EG v CHIEF EXECUTIVE FOR THE DEPARTMENT OF CHILD PROTECTION [2025] SASCA 6

On Appeal from SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL (DEPUTY PRESIDENT B JOHNS AND MEMBER R CROSER) 2023/SA001218 Appellant: EG Counsel: MR J RODER - Solicitor: MS J CARACOUSSIS First Respondent: CHIEF EXECUTIVE FOR THE DEPARTMENT OF CHILD PROTECTION Counsel: MR W AMBROSE WITH MR S RANIERI - Solicitor: MR C WELLINGTON Second Respondent: JJL Counsel: MR B MCCLOUD - Solicitor: MS L ELKINS Hearing Date/s: 16/05/2024 File No/s: CIV-24-000461 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. EG v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION & ANOR [2025] SASCA 6 Judgment of the Court of Appeal (The Honourable Justice Lovell, the Honourable Justice S Doyle and the Honourable Justice David) 30 January 2025 ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION - CHILDREN IN NEED OF PROTECTION FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION - CHILDREN IN NEED OF PROTECTION - PROCEEDINGS RELATING TO CARE AND PROTECTION - GENERALLY FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION - CHILDREN IN NEED OF PROTECTION - GUARDIANSHIP OF CHILDREN - GENERALLY This is an application for leave to appeal against a decision of the South Australian Civil and Administrative Tribunal to affirm the decision made by the Chief Executive of the Department of Child Protection to transition the child, AB, out of the care of her foster parent and into the care of her paternal aunt. AB was removed from the care of her parents when she was aged 18 months and was placed into the care of a foster parent in June 2020. In July 2020, it was ordered by the Youth Court that AB be -- 1 of 30 -- placed under the guardianship of the Chief Executive of the Department of Child Protection for three months. AB remained in the care of her foster parent during this time. In August 2020, AB’s paternal aunt contacted the Department of Child Protection seeking to be considered as a kinship carer for AB. However, AB’s paternal aunt was not considered as a kinship carer at this time. In September 2020, it was recommended that long term care and protection orders for AB should be applied for, and in December 2020 the Youth Court ordered that AB be placed under the guardianship of the Department of Child Protection until she attained the age of 18 years. At this time, it was recommended that AB remain in the care of her foster parent on a long-term basis, due to AB having developed an attachment bond with her. During 2021, AB’s paternal aunt continued to seek an assessment as a kinship carer for AB. In March 2022, the Department of Child Protection referred the decision to place AB on a long term basis with the foster carer for internal review. In May 2022, AB’s paternal aunt and her partner were approved as kinship carers. As a result of the review commenced in March 2022, it was decided in November 2022 that AB should be removed from the care of her foster parent and instead placed in the care of her paternal aunt. Following this decision, the foster parent applied for an internal review, which resulted in a reversal of the decision to place AB in the care of her paternal aunt, and instead determined that AB should remain in the care of her foster parent. The paternal aunt sought a review of the decision not to place AB in her care in the South Australian Civil and Administrative Tribunal. On rehearing, the Tribunal determined that the decision to transition AB from the care of her foster parent into the care of her paternal aunt was the correct and preferrable decision. It is the decision of the Tribunal that the foster carer now appeals. The grounds of appeal may be broadly characterised as follows: • The Tribunal erred in its findings in relation to the risk of harm to AB if she were to remain in the care of her foster carer (the appellant) rather than being transitioned into the kinship care of her paternal aunt (the second respondent): grounds 2 - 4. • The Tribunal failed to accord the appellant procedural fairness by admitting and relying on the ‘anecdotal evidence’ of Mr Segal; and the evidence was used by the Tribunal for a purpose other than that for which it was admitted: ground 5. • The Tribunal erred in ordering that AB be placed in the care of her paternal aunt where there was no evidence as to the nature of a staged transition process or the likelihood of its success: ground 7. • The orders of the Tribunal were not reasonably open or plainly unjust (an outcome error) given the risk of harm to AB were she to be removed from the appellant’s care, the absence of qualified evidence that AB would suffer harm if she were not placed in kinship care, and the lack of evidence as to the staged transition process: ground 8. HELD, by the Court, granting leave to appeal on grounds 2, 3, 4 and 5, refusing leave on grounds 7 and 8, and otherwise dismissing the appeal: 1. In relation to the Tribunal’s determination of risk of psychological harm to AB, the Tribunal was entitled to draw upon its knowledge of the subject matter and apply its own expertise to inform itself. The findings of the Tribunal were made on the basis of evidence properly before it. -- 2 of 30 -- 2. The meaning of ‘psychological harm’ as it appears in s 17 of the Children and Young People (Safety) Act 2017 (SA) is not limited to ‘an actual injury or damage to the mental state or mind of a person’. The ordinary meaning of ‘psychological’ as it relates to the mind or mental phenomena should be preferred. 3. As to the question of risk of future psychological harm to AB if she were not placed with her paternal aunt, the evidence of Mr Segal was rationally capable of bearing on this question given his considerable practical experience and knowledge in the area. Whilst it was a relevant consideration that Mr Segal had not spent time with AB nor conducted any assessment of her, that was question of weight for the Tribunal. 4. The evidence of Ms Fallo was directed to AB, not a hypothetical child. Ms Fallo gave evidence of her broad professional experience in regard to childhood attachment and then applied that knowledge and experience to the relevant question of the risk of future harm to AB should she not be placed in kinship care. 5. There was no procedural unfairness. The evidence of Mr Segal was concerned with an issue that was well understood by all parties to be in dispute and a central consideration for the Tribunal. The questions asked by the Tribunal of Mr Segal were not materially different to the topics previously indicated as being of interest and were relevant to the underlying and live issue which parties were on notice of. 6. The Tribunal is afforded flexibility with respect to its own processes, and whilst this does not abrogate obligations to procedural fairness, no complaint can made as to evidence being received in oral rather than affidavit form. 7. There was sufficient evidence for the Tribunal to accept that a transition process could be undertaken successfully and for this to be considered a mitigating factor when assessing the risk of harm to the disruption of AB’s placement. There was no error by the Tribunal in so finding. 8. On the whole of the evidence, it was reasonably open for the Tribunal to be satisfied that the correct and preferable decision was to place AB in the care of her paternal aunt. Children and Young People (Safety) Act 2017 (SA) ss 4, 4(2), 5, 7, 8, 8(3), 10, 11, 17, 17(2), 18(1)(b), 53, 53(1)(g), 84(1), 84(1)(a), 84(3), 157, 158; South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 34, 34(3), 34(4), 39, 43, 71, 71(2), 71(3a), referred to. Henderson v South Australian Housing Trust [2024] SASCA 55; House v The King (1936) 55 CLR 499; Minister for Immigration and Citizenship v SZGUR & Anor (2011) 241 CLR 594, discussed. Archer v Chief Executive of the Department for Child Protection [2022] SASC 94; Architectural Practice Board of South Australia v Chwalisz [2022] SACAT 119; BC v The Public Advocate (No 4) [2019] SASC 57; Comcare v Wuth (2018) 260 FCR 89; DT v Chief Executive of the Department for Child Protection [2022] SASC 24; GKZ v Department for Child Protection & Anor (No 2) [2022] SACAT 75; GM v Department of Human Services [2024] SASC 23; JCW v The Department for Child Protection [2022] SACAT 19; Kalil v Bray [1977] 1 NSWLR 256; KWF v Chief Executive, Department for Child Protection [2022] SACAT 127; KYD v Chief Executive, Department for Child Protection [2022] SACAT 126; M, L v The Minister for Education & Child Development [2018] SASCFC 54; MH6 v Mental Health Review Board (2009) 25 VR 382; OXF & Anor v Department for Child Protection & Ors [2022] SACAT 85; Pix v South Australian Housing Trust [2016] SASCFC 57; R v Industrial Appeals Court; Ex parte Maher [1978] VR 126; REM & PVR v Department for Child Protection [2020] SACAT 9; RHN v Department for Child Protection [2021] SACAT 75; Schinkel v Registrar of Firearms [2020] SASC 236; Varricchio v Wentzel [2016] SASC 86; WWZ & Anor v The Department for Child Protection [2020] SACAT 111, considered. -- 3 of 30 -- -- 4 of 30 -- EG v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION & ANOR [2025] SASCA 6 Court of Appeal – Civil: Lovell, Doyle and David JJA 1 THE COURT: This is an application for leave to appeal under s 71 of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (‘the SACAT Act’) against a decision of the South Australian Civil and Administrative Tribunal (‘the Tribunal’) to affirm the decision made by the Chief Executive of the Department for Child Protection (‘the Department’) under s 84(1)(a) of the Children and Young People (Safety) Act 2017 (SA) (‘the Act’) to transition the child, AB, out of the care of her foster parent (the appellant) and into the care of her paternal aunt (the second respondent). 2 On 23 May 2024, this Court granted the appellant leave to appeal but dismissed the appeal. These are the reasons for those orders. Factual and procedural background 3 The child, AB, was born on 9 December 2018 and is now six years old. At the time of the Tribunal hearing, AB was four years old. AB’s parents ended their relationship when AB was around six months old. 4 On 5 June 2020, when she was aged 18 months, AB was removed from the care of her mother and her new partner. 5 On 9 June 2020, AB was placed in the care of the appellant, through the foster care program, Lutheran Community Care. The placement was initially for three months. 6 On 6 July 2020, a Magistrate of the Youth Court ordered that AB be placed under the guardianship of the Chief Executive Officer of the Department for three months pursuant to s 53 of the Act. 7 The second respondent is AB’s paternal aunt. On or around 19 August 2020, she contacted the Department to advise that she would like to be considered as a kinship carer for AB. 8 On 30 September 2020, the Department received a CPS Parent Capacity Assessment Report (‘the CPA Report’) which recommended that long term care and protection orders should be applied for by the Department. The CPA Report assessed that such intervention was required to prevent long term interpersonal difficulties for AB. It was recommended that AB remain in her current placement with the appellant. 9 The Department followed the recommendation of the CPA Report. On 17 December 2020, a Magistrate of the Youth Court made an order to place AB -- 5 of 30 -- [2025] SASCA 6 The Court 2 under the guardianship of the Department until she attained the age of 18 years pursuant to s 53(1)(g) of the Act.1 10 It appears that a decision was made to place AB with the appellant on a long term basis on or around 11 March 2021. This appeared to be on the basis that a psychologist within the Department had recommended AB not be removed from the appellant’s care, due to AB having developed an attachment bond with her. 11 The second respondent, AB’s paternal aunt, contacted the Department on 31 March 2021 to enquire about the progress of her kinship assessment. On 15 April 2021, the Department informed her that a decision had been made not to assess her as a kinship carer for AB, and that AB would remain in the care of the appellant. 12 On 28 April 2021, AB’s paternal aunt met with a representative of the Department, apparently under the impression that her application to be a kinship carer for AB was still in the process of being assessed. However, this was incorrect, as neither an application nor an assessment was in process at that time. It was not until 31 May 2021 that formal documentation was provided to the paternal aunt to commence an application for assessment and approval as a kinship carer. AB’s paternal aunt made an application for assessment, and on 30 May 2022, she and her partner, were then approved as kinship carers. 13 The Department referred the decision to place AB with the appellant on a long term basis for internal review on 18 March 2022. This internal review was finalised on 7 June 2022, and several options were identified, including that AB be placed with her paternal aunt. 14 Following a report from Connecting Families dated 10 October 2022, the Department decided on 7 November 2022 to remove AB from the care of the appellant, her foster carer, and instead place her in the care of her paternal aunt, pursuant to s 84(1)(a) of the Act (‘the decision’). Section 84 provides the Chief Executive of the Department with discretionary powers to place a child in the care of a member of their family or to place a child in the care of any other suitable (non-familial) person. 15 On 28 November 2022, the appellant applied under s 157 of the Act for an internal review of the decision. On 12 December 2022, Ms Patricia Rayment was instructed to undertake an independent psychological assessment of AB in relation to her care arrangements. Ms Rayment’s report was provided to the Department on 23 January 2023. Ms Rayment found that AB would be at risk of serious harm if she were removed from the appellant’s care, and that the risk associated with her removal outweighed the benefits of kinship placement with her paternal aunt. 1 This decision was made with the consent of AB’s biological parents. -- 6 of 30 -- [2025] SASCA 6 The Court 3 16 On 13 April 2023, the decision to place AB in her paternal aunt’s care was reversed, such that the internal review decided that AB would remain in the care of her foster carer. 17 On 27 April 2023, AB’s paternal aunt applied to the Tribunal pursuant to s 34 of the SACAT Act for review of the decision (as reversed on internal review). She sought orders that the original decision to place AB in her care be affirmed. Proceedings before the Tribunal 18 The review proceedings before the Tribunal were by way of rehearing.2 The Tribunal was required to independently examine the evidence before the decision maker, and any further evidence or material the Tribunal considered relevant, in reaching the correct or preferable decision.3 In doing so, the Tribunal was required to give appropriate weight to the original decision.4 19 The hearing before the Tribunal was held over four days. 20 During the hearing, additional documentary evidence was admitted as agreed by the Tribunal and counsel.5 During the hearing the paternal aunt gave evidence and adduced evidence from Ms Betteley and Ms Fallo (a psychologist); and the Department called evidence from Mr Segal and Ms Rayment (a psychologist). The foster carer also gave evidence. 21 The hearing before the Tribunal was focussed on a comparative inquiry as to the risk of harm that arose from either removing AB from the care of the foster carer and placing her in the care of the paternal aunt, on the one hand; and the risk of harm which arose from maintaining AB’s placement with the foster carer and depriving her of substantive kinship care with her paternal aunt, on the other. It was acknowledged throughout the hearing, and indeed during the appeal, that both AB’s foster carer and her paternal aunt would provide AB with an excellent standard of care. 22 The ultimate question for the Tribunal was whether the placement of AB with her foster carer rather than her paternal aunt was the correct or preferable decision.6 That question did not necessarily require the Tribunal to determine whether or not there were any deficiencies or limitations in the care that might be provided by either caregiver. 2 Pursuant to the power in s 158 of the Act, the Tribunal has power to review certain decisions under the Act including those made under s 84(1)(a); as to the review being by way of ‘rehearing’, see South Australian Civil and Administrative Tribunal Act 2013 (SA), s 34(3). 3 South Australian Civil and Administrative Tribunal Act 2013 (SA), s 34(4). 4 South Australian Civil and Administrative Tribunal Act 2013 (SA), s 34(4). 5 Reasons at [6]-[12]. 6 Reasons at [64]; South Australian Civil and Administrative Tribunal Act 2013 (SA), s 34(4). -- 7 of 30 -- [2025] SASCA 6 The Court 4 23 During the Tribunal hearing, and whilst the appeal was proceeding before this Court, AB remained in the care of her foster carer, and maintained contact with her paternal aunt. The Tribunal’s reasons 24 The Tribunal noted that this was an application brought under s 34 of the SACAT Act for review of a decision made under s 84(1) of the Act; and that the review was by way of rehearing. 25 The Tribunal summarised the principal facts pertaining to the review, as well as each of the parties’ case. The case of AB’s paternal aunt was that the long term benefits of placing AB in her care outweighed any risk of harm arising from the disruption of AB’s attachment to her foster care. The paternal aunt relied on the evidence of Ms Fallo to the effect that any risk of harm to AB was adequately addressed by the substantial mitigating factors in this matter. 26 The Tribunal also outlined the Department’s case, and the case of the foster carer, which primarily relied on the evidence of the psychologist, Ms Rayment, in support of the internal review decision that AB remain placed with her foster carer. 27 The Tribunal posed the ultimate question in the following terms: was the Department’s decision to reverse the decision that AB should be placed in her paternal aunt’s care and conclude, instead, that AB should remain placed with her foster carer, the correct or preferable decision? The Tribunal answered that question by addressing the following issues: - Was the Department entitled to consider intervening in the decision to place AB with her paternal aunt? - If so, in considering whether the decision under review was the correct or preferable decision – • What weight should be given to the decision under review? • What are the factors which should be taken into account in making the decision about the placement of AB, and what weight should be given to those factors? 28 The Tribunal then set out the legal framework for their decision. The Tribunal referred to the fact that AB is under the guardianship of the Chief Executive of the Department until she is 18 years old; and that the power of the Chief Executive to make a decision as to the placement of a child under their guardianship lies in s 84(1) of the Act. The Tribunal also referred to the objectives of the Act as set out in ss 7 and 8 of the Act. The Tribunal indicated that they had also taken into account the Department’s Attachment Practice Paper and the Department’s Permanency Planning Practices Paper. -- 8 of 30 -- [2025] SASCA 6 The Court 5 29 The Tribunal then turned to consider whether the Department was entitled to intervene in AB’s placement with the foster carer. The Tribunal referred to the fact that the Act does not prescribe those circumstances in which it is appropriate for the Department to consider making a subsequent placement decision, and considered that the Act allows the Department to choose to reconsider a placement decision if it decides that it is appropriate to do so having regard to the principles of intervention, the placement principles and all of the circumstances of the case. 30 The Tribunal, relying in part on the evidence of Mr Segal, as well as the Department’s Attachment Practice Paper, accepted that ‘where a child is already in a placement which provides a safe, nurturing, stable and secure environment, then the Department should be cautious to intervene’ but ultimately did not accept that ‘simply because a child is placed in a safe, nurturing, stable and secure environment, the Department must not consider intervening in the placement.’ The Tribunal held that the change in circumstances in this matter (namely the fact AB’s paternal aunt and her partner were approved as carers, had moved from interstate to be closer to AB and requested for AB to be placed with them) permitted a reconsideration of AB’s placement. This aspect of the Tribunal’s decision was not challenged on appeal. 31 The Tribunal next considered the correctness of the decision under review. As to the weight to be accorded to the decision under review, the Tribunal noted that there were no written reasons for the decision, and the only explanation provided for the decision to place AB with her paternal aunt was drawn from the evidence of Mr Segal. The Tribunal also considered that they had the benefit of significantly more evidence than the original decision maker; and acknowledged that the Tribunal had the advantage of Member Croser’s significant expertise in child protection matters. The Tribunal concluded that while they had taken into account the decision under review, the weight afforded to the decision was impacted by the abovementioned matters. 32 The Tribunal said that in reaching its determination as to the placement of AB, it was required to have regard to two ‘major’ factors: • the risk of harm to AB if she was removed from the care of her foster carer; and • the risk of harm to AB if she was not placed with her biological family (that is, her paternal aunt). • The Tribunal noted those factors needed to be considered in the context of ss 7, 10 and 11 of the Act (referred to later in these reasons). 33 The Tribunal then summarised the evidence adduced by each party and their respective submissions. For the paternal aunt, counsel relied on Ms Fallo’s opinion that the risk of harm in placing AB in kinship care was low; and submitted that -- 9 of 30 -- [2025] SASCA 6 The Court 6 kinship care will provide AB with long term benefits which outweighed any risk of harm arising from the disruption of her attachment to the foster carer. 34 The Department relied primarily on the opinion of Ms Rayment and submitted that the risk of harm to AB was higher if she was placed with her paternal aunt because of her strong attachment to her foster carer, and that AB was particularly vulnerable to such harm because of the inadequacies of her care before her placement with her foster carer. The Department acknowledged that it had failed to make decisions in a timely manner but submitted this should not interfere with the Tribunal’s decision-making process. 35 The foster carer also relied on the evidence of Ms Rayment and submitted that the risk of harm to AB was greater if placed with her paternal aunt than if she remained in her care, noting that AB would have contact with her biological family in any event whilst placed with her. The foster carer emphasised that the current arrangements satisfied the requirements of ss 7, 10 and 11 of the Act. 36 The Tribunal referred to the evidence of Mr Segal of the Department who had expressed the view that AB’s placement with her family was preferable because of the significant benefits of kinship care. In his view, the risk of harm to AB, if placed with her paternal aunt was low, assuming a well-planned transition occurred. 37 The Tribunal acknowledged that there was a risk of harm to AB should she be placed with her paternal aunt because that placement required the disruption of her strong attachment to her foster carer, and this was a significant consideration. In assessing the magnitude of that risk, the Tribunal had regard to the following matters: the impact of AB’s previous trauma; the impact of multiple separations; AB’s attachments; the quality of AB’s relationship with both her foster carer and her paternal aunt; the ability of each party to provide AB with a safe haven; and mitigating factors including that it was likely that any transition process would be reasonable given the personal characteristics of each party. Taking into account all of these considerations, the Tribunal assessed the risk of psychological harm to AB, if she was placed with her paternal aunt (and her placement with her foster carer was disrupted), as ‘relatively low’. 38 Primarily based on the evidence of Ms Fallo and Mr Segal, the Tribunal considered that AB’s placement with her paternal aunt would provide her with long term advantages arising from her connection with her family. The Tribunal also noted that Ms Rayment acknowledged the benefits of kinship care in her report. The Tribunal said that there was a risk of harm to AB by not placing her in kinship care. They said:7 We have concluded that there is a risk to [AB] by not placing her with her family member. In our assessment, at times in her life when [AB] is questioning her identity – such as adolescence – she may become confused and she may suffer feelings of rejection at not 7 Reasons at [134],[140]. -- 10 of 30 -- [2025] SASCA 6 The Court 7 being placed with her biological family. She may also feel angry that such a placement did not occur when her biological family had offered for her to be placed with them. Our view is that she will be more psychologically secure in a placement with her biological family. … Although [AB]’s placement with [the foster carer] is not a placement with a person of a different culture within the generally accepted meaning of that term; nevertheless, as Ms Rayment acknowledged in the hearing, a placement outside the biological family means the child cannot have the same experience of their biological family as they would if they were placed with a member of that family. A placement within the biological family would provide a child with knowledge of family traditions and conventions, family history, values, attitudes and ideas. Even though this may not be quite as clear as a situation such as that in WWZ, still, in our view, a placement which is not with a biological family member may well still manifest in the same problems arising later in life: confusion, depression, loss of identity and loss of self-esteem. 39 The Tribunal considered that this constituted a risk of psychological harm but said that, in any event, even if they were wrong in this regard, these matters would still need to be taken into account when considering what was the correct and preferable decision under the Act. 40 The Tribunal had regard to the paramount consideration of the Act to ensure that children and young people are protected from harm as enshrined in s 7; the intervention principles in s 10, and the placement principles in s 11. The Tribunal considered their decision ‘finely balanced.’ The Tribunal also referred to the Act’s objectives stated in s 8 and noted s 8(3) which states that it is desirable that the connection with biological family is maintained. 41 The Tribunal emphasised the difficulty of reaching a decision in this matter (as evident from the divided opinions within the Department itself) but concluded that ‘the risks for [AB] if she is not placed with her biological family, outweigh the risk of harm if her attachment to [her foster carer] is disrupted by a placement with [her biological aunt]’ and determined that the correct and preferable decision was to place AB with her paternal aunt. 42 The Tribunal then made some ‘concluding remarks’ as to the transition process for the parties to reflect on and ‘possibly for their guidance’ and as to the processes of the Department. Grounds of Appeal 43 The Appellant’s grounds of appeal may be broadly characterised as follows: • The Tribunal erred in its findings in relation to the risk of harm to AB if she were to remain in the care of her foster carer (the appellant) rather than being transitioned into the kinship care of her paternal aunt (the second respondent): grounds 2 - 4. -- 11 of 30 -- [2025] SASCA 6 The Court 8 • The Tribunal failed to accord the appellant procedural fairness by admitting and relying on the ‘anecdotal evidence’ of Mr Segal in circumstances where the Tribunal had directed the parties to file evidence by way of affidavit and the Department did not file and serve an affidavit of Mr Segal; and the evidence was used by the Tribunal for a purpose other than that for which it was admitted: ground 5. • The Tribunal erred in ordering that AB be placed in the care of her paternal aunt where there was no evidence as to the nature of a staged transition process or the likelihood of success when the transition process was necessary to mitigate harm to AB: ground 7. • The orders of the Tribunal were not reasonably open or plainly unjust (an outcome error) given the risk of harm to AB were she to be removed from the appellant’s care, the absence of qualified evidence that AB would suffer harm if she were not placed in kinship care, and the lack of evidence as to the staged transition process: ground 8. 44 The appellant did not pursue appeal grounds 1 and 6 of the Notice to Appeal. Nature of the appeal and leave to appeal 45 This appeal is brought pursuant to s 71 of the SACAT Act and requires a grant of leave pursuant to s 71(2). The appeal proceeds by way of a rehearing by dint of s 71(3a). An appeal under s 71 operates in the same manner as a civil appeal to a single judge or the Court of Appeal. Where the matter involves a question of the exercise of judicial discretion, it is necessary for this Court to determine, in accordance with House v The King,8 whether the Tribunal’s decision was affected by a process or outcome error. That is, the question for this Court is whether the Tribunal acted on a wrong principle, or took into account extraneous or irrelevant matters, or failed to take into account some material fact (a process error); or if the result was manifestly unreasonable or plainly unjust (an outcome error). This Court is not entitled to substitute its own decision unless such an error is identified in the exercise of the Tribunal’s decision. 46 In determining whether the decision made on internal review was correct or preferable, the Tribunal was rehearing the exercise of the discretion contained within s 84(1)(a) of the Act. 47 The complaint which underpins grounds 2 – 4 is effectively that the Tribunal did not properly construe the meaning of ‘psychological harm’ under s 17 of the Act and, in part by reason of that misconstruction, erred in the exercise of its discretion. Appeal ground 7 alleges that the Tribunal took into account an irrelevant consideration namely the transition process as a mitigating factor in circumstances where there was insufficient evidence as to the details of that process. Under appeal ground 8, there is a complaint that the outcome is 8 House v The King (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ). -- 12 of 30 -- [2025] SASCA 6 The Court 9 unreasonable or plainly unjust, in other words, an outcome error. Thus, all but appeal ground 5 fall to be considered in the context of whether there was a House v The King error. Appeal ground 5 alleges procedural unfairness by the Tribunal. This does not involve the exercise of a discretion and this ground of appeal is to be considered according to the standard of correctness without the same appellate restraint. 48 As to the question of leave, the ordinary principles governing leave to appeal in civil appeals apply. As the Court relevantly explained in Henderson v South Australian Housing Trust:9 … In deciding whether to grant leave to appeal from the SACAT to this Court, the ordinary principles governing leave to appeal in civil appeals apply. The overriding principle is the interests of justice, having regard to whether the appeal is reasonably arguable, whether it raises any matter of principle or general importance, and whether the subject matter involves a matter of sufficient substance. Further, where the proposed appeal relates to a matter involving an application of the SACAT’s specialist knowledge this may be a factor militating against a grant of leave. (Citations omitted.) 49 The appellant contends that all grounds are reasonably arguable. Moreover, the appellant submits that appeal grounds 2 to 4 involve an important question of statutory construction, namely the meaning of ‘psychological harm’ in s 17 of the Act; that issue being of general importance. The appellant also contends that by reason of the subject matter concerning a child under the guardianship of the Chief Executive of the Department, and findings having been made about the likelihood of future psychological harm, the importance of the decision is clear.10 It is also submitted that in circumstances where the Tribunal, as an instrument of the State, is making decisions with the potential to cause psychological harm to a child under the guardianship of the State, the potential consequences and subject matter is of sufficient substance that leave ought be granted. 50 On the other hand, the Department opposes a grant of leave on the basis that there has been no identification of error as articulated in House v The King, and none of the grounds of appeal are reasonably arguable. Further, the Department emphasises the need for certainty, stability and the efficient resolution of disputes relating to the placement of children under the Chief Executive’s guardianship, and submits that such considerations militate against leave being granted.11 The Department contends that the legislative intention of the Act is that proceedings concerning the placement of children be dealt with by a specialist tribunal in a 9 Henderson v South Australian Housing Trust [2024] SASCA 55 at [40]. 10 Archer v Chief Executive of the Department for Child Protection [2022] SASC 94 at [402] (Blue J). 11 See generally M, L v The Minister for Education & Child Development [2018] SASCFC 54 at [7] (Kourakis CJ, Bampton and Doyle JJ). -- 13 of 30 -- [2025] SASCA 6 The Court 10 timely and durable manner12 and a grant of leave would undermine that legislative intent. 51 On the question of leave, the paternal aunt contends that none of the grounds are reasonably arguable and accordingly there is no basis to grant leave. For the following reasons we granted leave to appeal on grounds 2-5, refused leave on appeal grounds 7 and 8, and dismissed the appeal. The statutory regime 52 Before considering the merits of each of the appeal grounds, it is necessary to say something about the statutory regime of the Act. 53 Section 53 confers on the Youth Court power to make various orders in relation to a child or young person, including an order placing a child under the guardianship of the Chief Executive of the Department until the child or young person attains the age of 18 years. 54 Section 84 of the Act confers on the Chief Executive powers in relation to a child who is under the guardianship or in the custody of the Chief Executive of the Department. They include a power to place the child in the care of a member of their family or permit the child to remain in the care of a member of their family, or in the care of any other suitable person. 55 The decision under review by the Tribunal, and the subject of this appeal hearing, was made pursuant to s 84(1)(a) of the Act. In exercising power under s 84(1) of the Act, three considerations are set out under s 84(3). The section relevantly provides: 84—Chief Executive's powers in relation to children and young people in Chief Executive's custody or guardianship (1) Subject to this Act, the Chief Executive may, in relation to a child or young person who is in the custody, or under the guardianship, of the Chief Executive, from time to time do 1 or more of the following: (a) place the child or young person, or permit the child or young person to remain, in the care of a member of their family; (b) place the child or young person in the care of any other suitable person; … (2) … (3) In exercising a power under this section, the Chief Executive— 12 Varricchio v Wentzel [2016] SASC 86 at [37] (Doyle J); Pix v South Australian Housing Trust [2016] SASCFC 57 at [6] (Kourakis CJ), [8] (Bampton J), and [9] (Doyle J); BC v The Public Advocate (No 4) [2019] SASC 57 at [77] (Parker J); GM v Department of Human Services [2024] SASC 23 at [37] (McIntyre J). -- 14 of 30 -- [2025] SASCA 6 The Court 11 (a) must have regard to the principles of intervention, the placement principles and, if relevant, the Aboriginal and Torres Strait Islander Child Placement Principle; and (b) must keep in mind that leaving the child or young person under the guardianship, or in the custody of, the Chief Executive is the least preferred option; and (c) should exercise the power in a manner that is consistent with this Act and any relevant policy published under section 19. … 56 The principles of intervention referred to in s 84(3)(a) are defined by section 10, which provides: 10—Principles of intervention (1) The principles of intervention are as follows: (a) decisions and actions (if any) under this Act should be taken in a timely manner (and, in particular, should be made as early as possible in the case of young children in order to promote permanence and stability); (b) if a child or young person is able to form their own views on a matter concerning their care, the child or young person should be given an opportunity to express those views freely and those views are to be given due weight in the operation of this Act in accordance with the developmental capacity of the child or young person and the circumstances; (c) account should be taken of the culture, disability, language and religion of children or young people and, if relevant, those in whose care children and young people are placed; (d) in each case, consideration should be given to making arrangements for the care of a child or young person by way of a family group conference if possible and appropriate. (2) Each person or body engaged in the administration, operation or enforcement of this Act must exercise their powers and perform their functions so as to give effect to the principles of intervention. (3) However, this section and the principles of intervention do not displace, and cannot be used to justify the displacement of, section 7. (4) To avoid doubt, the requirement under this section applies to the Court. 57 The placement principles referred to in s 84(3)(a) are defined by s 11, which provides: -- 15 of 30 -- [2025] SASCA 6 The Court 12 11—Placement principles (1) The placement principles are as follows: (a) all children and young people who have been removed from the care of a person under this Act should be placed in a safe, nurturing, stable and secure environment; (b) the preferred option in relation to such placement of a child or young person is to place the child or young person with a person with whom they have an existing relationship; (c) approved carers are entitled to be, and should be, involved in decision- making relating to children and young people in their care. (2) Each person or body engaged in the administration, operation or enforcement of this Act must exercise their powers and perform their functions so as to give effect to the placement principles. (3) However, this section and the placement principles do not displace, and cannot be used to justify the displacement of, section 7. (4) To avoid doubt, the requirement under this section applies to the Court. 58 Sections 10 and 11 refer to s 7 which states that ‘[t]he paramount consideration in the administration, operation and enforcement of this Act must always be to ensure that children and young people are protected from harm.’ The meaning of ‘harm’ for the purposes of the Act is defined in s 17, and an exclusion to that meaning in relation to psychological harm is provided at s 17(2): 17—Meaning of harm (1) For the purposes of this Act, a reference to harm will be taken to be a reference to physical harm or psychological harm (whether caused by an act or omission) and, without limiting the generality of this subsection, includes such harm caused by sexual, physical, mental or emotional abuse or neglect. (2) In this section— psychological harm does not include emotional reactions such as distress, grief, fear or anger that are a response to the ordinary vicissitudes of life. 59 The requirements of ss 4, 5 and 8 also inform the exercise of power by the Chief Executive under s 84(1). They relevantly provide: 4—Parliamentary declaration (1) The Parliament of South Australia recognises and acknowledges that— (a) children and young people are valued citizens of the State; and (b) the future of the State is inextricably bound to the wellbeing of all its children and young people; and -- 16 of 30 -- [2025] SASCA 6 The Court 13 (c) it is of vital importance to the State, and all of its citizens, that all children and young people are given the opportunity to thrive. (2) The Parliament of South Australia recognises that, as a State, we want each child and young person to benefit from (at least) the following outcomes: (a) to be safe from harm; (b) to do well at all levels of learning and to have skills for life; (c) to enjoy a healthy lifestyle; (d) to be active citizens who have a voice and influence, and the Parliament of South Australia accordingly commits to promoting these outcomes. (3) The Parliament of South Australia acknowledges that outcomes for Aboriginal and Torres Strait Islander children and young people in care have historically been poor, and that it is unacceptable for outcomes for those children and young people to be any different to those for children and young people in care generally. (4) It is the intention of the Parliament of South Australia that the performance of functions in the administration and operation of this Act be done in collaboration with, and with the cooperation of, children and young people and their families rather than simply being done to or for them. 5—Duty to safeguard and promote the welfare of children and young people The Parliament of South Australia recognises that— (a) it is the duty of every person in the State to safeguard and promote the outcomes set out in section 4(2); and (b) the provisions of this Act, and compliance with its provisions, form only a small part of the way in which the State, the agencies of the State, the Commonwealth and every citizen of the State discharge that duty. 8—Other needs of children and young people (1) In addition to the paramount consideration set out in section 7, and without derogating from that section, the following needs of children and young people are also to be considered in the administration, operation and enforcement of this Act: (a) the need to be heard and have their views considered; (b) the need for love and attachment; (c) the need for self-esteem; (d) the need to achieve their full potential. (2) To avoid doubt, the requirement under this section applies to the Court. -- 17 of 30 -- [2025] SASCA 6 The Court 14 (3) Without derogating from any other provision of this Act, it is desirable that the connection of children and young people with their biological family be maintained. 60 It is evident that the Act makes distinct mention of the importance of connection with biological family by dint of s 8(3) and recognises the desirability that children under the guardianship of the Chief Executive maintain their connection with biological family. Ground 2 – risk of harm to AB should she not be placed in kinship care 61 Under appeal ground 2, the appellant’s complaint is two-fold. First, the appellant complains that the Tribunal mischaracterised the definition of ‘psychological harm’ by conflating the loss of a general benefit of being raised in kinship care with ‘psychological harm’ under the Act. More particularly, the appellant contends that the evidence of Ms Fallo and Mr Segal did not address such a risk in AB’s case, as opposed to anecdotally or more generally. Secondly, the appellant contends that in the absence of any evidence particular to AB, the Tribunal erred in relying on its specialist knowledge as to the risk of psychological harm to AB should she not be placed with a family member. 62 The Appellant also relies on the submissions in respect of ground 2 to provide a substantive background to appeal grounds 3 and 4. 63 As to the first limb, the appellant complains that the question the Tribunal directed itself to answer,13 specifically as to the risks to [AB] in not placing her with her biological family, was not directly considered by either Ms Rayment or Ms Fallo in their reports, nor was it put directly to either witness during their evidence at the Tribunal hearing. The appellant contends that whilst the Tribunal had before it evidence that there was a general benefit to children being raised in kinship care (a matter which is in fact reflected in the Act)14 it did not have any evidence of the risk of psychological harm to children generally or specifically to AB, arising from not being placed in kinship care. 64 The result of this, the appellant contends, was a conflation of the concept of a loss of a benefit of kinship care with that of psychological harm for the purposes of the Act. By misdirecting itself in this manner, the appellant contends that the Tribunal erred in its approach to the meaning of psychological harm. The appellant contends that there was no evidence before the Tribunal that could lead to a finding that there was a risk of harm to AB should she not be placed in kinship care. Further, there was no evidence before the Tribunal as to the detriment of the absence of kinship care, other than what may be described as a feeling of ‘injustice’. Nor was there evidence to the effect that an absence of kinship care was capable of creating a risk of psychological harm as defined by s 17 of the Act. 13 Reasons at [127]. 14 Children and Young People (Safety) Act 2017 (SA), s 8(3); Archer v Chief Executive of the Department for Child Protection [2022] SASC 94 at [318] (Blue J). -- 18 of 30 -- [2025] SASCA 6 The Court 15 65 The Tribunal ultimately found that there was a risk of psychological harm to AB should she not be placed with her paternal aunt. As mentioned earlier, the Tribunal considered the issue in two stages. First, it summarised the evidence of the benefits of AB being raised with her biological family and the corresponding risk of not being placed with her family;15 and secondly, it determined whether the risk identified meant that AB was at risk of future harm for the purposes of the Act.16 66 The Tribunal accepted the evidence of Mr Segal and Ms Fallo in relation to the first stage. 67 Ms Fallo, a clinical psychologist, gave evidence that kinship care provides for connection to family traditions, values and belief that are central to emotional well-being17 and the familiarity of kinship care gives rise to feelings of security and identity in the long term.18 It was Ms Fallo’s opinion that there was the potential for long term psychological harm to AB if she was not placed in the care of her paternal aunt,19 in contrast with a low risk of harm resulting from the transition out of the care of her foster carer.20 Ms Fallo said:21 [kinship care] provides a continuity of connection to family. That's really important because that connection allows the child to experience those very close caregiving bonds with members of their family, which is very good for them across the lifespan, but is central to emotional wellbeing, really across the lifespan. … In general, adults who are raised by family tend to feel more stable, secure. They report a more stable sense of themselves, a more stable identity. Certainly in the literature, placement with family goes a long way to restoring the loss of a mother or caregivers. Adults who have been raised in kinship care feel more valued. They seem to be less troubled by issues of loss. They’re less preoccupied with it. They seem to report a better sense of themselves. … … [A]necdotally that's what we see played out. So in therapy you can find that often if people haven’t been raised in kinship care, it's harder to move them along from that ongoing thinking. It's like it's ever present, that feeling of having open questions, either about themselves or about their family. Also, and I think it's probably important in this case, when we’ve got people who; adults who believe or perceive that they could have or should have been placed in kinship care but weren’t, they can be very distressed by the sense of injustice, and they will often be the ones who have poorer mental health outcomes, probably because they’re dealing then with that combination of that sense of injustice together with 15 Reasons at [127]-[135]. 16 Reasons at [136]-[141]. 17 Reasons at [131]. 18 Reasons at [132]. 19 Reasons at [132]. 20 Expert opinion of Fiona Fallo dated 13 August 2023, p 13. 21 Transcript, 6 November 2023, pp 91-93; Transcript, 7 November 2023, pp 62-63. -- 19 of 30 -- [2025] SASCA 6 The Court 16 the loss of the mother or the father, their caregiver and the loss of the family. So it's much harder to resolve. They tend to have more intractable mental health problems … … I am sensitised by my 20 plus years to the damage that can be caused when there are departures from what we normally expect to happen without very good reason. That's very difficult to resolve in the long-term. That becomes a lifelong concern. So, when we talk about my belief, this idea of the importance of kinship care, it's not a belief in terms of my personal morals, … this is based on my experience of listening to people who are working therapeutically, together with what we expect in our society. A normal expectation. 68 Mr Segal’s evidence to the Tribunal about the risk of harm to a child if they were not placed in kinship care was as follows:22 … I do believe that you know, that sense of identity, belonging and connection is probably the thing that sustains young people going through the adolescent years of troubled years and I do think that families do provide that better … 69 It was Mr Segal’s experience that kinship care is likely to provide greater stability for a child particularly during adolescence23 due to developing a sense of belonging and identity from connection with their biological family, and they are likely to have fewer mental health or psychiatric issues as a result.24 70 Ms Rayment also acknowledged the importance of kinship connection to the development of identity.25 Ms Rayment agreed that people adopted as babies, often hold a perception of injustice about not being raised with their family when their family was able to do so, even where the foster family that did raise them was loving and kind.26 71 The evidence revealed that the risk of harm that may arise to a child because of being raised away from biological family may manifest at a later stage in a child’s life, whereas the risk of harm from being separated from a carer would be felt immediately. 72 Further the importance of identity in securing a better outcome for children has been recognised by the Department in the Permanency Planning Practice Paper, which was considered in the Reasons of the Tribunal:27 Children and young people have better outcomes when they have a strong sense of identity, belonging and connectedness to culture. When children and young people are harmed and/or separated from their family and culture, their sense of identity can be impacted and their knowledge of and connection to culture can be damaged, which can lead to other negative outcomes, including poor mental health. Permanency planning aims to promote 22 Transcript, 9 November 2023, p 35; Appeal Book p 381. 23 Reasons at [113]. 24 Transcript, 9 November 2023, p 35; Appeal Book p 381. 25 Transcript, 7 November 2023, p 76; Appeal Book p 248. 26 Transcript, 8 November 2023, p 25; Appeal Book p 307. 27 Reasons at [147]. -- 20 of 30 -- [2025] SASCA 6 The Court 17 stability not just in a child or young person’s care arrangements, but also in terms of their sense of belonging and their connectedness to family and community. 73 Contrary to the appellant’s submission, the Tribunal did not conflate evidence of a loss of general benefit for AB from not being placed with her biological family with a direct risk of psychological harm. It can be seen from the evidence set out above that having identified the benefits of being placed in kinship care, the Tribunal examined the potential effects if such benefits were not in place28 when assessing the future risk of harm to AB within the meaning of the Act.29 Such risk is informed by the behaviour, challenges and outcomes experienced by children generally and AB’s specific circumstances, including her status as a child under guardianship and her care arrangements.30 74 It was open to the Tribunal to draw inferences as to the future risk of harm to AB based on evidence as to how children generally develop in different care settings. That type of evaluative fact finding does not of itself give rise to any appealable error. Moreover, the Tribunal had sufficient evidence to conclude that AB would be at risk of future psychological harm if she were not placed in kinship care with her paternal aunt. 75 As to the second limb of this appeal ground, and the appellant’s contention that the Tribunal erred by acting upon its specialist knowledge to make findings without notice to the parties, we consider there is no merit to this complaint. 76 The Tribunal is a specialist body by reason of it exercising exclusive jurisdiction under s 158 of the Act.31 It has regularly determined placement reviews in its jurisdiction since February 2018.32 Subject to procedural fairness obligations, the Tribunal was entitled to draw upon its knowledge of the subject matter and apply its own expertise to inform itself.33 In any event, the Tribunal’s findings were made on the basis of evidence properly before the Tribunal and were not reliant upon any such expertise to make any specific finding. 28 See e.g. Reasons at [129]-[131]. 29 Children and Young People (Safety) Act 2017 (SA), s 18(1)(b). 30 Reasons at [93] and [142]. 31 GM v Department of Human Services [2024] SASC 23 at [37] (McIntyre J) citing Schinkel v Registrar of Firearms [2020] SASC 236 at [10] (Bleby JA); see also DT v Chief Executive of the Department for Child Protection [2022] SASC 24 at [13] (Livesey P). 32 The Tribunal has published several publicly-available decisions regarding reviews under ss 84 and 158 of the Children and Young People (Safety) Act 2017 (SA): GKZ v Department for Child Protection & Anor (No 2) [2022] SACAT 75; REM & PVR v Department for Child Protection [2020] SACAT 9; KWF v Chief Executive, Department for Child Protection [2022] SACAT 127; KYD v Chief Executive, Department for Child Protection [2022] SACAT 126; OXF & Anor v Department for Child Protection & Ors [2022] SACAT 85; JCW v The Department for Child Protection [2022] SACAT 19; WWZ & Anor v The Department for Child Protection [2020] SACAT 111; RHN v Department for Child Protection [2021] SACAT 75. 33 Architectural Practice Board of South Australia v Chwalisz [2022] SACAT 119 at [25]-[28]; Kalil v Bray [1977] 1 NSWLR 256 at 261 (Street CJ, with whom Moffit P and Glass JA agreed); R v Industrial Appeals Court; Ex parte Maher [1978] VR 126 at 142 (Starke, McInerny and Crockett JJ). -- 21 of 30 -- [2025] SASCA 6 The Court 18 77 There was no error by the Tribunal and for those reasons, we reject ground 2. Ground 3 – the meaning of ‘psychological harm’ under s 17 of the Act 78 Under this ground of appeal, the appellant complains that the Tribunal misconstrued the meaning of ‘psychological harm’ as defined in s 17, and thereby erred in relying on the evidence of Mr Segal to find that there was a risk of psychological harm to AB should she not be placed in kinship care. The appellant contends that Mr Segal did not have the relevant expertise to give evidence as to the risk of psychological harm to AB. 79 As mentioned earlier, s 84 empowers the Chief Executive to place a child or young person who is in the custody or guardianship of the Chief Executive in the care of a member of their family or in the care of any other suitable person. The section does not require, as a precondition to the exercise of the power, that the child has suffered or may suffer harm. While there is no explicit pre-condition to do so, there must be good reason for the Chief Executive to exercise the powers under s 84. Having regard to ss 5 and 4(2) of the Act such reason may be found in protecting a child from the risk of future harm. 80 Section 18(1)(b) of the Act defines when a child is at risk and includes when ‘there is a likelihood that a child or young person will suffer harm (being harm of a kind against which a child or young person is ordinarily protected)’. 81 As set out earlier, the definition of harm is provided for in s 17 and includes any physical or psychological harm. Section 17(2) states that ‘psychological harm does not include emotional reactions such as distress, grief, fear or anger that are a response to the ordinary vicissitudes of life.’ 82 The appellant contends that the term ‘psychological harm’ should be construed as meaning an actual injury or damage to the mental state or mind of a person. The appellant submits that the exclusion of emotional reactions under s 17(2) of the Act indicates a legislative intention to exclude the concept of ‘hurt’ from the ordinary definition of ‘harm’. Therefore, the meaning of psychological harm is limited to diagnosed disorders or mental conditions. That being so, the appellant contends that the question of whether there was a risk of psychological harm required evidence from an appropriately qualified expert, such as a psychologist or psychiatrist. 83 Mr Segal gave evidence as to the risk of psychological harm to AB if she were to remain in the care of the appellant, instead of being placed in kinship care. Mr Segal completed an economics degree and a post-graduate qualification in social economics and has worked in the Department for around 28 years. The appellant submits that Mr Segal was without the relevant training and expertise to give evidence as to the risk of psychological harm to AB, nor had he undertaken any assessment of AB that may have otherwise provided him a basis or expertise to give that evidence. -- 22 of 30 -- [2025] SASCA 6 The Court 19 84 The narrow meaning of ‘psychological harm’ contended for by the appellant is not supported by the text, context or purpose of the Act. The reference to ‘psychological harm’ in s 17 of the Act is not limited to ‘an actual injury or damage to the mental state or mind of a person’. In its terms, there is nothing to suggest that the meaning of ‘psychological harm’ should be limited to diagnosed disorders or conditions of the mind, or limited to harm that is the subject of expert psychological or psychiatric evidence. 85 The only constraint is found in the exclusion provision in s 17(2) of the Act, which is consistent with the Act’s broader purpose of protecting children from harm which they are not ordinarily protected as required by ss 7 and 8 of the Act. The use of ‘psychological’ in s 17 is intended to draw a distinction with physical harm to confirm that both species of harm are addressed by the Act. 86 The limitation contended for by the appellant lacks textual foundation. The ordinary meaning of ‘psychological’ as it relates to the mind or mental phenomena should be preferred. 87 As to the question of whether Mr Segal’s evidence was rationally capable of bearing on the question of the risk of future psychological harm to AB, it is important to emphasise that the Tribunal was concerned with a particular factual circumstance, namely the behaviour and development of a child under a guardianship order. This a broad area in which Mr Segal had considerable experience. At the time of the review proceedings, Mr Segal was a senior employee within the Department with 28 years’ experience having held the position of Regional Director of the Southern Region for three and a half years. 88 Mr Segal formed his opinion of AB based on his practical experience and knowledge gained from working with children and their caregivers for many years.34 Whilst it was a relevant consideration that Mr Segal had not spent time with AB nor conducted any assessment of her, that was a question of weight for the Tribunal. Bearing in mind the broad construction of the meaning of ‘psychological harm’, we are satisfied that the evidence of Mr Segal was admissible, and the Tribunal did not err in relying upon the evidence as part of their evaluative exercise as to the question of the future risk of harm to AB should she not be placed with her paternal aunt. 89 For those reasons, we reject this ground of appeal. Ground 4 – the evidence of Ms Fallo as to future risk of harm 90 The appellant complains that the Tribunal erred by relying on the ‘anecdotal’ evidence of Ms Fallo when finding that there was a risk of future harm to AB should she not be placed in kinship care. The appellant contends that Ms Fallo did not give evidence that there was any appreciable risk of harm to AB (as opposed to children or young people generally) and her evidence was based entirely on 34 Reasons at [130]; see also Transcript, 9 November 2023, pp 14 and 21. -- 23 of 30 -- [2025] SASCA 6 The Court 20 anecdotal experience with persons of significantly different backgrounds to that of AB. The appellant contends that the Tribunal, by having regard to an irrelevant consideration, fell into a House v The King error in the exercise of its discretion. 91 Ms Fallo is a clinical psychologist of some 20 years’ experience, with a master’s thesis in the area of attachment. Contrary to the appellant’s submissions, Ms Fallo gave evidence of her broad professional experience in regard to childhood attachment and then applied that knowledge and experience to the relevant question of the risk of future harm to AB should she not be placed in kinship care. It is evident from the passages of her evidence, set out earlier in these reasons, that her evidence and findings were directed to AB and not a hypothetical child.35 There was no error, and we dismiss this ground of appeal. Ground 5 – failure to accord the appellant procedural fairness 92 The appellant complains that the Tribunal failed to accord her procedural fairness by receiving evidence from Mr Segal for a particular purpose; that is, as relevant to the decision-making process of the Department (as it relates to the placement of children) but then using the evidence for another purpose, without notice; namely, to support a finding that there was a risk of psychological harm to AB. The appellant contends that she was denied the opportunity to properly challenge and respond to the evidence. 93 In this matter, the parties filed the evidence upon which they intended to rely by way of affidavit or written statements. The Department relied on the affidavits of Ms Hudson and Ms Perks (both employees of the Department). Prior to the hearing, the parties agreed that neither deponent was required for cross-examination. In response to this intimation, the Tribunal indicated an interest in hearing oral evidence as to the decision-making processes within the Department. 94 The Tribunal was advised by the Department that Ms Perks, a manager involved in decision-making in AB’s case, would be able to attend the hearing the following day to give evidence. The Tribunal did not indicate an interest in hearing evidence on any other topic. 95 At some point during the second day when Ms Perks was scheduled to give evidence, a decision was made to instead have Mr Segal attend to give evidence. It was proposed that this evidence be interposed during the case of the foster carer. 96 The appellant stated during the second day of the hearing that there was ‘no real conceptual difficulty with the Department’s witness being interposed’. At the conclusion of the Department’s witnesses, the appellant (then the second respondent) began their opening and agreed to the Department interposing the evidence of Mr Segal. 35 Transcript, 6 November 2023, pp 91-93; Transcript, 7 November 2023, pp 62-63. -- 24 of 30 -- [2025] SASCA 6 The Court 21 97 The appellant contends that at that time it was her understanding that Mr Segal would be questioned only on the decision-making process within the Department. The appellant’s opening statement was consistent with this intimation and was critical of such processes. 98 Following the conclusion of the appellant’s evidence and prior to Mr Segal being called, the Tribunal foreshadowed the topics it wished to raise. A summary of these topics, taken from the transcript, is as follows:36 • Where is it recorded in the Department’s documents that the Department had made a decision to place AB with the appellant on a long term basis? • Was there any communication with AB’s paternal aunt or AB’s paternal grandmother, both of whom had indicated an interest in caring for AB, about potential relocation to South Australia? • Explanation as to a lack of discernible file note or Statement of Reasons of the Department’s decision to place AB with her paternal aunt. • The reason for the delay in commencement of the process to approve AB’s paternal aunt and her partner as kinship carers for AB. • Why the Department initially engaged an agency in Victoria to assess AB’s paternal aunt as a kinship carer (while she was living in Victoria), and then later abandoned the process only to start it over in South Australia, instead of adopting the process that had been commenced in Victoria? • How was a difference in opinion as to AB’s placement between two sections of the Department, Case Management and Psychological Services, resolved (where Case Management determined to proceed with transitioning AB into the care of her paternal aunt, contrary to the view of Psychological Services and the opinion of Ms Rayment) and why did the resolution take as long as it did? 99 These questions were put to Mr Segal by the Tribunal, to varying degrees37 and Mr Segal was then questioned by the counsel for both AB’s paternal aunt38 and the appellant.39 100 The appellant submits that she had anticipated that the evidence of Mr Segal would either be irrelevant to the exercise of the Tribunal’s discretion or would support the appellant’s submissions as to errors in the Department’s process. 36 Transcript, 8 November 2023, pp 61-63; Appeal Book pp 343-345. 37 Transcript, 9 November 2023, pp 3-35; Appeal Book pp 349-381. 38 Transcript, 9 November 2023, pp 27-30; Appeal Book pp 373-376. 39 Transcript, 9 November 2023, pp 30-33; Appeal Book pp 376-379. -- 25 of 30 -- [2025] SASCA 6 The Court 22 101 The appellant contends the reasons of the Tribunal reveal that the evidence of Mr Segal was used to support a finding that AB was at risk of future psychological harm if she stayed in the care of the appellant instead of being moved into kinship care. The appellant submits that, in effect, the Tribunal changed the way it received evidence (oral instead of written), from whom it had sought evidence (Ms Segal instead of Ms Perks), and the proposed purpose of the evidence (supporting a risk of psychological harm instead of merely elaborating on decision-making processes). 102 The appellant submits that had she been aware that the Tribunal would be adducing further evidence for the purposes of determining whether there was a risk of psychological harm, she would not have opened her case in the manner she did, nor would she have consented to the witness being interposed. 103 The appellant contends that she was entitled to know the basis upon which evidence led before the Tribunal was proposed to be used and the Tribunal failed to advised her of the proposed use of the evidence which resulted in a substantial denial of procedural fairness given she was not given an opportunity to answer the evidence put before the Tribunal on the topic. 104 We do not agree. Upon a review of the transcript of proceedings, we are not satisfied that the Tribunal failed to accord the appellant procedural fairness by reason of the manner by which the evidence of Mr Segal was adduced and ultimately used by the Tribunal. The appellant was on notice of the parameters of the dispute. It was clear from the outset of the hearing that one of the central issues in dispute was the risk of future psychological harm to AB should she not be placed in kinship care. The evidence of Mr Segal was concerned with that issue which was well understood by all parties to be in dispute and a central consideration for the Tribunal. 105 The Tribunal is afforded flexibility with respect to its own processes,40 and while this does not abrogate its obligations as to procedural fairness, no complaint can be made as to the evidence of Mr Segal being in oral rather than affidavit form. Moreover, the content and effect of Mr Segal’s evidence was already in the primary book of documents that was before the Tribunal.41 106 The Tribunal’s decision to hear from Mr Segal instead of Ms Perks was due to witness availability and a desire to have a witness attend in person.42 107 The decision-making process of the Department was not necessarily confined to the limited scope assumed by the appellant. As was clear from the questions identified by the Tribunal prior to hearing from Mr Segal, the decision-making process included a difference in opinion between Departmental staff that was apparent on the underlying documents. There were professional staff including 40 South Australian Civil and Administrative Tribunal Act 2013 (SA), ss 39 and 43. 41 Reasons at [113]. 42 Transcript, 7 November 2023, p 32; Appeal Book p 204. -- 26 of 30 -- [2025] SASCA 6 The Court 23 Ms Rayment who did not support the change in placement, and the case management team (including Mr Segal) who did support a change in placement. The topic of the decision-making process would necessarily involve a consideration of that difference in opinion. 108 Whilst it is true that the Tribunal did not explicitly indicate that it proposed to use the evidence in support of a finding of a risk of psychological harm should AB not be placed in kinship care, there is no overarching requirement for an administrative decision-maker to disclose their deliberative process.43 The content of procedural fairness in relation to administrative decision-making turns on the realities of the case.44 The touchstone is whether the party is alive to the issues they need to address. As the High Court explained in Minister for Immigration and Citizenship v SZGUR & Anor:45 Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision. That is not to say that the Tribunal cannot or should not, in the exercise of its discretion, invite an Applicant for review to make supplementary submissions in relation to apparent inconsistencies, contradictions or weaknesses in his or her case which have been identified by the Tribunal. 109 Whilst the topics identified by the Tribunal as being of interest (set out above) may not have completely encapsulated the actual questions asked of Mr Segal as to the risk of harm arising from a child not being placed in kinship care, the questions asked were not materially different to those topics and had been earlier addressed by both Ms Fallo and Ms Rayment during their evidence. The underlying issue of whether there was a risk of psychological harm to AB should she not be placed in kinship care was clearly a live issue of which the appellant was on notice by the time evidence was adduced from Mr Segal. 110 Moreover, even if the questions asked of Mr Segal went beyond those topics expressly identified by the Tribunal, Mr Segal’s oral evidence was not the subject of any relevant objection by the appellant. Nor did the appellant seek to re-open her case or require witnesses be recalled for further cross-examination. So much was conceded by the appellant before this Court.46 111 In circumstances where the appellant was on notice as to the relevant issues the subject of Mr Segal evidence, and there was no objection to the evidence, we are satisfied there was no procedural unfairness accorded to the appellant. We dismiss this ground of appeal. 43 Comcare v Wuth (2018) 260 FCR 89 at [27] (Flick J). 44 MH6 v Mental Health Review Board (2009) 25 VR 382 at [30] (Redlich JA and Hargrave AJA). 45 Minister for Immigration and Citizenship v SZGUR & Anor (2011) 241 CLR 594 at [9] (French CJ and Kiefel J; Heydon and Crennan JJ agreeing at [91]-[92]). 46 Appellant’s submissions at [32]. -- 27 of 30 -- [2025] SASCA 6 The Court 24 Ground 7 - the transition process 112 The appellant complains that the Tribunal erred in finding that any risk of harm to AB caused by the disruption of her placement with her foster carer could be mitigated by way of a transition plan, given there was no evidence as to the nature or detail of that transition plan. 113 In considering this ground of appeal it is important to note that the Tribunal’s jurisdiction was limited to determining the correct and preferable decision,47 whereas the specific process by which the Tribunal’s decision would be carried into effect was a matter for the Chief Executive of the Department as AB’s guardian.48 114 The Tribunal only had to be satisfied that an appropriate transition process was possible and make an evaluative judgment as to whether such a process would affect the risk of harm to AB should she be placed with her paternal aunt. As identified in the Reasons,49 the Tribunal assessed the risk of harm of the transition process, in the context of the relevant broader risk of harm should AB’s placement with the foster carer be disrupted, and then considered that risk as an overall comparison between the risks of harm that may result from both options. The Tribunal said: f) The mitigating factors Ms Fallo placed significant emphasis on the mitigating factors as outlined above and those factors include a well-managed transition. During the review hearing, Mr Roder submitted that the Tribunal should be cautious in placing too much weight on the mitigating factors particularly in relation to any transition due to the level of cooperation which would be required between [the appellant] and [the second respondent], and the fact that this may not eventuate. There are a number of mitigating factors in this matter which include the transition process and the transition process is an important issue. We acknowledge there is a risk about trying to predict how that may occur. Even if it did not occur as Ms Fallo anticipates, our view is that due to the personal characteristics of [the appellant] and [the second respondent], and their commitment to doing what is best for [AB], it is likely the transition process would be reasonable. Taking into account all of these considerations, our assessment is that even though there is a risk of psychological harm to [AB] if she is placed with [the second respondent], due to the particular circumstances of this case, the risk is relatively low. 115 These findings were clearly open to the Tribunal. During the hearing, both parties expressed a willingness to act in AB’s best interest and agreed to participate in the process cooperatively. There was sufficient evidence for the Tribunal to accept that a transition process could be undertaken successfully. 47 Children and Young People (Safety) Act 2017 (SA), s 84(1)(a). 48 Reasons at [93]. 49 Reasons at [125]-[126]. -- 28 of 30 -- [2025] SASCA 6 The Court 25 116 Moreover, evidence of the nature of the transition process was provided in general terms. Ms Fallo told the Tribunal that:50 … [T]he willingness of the carer and the aunt to cooperate enables them to facilitate an organised, gradual transition of care. And what that means, which is very different from what the children experienced in the research that was provided, what that means is that those attachment needs can be met all the way along through the process before, during and after. So the attachment needs are things like she would be adequately soothed. She would continue to feel safe and loved. She'd be supported through the change. And these things, together with the child's clinical picture, significantly mitigate any risk. Further to that, or an extension of that, is this notion that there can be an overlap of caregiving. So again, that's very important in terms of these notions of attachment that we’re working with. So the overlapping caregiving means that the child is transitioning from a familiar environment with the carer to a familiar environment with the aunt. She's familiar with the home. She's familiar with her own room, her own special possessions. She can follow very similar routines, partly informed by the cooperation and communication between both carers. So all of that provides for the psychological safety of the child and makes it highly unlikely, highly unlikely, that there would be any possibility of consequences such as symptoms of post-traumatic stress disorder or reactive attachment disorder or other psychiatric symptoms or interruption to the extent that would make it difficult for her to relate to other people going forward. 117 Ms Rayment told the Tribunal that:51 … I do agree that [AB] has … an available and responsive, well two available and responsive caregivers that are both equally able to meet [AB’s] needs and both willing to cooperate in a transition. So, I think it probably couldn't get much better unless [AB] didn't have a history of prior separation. That would be the only circumstances that would make this lower risk. All of the things I think are in place that would enable a well-planned transition. As I said though, that will reduce risk, but it doesn't reduce risk to zero. 118 Ultimately, the Tribunal made a finding that the transition process would be reasonable given the personal characteristics of the parties, and this was a mitigating factor when assessing the risk of harm to AB should her placement with the appellant be disrupted. Notwithstanding there was no evidence of the detail of the transition process, as this was yet to be determined and necessarily had to await the outcome of the proceedings, there was no error by the Tribunal in making those findings as to the likelihood of success of the transition process. 119 We refuse leave to appeal on this ground. Ground 8 120 Under this appeal ground, the appellant relies on the cumulative effect of the errors particularised in the other grounds. Framed in this way, this appeal ground must necessarily be rejected. 50 Transcript, 6 November 2023, p 87; Appeal Book p 134. 51 Transcript, 7 November 2023, p 79; Appeal Book p 251. -- 29 of 30 -- [2025] SASCA 6 The Court 26 121 The appellant also contends that the Tribunal’s orders were not reasonably open or plainly wrong. 122 This was a difficult and finely balanced matter as the Tribunal so found. There were two suitable placements for AB available to the Department who would both provide excellent and loving care to AB. The Tribunal conducted a thorough hearing admitting further oral and written evidence. For the reasons outlined above, the Tribunal made no House v The King process error. They provided thorough and clear reasons for their ultimate orders. On a consideration of the whole of the evidence, we are satisfied that it was reasonably open to the Tribunal to be satisfied that the correct and preferable decision was to place AB in the care of her paternal aunt. 123 We refuse leave on this ground of appeal. Conclusion 124 For those reasons, we grant leave to appeal on grounds 2, 3, 4, 5 and dismiss the appeal. -- 30 of 30 --