the course of her lengthy experience in DCP, in an 'uncomfortable number of cases', and despite high quality and sometimes multiple assessments, she has observed new carers who are unable to meet a child's needs or are unable to provide safe care.
- There is no guarantee that the paternal grandparents will be able to meet the child's needs in the short or long-term. In contrast there is considerable evidence that the foster parents are able to provide high quality caregiving and that they are highly committed to the child.
- It is a rare occurrence for a child to be removed from their safe, loving and nurturing home in a planned manner. Such decisions would be rarely made for a child, unless there was a real need to interfere with that safe placement; there is no need to do so now for this child, given the length of time she has spent in her current placement.
- There is a lot of evidence that the child is struggling already with the access transitions. She has exhibited some behavioural issues before and after access with her grandparents, which may be indicative of her stress and anxiety.

[158]

We accept the evidence of Ms Simmons on this issue, in preference to the other professional witnesses in this case. We rely on Ms Simmons' vast experience in overseeing transitions in care and monitoring the psychological impact, or fallout, for children when transitions from one care placement to another are not successful. We also rely on our own conclusions from hearing detailed evidence over many days from the various parties and closely examining the material before us.
Given her qualifications and experience, we also prefer Ms Simmons' evidence in this area regarding the risk of psychological harm to the child, to that of DCP social worker, Mr Thelning.
We find that a safe care transition for the child is unlikely to be achieved, without her experiencing significant stress and trauma, and that it should not be attempted.
Whilst we accept Ms Webster's and Ms Fallo's views that, in theory, the extent of harm to the child could be mitigated by a transition plan that is 'properly and carefully considered and put into execution', we find that the practical realities of successfully carrying out that transition plan in this case, with minimal distress to the child, are low.
A review of the case notes and the evidence before us, relating to the child's distress (on occasion) both before and after access visits, indicates that the current contact arrangements are causing real challenges for the child and her current carers. There are also impacts being experienced by the child's foster siblings.
The foster mother gave some very poignant evidence about the difficulties she predicts will occur during the proposed transition plan, and the requirement for her to juggle the individual emotional needs of all four children in her household, together with her own and her husband's needs.
We accept that this would be a highly complex scenario for the foster parents to navigate, given that they also need to be alert to the emotional and psychological needs of their three biological children (who are likely to experience their own feelings of loss, confusion and grief during any transition plan). There is a real chance that the foster parents will disengage from a slow, careful transition process to protect the emotional and psychological welfare of their own children and of themselves.
We note that the recent contact regime for the child with her paternal grandparents, her father and her maternal family is higher than generally occurs for children in long-term high-quality foster care. The evidence before us indicates that, in recent months, the child's behaviour has been impacted by the frequency and extent of the visits, particularly by overnight visits. We accept the foster mother's reports that the child has experienced significant and uncharacteristic emotional dysregulation, separation anxiety and some toileting issues on return from some visits. The evidence also suggests that the child is demonstrating self-regulating behaviours after access, such as spinning in a circle.
The evidence provided by the foster mother, in cross examination, about what occurred at the most recent contact visit prior to the hearing is of concern. The foster mother described the genuine distress that the child, the paternal grandmother and the foster mother all experienced when the child refused to leave with the paternal grandmother for a planned contact visit. The fact that the adults managed to carefully resolve that (after some time) for the child's benefit, does not detract from the fact that it occurred, and that it negatively impacted the child.
The evidence also suggests that the current carers are experiencing difficulties coping with the situation, and that the paternal grandparents are starting to raise concerns about the impact of their behaviours on the child. We accept that this is a pattern of behaviour by carers that may demonstrate the emergence of complex dynamics, which Ms Simmons opines is very common in situations such as this.
We consider that the transition will be particularly challenging for the child, given her emotional and cognitive vulnerabilities.
In conclusion, we are not satisfied that a safe, gradual, organised transition will be possible for the child, given the complex dynamics in this case. The child is embedded in the life of the foster family; this case is not just about removing a child from one foster mother or two foster parents. This is also about removing the child from a home with her psychological siblings and likely also about removing her from her school and her school friends.[137]
Accordingly, we do not find that the serious risks of harm, caused by disrupted attachment for the child, can be mitigated by a carefully planned, gradual transition process.

[161]

Whilst we accept that there is also a long-term risk of potential psychological harm in not placing the child with her biological family, in our view this risk can be mitigated by continued, regular contact visits for the child with her grandparents and her maternal family. We also consider that the risks of 'cultural harm' can be mitigated for the same reasons.
Contrasted with the maternal grandmother's traumatic experience (in the welfare system and then as an adopted child) of a complete disconnect with her family of origin and with her Aboriginal culture and heritage, we are satisfied that the child has a good understanding of who she is, who her biological family are and where she fits into this complex family paradigm. The child knows she is a foster child, but she knows very well who her dad is, who her paternal uncle is and who her paternal grandparents are. She knows that she is Aboriginal, and she knows that she has an Aboriginal grandmother and many Aboriginal cousins. She knows that she has at least one biological brother, who she has met. She is learning, and will continue to learn, from her maternal grandmother at contact visits about her rich ................................... heritage, dreaming and community and about her maternal family's stories.
We consider that the child would benefit by maintaining the status quo in her current placement and with contact visits as determined by DCP.
If we were considering a placement transition for a much younger child moving from a short-term foster placement to the care of her kin, our view is that such a child would likely be more psychologically secure in the long-term by being placed with her biological family.
In this matter, we rely on all the evidence before us in concluding that continued placement in non-kinship foster care will be unlikely to manifest in the postulated problems for the child later in life such as confusion, depression, loss of identity and loss of self-esteem. We consider that those risks are, and will continue to be, mitigated by frequent contact visits with members of her paternal and maternal family.

At a glance

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Judgment (253 paragraphs)

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Legislation Cited (3)

Cases Cited (5)

BAK & Anor v Chief Executive, Department for Child Protection & Ors [2025] SACAT 68 (5 August 2025)