BWV v Children's Guardian

Role of the Tribunal

1. Section 27 of the Act makes provision for administrative review by the Tribunal of a number of decisions of the Respondent, including a decision to refuse a working with children check clearance. That section relevantly provides: 27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions (1) A person who has been refused a working with children check clearance by the Children's Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person. (2) … (3) … (4) An Applicant must fully disclose to the Tribunal any matters relevant to the application. (5), (6) (Repealed) (7) Section 53 of the Administrative Decisions Review Act 1997 does not apply to a decision that may be reviewed by the Tribunal under this section.
2. Having jurisdiction to review the decision of the Respondent, the role of the Tribunal is to decide what the correct and preferable decision is having regard to all of the material before it, including any relevant factual material which may not have been before the Children's Guardian. Administrative Decisions Review Act 1997, s 63.
3. That is, the Tribunal sits in the shoes of the decision maker and decides the matter afresh, as at the date of hearing. YG and GG v Minister for Community Services [2002] NSWCA 247, at [25].
4. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130]
5. The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act. Civil and Administrative Tribunal Act 2013, s 36.
6. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or the Civil and Administrative Rules 2014 do not otherwise make provision. The Tribunal is not bound by the rules of evidence, except in relation to privileged disclosures (Evidence Act 1995, s 128) and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: Civil and Administrative Tribunal Act, s38 and s 67.
7. Procedural fairness and other aspects of natural justice, of course, apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balencio (1987) 8 NSWLR 436.
8. At [29], in BKE, Beech-Jones J noted that while the Tribunal is not bound by the rules of evidence, it should have regard to the principles in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336, at p 362 per Dixon J, in making a positive finding that an Applicant had sexually abused a child in circumstances where the Applicant had not been convicted of doing so.
9. At [30], His Honour said "significant guidance as to the approach to be adopted" in such cases could be derived from the High Court's decision in M v M [1988] HCA 68; 166 CLR 69. At [33], His Honour summarised the Tribunal's fact finding task as follows: "33 … [Thus] in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an Applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven."

Administrative Decisions Review Act 1997

1. Pursuant to section 63 of the Administrative Decisions Review Act 1997, the Tribunal has power to make the following orders: 1. to affirm the decision of the Respondent, or 2. to vary the decision, or 3. to set aside the decision and make a decision in substitution for the decision it set aside, or 4. to set aside the decision and remit the matter for reconsideration by the Respondent in accordance with any directions or recommendations of the Tribunal.
2. At any stage of proceedings, the Tribunal may remit the decision to the Respondent for reconsideration. Administrative Decisions Review Act 1997, s 65.

Child Protection (Working with Children) Act 2012

1. Subsection 30 (1) of the Act sets out the factors the Tribunal must consider in determining a review application under section 27 of the Act. (These replicate the factors set out in s15(4) to which the Respondent may have regard when conducting its risk assessment) : 30 Determination of applications and other matters (1) The Tribunal must consider the following in determining an application under this Part: (a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) Whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (j) any information given by the Applicant in, or in relation to, the application, (k) any other matters that the Children's Guardian considers necessary.
2. The meaning of the word 'risk' was considered, by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949. At [42], His Honour made the following remarks in regard to the word 'risk' as it appeared in the former Child Protection (Prohibited Employment) Act 1998: "What one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children.""
3. These remarks have been accepted to equally apply to the word "risk" as it appears in the 2012 Act: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [39] and BKE v Office of the NSW Children's Guardian [2015] NSWSC 523 (BKE), at [26].
4. In BKE, at [27], Beech-Jones J noted that the assessment of risk under the Act is not limited to the circumstances for which an Applicant seeks a clearance and whether he/she poses a "risk to the safety of children" in those circumstances. Instead, an Applicant is "subject to the full gamut of assessment which is applicable to persons who seek work in a child-related area."

Burden of proof

1. The Act is silent as to where the onus lies in relation to an application for administrative review under Part 4 of the Act. It has been held that neither party bears an onus of proof in relation to an application under section 27 of the Act: BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 at [32].
2. Although the Applicant has no legal burden he does have a practical or forensic onus: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53, and the Tribunal has to consider all of the evidence adduced by the parties in light of and under the mandated considerations contained in section 30 of the Act.
3. An application pursuant to section 27 is a merits review and not a review in which the Applicant must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.
4. The Applicant has a duty to disclose all relevant material pursuant to section 27(4) of the Act.

Evidence before the Tribunal

1. The Respondent tendered into evidence correspondence to and from the Applicant, including references, various education and training certificates, the Respondent's risk assessment report, documents provided by the child care centre where the incident is alleged to have occurred ("the Centre"), inquiries with the Applicant's former employers, information provided by the NSW Ombudsman, and other government agencies.
2. The Applicant relied on her application and attached document entitled "Grounds for Application", and three affidavits sworn on 11 August 2015, 1 October 2015 and 13 November 2015. She also tendered into evidence affidavits sworn by two of her children, and relied upon a psychological assessment report dated 8 December 2015, by Dr Christopher Lennings, Psychologist.
3. The Applicant and Dr Lennings gave oral evidence at the hearing and were cross-examined by Counsel for the Respondent.

Procedural matters

1. The Respondent's decision to refuse the Applicant a working with children check clearance is based primarily on a finding that the applicant engaged in ill-treatment or serious physical assault of a child on 19 November 2012. The Respondent relies on evidence in the form of handwritten notes purporting to be statements of Ms ME and Ms ST, child care workers at the Centre at which the Applicant was previously employed. Ms ME and Ms ST are alleged to have witnessed the Applicant, when moving a five year child from an adult chair to a children's chair, lift him up by the arms and drop him. The child fell onto the floor and the Applicant is alleged to have failed to render assistance.
2. At the commencement of proceedings on 8 February 2016, the Tribunal was informed that sworn evidence had not been obtained from the witnesses who observed the Applicant's actions. Nor had any action taken to make the witnesses available for cross examination. This is despite the fact that the matter had been the subject of directions hearings on 29 May 2015, 16 July 2015 and 17 December 2015 during which orders were made for the filing and service of material by the parties. Furthermore, the matter was listed for hearing on 7 October 2015, but was adjourned, inter alia, as a result of the Tribunal's concern that witnesses to the incident on 19 November 2012 had not provided sworn evidence to the Tribunal and/or were not made available for cross examination.
3. Despite an adjournment of three months (and an intervening directions hearing) no further action has been taken. Whilst it was open to the Respondent to obtain further evidence from the witnesses involved, it has elected not to do so. Furthermore, both the Applicant and the Respondent specifically indicated that they were not seeking any further adjournment of the proceedings, and that the hearing should proceed. The Respondent further indicated that it would be opposed to any order of the Tribunal remitting the matter to the Respondent for reconsideration due to the deficiencies in the evidence.
4. Mr Amos, of Baker Love Lawyers, objected to the admission into evidence of the handwritten notes purporting to be statements of Ms ME and Ms ST. Mr Amos also objected to the admission of notes about the incident made by the Centre's Director (Ms SS) and Assistant Director (Ms CR), neither of who were witnesses to the incident but who investigated the matter and notified the relevant authorities.
5. In his submission, Mr Amos noted that none of the evidence was sworn. Furthermore, the statements of Ms ME and Ms ST were apparently written by hand by Ms SS. Mr Amos states that there is no information about how the documents were prepared, including whether Ms ME and Ms ST were together when they were interviewed by Ms SS. Moreover, Mr Amos said that the Applicant had not been given an opportunity to see the witness' evidence (which was adverse to the Applicant's interests), other than in the course of the Tribunal proceedings.
6. Mr Amos submitted that the Respondent's decision to refuse to grant the Applicant a working with children check clearance is, at its core, based on the incident on 19 November 2012, the evidence of which comes from witnesses who are not able to be cross-examined. Citing from the judgement of Young J in Commission for Children and Young People v FZ [2011] NSWCA 111, Mr Amos submitted that as a matter of procedural fairness, and in circumstances where the evidence is not able to be properly tested, the evidence should be excluded.
7. Counsel for the Respondent, Mr Lee, referred to the objects of the Civil and Administrative Tribunal Act ".. to facilitate the just, quick and cheap resolution of the real issues in the proceedings". Mr Lee further noted the Tribunal is not bound by the rules of evidence and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: Civil and Administrative Tribunal Act, s38 and s67.
8. In considering Mr Amos' application, the Tribunal noted that the hearing of the substantive application had been vacated previously. The Applicant, whose application had been lodged some 9 months' earlier, did not wish for any further delay in the proceedings. The Respondent, who had been aware that the Applicant's version of the events regarding the incident on 19 November 2012 differed substantially from that of the witnesses, appears to have made no contact with respect to the witnesses and has elected not to present any further evidence in this regard.
9. In determining Mr Amos' application to exclude the evidence, the Tribunal had regard to the protective nature of the jurisdiction, and the paramount consideration being the 'safety, welfare and well-being of children and, in particular, protecting them from child abuse.' As well, the Tribunal took into account the objects of the Civil and Administrative Tribunal Act 2013 to enable the Tribunal to resolve matters justly, quickly, cheaply and with as little formality as possible. On balance, the Tribunal decided that it was not appropriate to further delay the proceedings. Rather, the Tribunal decided to admit the evidence in question but to accord the evidence the weight commensurate to its deficiencies, including the nature and circumstances in which it arose.
10. The evidence is now considered under each of the subheadings of sections 15(4) and 30(1) of the Act.

(a) Seriousness of any matters that caused the refusal of the Applicant's application for a clearance or imposition of an interim bar

1. The matter that caused the refusal of the Applicant's application for a clearance was an incident alleged to have occurred on 19 November 2012 at the child care centre ("the Centre") at which the Applicant was employed as a senior child care worker. The following paragraphs 49 - 55 are a summary of the material provided by the management of the Centre.
2. The Applicant was in the Centre's dining room with two other child care workers, Ms ME and Ms ST, as well as a number of pre-school children who were seated for lunch. Child B was sitting on an adult's chair with his sister Child A. According to the statements of Ms ME and Ms ST, the Applicant asked Child B and Child A to get off the adult chair. Child A got off. The Applicant lifted Child B by the arms, moved the chair with her foot, and then let go. Child B, who had his legs crossed on the chair, fell to the floor. The back of his head or neck then hit the back of a nearby table. The Applicant left the dining room and commenced her lunch break.
3. Ms ME approached Child B who did not say anything, but allowed Ms ME to pick him up. Ms ME noticed the back of Child B's head had a red mark. Ms ME left the room and located Ms CR (the Centre's Assistant Director). Ms CR entered the dining room and observed Child B to be unsettled but not upset. Child B hugged Ms CR and an ice-pack was subsequently applied to Child B. Child B remained in the dining room eating his lunch. When the Applicant returned to the dining room from her lunch break, she was asked by Ms CR to come to the office. According to Ms CR, when told that she needed to speak about what had occurred in the dining room, the Applicant said words to effect: "what…do you think I did something that was too rough?" According to Ms CR, the Applicant denied doing anything wrong, and said that she had asked Child B to get off the teacher's chair, and he would not do so, so she 'coerced' him off the chair. When asked to explain further, the Applicant told Ms CR she moved Child B by "sliding him across".
4. Ms SS attended the Centre and asked the Applicant to write down what had happened. The Applicant wrote by hand the following text set out as follows: At the beginning of lunch I asked (Child B) to move from Teacher's chair to child's chair. He refused. I assisted / co-erced him by sliding him over onto the chair.
5. Ms SS interviewed Ms ME and Ms ST. While they spoke, she made handwritten notes which she subsequently asked Ms ME and Ms ST to sign.
6. The Applicant left the Centre on 19 November 2012 with the expectation that she would return to work the following day. The parents of Child B were contacted and informed that Child B had been treated more roughly than believed to be appropriate, and were given a copy of an incident report.
7. The next day, Child B attended the Centre as usual. His mother said to Ms SS that after a discussion with Child B the previous night, Child B said that the Applicant squeezes hands too hard, and that he did not wish to be in the same room as the Applicant.
8. The Applicant denied to Ms SS that she squeezed hands, except to guide children. Ms SS discussed the notification process with the Applicant and indicated she (Ms SS) would waive any notice period (if the Applicant were to resign). The Applicant then proceeded to write by hand a letter of resignation.
9. The Applicant denies the incident occurred as alleged. Besides her written statement on the day of the incident, it appears she was not asked to participate in any further inquiry into the matter until such time as the Respondent commenced its risk assessment process.
10. The Applicant has provided an account of the incident on 19 November 2012 in a statutory declaration dated 13 March 2014 (for the purpose of the respondent's risk assessment), in her grounds for application, in affidavits sworn in 2015, in an interview with Dr Lennings, and in her oral evidence given during the Tribunal hearing. The Applicant states that she assisted Child B to move from an adult chair to a children's chair. She said she did so in order that Child B could be seated properly to eat his lunch, and not have his legs up against the table. The Applicant demonstrated to the Tribunal the manoeuvre she said she used to facilitate Child B's move to the children's chair. In particular, she states she "glided" or "slided" him across by gently touching him on the arm with one of her hands and touching his lower back with the other hand. She denied that she lifted him up. She said that she had surgery that same year which prevented her from lifting, and which was the reason she was working with the Centre's pre-school aged children rather than babies and toddlers (who require regular lifting). The Applicant denied that Child B had refused to move from his seat. The Applicant asserts Child B was sitting safely on the children's seat when she left the room for her lunch break.
11. In her affidavit the Applicant admitted to saying to Ms CR words to the effect "do you think I was too rough?", but states she did this in a sarcastic tone and in response to Ms CR's statement that Child B was hurt. In cross-examination, the Applicant could not recall saying those words, and said that Ms CR was screaming at her during this time.
12. The Applicant denies knowing that Child B was hurt or injured following her interaction with him on 19 November 2012. The Applicant claims that she was screamed at by Ms CR and prevented from re-entering the dining room after her lunch break. The Applicant said she was required to wait for the Director, Ms SS, who subsequently told the Applicant that she needed to write down what happened. The Applicant said when she was doing so, Ms SS was standing over her, and instructed her to write the word "coerced" (next to where the Applicant had written the word "assisted").
13. The Applicant states the morning after the incident she arrived for work at the Centre as usual. She states she greeted Child B and his mother upon their arrival, and that all of their interactions were pleasant and normal. The applicant also states there was no indication that Child B was injured.
14. The applicant denies that she squeezed hands too hard, and said that Child B was a large child, closer in size to child in Year 2 at school, and would often be the leader when children were guided by her from the room.
15. The Applicant maintains that she was the victim of constant bullying by Ms SS and Ms CR during the period of her employment at the Centre. She alleges that Ms SS discriminated against her because she (the Applicant) did not agree to join, or contribute 10% of her wages to, a church established by Ms SS, which Ms SS encouraged staff and families to join and attend weekly prayer meetings. The Applicant claims that Ms SS would say words to the effect of "the devil has got you and you need to get it out". The Applicant also believed that Ms SS wished to replace her (a senior worker with a higher rate of pay) with a more junior worker who she could pay less. Reporting of incident on 19 November 2012
16. It appears from the documents produced by the Respondent that Ms SS prepared an investigation report and notified the NSW Ombudsman as part of the Centre's notification responsibilities. Relevantly, the Centre's initial investigation finding was of "Not sustained, lack of evidence of weight".
17. However, following review of the material, the NSW Ombudsman advised Ms SS that it was open to the Centre to make a finding of "sustained: ill-treatment". As a result of this advice, it appears the Centre subsequently recorded the allegation as being sustained and was required to notify various other bodies as advised by the NSW Ombudsman, including the Australia Children's Education & Care Quality Authority (ACECQA), (by completing a form entitled: Notification of Complaints and Incidents (Other Than Serious Incidents)), and the Commission for Children & Young People. The latter notification occurred on 28 February 2013.
18. In the notification document, Ms SS details the incident on 19 November 2012. When asked to indicate the type of conduct involved, Ms SS inserts by hand an additional category of "ill-treatment". [3] Relevantly, she does not tick the box "Physical assault". It is only after the notification is considered by officers of the Respondent, that the incident is described as "serious physical assault". [4]
19. There is no evidence that the ACECQA conducted an investigation into the incident. Additionally, there is no evidence the Respondent, once apprised of the notification in February 2013, took any proactive steps to further inquire about the matter. It did not, for example, impose an interim bar on the Applicant. Nor did the Respondent conduct a risk assessment until after the Applicant lodged her application for a clearance on 23 August 2013. Indeed, the Applicant continued to work in the child care sector until 2015, and in fact received from the Department of Education & Communities on 16 August 2013, a Supervisor Certificate enabling the Applicant to be a nominated supervisor and the responsible person of an education and care service.
20. In its notice of final decision [5] , the Respondent advised the Applicant that the trigger for the risk assessment was a matter to which Schedule 1 (2) (b) applied (i.e. that the applicant was a person who had been the subject of a finding by a reporting body that she engaged in serious physical assault of a child) pursuant to section 15(2) of the Act. However, in a letter to the Applicant sent a month earlier (on 5 March 2015), the Respondent had advised the Applicant that the trigger for the risk assessment was pursuant to section 15(3) "Workplace Record - ill-treatment". Indeed, the Respondent's Risk Assessor, on 28 January 2014 describes the outcome as being "Sustained as ill-treatment". Notably, the Assessor does not indicate a finding of serious physical assault of a child.
21. The reason for the Respondent's change of view about the actual trigger for the risk assessment of the Applicant is not entirely clear from the evidence before the Tribunal. In any event it is not necessarily fatal to the Respondent's case, on the basis that section 15(3) provides that the Respondent is not limited to conducting risk assessments in respect of those persons to whom Schedule 1 matters apply. The key difference appears to be that the Respondent has a positive obligation to conduct a risk assessment of persons to whom Schedule 1 matters apply, whereas the Respondent has discretion as to whether to conduct a risk assessment of any other applicant (or holder).
22. The Tribunal's focus on such matters is not without relevance. It demonstrates the different views held about the nature and circumstances of the Applicant's conduct on 19 November 2012. In the Tribunal's view, the evidence of the witnesses to the Applicant's conduct on that date would therefore seem critical.
23. Yet, the Tribunal could not attribute the evidence of witnesses Ms ME and Ms ST significant weight. Their evidence was not sworn. It was handwritten by another person, the process and circumstances about which there is very little evidence. There is also fairly limited detail about the incident, including the degree of pressure said to be exerted by the Applicant on the child, the timing of the child's fall (including the location of the Applicant when this occurred), the placement of the two chairs, the degree of any intervening acts that may have occurred (including any actions of the child), and the specific nature of the injury to the child. At no time after 19 November 2012 does it appear that the witnesses were formally interviewed or were the subject of any formal inquiries. This is despite the Respondent being aware of their evidence since February 2013, and also being aware of the Applicant's dispute of it since the day of the incident and throughout the risk assessment process.
24. Counsel for the Respondent submitted that there were inconsistencies in the Applicant's evidence which impact adversely on the Applicant's credit, and her claim that there was a conspiracy against her and the Centre's directors wanted to replace her, also lacked credibility. However, the Tribunal did not find the evidence of the Applicant was materially different in her accounts of the incident. She has maintained her denial of the allegation, and has consistently claimed her actions were in the context of assisting the child to transfer from one chair to another. In addition, the Applicant's claim of bullying by the management of the Centre has also been consistently maintained, and therefore cannot be said to be a recent invention by the Applicant. Furthermore, the Applicant's assertion that her handwritten statement of 19 November 2012 was not made freely and voluntarily is not able to be satisfactorily refuted on the available evidence. Indeed, the placement of the word "coerced" in the document is not inconsistent with the Applicant's claim that it was inserted by her afterwards in the context of instruction by the Centre's management.
25. There is no doubt that a physical assault of a child is extremely serious. Ill-treatment of a child is similarly very serious. Such conduct, if perpetrated by a person in a position of trust and authority and in the context of a relationship of dependence, confers an even higher level of seriousness. There is a clear expectation that children who attend child care centres should be treated with care and protection, and should not be exposed to inappropriate actions by those charged with their care.
26. In this case, however, the Tribunal could not make a finding of fact that the incident on 19 November 2012 occurred as alleged in the material relied upon by the Respondent. The deficiencies in the evidence as presented to the Tribunal were such that the Tribunal could not be comfortably satisfied that the Applicant engaged in serious physical assault of a child, or alternatively, ill-treatment of a child.
27. Furthermore, even if the Tribunal could be so satisfied that the Applicant engaged in serious physical assault or ill-treatment, the conduct alleged is at the lower end of the scale of those types of conduct. This was conceded by the Respondent during its processing of the Applicant's application [6] , and during the Tribunal hearing. Furthermore, the Tribunal notes that there is no evidence that at any stage that the matter should be referred to the police. Nor is there any evidence that the matter became the subject of an investigation by the Australian Children's Education & Care Quality Authority.
28. Notwithstanding that the Tribunal could not find that the applicant engaged in conduct as alleged (and which triggered the risk assessment), the Tribunal also addressed the other section 30 factors, as required by the Act.

(b) The period of time since the matter occurred and the conduct of the Applicant since that time

1. It is approximately 3 years and 3 months since the matter is alleged to have occurred. There is no record of any other allegations of a child protection nature having been made against the Applicant.
2. As part of the risk assessment process, a reference was provided by Ms DK, a manager of a child care centre who employed the Applicant for approximately one year shortly after the incident in 2012. Ms DK writes positively about the Applicant, stating that the Applicant was extremely knowledgeable and experienced, and made decisions based on the principle of the best interests of the child. Ms DK also said the Applicant was always approachable and professional, and a dedicated and thoughtful worker.
3. In preparation for the Tribunal hearing, the Respondent sought information from other employers of the Applicant. An employer who employed the Applicant as a consultant for a period in 2014 reported positively on the Applicant's conduct, indicating that the Applicant worked exceptionally hard and there were no disciplinary issues during her period of employment.
4. An employer for a 6-week period in early 2015 reported that the Applicant did not pass her probationary period over performance and communication issues. However, no child protection issues were raised during this period.

(c) The age of the Applicant at the time the matter occurred

1. The Applicant was 44 years of age at the time of the alleged conduct.

(d) The age of the victim of the conduct at the time it occurred and any matters relating to vulnerability of the victim

1. The victim was 5 years of age at the time the incident occurred. He was vulnerable in that he was a young child who was dependent on staff at the child care centre for assistance, care and protection.

(e) The difference in age between the victim and the Applicant and the relationship (if any) between the victim and the Applicant

1. The difference in age between the Applicant and the victim was 39 years. The Applicant was a senior child care worker at the child care centre the child attended.

(f) Whether the Applicant knew, or could reasonably have known, that the victim was a child

1. The Applicant was aware the victim was a child.

(g) The Applicant's present age

1. At the time of the Tribunal hearing, the Applicant was 47 years of age.

(h) The seriousness of the Applicant's total criminal record and the conduct of the Applicant since the matter occurred

1. The Applicant has no criminal record. She is a qualified teacher, and has worked in the child care and school education sectors for 22 years. She has not been the subject of any prior or subsequent findings in relation to child protection concerns.
2. Since the matter occurred, the Applicant continued to work in the child care sector, holding senior roles, including as Director and Consultant. Since the Respondent's decision on 15 April 2015 to refuse the Applicant a working with children check clearance, the Applicant has not had any further employment.

(i) The likelihood of any repetition by the Applicant of the conduct and the impact on children of any such repetition

1. In regard to the likelihood of any repetition of engaging in similar conduct in the future, the Applicant relied on the report and evidence of Dr Lennings. As part of his assessment, Dr Lennings had before him the documentary evidence that comprise the exhibits before the Tribunal. This included notes by a psychologist who the Applicant had been seeing for approximately six months in 2014 and 2015. With the consent of the parties, Dr Lennings was also present in the hearing room when the Applicant was cross examined by Counsel for the Respondent.
2. Dr Lennings conducted a risk assessment of the Applicant on the following bases: (1) a finding that the Applicant did in fact engage in conduct as alleged by the Respondent; and (2) that the factual issue is decided in the Applicant's favour. Relevantly, on both bases, the opinion of Dr Lennings is that the risk the Applicant poses to the safety of children is low.
3. Dr Lennings acknowledged the difficultly in undertaking a formal risk assessment where there has been no criminal finding. However, he said that the fact that there is a finding of a single incident only, any actuarial measure that could be applied to the Applicant would indicate low risk. In this regard, Dr Lennings noted that the Applicant has no other substantial actuarial risks such as a criminal history, repeat offences, history of domestic violence, substance abuse or mental health history.
4. Furthermore, Dr Lennings also stated that the Applicant has almost no dynamic risk factors, which are behaviours that can be modified as a result of treatment or intervention. In particular, the Applicant has no current mental health problems and no substance abuse problems. She is in a stable relationship, and there is no suggestion she is an aggressive person or lacks impulse control.
5. Dr Lennings stated that if there is a finding of fact the Applicant engaged in the conduct alleged, the context of the risk is relevant. If the Applicant were to have unsupervised contact with vulnerable children, this would increase the risk to a moderate risk; however, such an increase would not be a function of any inherent risk in the Applicant but rather, the environment in which she may find herself. Dr Lennings further states if there is no finding of fact, then there is no triggering event that would justify a risk assessment taking place and her risk would remain low.
6. Finally, Dr Lennings addresses the Applicant's protective factors, which he regards as substantial and which he identifies as follows:

• She is in a stable relationship;
• There is no evidence of a pattern of inappropriate behaviours;
• She appears generally calm and orientated to problem solving rather than reactively responding;
• She has been employed long-term in the industry and there is an absence of complaints in relation to her dealings with children;
• She has reasonable psychological adjustment and stability.

1. Dr Lennings therefore concludes that that there is not a significant and appreciable risk of future harm to a child even if the Tribunal were to establish a finding of fact that inappropriate behaviour occurred in 2012 leading to the injury of a child.
2. The Respondent suggested to Dr Lennings the Applicant's protective factors should be given less weight in light of marriage difficulties the Applicant expressed to her treating psychologist. Dr Lennings, however, did not agree with that suggestion, noting that a 30-year relationship is likely to have some episodes of difficulties, and further noting that the Applicant's marriage has remained intact and she and her husband retain joint parenting responsibilities.
3. Dr Lennings also rejected the Respondent's suggestion that the evidence of Child B that the Applicant squeezed hands too hard is necessarily indicative of recklessness on the part of the Applicant. Rather, Dr Lennings said that the relevance of such action (the squeezing of hands) depends on the particular context in which it was carried out, for example, whether through anger and aggression or in the context of firm guidance. Following the Applicant's oral evidence, Dr Lennings did not seek to alter his assessment of the Applicant's risk.
4. The Tribunal found Dr Lenning's written risk assessment report to be comprehensive and persuasive. Likewise, the Tribunal found Dr Lennings to be an impressive witness, whose responses in cross examination demonstrated a developed knowledge of the issues in dispute. The Tribunal formed the view that Dr Lennings' opinions were not in any way diminished as a result of cross-examination.

(j) Any information given by the Applicant in, or in relation to, the application

1. In addition to her affidavit and oral evidence, the Applicant provided a number of references in support of her application. They include references provided by her previous employers and friends, all of whom write positively about the Applicant's character. The Applicant has two decades of experience in the education and child care sectors. She has completed a number of courses and training, including a Diploma in Teaching (Early Childhood), Diploma of Community Services (Children's Services), a Graduate Diploma in Social Science (Psychology), Mentoring, and Occupational Health and Safety.
2. The Applicant lives with her husband (a shift worker) and their three children. The Applicant told the Tribunal that as a consequence of the Respondent's decision to refuse her a working with children check clearance, she had been unable to undertake any paid or volunteer work. The Applicant has been out of work for approximately 10 months and it has placed significant financial strain on her family. She said the matter has caused damage to her reputation and to her confidence. The Applicant seeks a working with children check clearance so that she can resume employment.
3. Mr Amos asked the Tribunal to find that the events of 19 November 2012 did not occur, or did not occur as alleged. Mr Amos further submitted that if the Tribunal finds as such, then the trigger for the risk assessment falls away and the Tribunal would have little hesitation in setting aside the Respondent's decision.
4. Even if the Tribunal were to find the incident occurred as alleged, Mr Amos submitted that matter should be considered in the context of the Applicant's two decades of employment in the education sector, her lack of risk factors, and Dr Lennings' opinion that the Applicant does not pose a risk to the safety of children.

(k) Any other matters that the Children's Guardian considers necessary

1. Counsel for the Respondent submitted the Applicant has given inconsistent versions in relation to the incident of 19 November 20l2, and her claims in relation to the motives of Centre management to terminate her employment are not credible.
2. Counsel for the Respondent also suggested that the Applicant's protective factors, as identified by Dr Lennings, should be given less weight in light of the marriage difficulties she reported to her psychologist. Counsel for the Respondent also submitted that the absence of a pattern of behaviour is less relevant as a protective factor because the Applicant has not had direct contact with children since 2012.
3. The Respondent contended that the Tribunal should find that the incident on 19 November 2012 did occur, or if it cannot be made out, the circumstances surrounding the incident mean that there is a risk to children.

Conclusion

1. In this matter, the role of the Tribunal is to review the decision of the Children's Guardian to refuse the Applicant a working with children check clearance, and to decide what the correct and preferable decision is, having regard to the material before it, including any relevant factual material and any applicable law.
2. Relevantly, a working with children check clearance must be granted to the Applicant unless the Tribunal is satisfied that the Applicant poses a risk to the safety of children.
3. It is accepted by both parties that the incident on 19 November 2012 is at the core of the Respondent's decision to refuse the Applicant a working with child check clearance.
4. Following careful consideration of all the material before it, the Tribunal could not be satisfied on the balance of probabilities that the Applicant engaged in conduct as alleged and relied upon by the Respondent. That is, for the reasons provided earlier in these Reasons for Decision, the Tribunal could not be comfortably satisfied on the evidence before it that the Applicant's actions on 19 November 2012 amounted to either serious physical assault, or ill-treatment, of a child. Nor could it be comfortably satisfied that the circumstances surrounding the incident could be said to give rise to a real and appreciable risk to children.
5. In addition, there is an absence of any other conduct on the part of the Applicant which would give rise to a real and appreciable risk to the safety of children. In this regard, the Tribunal takes into account the Applicant's 22- year career in child care and school education sectors. During this period, there is no evidence of any other reportable matters involving her treatment and care of children. Furthermore, since the incident in 2012, the Applicant has continued to work in the child care sector. Whilst this has been in management and consultancy roles, her employment has nonetheless been in an environment where children have been present constantly.
6. The Tribunal gave considerable weight to the expert evidence before it. The Tribunal accepted Dr Lennings' opinion that, even if the Applicant did in fact engage in conduct as alleged, the Applicant does not pose a significant and appreciable risk to the safety of children.
7. Accordingly, the Tribunal is satisfied on the evidence before it that the Applicant does not pose a real or appreciable risk to children, and the correct and preferable decision is to grant the Applicant a working with children check clearance.

ORDERS

1. Accordingly, the Orders of the Tribunal are as follows: 1. The decision of the Respondent is set aside. 2. The Respondent must grant the Applicant a Working with Children Check Clearance.

Endnotes

1. Exhibit R1, p 74
2. Exhibit R1, p 78
3. Exhibit R1, p 11
4. Exhibit R1, p 7
5. Exhibit R1, p 78
6. Exhibit R1, p 98 I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision 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 or Tribunal in which it was generated. Decision last updated: 16 March 2016