The applicants sought a review on the basis that the original decision-maker failed to adequately account for the harm that would be caused to the child by breaking his attachment to them, that the applicants have and could ensure the child's connection to culture, that there were concerns that the paternal uncle would not foster the child's connection to his maternal relatives, and that the applicants could provide better care to the child as they would only have one child under their care.

The Department defended the decision as consistent with its legislative obligations including the Aboriginal Child Placement Principles. The Department adduced fresh evidence about the harms that would be caused to the child if he remained in his current placement and the benefits of moving him to the new placement, to retrospectively support its decision.

Held, affirming the original decision under review:

• the original decision-maker has a legislated role in an administrative review to assist the Tribunal to reach the correct or preferable decision;
• it is undesirable for a decision-maker to gather new expert evidence after the making of the decision as it indicates insufficiency of evidence to make the decision and is liable to be sought to justify the original decision;
• significant weight cannot be placed on the original decision because the Department failed to identify the basis on which it applied its knowledge of the harm caused by a break in attachment and how this harm was weighed against the harm caused by an absence of cultural connection and identity; and
• a consideration of the two sets of placement principles under the Children and Young People (Safety) Act 2017 (SA), in light of the evidence adduced about the potential harms caused by the placement decision, indicates that placement of the child with his paternal uncle is the correct or preferable decision.

Administrative Review - Administrative tribunals - Children and Young People (Safety) Act 2017 - Children and young people in Chief Executive's custody or guardianship - Placement of child

Administrative Review - Administrative tribunals - Duties of the original decision-maker

Administrative Review - Administrative tribunals - Weight to be placed on the original decision

South Australian Civil and Administrative Tribunal Act 2013 ss 34, 37

Children and Young People (Safety) Act 2017 ss 11, 84, 158

Minister v AKJ, unreported decision of the Youth Court, 30 May 2001 (Senior Judge Simpson)

Breeding v Registrar of Firearms [2017] SACAT 40

M, L v Minister for Education and Child Development [2018] SASCFC 131

Minister for Education and Child Development v M, L & Ors [2018] SASC 32

R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13

For the respondent: Mr S Whitten and Ms P Ewens, Crown Solicitor's Office

This is an edited version of the Tribunal's decision pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013. The people the subject of these proceedings have been de-identified and allocated a randomly selected pseudonym for privacy reasons. Other details that may lead to the identification of the parties may have also been anonymised or omitted. These changes do not affect the Tribunal's decision or its reasons for decision.

WWZ & Anor v The Department for Child Protection [2020] SACAT X

Made under the South Australian Civil and Administrative Tribunal Act 2013 s 37(1)(a)

1. This decision concerns whether the Chief Executive of the Department for Child Protection made the correct and preferable decision that UPQ be moved from his placement with WWZ and placed with his paternal uncle, AWO.*

1. UPQ is the young person that this decision is about. He is three years and five months old.[1] We did not meet UPQ as he is too young to contribute to the decision-making process. However, we learned that he is a happy and healthy boy. We also learned a number of things that allowed us to gain a picture of him. He enjoys his food, especially cherry tomatoes. He goes to childcare while his parents go to work, and he has friends at childcare. Sometimes he bites his fingernails.[2] He likes to ride his bike in the house and go on the swing.[3] He is currently learning about different genders as is usual at this age. He likes to play soccer. He is scared of dogs. He likes to play with his sisters whom he visits once or twice per week. He enjoys going to the library.[4]
2. Since he was 13 months old, which is more than half of his life, UPQ has lived with foster-carer WWZ and her partner URY in an Adelaide suburb and where he has slept almost every night. He calls them mummy and daddy.
3. UPQ has four siblings: Sister ZJHO who is four years old and Sister IAN who is five years old, who are in long-term care with AWO. UPQ also has Sister RHM who is eight years old and Sister IVO who is six years old, who live in Port Augusta with UPQ's maternal aunt, ZJH.
4. UPQ, and his sisters IVO and ZJHO, were initially living with their father and paternal grandmother until May 2018 when all three were removed by the Department and placed in the care of their mother. UPQ's mother already had IAN and RHM in her care so, at that time, UPQ was with his four sisters. However, about six weeks later, the Department removed all five children from their mother. Staff of the Department for Child Protection held significant concerns in respect of both of the biological parents' ability to provide safe care for the children such that they were required to be cared for by others.[5] Two sisters were placed with a maternal aunt, two sisters were placed with a paternal uncle and UPQ, the youngest, was placed in the care of non-relatives.
5. UPQ was placed in a short-term foster placement for one month with a non-Indigenous family. There was no evidence before the Tribunal as to why that concluded but it was not because of any concern about the care provided. Thereafter, on 27 July 2018, UPQ was placed with WWZ. WWZ lives with her partner, URY. At that time, WWZ was also caring for another unrelated infant, J, who was subsequently placed elsewhere in late 2018.
6. According to the Department, UPQ is Adnyamathanha and Yankunytjatjara on his father's side and Kokatha Wirangu and Adnyamathanha on his mother's side.[6]
7. UPQ currently has no contact with his biological parents.

1. The Chief Executive of the Department for Child Protection is UPQ's guardian.
2. Following UPQ's removal from the care of his father and paternal grandmother on 28 June 2018, the Youth Court made an order placing UPQ under the guardianship of the Chief Executive of the Department for Child Protection for a period of 12 months under s 53(e) of the Children and Young People (Safety) Act 2017 ("the Act"). As guardian, the Chief Executive stands in the place of UPQ's parents and has "the same duty and authority as a parent with respect to nurturing, control and protection of the child".[7]
3. The Chief Executive fulfils her functions as guardian through instruments of delegation bestowed upon staff of the Department.[8] The Department's role, in broad terms, is to make decisions with regard to children who are at risk of harm, in order to eliminate or reduce that harm and to maximise the prospects of such children being cared for in a way that is consistent with their safety and to fulfil their potential.[9]
4. Upon coming into the Chief Executive's guardianship, the Departmental staff identified short-term carers for UPQ. He was placed with carers who were not relatives and not Aboriginal. UPQ stayed with this family for approximately one month. He was then placed with WWZ. There was evidence that the Department was, in this period, having discussions with various relatives of UPQ to ascertain their willingness, suitability and capacity to care for UPQ.
5. The Department engages the services of a non-Government body called Aboriginal Family Support Services ("AFSS") whose staff liaise with the Department's staff and carers of Aboriginal children. In this case, the evidence that emerged indirectly was that a representative from AFSS, Ms Valentine, was assigned as WWZ's "support worker". This enables the Department to maintain a focus on the child as their "client", whilst others involved with the child are supported by a body such as AFSS.[10]

1. The applicants in this matter are WWZ and URY. WWZ is a full-time radiographer and is 44 years old. She has been caring for children who are on short-term orders since August 2016. The Chief Executive may establish categories of approved carer[11] and WWZ is a short-term carer. UPQ is her thirteenth child and she has had two other children in her care during the time that she has cared for UPQ. About three years ago, she formed a relationship with URY. They live together in the Adelaide suburbs. URY is a registered occupant of the house for the purposes of the caring arrangement but he is not a registered carer. URY is a full-time police officer.
2. WWZ and URY both made lengthy written statements, and gave oral evidence.
3. It is evident that the applicants love UPQ and have provided attentive care to him since he was placed with them in July 2018. They attend to his needs, they are familiar with his behaviour, and they take pleasure in all of the challenges and rewards of being part of UPQ's development. They provide him with food, they worry about him, they play with him, and keep him safe. They have been doing that for two years.
4. WWZ and URY have firm views about what is in UPQ's best interests and they make efforts to achieve those things for him. They give him a wide variety of experiences, toys, reading, healthy food and a routine. They have gone to some lengths to understand his Aboriginality and to understand what they can do to connect UPQ with his culture.

1. AWO, with whom the Chief Executive's delegate has decided to place UPQ until he is 18, is UPQ's paternal uncle. He is Adnyamathanha and his country is in the APY Lands. He lives with WDN and they have 4 children, daughter DMV who is 17 years old and who lives away from home, son GIQ who is 13 years old, son XIV who is 14 years old, and daughter KFH who is 9 years old. They live in the Adelaide suburbs having moved from Coober Pedy in recent years. Since October 2018, they had the long-term care of UPQ's sisters ZJHO and IAN. They have been having weekly visits from UPQ for just over one year. They had him for a sleepover in October 2018, as WWZ and URY had a commitment that pre-dated UPQ's placement with them. For convenience, we will refer to them collectively as the B family.

1. There was very little evidence provided to the Tribunal about UPQ's biological parents. We make no criticism of this as there is no dispute concerning the Department's decision to remove UPQ from his parents' care. We understand that at the current time, UPQ does not have any contact with either of them and that UPQ's mother has been directed by the Department, for the time being, not to have such contact.
2. We also note, for completeness and in fairness to UPQ's biological parents, that circumstances change over time and the fact that they do not feature in this part of UPQ's life does not mean that it will always be this way.

1. We are hearing this matter because the applicants disagree with the Department's decision to move UPQ from their care and place UPQ long-term with AWO. They would like UPQ to be placed in WWZ's care until he is 18.

1. This review arises under s 34 of the South Australian Civil and Administrative Tribunal Act 2015 ("SACAT Act") and s 158(1)(a) of the Act. For the full hearing, the Tribunal was constituted by a Presidential member and an experienced social worker. We heard evidence and submissions over four days.
2. We must reach the correct or preferable decision regarding the placement decision that has been made by the Department.[12] The review is a rehearing in the sense that we take into account all of the material that was considered by the original decision-maker, and any further evidence we determine to receive and, having regard to, and according appropriate weight to, the original decision, we are to arrive at the correct or preferable decision. That may be to affirm the original decision, set it aside and substitute our own different decision, or remit the matter back to the Department to make another decision.
3. In order to make the correct or preferable decision, it was necessary for us to understand the events leading to the decision that the Department made.

1. In October 2018, soon after coming into WWZ's care, a social worker in the Department, Ms Caruso, advised WWZ's AFSS support worker, Ms Valentine, in an email that was copied to WWZ, that the Department had been successful in locating a relative to care for UPQ until he turned 18. Ms Caruso acknowledged even at that early point that UPQ had formed a "strong attachment" to WWZ and URY and "therefore I feel like this might be a difficult move."[13] The relative who expressed a willingness to care for UPQ was from his mother's side. Informed of this, WWZ asked why she had not been given the option of caring for UPQ until he turned 18, but acknowledged that it seemed to be "in his best interests" to live long-term with a maternal family member and her family.[14]
2. It was not in dispute that at about the same time, the Department was also exploring the possibility of placing UPQ with AWO.[15] The evidence was unclear as to whether this was initiated by AWO or the Department, and whether it was rejected by AWO or the Department. The evidence suggested that possibly the option was discounted because the B family already had six children in their household and there was not enough space, and/or the needs of a young baby could not be met in addition to the demands of six children.
3. AWO had UPQ for a single night sleep-over at around this time, while WWZ and URY went out for the evening to a function that they had committed to before UPQ was placed with them.
4. At about this time, a maternal relative was identified and information was gathered about her suitability and capacity to become UPQ's carer.
5. At some point after the order for temporary guardianship was obtained, the Chief Executive decided to apply for court orders for guardianship of UPQ until he turned 18 ("long-term orders").
6. In December 2018, WWZ enquired of Ms Caruso whether the Department had a child psychologist who might assess UPQ to determine whether a removal might be detrimental in light of the time spent in his current placement. She enquired as to whether he might experience "life-long abandonment/trust/health issues".[16] We infer from these enquiries that WWZ was forming the view that it may be in UPQ's best interests to remain in her care. There was no evidence before us as to the outcome of that request.

The events between March 2019 and May 2019 - a case conference and long-term orders granted

1. On 26 March 2019, Departmental officers convened a case conference regarding UPQ's care. The Departmental staff who had responsibility for discharging the Chief Executive's functions in respect of UPQ was Ms Hayley Blanch, a Senior Social Worker in the Department.
2. Ms Blanch requested the participation in the review of Departmental psychologist Catherine Collins, the (then) Principal Social Worker from the relevant branch (Woodville office) Ms Caruso, and the Principal Aboriginal Consultant of that branch Ms Houthuysen. Ms Blanch stated that the purpose was to discuss the suitability of a "maternal cultural aunt" of UPQ, who resides in Port Augusta, who had expressed an interest in being assessed as a potential carer for UPQ.[17]
3. At that time, the Chief Executive had not been granted long-term guardianship in relation to UPQ and there was "a substantial amount of uncertainty"[18] regarding UPQ's long-term case planning. At the meeting, Ms Collins expressed concern in relation to a change of placement for UPQ at that time because of the possibility that the long-term orders would not be granted and that there may be further disruption. Ms Blanch agreed.[19]
4. Whilst the evidence was not clear as to exactly when this was conveyed, Ms Blanch stated that at this time, the B family was content for UPQ to remain with WWZ.[20]
5. The case conference resolved not to move UPQ to the care of the maternal cultural aunt. Ms Collins, who gave evidence, said that she understood that the outcome of the meeting was that UPQ would remain with WWZ, but without any agreement on the duration.[21] That was also Ms Blanch's view.
6. After the case conference, a case note dated the same day as the case conference shows that there was a telephone conversation between UPQ's social worker, Ms Caruso, and WWZ. In that conversation, WWZ was advised that if the Chief Executive secured the long-term guardianship orders that it was seeking, UPQ would remain in the care of WWZ until he turned 18. WWZ says this conversation occurred at her house but agreed that a conversation had occurred, and that WWZ was led to believe that the Department had decided to place UPQ with her for the long-term.[22]
7. In her statement, Ms Blanch described Ms Caruso's statement to WWZ, that WWZ would be granted ongoing care of UPQ until he was 18 if long-term orders were granted, as "in error" because no such decision had been made. She said in her oral evidence to the Tribunal that at the time of that meeting, it was the view of those present that, based on the options known to them, WWZ would become the long-term carer of UPQ.[23]
8. Ms Blanch stated that she appreciated that when WWZ later learned of the error, it would have subsequently caused "confusion and upset".[24] Indeed, it did, and in hindsight, it is our assessment that this was a significant contributor to the challenge that the Tribunal is now required to decide.
9. UPQ's maternal cultural aunt sought an internal review of the Department's decision, arising from the March case conference, not to place UPQ with her. That challenge was ultimately not successful but continued to muddy the waters for the Department in terms of its consideration of long-term placement options. In the meantime, the Department pressed on with its application in the Youth Court for long-term orders in relation to UPQ.

1. On 9 May 2019, the Youth Court granted long-term guardianship orders in favour of the Chief Executive. The Department's evidence is that "shortly after" this occurred, AWO advised the Department that he wished to be considered to care for UPQ on a long-term basis.[25] On 16 May 2020, an email from WWZ to Ms Valentine expressed the applicants' willingness to care for UPQ until he turns 18. WWZ advised that it was her understanding that, "as discussed with [Ms Caruso], I was under the impression that they would not disrupt UPQ's placement with us, due to his attachment."[26]

The June 2019 case conference - the options for long-term placement narrow

1. A further case conference was convened on 12 June 2019 so that the Department could consider long-term placement options for UPQ now that a long-term guardianship order had been made.
2. At this case conference, the Departmental officers considered three long-term care placement options for UPQ; his maternal cultural aunt (whose internal review of the placement decision was at that time still underway), AWO, and WWZ. Ms Blanch says that the outcome of that case conference was that UPQ's maternal cultural aunt was determined to not be a suitable placement option.[27] Ms Collins' recollection is that there were two contenders, WWZ and AWO. She recalls the positive reports regarding the B family option and that it had a "logistical issue regarding the size of their home, and it was identified that this would have to be addressed in order for that to be a suitable placement for UPQ."[28]
3. The outcome of the case conference was to gather more information to assist in determining which of the options would be preferable. Ms Blanch said that the Principal Aboriginal Consultant had not been happy with the earlier decision-making. Ms Blanch said she did not have enough information and that there was "more pressure on us to start thinking through about, I guess, Aboriginal Child Placement Principles and, you know, who was able to provide him with the most cultural input as he grows."[29]
4. Around this time, Ms Caruso left the relevant team in the Woodville office and the new social worker assigned to UPQ's case was Ms Bailey.
5. The Department began more actively working towards ensuring UPQ was having contact with the B family. It was realised that an assumption that had been made that the applicants and the B family were doing this themselves was incorrect.[30]
6. On 24 June 2019, WWZ sent an email to Ms Valentine seeking advice on how to respond to the Department's request that WWZ organise for UPQ to have "access with his sisters" on the weekend, a week prior to a proposed visit by UPQ to Port Augusta to see other relatives. WWZ's email said,

they are taking our time away with [UPQ]. If he goes for the afternoon [URY] will hardly see him for the weekend and the morning is tricky as [J] naps at 10 am. Uncle has said they will take [UPQ] so he does not go to Port Augusta, so it seems to me they are transitioning [UPQ] to uncle's house without actually telling us.[31]

1. On 26 June 2019, Ms Valentine emailed WWZ regarding the access visit, and included the following,

No worries, I will be at home visits for the rest of the afternoon but I just wanted to chat about the family contact they have been talking about on weekends etc.

I'm sure they will speak about it tomorrow but basically they are organising for this to happen as discussed at the last visit so DCP can support [UPQ] staying with you and [URY] for Long-term. By DCP promoting [UPQ] staying with you and [URY] they are technically 'breaking' the Aboriginal Placement Principle and if this occurs they need to support their decision by showing evidence of [UPQ] still having connections to his family. Usually there wouldn't be any of this process and they would just place a child with their biological family so it appears that DCP Woodville are really fighting and trying for him to stay in your care, but, for it to occur there will have to be cultural connections and family connections more than already happening.

Of course, I also completely understand that it is a big ask for you to organise it fortnightly and that is something we can discuss tomorrow to make it easier on yourself and [URY], such and (sic) them providing transport too. As well as them needing to show proof of his family connections, they do need to take into account your schedule and other factors such as [J] so I am hoping tomorrow when we all meet we can talk about it more in depth but I wanted to give you a bit of a heads up for why they are asking for the weekend contact to occur.

I'll have my emails with me so if you have any questions I'll reply in-between visits this afternoon. Hopefully tomorrow we can smooth everything out and come up with a plan that is beneficial for you, [URY] and [UPQ] :).[32]

1. As Ms Valentine was not called as a witness and did not provide a statement, we do not know who or what she believed the Woodville office was fighting against or why she thought a fight was required.
2. It is the Department's case that on 26 June 2019 following the case conference, Departmental officers visited WWZ and URY at their home for a placement visit and advised her that AWO had offered to look after UPQ and that the proposal was being considered.[33] This was documented in a file note of a placement visit by the social worker, Ms Bailey, and the Senior Practitioner, Ms Scoleri, with the applicants and Ms Valentine. The case note records discussion of a number of topics, one of which was headed "internal review",

SP spoke with [WWZ] regarding Aboriginal placement principles and the need for [UPQ] to connect with family through informal and formal contact.... SP expressed the need for [UPQ] to have contact with family and informed [WWZ] that should decision be made for [UPQ] to remain in [WWZ]'s care it would be expected that informal contact continue to ensure connection. [WWZ] expressed that she was willing to support contact and connection and expressed that it was important that [UPQ] be with family. [WWZ] stated that [AWO] had informed her that he did not want [UPQ] to be placed in Pt Augusta and should this be considered he would put his hand up to care. SP informed [WWZ] that [AWO] had put his hand up to care for [UPQ] and advised that the case conference will review [UPQ] remaining in her care or being placed with family...

SP spoke with [WWZ] regarding next placement visit on 17th July and asked if they would like to bring this closer [to the next scheduled case conference on 1 July 2019] to discuss the outcome of the review. [WWZ] advised that she would rather be phoned, stating "he is either staying or going, you can just tell me over the phone". SP attempted to organise placement visit however [WWZ] again advised that she would prefer a phone call. SP expressed that these decisions are best communicated face to face, however [WWZ] again advised that she would like a phone call. [WWZ] informed workers that should [UPQ] not stay with them, they would likely put it into review again. SP advised that she would be able to put in a complaint should she not be happy with the outcome."[34]

1. Ms Bailey gave oral evidence confirming the content of the case note and in particular that Ms Scoleri ("SP" in the case note above) advised WWZ that a family member had offered to care for UPQ and that WWZ responded by saying that she was aware that AWO did not want UPQ to be cared for in Port Augusta and would offer to care for UPQ if that were proposed.[35]
2. WWZ and URY dispute that the information regarding AWO's offer to care for UPQ was communicated to them on that occasion, and provided evidence that Ms Valentine was also unaware that AWO wished to care for UPQ long-term.[36] The relevance of this to the question for this Tribunal to decide is indirect; it perhaps explains the subsequent criticism by the applicants that the Department was not forthright with them about plans for UPQ's long-term care.

1. On 1 July 2019, a further case conference was convened. The purpose was to further consider the placement options. As with the March and June conferences, WWZ was not invited to contribute to this conference in any direct way. Ms Blanch's evidence was that whatever the decision was to be, now that UPQ was in the long-term guardianship of the Chief Executive, UPQ's connection to his Aboriginal culture required strengthening.[37] At that meeting, the case management team formed the view that the B family was a sound placement option for UPQ as they could provide a safe, positive, nurturing care environment and an immersive cultural upbringing with relatives. Ms Blanch's evidence did not express the outcome in terms of AWO as the preferred placement option. Ms Collins stated that no decision was determined at that meeting.[38] Ms Collins' contribution to the meeting was summarised and recorded by Ms Blanch:

if the decision was made to move [UPQ] to [AWO], Catherine suggests it could possibly reduce risk of ruptured relationships and trauma if done at [UPQ]'s speed. In addition to this, if contact became more frequent and longer with [AWO] this may benefit the move. Catherine stressed the risks of moving [UPQ] and the effect this will have on his future relationships if not done with a therapeutic approach.[39]

1. The outcomes of the meeting were recorded as "to ensure UPQ strengthens his connections to culture and family" and to monitor UPQ's responses to increased contact with AWO.[40]
2. We consider that it is a reasonable inference from the evidence that some of those attending the meeting, at least, had reached the view that AWO was the preferred option by this date at the latest. However, we accept that Ms Blanch, who was the decision-maker, had not reached a decision at this point in time.
3. After that meeting, the Principal Social Worker realised that AWO would require a specific approval from the Department's Carer Assessment Registration Unit (CARU) to have UPQ placed with him.[41] A request was submitted. The approval process entails an assessment of the person and of the "viability, including logistics" of the proposal. In her evidence, Ms Blanch stated that in AWO's case, it was the latter of these components that required attention as AWO was already a long-term carer for UPQ's siblings and the assessment of him personally was unlikely to be problematic.
4. As part of the strengthening of UPQ's connection to culture, a "return to country" trip was arranged and took place in July 2019. This entailed WWZ and URY taking UPQ to Port Augusta where he saw Sister ZJHO and Sister IVO, and AWO attended separately. The applicants saw this as part of, and demonstrating, their commitment to facilitating UPQ's connection to his family and culture.
5. On 12 and 13 August 2019, there was email correspondence between members of the case management team and WWZ to the effect that AWO had advised that he wished to be considered as the long-term carer for UPQ.[42] WWZ said that this was the first she had heard of this.[43] It is evident, however, that WWZ had been suspecting, if she did not in fact know, that the Department was considering AWO as a potential long-term placement and that AWO was considering it.
6. In any event, exactly when WWZ learned that AWO had expressed a wish to have UPQ placed with him is not relevant to the question of whether placement of UPQ with AWO is the correct or preferable decision. The Tribunal considers that whatever was communicated by the Department in June and then August, WWZ began to form the view that her facilitation of access for UPQ was not for the purpose of enhancing her prospects as a long-term carer by providing UPQ with access to relatives and culture, but steps towards confirming that AWO was an appropriate long-term carer himself. This coincided with WWZ beginning to express criticisms of the care provided by AWO, and of the Department's communications and actions in relation to UPQ.

The September 2019 case conference and the decision is made

1. The next case conference was convened on 24 September 2019. It is not clear from the minutes of this meeting or the evidence why this conference was convened given that the CARU approval was still pending. The absence of any reference to that fact suggests it was overlooked. The minutes of the meeting do not state the purpose of the meeting. However, Ms Blanch describes it as the most significant meeting in respect of informing her decision as to where to place UPQ. As with previous case conferences, WWZ was not invited to participate. The views of WWZ were said to have been presented by her AFSS Support Worker, Ms Valentine.
2. It would have been preferable if the Department had provided some evidence from Ms Valentine as it may have provided the Tribunal with an understanding of what AFSS' policy was in respect of non-Aboriginal people as long-term carers of Aboriginal children, and what she understood her role to be in respect of presenting WWZ's position. Ms Blanch's evidence was that AFSS was "very clear that they exist in order to be able to uphold the Aboriginal Child Placement Principles, so they are extremely supportive of the decision-making that's occurred in this particular case."[44] It is difficult to resist the conclusion that there may have been some tension between these roles. The tension for Ms Valentine in putting WWZ's position to the Department would have been alleviated if WWZ had been given any sort of direct access to the decision-making process, which she was not.
3. Ms Collins', the Senior Psychologist, described her contribution to this case conference as follows:

During the conference, the chair went around the room and asked for the opinion if each person consulting. I verbalized a summary of what appears in the aforementioned minutes within the [Department's Book of Documents]. I was aware of the significance of the decision for [UPQ], and given the complexity of the psychological matter that I was describing, I advised the chair that it was my preference to provide my views in writing after the case conference to ensure that my views were clearly recorded in the minute of the meeting. That is not my standard practice for all cases which I provide consultation on.[45]

1. The contributions to that meeting are reflected in the lengthy minutes of the meeting into which Ms Collins' contribution has been incorporated. There was no decision made at the meeting itself.
2. Ms Blanch's evidence was that she then reflected on these contributions when she made her decision and recorded it in a case note document dated 27 September 2019. The form of the document, which is identical to many others that were tendered in these proceedings, is a record from the Department's electronic case management system. The Department disavowed knowledge of this document until the Friday 21 August 2020 prior to the full hearing on Monday 24 August 2020, when it was annexed to Ms Blanch's late-filed affidavit affirmed on Monday 24 August 2020. Until that point in time, including in two directions hearings, the Crown Solicitor's instructions were that the record of the decision was contained in the letter communicating the decision to WWZ, which was dated 3 December 2019. The lack of any more illuminating account of what occurred with respect to this seminal document is perplexing given that the documents are hosted on an electronic system. What it means, however, is that the critical document containing the decision-maker's record of the decision, that is the subject of these proceedings, was not given to WWZ until immediately prior to the hearing some eight months after she lodged her proceedings with this Tribunal.
3. The decision record dated 27 September 2019 states as follows:

Details:

Over 3 DCP meetings, consideration was given to [UPQ]'s current attachment relationships with his current AFSS carers, the viability of the kinship option with [a maternal cultural aunt] and the viability of the kinship option with [AWO].

[UPQ]'s reactions to increased family contact, the Aboriginal Child Placement Principles, his ongoing cultural needs and the risks and protective factors of each option for placement were also discussed at length, with the last meeting specifically focusing on whether [UPQ] should transition into the care of his uncle, [AWO] who cares for two of [UPQ]'s siblings.

While strong concerns were voiced and acknowledged regarding the potential psychological impact for [UPQ] in moving placements and disrupting his attachment to his current caregivers, it was also recognised by several participants in the meetings that Aboriginal children who are not able to easily access their culture and live it day to day, can have has (sic) adverse experiences regarding their identity and their long-term health and wellbeing with it being well known amongst the practitioners present that outcomes for Aboriginal children who grow up in care without access to their culture can too often be poor. This consideration for cultural development and maintenance for [UPQ] added a level of significant complexity to the decision making.

On balance, it is decided that [UPQ]'s best interests now and until he is 18 years, and beyond would be served by his transition into the care of his Uncle [AWO] where he will be reunited with his siblings and will be able to develop and maintain his cultural identity, his connection and belonging to kin and country while being in a care environment that is safe, supportive and can meet all his needs to grow healthily. [AWO] and his partner, [WDN] are considered to be a safe and stable care option as evidenced by the fact that they also provide care for two of [AWO]'s siblings. Of additional benefit to [UPQ], is that [AWO] is actively immersed in the family's cultural practices, and [UPQ] will be able to have day to day lived experience of his culture which cannot be replicated by only having occasional contact with his family.

Decision and Rationale:

DCP to engage in development of a transition plan for [UPQ] to be in the fulltime care of his uncle [AWO]. DCP to communicate to all parties regarding the decision made."[46]

1. The decision made no reference to the CARU approval and Departmental officers proceeded to take steps towards implementing the decision, the first of which was to inform WWZ and AWO.
2. Ms Blanch's affidavit and oral evidence was that both the option of having UPQ placed long-term with the B family and with the applicants, would provide safe care. She acknowledged the strength of the relationship between UPQ and WWZ. She said a lot of importance was attributed to UPQ growing up with members of his biological family. There was strong consideration given to the Aboriginal Placement Principles and she explained the concept of "reasonably practicable" as requiring her to consider whether there was "viable, safe Aboriginal family in the option". She said,

I was keenly aware of the fact that we were talking about harm of both - you know, with either placement option that I was considering, that there is potential for harm, for a child not being raised with his family and in a non-Aboriginal placement, and there's also harm potentially by, I guess, disrupting that particular care arrangement in order to move him to another placement. So there was harm either way you looked at it, and I was having to grapple with some very- you know, it was very complex on both sides, it was a very serious decision to make.[47]

1. A meeting between Departmental staff and WWZ was scheduled for Tuesday 9 October 2019 at her house. WWZ knew the purpose to be to inform her of the outcome of the Department's decision in respect of long-term care for UPQ. Unbeknownst to them, on 8 October 2019, the Woodville Branch Manager was informed that the CARU approval was not yet in place and that Ms Blanch's decision to place UPQ with AWO was to be treated as subject to that approval.[48] At this point, it was requested that CARU expedite the process. Departmental officers decided that because the decision was contingent on an approval that had not yet been obtained, neither AWO nor WWZ could be told of the decision.[49] The Department's evidence was that WWZ was telephoned late in the afternoon of 8 October 2019 and told that the meeting the following day would not be proceeding due to 'administrative' issues. WWZ says that she received an email at 4.35 pm on the Monday prior to the scheduled meeting, cancelling the meeting. She described her dissatisfaction with this as URY had taken a day off so that they could hear the outcome together.[50]
2. The CARU approval did not occur until 12 November 2019 because of what the Department described as "an enormous backlog".[51] In light of the psychological evidence that the Tribunal received regarding the effect of delay on UPQ, and the legislated mandate on the Department to make decisions expeditiously, the delay between July 2019 when CARU received the request and November 2019 when it was determined, was unacceptably long.
3. By this time, WWZ was distrustful of the Department and anxious about the decision. She formed the view that she did not want to meet with the Departmental representatives when they attempted to reschedule the meeting in November. She said that in negotiations as to how the decision would be conveyed to her, her status as an approved carer was threatened by her "refusing to engage" as the Department put it.[52] She declined to participate in a face-to-face meeting with Departmental officers at her home to hear what she expected to be news that she did not agree with, or wish to hear. Her evidence was that she wanted to process the decision alone and consider the reasoning in writing, and "not be put on the spot while I was crying."[53] We infer from this that WWZ was at least reasonably confident as to what the outcome would be. The Department continued to attempt to follow what it described as "best practice" by continuing to pursue a face-to-face meeting with WWZ.[54]
4. Following unsuccessful attempts to achieve this outcome, a case conference was convened on 3 December 2019 to discuss the way forward. The outcome was that WWZ was informed of the decision to place UPQ with AWO by an emailed letter sent on 3 December 2019 followed by a phone call from Ms Blanch to URY with WWZ present in the background, on 4 December 2019. The letter read as follows:

Dear [WWZ],

I wish to inform you in writing of the decision that has been made in relation to the care arrangements for [UPQ] who is currently in your care.

As you are aware, the Department for Child Protection adhere to the Aboriginal Child Placement Principles (ACPP's) as outlined under section 3 of the Children and Young People (Safety) Act 2017. As [UPQ] is an Aboriginal child, the Department have had to give consideration to appropriate and safe Aboriginal family members who are in the position to provide a placement for [UPQ] who is now under a GoCE18 year order.

[UPQ]'s uncle, [AWO] and his partner, [WDN] who provide care to two of [UPQ]'s siblings indicated that they wished to be considered to provide care to [UPQ]. A process of consideration and consultation was undertaken with two case conferences convened with a number of participants who contributed views to the decision making. You were provided with the opportunity to express your views via your AFSS placement support worker. After very careful consideration a decision was reached that [UPQ] should transition to the care of [AWO] and [WDN] given they are his family and they are able to meet his current and ongoing needs for care as well as maintenance of his identity and culture and raise him alongside his siblings.

I wish to be clear that the decision was not easy to make and this decision does not reflect on the quality of care that you and your partner [URY] have provided to [UPQ]. The Department recognise that you and [URY] are important people in [UPQ]'s life and you have done an excellent job of providing care to [UPQ] and other vulnerable children who require alternative care. The love and commitment you have shown to [UPQ] has provided him with the opportunity to receive extremely responsive care. However, as an Aboriginal child, it is important that he has an opportunity to be raised within a safe family setting alongside his siblings with Aboriginal kinship carers who can ensure that he is able to have day to day lived experiences of his culture and maintenance of his Aboriginal identity. It is this last aspect relating to identity and culture that added a level of significant complexity to the decision making keeping the ACCP's (sic) in mind.

Now that the decision has been reached and communicated to you, The Department will need to arrange the transition of [UPQ] from your care into the care of [AWO] and [WDN]. The transition will begin from the week starting 9th December 2019. In any transition planning, the carer is critical to the process and we hope you can acknowledge that to minimise distress to [UPQ], it is imperative that you work with the Department and Aboriginal Family Support Services during this process. We ask that you also give consideration to remaining a part of [UPQ]'s life in recognition of the significance of the relationship that you have established with each other and that you are still important people to him moving forward in his life. We will be in contact in the coming days to make these arrangements.

As with any important decisions that are made by the Department, if you do not agree with the decision made, you have the right to request a review of the decision within 30 days of the information being communicated to you. You can visit the below link to find out what process you can follow and I have also included the form you need to fill out if you are seeking a review.

https://www.childprotection.sa.gov.ay/department/contact-the-department/internal-reviews

Kind regards,

Hayley Blanch

Supervisor

Department for Child Protection - Woodville[55]

1. Until the day of the hearing, the Department's position was that this was the document that recorded Ms Blanch's decision. The document is considered further later in this decision. For the time being, we observe that the only reference to the statutory criteria is to the Aboriginal and Torres Strait Islander Child Placement Principle and there is no acknowledgement of the harm to UPQ that will arise from breaking the primary attachment relationship between WWZ and UPQ.
2. Upon being informed of the decision, the applicants asked the Department to obtain a psychological report in relation to the effect of moving UPQ from WWZ's care as requested at that point by WWZ. Their evidence was that nothing that had been imparted to them indicated that a psychologist had been involved in the decision-making.[56]
3. The Department declined this request and a five week transition plan was developed. Discussions with WWZ about this were fraught as the applicants were embarking on the process of challenging the decision by lodging an internal review. In the end, the transition plan was not implemented and has not been implemented since.
4. The relationship between WWZ and the Department has not recovered from its low point at the beginning of December 2019 when the decision was communicated to WWZ. Since then, there continue to have been complaints by WWZ about the Department's conduct and about the care being provided to UPQ by others.

1. A person aggrieved by a decision to place a child may seek an internal review under s 84 of the Act_._
2. WWZ submitted an application for internal review of the decision on 10 December 2019. WWZ told the Tribunal that she was told by staff in the Woodville office, at some time between 10 December 2019 and the decision being made on 2 January 2020 that the decision would not be changed. If that is true, it is unsurprising that WWZ had no confidence in that process.
3. WWZ submitted that the original decision (as conveyed to her by the letter of 3 December 2019) contains no reference to risk of harm arising from UPQ's proposed placement with AWO.[57] She also complained that her submission to the internal review was not listed amongst the material that was taken into account by the internal reviewer,[58] nor were various interactions between WWZ and the case management team which she understood were documented in emails and case management notes. WWZ submitted to the Tribunal that "the only voice and documents available to the reviewer during the [internal] review was that of DCP."[59]
4. We note that the document that the Department now says records the decision, being Ms Blanch's case note dated 27 September 2019, was not listed amongst the materials considered by the internal reviewer.
5. The outcome of the review was to affirm the original decision. As with the original decision, the internal reviewer did not articulate the process to be undertaken when making a decision to move a child from one placement to another, or the question the decision-maker had to address. We accept that WWZ had reason for her concerns that the decision-maker had posed herself the wrong question when the decision-maker identified the need to implement the Aboriginal and Torres Strait Islander Child Placement Principle on several occasions in the decision prior to addressing the issue of harm arising from a severed attachment between a child and primary caregiver. Indeed, the treatment of the issue of breaking that attachment relationship was referred to as "disruption" and "distress" on several occasions before later being acknowledged as a harm. As will be seen, that gives rise to a real possibility that the breaking of the primary attachment was being treated as transient separation anxiety rather than the harm that the Department later acknowledged it to be.
6. The Department submitted, and we accept, that this Tribunal's review is of the original decision made under s 84, and not the internal review outcome.[60] Accordingly, we will not dwell further on the internal review process. We consider it appropriate to observe that as WWZ had not contributed directly to the original decision, and as her contribution to the internal review had not been listed as having been considered, and given that neither decision was expressed in a manner that lent itself to being understood in its legislative context, we are not surprised that WWZ was not satisfied with the process or the outcome.

1. The applicants lodged an application for review in the Tribunal on 3 January 2020. A stay of the original decision was granted. URY was joined as a party to the proceedings. An unsuccessful conciliation conference was conducted before the matter was referred for adjudication.
2. As the proceedings are in the nature of a review of an administrative decision, the proceedings are quite dissimilar from applications to the Youth Court for orders for guardianship of a child or appeals from those decisions, both of which are brought under Chapter 7 of the Act. In an application to the Court for a guardianship order, the Minister or Chief Executive or authorised person seeks to establish to the Court that evidence supports the grant of an order. The child and the parents are parties to such an application. In an appeal against such orders, the onus is on the dissatisfied party to establish that the order was wrongly made or ought to be varied or revoked because of changed circumstances. The Court acts as an independent umpire of those contests.
3. In a review under ss 34-38 of the SACAT Act 2013, the decision-maker is required to make the decision according to law after gathering the relevant information, which may involve requiring a statement of the reasons for the original decision or any other document or thing from the original decision-maker. The decision-maker should be clear to the applicant and the Tribunal as to whether the grounds for defending the decision remain the same as those relied upon to make the decision. It was regrettable that the rationale for the Department's decision was, until the receipt of the Department's outline of argument and fresh evidence, unknown to the applicants. In hindsight, a requirement by the Tribunal at the commencement of this review that the decision-maker furnish a statement of reasons supplementary to that which the Department advanced as its reasons, being the letter from Ms Blanch to WWZ dated 3 December 2019, may have brought certain issues to the forefront earlier than when they occurred in this matter.
4. When the Tribunal makes its decision, which may be to affirm, substitute or remit the original decision, the decision made by the Tribunal is to be regarded as the decision of the Department, which is quite different from the orders of the Court which stand separate to and binding on the Department.
5. Whilst the decision-maker has a legislated role in the review to assist the Tribunal, that role is to be carried out in a manner that reflects the fact that it is not an applicant (as it is when it appears before the Court), and must act in a manner that is consistent with the pursuit of the correct or preferable decision, rather than a defence of the decision originally made. The Department should approach a defence of the original decision cautiously, in order to avoid an apprehension of bias in any re-making of the decision that may be required on a remittal.[61] To that end, the decision-maker is required not to defend a decision that it realises has been infected by error, but to assist the Tribunal to identify that error and to make submissions as to how the decision is best re-made.
6. The Tribunal acknowledges that the Department undertakes a large volume of decision-making in circumstances of urgency. Nevertheless, it is undesirable for a decision-maker to gather new evidence in support of a decision after a decision has been made. Firstly, it suggests that the decision-maker may have been aware that there was additional evidence available that might assist in the making of a correct decision. If that evidence was available when the decision was made, and required to justify the decision, it is preferable for it to be gathered at that point. Secondly, the decision-maker might be tempted to seek out information that supports the original decision rather than contributes to a correct decision. Thirdly, it requires the challenger to meet a case that is possibly different from that which has been challenged.
7. Rather, once a review is initiated, the question of whether the decision is properly supported by evidence is one for the Tribunal to make. It can, as stated above, direct the provision by the Department of such evidence within the Department's possession or control as it thinks fit, and direct the obtaining of other evidence if required of its own motion.
8. The Tribunal may, in the exercise of its discretion, allow the decision-maker or the challenger to adduce evidence that was not before the decision-maker when the original decision was made. As to whether a party should be permitted to adduce further evidence in support of the challenge to the decision brought under s 34, the discretion should be exercised by reference to a number of factors including the likely relevance of the evidence, whether (in respect of evidence sought to be adduced by the decision-maker) it was available when the original decision was made, and the time it will take to obtain the evidence, bearing in mind the option of remitting the decision to the decision-maker at any time for the decision to be re-made, and the need for expedition.
9. In this case, the parties each sought to gather further evidence and the decision-making at the interlocutory stages permitted that. That may not always be the appropriate course of action. Nevertheless, we consider that we now have sufficient evidence to make the correct decision.
10. Counsel for the Department suggested that we place significant weight on the decision of the original decision-makers, citing the Tribunal's decision in Breeding v Registrar of Firearms.[62] In that case the Tribunal acknowledged that the decision-maker was well-placed to make an assessment as to whether the safety of the public required the cancellation of a firearms licence as the decision-maker also fulfilled the role of leading the State's primary law enforcement agency, SAPOL.
11. We accept the Department's submission that Ms Blanch, who made the decision, has specialist knowledge in relation to the operation of the Act and in relation to child protection.
12. The make-up of the Tribunal contributes to the issue of the extent to which weight should be placed on the original decision-maker's decision. We observe that in this case, in contrast to Breeding, the Tribunal was constituted so that it has the expertise of Ms Gursansky who possesses professional expertise in the area of child protection.
13. The approach taken in this case by the Department that the Tribunal ought to place significant weight on the decision made by the Department[63] was surprising for two reasons.
14. Firstly, the decision-maker herself relied upon expertise beyond her own and, after the decision was made and challenged, set about gathering evidence from Dr Clark regarding the matters relevant to the decision after the decision was made. It was Dr Clark's evidence upon which the Department then asked us to rely to reach our decision.
15. Secondly, the original decision - whether correct or not - was not set out in any single document and was not at any time prior to the report of Dr Clark stated in any way that could be understood by the applicants to be an application of the requirements of the Act to UPQ's circumstances.
16. What the Department did not do in this case was identify for WWZ, AWO or the Tribunal (and importantly, later, for UPQ himself)
    • the basis on which it applied its knowledge of the harm caused to UPQ by the breaking of the attachment between him and WWZ;
    • how it went about weighing that harm against the harm that was articulated in respect of deprivation from growing up amongst relatives, and with cultural connection and identity;

and then express the outcome as a conclusion by reference to the two sets of Placement Principles and their application in a manner that best protected UPQ from harm.

1. To have done so would have demonstrated the alignment of the decision with the legislatively mandated task.
2. Thus, while we accept Ms Blanch's expertise and the evidence she has given before the Tribunal, we cannot place significant weight on the original decision, and we have been compelled to undertake the process afresh based on all of the evidence including that which the Department gathered after Ms Blanch made her decision.

1. The applicants' case is that there will be significant, long-term harm caused to UPQ if his attachment with WWZ is broken by moving him to live with the B family. They submit that they can provide UPQ with means to ensure his Aboriginal identity and cultural connection is developed. They argue that the Department has made an error by elevating the Aboriginal and Torres Strait Islander Placement Principle above the consideration of harm caused to UPQ by removing him from the care of his primary caregiver. Further, they say that the harm caused by the transition will not be minimised because neither the Department nor the B family will take the steps to ensure that this occurs.
2. The applicants put their case through the evidence of WWZ, URY and Dr Begg, psychiatrist, and through cross-examination of the Department's witnesses, and by making detailed submissions.

1. The Department defended the reviewable decision as being consistent with the legislative requirements. In particular, that the decision to move UPQ into the long-term care of AWO avoided the likely long-term harm that would be caused by depriving UPQ of the connection to his Aboriginal culture and family that only living with them could provide, and the short-term distress and possible long-term harm caused by the breaking of a secure primary attachment with the applicants would be minimised by implementing a transition plan.[64]
2. The Department contended that in either placement, UPQ will be provided with a "safe, nurturing stable and secure environment" as is to be aimed for pursuant to s 11(1) of the Act, and placed with someone with whom he has an existing relationship. It also acknowledged that either of the decisions to appoint WWZ or AWO as the long-term carer of UPQ would result in some harm to him. Therefore, the decision-making process required an assessment of what would cause the least harm or the harm with the least impact.
3. The Department contends that the reviewable decision is correct or preferable because the placement with AWO has the result that UPQ is with a biological family member, a person who has a position of responsibility for UPQ, and is a member of his community.[65]
4. An issue that the Department had to address was the fact that the decision under review was set out in several written documents, one of which was only located three days before the hearing. Secondly, the Department gathered the primary piece of evidence upon which it sought to rely in explanation of the correctness of the decision, being the assessment of an independent psychologist, Dr Clark, after Ms Blanch made her decision. Thirdly, the Department advised the Tribunal that it intended to adduce minimal information regarding the proposed carer, AWO. The evidence it proposed to adduce was from three witnesses, the only one of whom had met AWO was Dr Clark.

When can and should the Department move and place a child?

1. The Chief Executive's power to place a child must be exercised under s 84 in accordance with the priorities mandated by the Act, which relevantly in this case required the decision-maker to give paramount consideration to protecting UPQ from harm, and to fulfil his needs for love and attachment, self- esteem and to achieve his full potential.[66]
2. "Harm" includes long-term and short-term harm. It includes psychological and physical harm.[67] Attachment is a term used in the Act as a need that a child must have fulfilled. The breaking of a secure primary attachment has been acknowledged to cause "immediate trauma".[68] The term "cultural harm" was used often by the witnesses and the Department. It is not a term found in the Act. From the evidence of Dr Clark, Ms Collins and Ms Clark, we understand it to refer to a form of psychological harm caused by a deprivation from the opportunity to live within a culture that one's biological family members practise, and may manifest in (amongst other things) confusion, depression, loss of identity and loss of self-esteem.
3. The legal framework requires the difficult act of considering different types of harm including long-term and short-term harms. It requires that children are protected from harms of all types.
4. There are two sets of placement principles to be considered in respect of potential placements where the placement of the child is consistent with their protection from harm.
5. The placement principles in s 11, applying to all children and young people, require placement in
   • A safe, nurturing, stable and secure environment; and
   • Preferably with a person with whom the person has an existing relationship.
6. Further, as an Aboriginal child, a placement for UPQ should, if reasonably practicable, be with (in descending order of priority)
   • A member of his family;
   • A member of his community who has a relationship of responsibility for him;
   • A member of his community; or
   • A person of Aboriginal cultural background.
7. These are the principles contained within the Aboriginal and Torres Strait Islander Placement Principle.
8. Accordingly, the Tribunal's task in this case is to identify the harm or harms that might arise from UPQ's long-term placement and incorporate into the decision the various placement principles. The process is not a two-step process as both sets of placement principles direct the decision-maker to factors which, if not considered, may lead to harm.
9. The phrase "if reasonably practicable" in the Aboriginal and Torres Strait Islander Child Placement Principle speaks to matters such as location. Placing a child with needs for particular specialist health care in a remote community might not be reasonably practicable if the child would have to travel long distances on a regular basis to receive the necessary health care. We do not consider that the concept of reasonable practicability extends, as the applicants suggested, to whether the child should be exposed to the harm of breaking attachment.[69]

UPQ had been harmed before arriving into their care

1. The applicants' case, against this framework, was that UPQ was harmed in the first year of life and this created in him a vulnerability to greater harm. A psychological assessment of UPQ and his siblings was undertaken by the Department's Senior Clinical Psychologist, Ms Hayter, in July 2018, to enable decisions to be made about their care needs.[70] A redacted version[71] was provided to the Tribunal. The applicants invited the Tribunal to draw the above conclusion from that report. It stated that UPQ's first 12 months were:

characterised by chaos, stress and disruption, and it is unlikely that he had access to a consistent and responsive caregiver while in the care of his parents and grandmother. It is therefore important that as [UPQ] enters the next phase of active attachment, he is afforded consistent, nurturing and attuned caregiving. The writer is concerned that without this level of care, and with further uncertainty and chaos, [UPQ] is at increased risk of developing social, emotional, cognitive and behavioural difficulties, and will be less able to reach his full potential.[72]

1. The report recommended that all five children be placed in family-based placements and that "priority should be given to securing attachment figures for the children, even if that means the children reside in separate placements. Efforts should be made to obtain culturally appropriate placements for the children, as per the Aboriginal Child Placement Principle."[73]
2. The applicants emphasise the trauma that UPQ has already experienced prior to being placed with them and that this heightens his risk of succumbing to long-term trauma.[74]
3. WWZ said, "We believe that [UPQ] should have been placed with [AWO] and [WDN] on 10th October 2018 when [IAN] and [ZJHO] entered their care. We think the system failed [AWO], [UPQ], [IAN] and [ZJHO] at this time. Unfortunately, to rectify this mistake two years later would be detrimental to [UPQ]'s mental health and whole wellbeing."[75]

The applicants have provided UPQ with excellent care, UPQ's primary attachment is WWZ and to break that attachment would cause him harm

1. The applicants led evidence that UPQ is currently in a safe, nurturing, enriching and stable environment. This evidence came via the applicants' written statements and in particular the statement of WWZ.
2. WWZ became an approved foster carer for Indigenous children through the AFSS in 2016. She has fostered 15 children including UPQ. He came into her care when he was 13 months old in July 2018. For much of 2019, WWZ cared for another Indigenous infant, whom she says she "happily transitioned to her forever home in October 2019".[76]
3. She says that she and URY love UPQ "unconditionally as our own son". She says that of his own accord, UPQ began to call her "mummy".
4. WWZ submitted that there will be "serious lifelong harm by a break in attachment [with her]".[77] She said,

the loss of the significant care-giving relationship and bond that [UPQ] has with both [URY] and I poses an enormous threat to his emotional well-being and general development.... There is abundant scientific knowledge and evidence regarding early childhood development attachment disruption and cumulative adverse experiences which causes severe life-long issues. Attachment theory was developed based on cross cultural research. Some aspects of attachment theory are also regarded as universal such as secure attachment is the most desirable state, and specific infant attachments predict later social and cognitive competence. (https://en.wikipedia.org/wiki/Attachment_theory). A break in attachment can lead to tragic outcomes.[78]

UPQ will be harmed by the breaking of the primary attachment

1. The applicants arranged for a psychiatric report by Dr Jules Begg to be provided for these proceedings. Dr Begg is an experienced clinical psychiatrist who works full-time in private practice treating adults and undertaking WorkCover assessments. He regularly writes forensic psychiatry reports for criminal, civil, youth and family law matters.
2. Dr Begg was provided access to a brief that included Ms Collins' report and Dr Clark's report, both obtained by the Department. He provided an assessment of each of the applicants. We will not focus on that aspect of his report as the applicants' suitability to provide the care that they have provided to UPQ has never been a reason given by the Department for placing UPQ with AWO.
3. Dr Begg did not see UPQ or any of the B family prior to providing his report. He was asked, against the views that he had formed of the applicants, to state his opinion as to whether it was more likely or probable than not that either short-term or long-term harm or both will be caused to UPQ as a result of a transition from his current placement with the applicants into the B family.
4. Dr Begg endorsed Ms Collins' statement as to the importance of a stable secure attachment for UPQ's development.[79] He stated that a healthy adult personality requires a childhood in which there is a secure attachment and resilience to any childhood trauma events. In his oral evidence, he said,

... a child is not born with a capacity to fully regulate their physiology with a sense of personality, with an ability to regulate their emotions, with a sense of anything about how the world exists and their place in that world and ... those psychological and physiological capacities are developed through an attachment that occurs in the early years of life. So they are critical. It's not just a society-based emphasis. It's universal for all children.[80]

1. Dr Begg explained in his report that the sudden breaking of a secure attachment is experienced as a trauma. He stated that adults who have experienced disruptions, particularly with a primary caregiver, will often develop a personality disorder. He described that as an "enduring pattern of inner experience and behaviour that deviates markedly from the expectation of the individual's culture, is pervasive and inflexible, is stable over time and leads to distress or impairment."[81] In his oral evidence, he told the Tribunal that, having reflected on the issue, he wished to state as his opinion the view that UPQ would not necessarily experience a personality disorder if his attachment to WWZ were broken, but that it would have a negative effect on his life.[82]
2. Dr Begg made the point that it was important not to confuse evidence of UPQ's separation anxiety when temporarily leaving the applicants' presence as a 'harm'. He said,

I consider it a normal reaction of a healthily attached child to exhibit anxious behaviours when not in the presence of their attachment figure.[83]

1. Nevertheless, Dr Begg considered that there would be short-term harm if UPQ were moved from his current placement to the B family. He said that this short-term harm would come about because of an enduring separation anxiety that he would not be able to process. This would be likely to manifest itself in regressive behaviours or anger. In turn, this would be likely, in Dr Begg's view, to cause an attachment disorder in one of several forms that would be internalised as a working model for his adult personality. This would bring about the long-term harm of an abnormal personality.
2. Dr Begg framed the issue as follows. The short-term harm from breaking the attachment was inevitable. The long-term harm breaking the attachment was likely, and could be ameliorated by an effective transition but whether the transition would be undertaken effectively was unknown. The long-term harm caused by a lack of cultural connection might be probable but was some time in the future. Thus, he considered the assessment to be one of a definite immediate harm balanced against a possible future harm.[84]
3. WWZ also referred the Tribunal to various statements concerning the harm that may be caused by disrupting secure attachment from the Australian Association for Infant Mental Health and a committee that examined developmental issues for young children in foster care.

The B family cannot replace the primary attachment and care relationship

1. WWZ considers that the option of placing UPQ with AWO should not be preferred because of certain aspects of his care which are not as advantageous to UPQ as she can offer including
   • His own room and bed, the lack of which WWZ described as "inexcusable";[85]
   • Providing a family that want to care for UPQ for reasons other than furthering a family feud;[86]
   • Maintaining routines;
   • Feeding him healthy food;
   • International travel and experiences;
   • Enabling him to see his "Port Augusta sisters";[87] and
   • Having the financial base to provide for UPQ.[88]
2. She submitted that UPQ has already shown and continues to show the evidence of short-term harm associated with the transition, including separation anxiety[89] and "loud and destructive" behaviour after returning from visits.[90]
3. She considers that he will not be able to fulfil his potential in a household where he is competing with five other children for his carers' attention.[91] WWZ submitted that the size of the household and the limits on resources will prevent AWO from providing the "exceptional caregiving" that the Department's psychologist said would be needed to minimise the harm caused by moving UPQ to him.[92] WWZ considers that some of AWO's actions have adversely affected UPQ. This included cancelling visits, insufficient and unhealthy foods, and not changing his nappy.[93]

The applicants can and will minimise potential harm associated with cultural identity and connection

1. The applicants accepted that to deprive UPQ of his Aboriginal identity would cause him life-long trauma.[94] WWZ acknowledged that it will benefit UPQ to have connections with his biological family members and with Aboriginal culture. The applicants submitted that they have demonstrated their willingness to become culturally competent and they will continue to gather such competence.[95] They gave evidence that they had been gifted an Adnyamathanha Moiety and had been accepted as UPQ's parents by an Adnyamathanha elder.[96]
2. WWZ submitted that she has demonstrated commitment to UPQ establishing and/or maintaining connections with family and culture including:
   • Teaching him his siblings' names;
   • Providing an opportunity for AWO to attend a Christmas party with UPQ and a birthday party;
   • Giving him access to the culture of what WWZ stated to be the most important bloodline to an Aboriginal child; the mother's;[97]
   • Being gifted the honour of being a South Wind (Mathari) by an elder;[98]
   • Attending workshops and training both offered by the AFSS and of their own accord;[99] and
   • Taking him back to country.[100]
3. The applicants submitted that they can provide UPQ with sufficient access to culture by facilitating UPQ's access to his sisters and to AWO. They consider that they will offer better access for UPQ to his maternal side of the family including his two sisters who live with their maternal aunt in Port Augusta.[101] They referred to the recommendations of Dr Clark.[102] Those recommendations were:[103]
   • An understanding that [UPQ]'s level of culture and connection cannot be accommodated by only attending general Aboriginal events. He needs to connect to his specific language groups and their cultural practices and to the people within them. [UPQ] is connected to a number of language groups from his paternal and maternal side.
   • The interaction and relationship between [UPQ]'s family ([AWO] and [WDN]) and the current carers. It seems at present there is some animosity and limited communication. It is a relationship that would need repairing and re-building.
   • Carer insight and understanding about the importance of culture, family connections and different value and behavioural systems (from their own) and that [UPQ]'s safety is not compromised due to his Aboriginality.
   • Carer insight and understanding that [UPQ]'s culture needs to be nurtured and is progressive.
   • An understanding that active cultural nurturing, family, community and country connections leads to a healthy Aboriginal identity and contributes to greater wellbeing.
   • An unsolicited active commitment and effort to nurture [UPQ]'s culture by their presence and being involved in taking him back to country on land and sea and or attend significant and important events such as funerals on country.
   • Their commitment to ongoing cultural training and understanding- it's a lifelong commitment and not just occasional.
   • The pursuance of a cultural mentor to assist and reflect on cultural matters relevant to [UPQ].
4. The applicants maintained that, in addition, the reviewable decision provides no account of how UPQ will cultivate an adequate cultural connection to his maternal family's culture.[104]
5. The applicants did not, however, dispute the significant role that AWO could play for UPQ in terms of providing a connection to family and culture. WWZ's written statement contained the following,

From July 2019 until current day, [WWZ] and [URY] trust [AWO] to be a cultural mentor and teach [UPQ] about the Adnyamathanha land, language, community and cultural ceremonies including sacred men's business. We trust [AWO] to teach [UPQ] about caring for country and to teach [UPQ] their stories, songs and language. We trust [AWO] to teach [UPQ] about Aboriginal identity and enable [UPQ] to be initiated when he becomes a man.[105]

1. WWZ submitted that the documents and the decision reveal that the Department has mistakenly elevated the Aboriginal and Torres Strait Islander Placement Principle to be paramount over harm.[106] WWZ submitted that the decision is inconsistent with the Department's own statements regarding the value of permanence and stability, and the Child Protection Systems Royal Commission's findings and recommendations on that issue.[107]
2. An application of the test in the Act as properly understood, they submitted, leads to the conclusion that while it may have been at some earlier date the correct decision to place UPQ in the care of AWO, it is not now the correct decision because of the harm it would cause him.
3. They concluded by stating that they would provide UPQ with high quality education, private health insurance, worldwide travel, the love of their extended families, role models as parents,[108] and that we should set aside the original decision and substitute a decision that UPQ remain in the care of WWZ.

1. The Department's case was led through the evidence in its Book of Documents and several witnesses, being the decision-maker, Ms Blanch, the Departmental psychologist, Ms Collins, and an external expert, Dr Clark. At the Tribunal's suggestion, the Department also arranged for the attendance of the B family to give evidence.
2. As to the process undertaken in respect of the original decision, the Department's evidence was provided by the decision-maker, Ms Blanch, who provided an affidavit affirmed on 24 August 2020 and gave evidence.
3. Ms Blanch is a supervisor at the Woodville office. She has been a supervisor since 2017. She has a Bachelor of Psychological Science and Social Science and a Master of Social Work. She worked for AFSS in 2001-2002 and since then has had a number of roles progressing in seniority within the Department.
4. She became involved in UPQ's case in late February 2019. At that time, the Chief Executive's application for long-term guardianship orders was underway.
5. She oversaw UPQ's case management with a team comprised of a Senior Practitioner and a Social Worker. During UPQ's time under the Chief Executive's guardianship, the Senior Practitioner role has been held by two officers and the Social Worker role has been held by four officers.
6. Ms Blanch holds the delegated authority from the Chief Executive to make a decision under s 84 to place UPQ in particular care arrangements.
7. Ms Blanch described one of her functions as being to review and consider information gathered from various sources to make decisions with respect to UPQ's care arrangements.[109] The day-to-day communications and actions undertaken for the purposes of case management are undertaken by the social workers and senior practitioners. Ms Blanch had not, prior to the proceedings, met the applicants, the proposed carers or UPQ himself.[110]

Why does the Department consider that it is correct or preferable to place UPQ with AWO?

1. The reasons for the Department's decision have been expressed in a variety of ways. In Ms Blanch's case note of 27 September 2020, the task can be inferred as being one of balancing the harm of disrupting attachment and adverse experience regarding identity and long-term health, and wellbeing caused by lack of access to culture. When those harms are balanced, it is in UPQ's best interests now and until he is 18 to be reunited with his siblings and develop a cultural connection and Aboriginal identity. The proposed carers are a safe and stable care option. The benefits of the care option cannot be achieved through occasional contact.
2. In the letter of 3 December 2020, Ms Blanch stated that she was required to give effect to the Aboriginal and Torres Strait Islander Placement Principle which required her to give consideration to Aboriginal carers who could provide safe care to UPQ as an Aboriginal child. AWO can provide such care and meet UPQ's needs for cultural connection. The reasoning was not expressed by reference to harm, and emphasises the benefit in respect of the placement with AWO that would not arise if UPQ were placed long-term with WWZ.
3. In her evidence, Ms Blanch referred to the risks of either decisions. She said that there are poor outcomes for children not raised within an Aboriginal family. She spoke of their disaffection, confusion of identity, and the hurt caused by not being able to be raised with siblings and cousins. She said that when those children reach adolescence, they start to seek out their family, challenge their placements and it places the children in "incredible distress".[111]
4. In explaining attachment theory, she said,

certainly there's an active attachment phase that occurs somewhere between 7 months and perhaps 12 months, where, you know, that's really kind of strong window there that you want to try and have, I guess, stability there, with that particular attachment phase in the development of that child, and then, you know, I guess in terms of how a child kind of, you know, develops further, that, you know, their kind of world opens up to other people that they have strong connections with. There's a difference, I guess, of views and opinions in terms of, you know, the Westernised concept of attachment and then this concept that's put forward by Aboriginal people that children can develop multiple attachments, with multiple significant people who all have a role in meeting the various needs of the child.[112]

1. It is Ms Blanch's view that AWO will give UPQ the broadest access to family on both sides.[113] She considers that UPQ's connection to culture will be important for his wellbeing when he is an adolescent.[114] It was a factor in her decision-making that AWO and WDN have already raised several children into adolescence and that they would be able to support UPQ "at every stage of his development".[115] AWO would, in her view, fulfil his cultural responsibility to UPQ by assisting UPQ to navigate the complex system of cultural ceremonial activities.[116]
2. This long-term view of the parenting role was not emphasised in the various records that contained the rationale for the original decision. We accept that they have always reflected Ms Blanch's views, but those views were not set out in any document available to the applicants prior to the hearing.
3. Ms Blanch was sufficiently confident that the decision to place UPQ with AWO is the correct one that she considers that even if the transition is not supported by one or both families, it is still the right decision.[117]

1. Ms Collins is the Principal Clinical Psychologist of Psychological Services in the Departmental who was one of several who provided advice to the decision-maker and then provided an affidavit and gave oral evidence.
2. Ms Collins became involved in UPQ's case in March 2019 when she was asked to attend a case conference. She described her contribution to the case conference process as follows:

At the conference, the case management team will provide the consultants with the background of the case and particular issues arising, or details of any decisions required to be made that require consultation. The consultants will then provide information and professional opinion to the case management team so that they can test their ideas, and take the specialist information into account when making case management decisions.[118]

1. Ms Collins attended five case conferences regarding UPQ. She did not meet UPQ, the applicants, or the B family.
2. In her contribution to the September case conference, she wrote:[119]

From a psychological perspective there is considerable risk to [UPQ]'s long-term psychological health and wellbeing should he be removed from his current placement. [UPQ] is 2yrs and 3 months old and is in the active attachment phase of his development. At this stage of his life, the most important developmental task that he faces is to continue the rapid development of his physical, social, emotional, behavioural, communication and thinking skills. Children of this of (sic) age achieve optimal developmental progress in the context of loving and supportive relationships with primary caregivers who are sensitively attuned and responsive to their needs. It is within relationships that infants learn about themselves and the world around them. Furthermore, forming a healthy attachment relationship is associated with many positive lifelong outcomes for children, including good mental health, healthy social relationships across the lifespan, and effective emotional, behavioural and physical regulation skills. Research literature indicates that the early loss of significant care-giving relationships poses an enormous threat to child's emotional well-being and general development. Removing a child from a familiar environment in which they know that they are wanted, connected and valued is likely to result in confusion, disorientation and fear**, irrespective of the quality of the care-giving that they transition into.** Children experiencing confusion and fear are unable to attend to the significant developmental tasks ahead of them as their limited resources are focused on keeping safe and making sense of confusion. For very young children, placement moves are particularly traumatic because an infant has no way of understanding what they are experiencing and they are likely to be bewildered, angry or resigned. Unfamiliar surroundings and people are particularly stressful.

For [UPQ], removal from his current carer's care would be his third experience of the breakdown of his primary caregiving relationships within the developmental window for active attachment. He was removed for Gma and Fa at 11 months and from Mo at 13 mths. Every time a child experiences a rupture to their attachment relationship it represents a traumatic event for them and compromises their resilience for further placement moves. A young child experiences each placement change as a rejection of themselves by their carer as they lack the cognitive skills to make sense of the move in any other way. Continued "rejection" gives the child negative messages about themselves and about relationships that have lifelong implications for mental health and relationships. They can learn that they are bad, unwanted or unlovable. They can learn that relationships do not endure and that adults cannot be relied upon to be there for them. These ways of seeing the world persist across the lifespan and are not short-term or temporary.

However, we also understand that there are significant negative psychological outcomes for children who are deprived of the opportunity to grow up within their culture from a young age. There was considerable information provided in the meeting about the particular cultural strengths and opportunities that exist within [AWO] and [WDN]'s family, and that these cultural connections would only be accessible to [UPQ] should he reside in their care.

Our understanding of developmental psychology and the Department's policies about timely decision making for children both support a recommendation for [UPQ] to remain in his current placement. However, I think that the evidence for the cultural benefits for [UPQ] residing with [AWO] and [WDN] is compelling. If the decision is made by the case management team that [UPQ] is to move, it is my opinion that it is inevitable that a transition will be traumatic and damaging for [UPQ] and that he will require exceptional caregiving in order to minimise the damage. In order to mitigate the trauma as much as possible, a transition plan would need to be carefully thought out and it is possible that the family will require therapeutic support to help [UPQ] and themselves to form strong relationships. I am willing to be involved in supporting a transition if that is the decision that case management makes.

1. The applicants placed reliance on these statements as supporting the proposition that UPQ would suffer harm if the attachment with WWZ was broken, and that as she was a psychologist, the decision-maker ought to place significant weight on her views as her expertise lay in the assessment of harm.
2. In her affidavit, and in her oral evidence, it is fair to say that she was more neutral regarding the decision to be made than might have been inferred from her written contribution to the case notes, and that this was explained by the nature of the conference, with her role being to put information related to her area of expertise but not to propose an outcome, which was the role of the decision-maker after assimilating the various views.
3. Her view over the various case conferences was that neither placement with the B family or with WWZ was preferable over the other. She said, "It was not my view that the attachment argument 'trumped' the cultural argument. I recall there were compelling considerations either way."[120]
4. She thought that either decision would "likely have considerable implications on his long-term mental health and wellbeing. On the one hand, he was at risk of further disruption of his attachment relationships if he transitioned into AWO's care, while, on the other hand, he was at risk of negative psychological outcomes arising from disconnection from his culture if he remained with WWZ."[121]
5. When it came to giving oral evidence in these proceedings, she had had the benefit of considering the reports of Dr Begg and Dr Clark. In respect of Dr Begg's written opinion, Ms Collins said,

My key observation is that Dr Begg bases his comments on the assertion that the disruption of a healthy attachment relationship during the active attachment phase will have similar psychiatric outcomes to complex childhood trauma. While I agree that the rupture of an attachment relationship is likely to be experienced as a traumatic event, not all traumatic events are experienced in the same way.[122]

1. Ms Collins acknowledged Dr Clark's knowledge and expertise in the area of Aboriginal child psychology and Aboriginal cultural trauma, and accepted her views regarding the assessment of cultural risk and the impact of cultural trauma. She said,

I accept Dr Clark's view that the concept of attachment theory within psychology is regarded as being ethnocentric in that, whilst the concept that children need caregivers is universally held, in western culture a child generally forms an attachment to one or two primary caregivers, whereas Aboriginal cultures conceptualise that a child requires attachment to his or her network of caregivers.[123]

1. Ms Collins considered that it was likely that there would be significant grief and short-term harm for a child who suffers a secure attachment but did not agree that a disrupted attachment will necessarily be a trauma that is equivalent to or likely to lead to a psychiatric disorder.[124] She thought it unlikely that UPQ would develop an attachment disorder. She noted that his attachment development was already compromised as a result of his previous placement moves but that he was currently healthy and that his current attachment "has likely provided him with a degree of resilience that will assist him to manage the distress of a placement move."[125] However, she refrained from forming a final view as to which placement decision is in UPQ's best interests because she had not made an assessment of the relevant individuals. She described the decision as "finely balanced". However, she recommended strongly against further delay in making and implementing a decision.[126] Whilst she was firmly of the view that the way that the transition was handled could significantly reduce the potential for negative impact, she was of the view that the decision as to where he should be placed was justifiable independently of the transition.[127]
2. In her oral evidence, she said that the decision regarding UPQ was a particularly difficult one because of the risks that had to be balanced. The risk that UPQ would not be adequately culturally connected if he remained in his current placement with the applicants would begin to manifest itself when UPQ was about 10 or 11 years old.[128]
3. Whilst she agreed that past disruptions to attachment and trauma may have harmed UPQ's accumulation of resilience, she said that Dr Clark's observations that he was behaving in a well-adjusted manner did not allow her to say definitively that UPQ had a greater risk of harm from the rupture to the attachment that would be caused if he moved to the B family.[129]
4. She said,

I don't know how you would mitigate cultural harm. I don't know that that's possible beyond living within the culture. ... I think it is possible to mitigate harm from rupturing attachment with therapy. There's therapy that exists to help children and carers to manage that harm and that trauma. But there's no equivalent therapy to manage not living in a culture.[130]

1. The evidence on which the Department asked the Tribunal to place greatest weight was the opinion of Dr Yvonne Clark, formed after the original decision was made.
2. Dr Clark is a psychologist who was retained by the Department after the decision was made to provide a report for the purposes of these proceedings. She was awarded a PhD from the School of Psychology at the University of Adelaide in 2017, and has experience working as an academic, lecturer, researcher and clinical psychologist with a particular focus on the psychological care of Aboriginal children and families.[131] She currently works as a Senior Research Fellow at the SA Health and Medical Research Institute (SAHMRI). Dr Clark also presently works part-time as a private clinical psychologist at NADA counselling and consulting service which involves providing therapy to and assessments with Aboriginal children, adolescents and their family, and as a part-time consultant on psychological matters in relation to Aboriginal issues and initiatives in various services and industries.[132] We accept her as a witness with expertise in relation to child psychology in relation to Aboriginal children.
3. Dr Clark interviewed both the applicants and the B family and reviewed various materials provided to assist her. Her report was dated 9 June 2020.[133] It was comprehensive.
4. She observed UPQ in various environments and described the relationship between the applicants and UPQ thus,

... there was constant engagement and mutual affection observed ... He was excited and in his element within his home, possessions and the games he was playing. The carers were extremely responsive to [UPQ]'s needs and tried to focus him on one activity at a time even though [UPQ] had a tendency to excitedly switch often."[134]

1. In observing UPQ at AWO's house she noted that:

[UPQ] appeared comfortable at the house and engaged with his sisters and cousin, [M]. ... he was confident to ask for things and approach [AWO] more so than [WDN]. ... All accounts indicate that his relationships are growing and he is becoming more confident in the house with every visit.[135]

1. Dr Clark's report states that it is necessary to consider various psychological concepts as they relate to Aboriginal children and people. She describes attachment theory as follows:

... an attachment refers to the strong emotional bond that exists between an infant and his or her caretaker. The attachment theory is designed to explain the evolution of that bond, its development, and its implications for human experience and relationships across the life course.[136]

1. Dr Clark went on to describe four common styles of attachment, with the relationship pattern being internalised by the child as a working model for future relationship expectations, behavioural and emotional difficulties. She stated that the universality of attachments is not contested but "is regarded as ethnocentric with little cross-cultural validation in ... Indigenous populations".[137] She said,

... thus, in an Australian Aboriginal context the cultural implications of attachment to multiple carers and extended family members within a collectivist society is less understood in this model, as infants can thrive in a number of different systems of care.[138]

1. Dr Clark described an infant's development of identity and observed that identity development in Aboriginal people can be hampered by racist and discriminatory practices, but that this can be protected against by strong cultural identity development.
2. Dr Clark was asked to provide her opinion on whether "there is a risk of harm to UPQ if he is unable to cultivate an adequate cultural connection? If so, what is the nature of that risk and the potential short and long-term harm to UPQ? How likely is that harm to eventuate - is it a possibility or a probability?"[139]
3. In response, Dr Clark's report states that there would be probable short-term and long-term risks if UPQ could not cultivate a cultural connection. She said that the short-term risk was probable but difficult to discern as cultivation of connection is "an accumulative and ongoing process of building connections with siblings, family, community, culture and country".[140] She noted that the short-term harm would become apparent if, because of a failure to accumulate adequate connection, UPQ would be viewed by peers as different and may be teased or bullied or rejected. She noted that UPQ's two older siblings had already expressed the view that UPQ is "turning out like a white fulla".
4. Dr Clark stated that in the long-term it was probable that UPQ would develop issues related to identity and wellbeing if culture was not adequately cultivated.[141] She predicted that he may develop "teenager identity confusion and imbalance ... Culture shock ... Social and emotional wellbeing difficulties" including grief, loss of claims to his status in the Aboriginal community and loss of Native Title rights.[142]
5. Dr Clark was also asked to advise on whether there is "risk of harm to UPQ if he is unable to maintain his relationship with (a) the current carers; (b) the proposed carers; and/or (c) his biological siblings? If so, what is the nature of that risk and the potential short and long-term harm to UPQ. How is that harm likely to eventuate - is it a possibility or probability?"[143]
6. At this point it may be observed that the questions asked of the psychologist tended to reflect the outcome that the Department had already made. There was no reference in the question to attachment and the effect of the breaking of attachment was incorporated into a question regarding breaking connection with people other than the primary attachment figure, WWZ. This highlights the undesirability of the Department gathering evidence after it has made a decision. Having said that, there is no suggestion that Dr Clark was directed to give any opinion or that she lacked independence. Her answers to the questions reveal that.
7. Dr Clark advised that if UPQ were unable to maintain his relationship with WWZ, he would experience harm. She predicted short-term emotional and behavioural regression as a probability, and reflective of a grief reaction to loss. She stated that "any new carers would need to provide exceptional and responsive care to minimise any damage and help UPQ manage and overcome adversity in the future".[144] Dr Clark went on to express the view that it is possible that this short-term harm could contribute to long-term harm but that this was dependent on the skilful management of the transition. At this point she observed that, "UPQ has actively and securely attached to his current carers and this process has helped him develop many current age-appropriate coping and resiliency skills."[145]
8. In her oral evidence, URY put to her the very important question of how UPQ, who has been raised in a "western parenting model" would respond to a break in that attachment. Dr Clark indicated that she found the attachment theory inadequate and not validated in Aboriginal communities. She said,

I don't necessarily subscribe to the western attachment theory only. I think even in a western situation, kids attach to multiple people all the time. ... If they only attach to one family then they're just sort of, they're - I don't know how functional they are. So, they do attach, continuously to childcare workers, to your own relatives, that, they have multiple attachments.[146]

1. She agreed, in cross-examination by URY, that UPQ could get appropriate connection to culture with his current carers if certain recommended things occurred.[147]
2. Dr Clark summarised her views in a statement that was promulgated to the Tribunal by counsel for the Department as the key evidence that addressed the test that the legislation required us to apply, as follows:

I believe that it is probable that there will be cultural harm to UPQ in both the short and long-term if he is not transferred into a placement with his proposed relative carers. In the short-term, cultural harm will translate to absence or a limited benefit of the accumulative and immersive (living) cultural underpinning which are necessary for connection to self, family, community, culture and to develop pride in a strong Aboriginal identity (probable). Disconnections from these and other domains will compromise his social and emotional wellbeing (probable) in the long-term and thus he will be vulnerable to future mental health issues (possible).[148]

1. At the request of the Tribunal, the B family gave evidence. They were permitted to do so in the manner of their choosing, which was to attend and give their evidence together as a group comprised of AWO, WDN, AEN who is AWO's father, WDN's mother, WDN's sister and DMV. During the giving of their evidence, URY and WWZ and Departmental staff remained in an adjacent room and watched and listened via video link.[149] The B family were asked questions by the Tribunal on pre-arranged topics and a further question at the request of the applicant. The Tribunal found their evidence to be of assistance, and considered it to be consistent with the philosophy underpinning the provision in the Act that carers are entitled to be involved in decision-making processes regarding children in their care.
2. The B family members gave evidence of their affection for UPQ and their cultural obligation to care for him. They spoke of the developing bond between UPQ and his sisters. AEN explained that AWO was UPQ's father in the Aboriginal sense. They want to provide UPQ with access to stories, practices and country and places as is appropriate for him as a member of their family. AEN said,

If you haven't got connection with the family, you haven't got connection with culture and the land. So, he needs the whole three of them things - that's what he really needs.[150]

1. Connection to culture and country would give him "a straight marriage line". An upbringing with his siblings will mean that he is not "left behind".[151]
2. WDN is related to UPQ's mother. The B family agree that UPQ should have access to his sisters who live in Port Augusta and to understand his identity as an Aboriginal man through his mother's bloodline (Wirangu) as well as through his father's heritage.[152] She wants to take UPQ back to the land and to be taught by the Elders.[153]
3. The B family gave evidence as a group to enable them to receive support from one another and to make a culturally appropriate contribution that enabled us to hear the evidence of senior family members. We found that this was a helpful way of receiving evidence about the care giving perspective that they have. We are not distracted, however, from the fact that it is with AWO that the Department has decided to place UPQ, because that is the model that the legislation establishes.
4. The B family have had visits from UPQ which (apart from one overnight visit in October 2018) started at 3-4 hours per day during child care hours. This increased to a half day on Tuesday and a longer visit of 5-7 hours on Fridays. The visits have not been in an uninterrupted sequence as the B family has been fulfilling familial obligations on country. AWO has significant cultural responsibilities in relation to UPQ which may be shared with and taught to him by AWO.
5. The B family acknowledge that UPQ has a strong bond with WWZ. They want it to continue. They know UPQ calls them "mum and dad". They think he should stay in childcare, though they may move him to one that is closer to them. They said that if the Department recommended keeping him at his current childcare, "then we'll try and make things work."[154]
6. AWO explained the support that they would give him,

... he needs his family to lift him up and that, you know, to keep his spirits up high. You know, because if he didn't have it well then he'd just be lost. You know, he'd be thinking 'I'm wandering around and you know, where do I stand or where do I go' or whatever- stuff like that. ... It's what we do when we go to sorry camps. We lift each other up. And as to the feeling sad and letting ourselves go and getting on the drugs and alcohol and everything ... getting locked up in jail and things like that. You know? That's what we rely on. We rely on the mothers and the fathers and that there to ... [inaudible] family and that link around us. Because if we didn't have it we'd be all lost. We'd be just like baby UPQ. A lost soul, so."[155]

1. It was the Department's position that AWO could provide safe care and was a close relative and a person who was living in a culturally connected manner, which together meant that AWO was the person in whose care the legislation directed the Department to place UPQ.
2. The Department did not consider that the B family would limit UPQ's cultural access to his maternal side[156] and the evidence of the B family witnesses supported that.

Analysis: what did the evidence tell us to enable a correct decision to be made by reference to the legislated test?

The original decision has not been shown to analyse harm according to the legislation

1. We note that because there was no single record that set out the reasoning for the decision, we have drawn our conclusion of Ms Blanch's position from the various documents that contained reasons for the decision, and her oral evidence.
2. We are not confident that the reasons for the decision made as set out in the case note of 27 September 2019 or the letter of 3 December 2019 adequately recorded the assessment required by the legislation. Those documents did not reveal a process that aligned with the legislation.
3. We return also to the point that whatever the Department's view was about this complex and important issue in UPQ's case, it was not conveyed to WWZ until the evidence was led at the hearing, and was not set out at all in the letter of 3 December 2019, which was the only evidence WWZ had about the justification for the decision until the day of the hearing some nine months later.
4. As late as 21 August 2020 when the Department filed its written Outline of Argument, it did not describe the decision as being one that acknowledged harm being caused to UPQ by virtue of the decision to move UPQ.[157]

Harm does not include the expression of separation anxiety

1. There were several potential harms to UPQ that were the subject of evidence. Some of the evidence related to the transient distress experienced by UPQ, who is securely attached, when he is separated from WWZ. We consider that this distress, which can manifest itself in a number of ways as UPQ makes sense of the events and people in his world, is not a 'harm' as intended by the Act. It is an ordinary aspect of the transition towards greater independence from the primary caregiver and is experienced every day by infants attending child care and other separations from their primary caregiver. We consider that the applicants have to some extent conflated UPQ's separation anxiety experienced when visiting AWO, and some behaviours exhibited in connection with those visits, with long-term harm. We accept the evidence of all of the expert witnesses in excluding this from our consideration of harm for the purposes of making the placement decision.
2. A harm to UPQ that is, on the other hand, central to this decision is that caused by the severing of his attachment to WWZ and whether that harm is sufficient to conclude that the decision was not correct.

UPQ will experience harm from the breaking of his attachment to WWZ

1. In our view, the "attachment harm" was not given sufficient weight by the original decision-maker.
2. Whilst they are not legally trained or represented, the applicants' case in respect of harm was arguable, coherent, and referable to the principles in the legislation. However, in relation to the harm likely flowing from the break in attachment, we do not think that it is "absolutely certain" that UPQ will never recover from his grief, as the applicants do.[158] The expert evidence, even that of Dr Begg upon whom the applicants relied, does not support that. We accept that Dr Begg modified his opinion as to the likelihood of UPQ experiencing a personality disorder if his bond with WWZ is severed. We consider that the outcome of life-long negative emotional impact is possible, but can be avoided with support. We adopt Ms Collins' assessment of Dr Begg's evidence.
3. We adopt the assessment of Dr Clark, as endorsed by Ms Collins, who saw UPQ and interviewed WWZ and others, that UPQ will experience short-term harm (and not merely separation anxiety) caused by breaking the attachment he has to WWZ and that there is a possibility that this will manifest as long-term harm. UPQ is currently demonstrating that he is healthy and well-balanced and has gathered resilience. All the witnesses agreed that this was in large part due to the attuned caregiving he has received from the applicants. We observe that if long-term harm from the breaking of this relationship eventuates, there are therapies to assist UPQ to repair the harm.

The long-term harm that UPQ is likely to accrue if he is not placed with AWO is significant and cannot be adequately ameliorated

1. We were persuaded by the evidence of Ms Blanch and Dr Clark that UPQ would be likely to experience long-term harm, in a sense that is contemplated by the Act, if he remains with the applicants because he will not grow up immersed in his culture and living with his relatives including, importantly, two of his sisters. He will not have parenting by Aboriginal relatives or the day-to-day leadership of AWO who is culturally responsible to teach UPQ about his place in the world and of his cultural business.
2. We accept that this harm is likely to manifest as UPQ experiences a need to identify himself, in several years' time. Whilst we think that the applicants would try their best to establish and maintain UPQ's connections with his family and culture, and if successful that this would go some way to reduce the harm, but he would not have lived an Aboriginal life, and he will come to realise this. We accept that, as Ms Blanch put it, the applicants would "try to do the best that [they] could, but it wouldn't allow for an immersive experience of lived day-to-day being raised as an Aboriginal child, with Aboriginal parenting, with language, an ability to freely see... within that... network of his care if he was to move into the care of AWO."[159]
3. In answer to a question from the Tribunal, Ms Collins explained that whilst there is a growing body of literature documenting the harm caused by cultural disconnection and loss of identity, there is no accepted account of how such harm is alleviated once it has occurred. On the other hand, whilst there is a long-standing body of literature documenting the harm caused by breaking a secure primary attachment, there are also methods accepted in Western psychology as to how that might be repaired with therapy to ameliorate damage.
4. Whilst we have come to the view that harm will likely be caused to UPQ if he is not able to live with his sisters and within an Aboriginal family, that is not to say that we have accepted uncritically the evidence of the Department's witness, Dr Clark.
5. We bear in mind that the witnesses all, to some extent or another, agreed that attachment theory describes the need a child has for a primary attachment. Indeed, this was also accepted by the Full Court in M, L v Minister for Education and Child Development:[160]

The evidence of the three expert witnesses presented by the Minister was, on its face, powerful. In essence, it was that removal at age two from the only carers C had known, to whom she was deeply attached, would cause serious harm to her welfare and development (Ms Nicolaou) or, 'a major trauma' in C's life with a negative impact on all areas of her future development (Ms Connor). These opinions were not simply personal opinions of the three witnesses, nor even simply common sense, but opinions grounded in substantial research conducted over half a century. While Mr Abbott was inclined to dismiss attachment theory as a mere theory which the Magistrate was free to reject, the articles tendered show it has been well-documented and accepted. Not only that, its relevance in this case was attested to by the expert witnesses. There was no evidence to the contrary.[161]

1. The difficulty we have with the evidence of Dr Clark, adopted by Ms Collins, was that the significance of attachment in respect of Aboriginal children was not fully explained. It was suggested that the need for a primary attachment may be ethnocentric by which we understand that the model might provide an account within a Western child-rearing arrangement whereby one or two parents provide a significantly greater proportion of the caregiving than other members of the child's community. It was further suggested that children might thrive in an alternative child-rearing arrangement whereby the child's caregiving is shared between several members of the child's community.
2. What the evidence did not address, however, is the effect of this on UPQ, who has had trauma with respect to caregiving in his first 12 months and has then been provided with a Western model of caregiving to which he has responded with the development of a secure primary attachment. It seems to us that the postulation of a caregiving model that enables attachments to a number of individuals does not assist us to understand and weigh the harm caused by the transition from one model to the next. No doubt research will grow in this regard.
3. When the Tribunal evaluated the relative harms on the basis that UPQ would experience harm from a break of his attachment with WWZ we nevertheless concluded that the harm was outweighed by the greater harm of the loss of connection and identity that he would experience if he were unable to grow up with his sisters and in the care of Aboriginal relatives.

The B family provides a stable and secure environment

1. Some of the applicants' case invited a comparison of parenting styles but that is not what is required for our decision. A placement must be safe, nurturing, stable and secure. The Tribunal does not accept that the applicants were better placed than the Department to assess whether the care provided by the B family met that standard. Ms Blanch provided unwavering evidence that the concerns raised by WWZ regarding AWO's care provided no basis to believe that his care is inadequate or harmful. In other words, the placement with AWO would be in a safe, nurturing, stable and secure environment. The Tribunal accepts that the Department is better placed to assess this than WWZ and we accept Ms Blanch's evidence in this regard.
2. Stability, in some contexts, may be synonymous with remaining in one place but stability in the context of the Placement Principles refers to stability of connection to people and not to places or things. The Tribunal does not consider that the fact that the B family might "just pack up and go" - either for month long trips or on a long-term basis back to country - as being contrary to his need for stability. The stability UPQ requires is that people care for him on a continuous basis, wherever he happens to live. That is why it is such a significant decision to move him from WWZ's care.

All of the placement principles are advanced by UPQ's placement with AWO

1. Whilst it would not be correct or preferable to place UPQ with AWO if it would result in greater harm than the present placement with the applicants, it is nevertheless important to consider the significant congruence that the decision to place him with the B family has with both sets of placement principles.
2. Placed with AWO, UPQ will be with people with whom he has an existing relationship. He will be with members of his family including being cared for by AWO who has a relationship of responsibility for him and is part of UPQ's cultural community. We place great weight on the value of UPQ being able to grow up in the same household as two of his four sisters. As they are all so young, the three will, once they reach their teenage years, have few memories except of being together. We think that this will be of great importance to UPQ's sense of belonging.
3. The evidence indicated that AWO would facilitate UPQ's relationship with his other sisters and this will also benefit UPQ.

The decision to place UPQ with AWO is the correct or preferable decision

1. Having considered the evidence and submissions, it is our view that the correct or preferable decision is to place UPQ with AWO. The Department's decision is affirmed on the review.

1. This is the first challenge to a placement decision to be determined by the Tribunal since jurisdiction was conferred. Accordingly, these reasons have been more fulsome than will be appropriate in some cases in the future and we take the opportunity to make some remarks about the process.
2. We consider that the carers and potential carers were not provided with sufficient information to ensure that they could contribute in an informed way to the Department's decision-making.
3. There is no evidence that AWO was advised that UPQ was in an important phase of attachment development in October 2018 when he was first considered as a placement option for UPQ. As will be seen, this was a critical juncture in the minimisation of harm for UPQ. The original decision-maker herself, in the process of giving evidence, indicated that it would have been ideal (in terms of minimisation of harm to UPQ) to place UPQ with AWO at that time with his sisters.[162] It is concerning that the lack of a long-term order being in place, or the space at AWO's house, may have been factors that contributed to a decision that UPQ should remain in short-term placements.
4. The lack of visibility that the applicants had into the decision-making process was a significant contributor to the challenge.[163] The applicants were not informed about what had been taken into account and were not encouraged to put in a written submission or directed to the issues that they need to cover in any contribution they sought to make. The applicants did not understand that psychological evidence had contributed to the decision-making.[164]
5. Having not been involved in the decision-making process (except through Ms Valentine whom we consider was not appropriate to advocate for the applicants in light of the AFSS mandate), the Department's failure to set out clearly what the decision was and the rationale behind it, in a way that aligned with the legislation, understandably fuelled the applicants' concerns.
6. If the Department chooses to confer decision-making authority upon delegates who have not met any of the affected parties, and then relies primarily on the oral submissions of Departmental staff to form a view, it is vital that the decision then be recorded in a manner that can withstand scrutiny by affected persons, not the least of whom is UPQ, and the Tribunal.
7. In addition to the observations made earlier in this decision at paragraphs [85]-[86], we make a further remark regarding the evidence adduced by the Department. Whilst in this instance the Department was permitted to gather evidence after the making of the decision, that approach is not best practice and it cannot be assumed that it will always be permitted. An alternative way forward is for the Tribunal, in such a case, to conduct a review on the Department's evidence as it stands and if it is insufficient, to set aside the decision and remit it.
8. The evidence before the Tribunal suggested that the placement of Aboriginal infants with non-Aboriginal carers is particularly liable to give rise to the need to choose between several harms that will occur upon any subsequent placement. The Tribunal would be assisted in future by being provided with sufficient information to form an understanding as to how that special circumstance is being addressed in a particular case. There was no evidence before the Tribunal that indicated that it was.
9. The Department's insistence on conveying its decision to WWZ in-person was regrettable. The Department had made two significant errors in its process. It had told WWZ that she would be the carer until UPQ was 18, and then it led her to believe that a decision would be conveyed to her after the September case conference, but decided it needed to renege on that because of the lack of CARU approval. For Ms Blanch to then express concern about WWZ's "increasing resistance to communicating with the Department"[165] reflects a lack of appreciation of the profound effect of its actions on WWZ. It must be remembered that there was no evidence that in relation to any of the previous children she fostered, WWZ had challenged placements. We think that had there been an earlier decision, or different communication, there may have been no disagreement in this case either.
10. In hindsight, it was not appropriate for the Department to acquiesce in an arrangement whereby the applicants presented their case to the Tribunal first. Where the Department did not have a single document that set out its decision, and had gathered the primary evidence in defence of its position after the decision, it was appropriate for the Department to put its case and allow the applicants to respond to the new evidence in support of the decision.

1. There are several aspects of the timing of events that concern the Tribunal.
2. The first relates to the potential that UPQ accrued harm because an opportunity to place him with AWO as early as October 2018 was missed. WWZ says that the Department missed "the several opportunities that existed to move [UPQ] into [AWO]'s care before a strong attachment development between us and [UPQ]. DCP has allowed this case to drift without due regard to the impact of prolonged uncertainty and instability on [UPQ]."[166] WWZ said, "We believe that [UPQ] should have been placed with [AWO] and [WDN] on 10th October 2018 when [IAN] and [ZJHO] entered their care. We think the system failed [AWO], [UPQ], [IAN] and [ZJHO] at this time. Unfortunately, to rectify this mistake two years later would be detrimental to [UPQ]'s mental health and whole wellbeing."[167] There was significant force to this submission.
3. The Department acknowledged that it would have been preferable to have made the decision earlier but maintained that the delay did not affect the correctness of the decision now.[168] We agree with that observation, but the Tribunal would nevertheless have benefited from an understanding of it. The failure of the Department to explain how it makes its decisions gave the Tribunal some insight into the applicants' sense of frustration.
4. There was insufficient evidence before the Tribunal to properly understand the way that the Department identifies long-term carers, and in particular to understand how the Department addresses, where long-term orders are being sought when a child is between 12 months and 24 months old, the minimisation of harm caused by placing a child with new carers whilst the child is forming a primary attachment or has already done so.
5. The evidence as to whether a placement with AWO in October 2018 could have been pursued in greater depth was not before us. However, we are left with a concern that, having made the decision to place UPQ with short-term carers, the Department turned their attention away from UPQ's longer-term care until long-term orders were gained. Perhaps this was unavoidable. We consider that, during this period, UPQ had the advantage of the safe and nurturing care that he received with WWZ, the nature of which has most likely given him resilience that will continue to benefit him for years to come. However, it has also exposed him to the short and potentially long-term harm brought about by removing him from WWZ's care after developing a secure primary attachment with her.
6. WWZ complained that the decision to provide UPQ with regular visits with AWO did not occur until July 2019 when it could have occurred a year earlier.[169] We agree that it is difficult to understand why, if AWO was not able to provide a placement for UPQ, arrangements were nevertheless not made by the Department for regular visits from October 2018 onward, rather than a reliance upon the carers to do this.
7. We do not accept that the Department's approach of not telling WWZ of its in-principle decision in September 2019 was correct. The Department withheld the information because it could not be certain that approval would be granted by CARU. The Tribunal considers that this was a simple proposition that could and should have been communicated to WWZ and AWO. It was an example of the Department keeping the carers at arm's length. We have no doubt that this contributed to the applicants forming the view that there had been no 'miscommunication' in relation to telling them about AWO's offer to care for UPQ, as the Department had described it. WWZ said that that they had been "misled, deceived and manipulated."[170] We do not accept that there was any intention on the part of Departmental officers to mislead or deceive. We do observe that there were a range of views in the Department and the flow of information to the applicants was, perhaps as a result, inadequate, and led to the unfortunate feelings of hurt and betrayal from people that the Department needs very much to support.
8. While we consider that the Department has not always fulfilled its obligation to involve carers in decision-making relating to UPQ,[171] we also observed that WWZ's wish to be involved in various aspects of UPQ's care that intruded on areas that were properly for the Department alone. For example, the applicants consider that the Department's decision has denied UPQ's access to his mother's culture and describe it as "devastating" for UPQ's mother. The decision regarding access between UPQ and his mother is outside the scope of these proceedings. However, we unhesitatingly accept that it is within the Department's role to make such a decision and that it has access to information that neither the Tribunal nor the applicants have in this regard. The applicants' position about this issue is indicative of an overstatement of their role in respect of decisions concerning UPQ.[172] The other significant area in which the applicants did not respect the boundaries of their role related to the care being provided by the B family, which has been discussed earlier in this decision.
9. Finally, we acknowledge that the Tribunal process has contributed to further delay. We have attempted to deal with these proceedings as expeditiously as possible, bearing in mind the significance of the decision and the fact that it is the first of its kind.

Evidence could have been provided in a better way

1. Some of the general evidence that the Department relied upon, and that which is referred to above that was missing, could be published by the Department for the benefit of carers.
2. Any evidence that the Department sought to rely upon that had not been gathered prior to the decision (noting the undesirability, in general, of gathering evidence after the decision) should have been gathered promptly and provided to the applicants and the Tribunal expeditiously.
3. Ms Blanch said that she relied on the evidence of the Principal Aboriginal Consultant (PAC) in forming her view and she was conscious of unhappiness on the part of the PAC with the earlier decision-making.[173] The decision not to call the PAC, whose opinions Ms Blanch clearly placed significance on, but to seek the evidence regarding the impact of not placing UPQ with AWO from an external witness, was unsatisfactory. It did nothing to allay the concern raised by the applicants that the process was riven with internal dispute.

1. The witnesses were unanimous that a carefully-executed transition would contribute significantly to reducing the harm that UPQ will experience in moving to the care of AWO.
2. We note that UPQ will require ongoing support from the Department to navigate the short and long-term impacts of the move. Ms Collins said that the transition needed to be responsive to the risk that he may develop a sense of being unwanted, unloved or abandoned.[174] The B family should be assisted to understand and minimise that harm.
3. This process has tested what started as a positive relationship between the applicants and the B family. However WWZ said,

Both parties are navigating this situation as well as expected. We are on friendly terms ...[175]

1. The B family were supportive in their evidence of UPQ continuing to have a relationship with the applicants.
2. The applicants will also grieve as a result of this decision and the Tribunal is hopeful that the Department will assist them so that they may continue to be important figures in UPQ's life and perform the much-needed task of taking on the care of other children who cannot be cared for by their parents.

1. The Tribunal made the following orders:
   1. The decision of the Chief Executive's delegate to place UPQ with AWO is affirmed.
   2. The stay of the decision under review is lifted.
   3. The parties have liberty to make a request in writing for a directions hearing in relation to any ancillary orders that they may wish to seek.

* In this decision, we have referred to the child and his relatives, the applicants and the family with whom the Department has placed the child, by initials. If a version of this document is published by SACAT, the document will be anonymised differently, in accordance with the Tribunal&#82[1]s anonymization system.

[5] Affidavit of Hayley Blanch affirmed on 24 August 2020 at [5].

[7] Respondent's Outline of Argument dated 21 August 2020 at [20] quoting Minister v AKJ, unreported decision of the Youth Court, 30 May 2001 (Senior Judge Simpson).

[10] Transcript of hearing on 25 August 2020 at page 93.

[13] Appendix A of the Statement of WWZ at page 2.

[15] Affidavit of Hayley Blanch affirmed on 24 August 2020 at [23] which states that this placement did not occur at the time because "... [AWO] and [WDN] were not in a practical position to also provide care to [UPQ], who had higher needs than his sisters at the time given that he was an infant."

[16] Appendix A of the Statement of WWZ at page 4.

[17] Affidavit of Hayley Blanch affirmed on 24 August 2020 at [24]-[25].

[21] Affidavit of Catherine Collins dated 21 August 2020 at [13].

[22] Transcript of hearing on 24 August 2020 at page 17.

[23] Transcript of hearing on 25 August 2020 at page 39.

[24] Affidavit of Hayley Blanch affirmed on 24 August 2020 at [34].

[25] Ibid at [37]. Also see, Transcript of hearing on 25 August 2020 at page 24.

[26] Appendix A of the Statement of WWZ at page 9.

[27] Affidavit of Hayley Blanch affirmed on 24 August 2020 at [39].

[28] Affidavit of Catherine Collins dated 21 August 2020 at [18].

[29] Transcript of hearing on 25 August 2020 at page 43.

[30] Transcript of hearing on 25 August 2020 at page 76.

[31] Appendix A of the Statement of WWZ at page 16.

[33] Affidavit of Hayley Blanch affirmed on 24 August 2020 at [40]. Respondent's Outline of Argument dated 21 August 2020 at [8] referencing Book of Documents pages 165-166. Also see, Transcript of hearing on 25 August 2020 at pages 19-20.

[34] Book of Documents at pages 165-166.

[35] Transcript of hearing on 25 August 2020 at page 20.

[37] Affidavit of Hayley Blanch affirmed on 24 August 2020 at [21], [43].

[38] Affidavit of Catherine Collins dated 21 August 2020 at [23].

[41] Transcript of hearing on 25 August 2020 at page 53.

[42] Transcript of hearing on 24 August 2020 at pages 32-33.

[43] Affidavit of Catherine Collins dated 21 August 2020 at [50]. Also see, Transcript of hearing on 24 August 2020 at page 32.

[44] Transcript of hearing on 25 August 2020 at page 64.

[45] Affidavit of Catherine Collins dated 21 August 2020 at [26].

[46] Affidavit of Hayley Blanch affirmed on 24 August 2020 at exhibit HB-6.

[47] Transcript of hearing on 25 August 2020 at page 52.

[48] Affidavit of Hayley Blanch affirmed on 24 August 2020 at [56].

[49] Transcript of hearing on 25 August 2020 at page 54.

[50] Transcript of hearing on 24 August 2020 at page 38.

[51] Affidavit of Hayley Blanch affirmed on 24 August 2020 at [58].

[53] Transcript of hearing on 24 August 2020 at page 41.

[54] Affidavit of Hayley Blanch affirmed on 24 August 2020 at [60].

[56] Transcript of hearing on 25 August 2020 at page 95.

[60] Respondent's Outline of Argument dated 21 August 2020 at [14].

[61] See by analogy, R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13, 35-36 (Gibbs, Stephen, Mason Aickin and Wilson JJ).

[62] Breeding v Registrar of Firearms [2017] SACAT 40.

[63] Respondent's Outline of Argument dated 21 August 2020 at [16].

[64] Respondent's Outline of Argument dated 21 August 2020 at [49].

[68] M, L v Minister for Education and Child Development [2018] SASCFC 131 at [54].

[69] Applicants' Closing Written Submissions at [4].

[70] Report of M Hayter dated 12 July 2018, annexed to the affidavit of Hayley Blanch affirmed on 24 August 2020 as exhibit HB-2.

[71] The report was redacted as it contained an assessment of UPQ's siblings as well as UPQ.

[72] Report of M Hayter dated 12 July 2018, annexed to the affidavit of Hayley Blanch affirmed on 24 August 2020 as exhibit HB-2, at page 6.

[74] Applicants' Closing Written Submissions at [13].

[75] Statement of WWZ at page 5. See also Transcript of hearing on 24 August 2020 at page 168.

[77] Ibid at page 6. See also, Applicants' Closing Written Submissions at [45].

[79] Report of Dr Jules Begg dated 10 August 2020 at page 6.

[80] Transcript of hearing on 24 August 2020 at page 91.

[81] Report of Dr Jules Begg dated 10 August 2020 at page 7.

[82] Transcript of hearing on 24 August 2020 at page 90.

[83] Report of Dr Jules Begg dated 10 August 2020 at page 8.

[84] Transcript of hearing on 24 August 2020 at page 88.

[91] Applicants' Closing Written Submissions at [49].

[94] Transcript of hearing on 24 August 2020 at page 9.

[95] Applicants' Closing Written Submissions at [29].

[96] Transcript of hearing on 24 August 2020 at page 9.

[97] Statement of WWZ at page 10. Also see, Transcript of hearing on 24 August 2020 at page 10.

[101] Transcript of hearing on 24 August 2020 at page 170.

[102] Applicants' Closing Written Submissions at [17]-[18].

[103] Report of Dr Clark dated 9 June 2020 page 26.

[104] Applicants' Closing Written Submissions at [37].

[105] Statement of WWZ at pages 11-12.

[109] Affidavit of Hayley Blanch affirmed on 24 August 2020 at [18].

[111] Transcript of hearing on 25 August 2020 at page 105.

[118] Affidavit of Catherine Collins dated 21 August 2020 at [5].

[119] Minutes of Case Conference dated 24 September 2019 at page 6.

[120] Affidavit of Catherine Collins dated 21 August 2020 at [27].

[127] Transcript of hearing on 7 September 2020 at page 137.

[131] Curriculum Vitae of Dr Yvonne Clark dated June 2020 - received as R15 by the Tribunal.

[134] Report of Dr Yvonne Clark dated 9 June 2020 at page 11.

[139] Letter of instruction from Crown Solicitor's Office to Dr Yvonne Clark dated 24 March 2020 at page 4 - received as R16 by the Tribunal.

[140] Report of Dr Yvonne Clark dated 9 June 2020 at page 28.

[143] Letter of instruction from Crown Solicitor's Office to Dr Yvonne Clark dated 24 March 2020 at page 4.

[144] Report of Dr Yvonne Clark dated 9 June 2020 at page 29.

[146] Transcript of hearing on 7 September 2020 at page 109.

[148] Transcript of hearing on 22 September 2020 at page 34.

[149] This was mainly due to COVID restrictions on the numbers of persons who could be present in a room, but it also addressed a concern raised by the Department on behalf of AWO and his family that the legal process may be intimidating for them and was not "culturally appropriate".

[150] Transcript of hearing on 7 September 2020 at page 11.

[156] Transcript of hearing on 25 August 2020 at page 62.

[157] Respondent's Outline of Argument dated 21 August 2020 at [10].

[158] Applicants' Closing Written Submissions at [59].

[159] Transcript of hearing on 25 August 2020 at page 105.

[160] [2018] SASCFC 131

[161] Ibid at [100] referring to the case of Minister for Education and Child Development v M, L & Ors [2018] SASC 32 at [48].

[162] Transcript of hearing on 25 August 2020 at page 113.

[164] Transcript of hearing on 25 August 2020 at page 95.

[165] Affidavit of Hayley Blanch affirmed on 24 August 2020 at [61].

[167] Ibid at page 5. See also, Transcript of hearing on 24 August 2020 at page 168.

[168] Respondent's Outline of Argument dated 21 August 2020 at [55].

[172] Applicants' Written Opening Statement at page 1 - received as A9 by the Tribunal.

[173] Transcript of hearing on 25 August 2020 at page 43. We take that to refer to the earlier decision not to place UPQ with the maternal aunt.

[174] Transcript of hearing on 7 September 2020 at page 135.