DBD v Children's Guardian

NCAT Administrative and Equal Opportunity|2017-10-31

Background and Details of the Allegations

DBD's wife, will be referred to as 'DBF' in these reasons. She is also the Applicant in the matter of DBF v Children's Guardian (2017/129369). As both matters were related it was determined by the Tribunal that they would be heard together.
DBD and DBF were both born in Vietnam. He came to Australia in 1998. They have two children, now aged 8 and 12.
English is DBD's second language. However, on his own evidence his English is more proficient than his wife's English. He has lived and worked in Australia for a longer period than his wife. He told the Tribunal that he would often assist his wife in translating Vietnamese to English and in interpreting English words to Vietnamese. He did not require an interpreter for the interview with NSW Police on 22 February 2017 and did not require an interpreter when interviewed by Dr Lennings on 12 July 2017.
On 17 April 2014, DBD was granted a Clearance.
From July 2014, DBF commenced her FDC service and from that time children were placed in the service. DBD supported his wife in applying for registration and operating the FDC service from their family home. The Council was aware that DBD cared for their two young children also from the family home.

The investigation

At about 12:00 p.m. on 19 July 2016, the Council FDC Child Development officer attended DBF's residence and took notes of her discussion with DBF. The notes record DBF saying words to the effect:

the child, MLT was in the playroom with DBF's husband. DBF was preparing food in the kitchen. DBD stayed in the room whilst DBF prepared food in the kitchen.
MLT was pulling pieces of a floor puzzle and hitting other children with them. DBD was telling him to stop but MLT would not stop. MLT started to hit DBD.
DBD yelled at MLT and then hit MLT on the left cheek.
no mark was visible on the child. MLT had lunch and went to sleep. MLT slept from 1:00 p.m. until 4:00 p.m. When MLT woke up DBF noticed a red mark on his cheek and she applied an ice-pack.
DBF said to DBD, "Why did you do that? He is only a child". DBD said sorry to DBF and the child. DBD also said to DBF that he did not understand why he could not control himself.
DBF said that she was honest with MLT's mother when she came to collect MLT that afternoon.

DBF signed the handwritten notes of the Statement prepared by Ms Lazare.
At 2:15 pm on 19 July 2016, DBF was advised by the Council FDC Manager that her day care service would be closed pending an investigation.
On the evening of 19 July 2016, DBF prepared an email to send to Council in Vietnamese. DBD translated the email into English and at 11:27 pm, DBF sent the email to Council FDC staff. The email was entitled 'Incident Report for [MLT] yesterday 18 July 2016' and the email read as follows: "I write this letter to report the incident in our family day care happened on 18/7/16. [MLT] attended our family day care on that date. [MLT] fought with other young and big children in the afternoon of that day, he took the mat and chopsticks to fight with children. At that time, I thought they were joking to each other and I was in the kitchen preparing food for the children and that time my husband sit there to play together. My husband got into the childcare room and asked them stop. However, [MLT] and other children have not stopped fighting and my husband decided to take the chopstick from [MLT] and other children to prevent accident for other kids and the stick and his hand accidently hit [MLT's] cheek. After that, my husband sorry to [MLT] and me. [MLT] still continued to eat and sleep normally. There was no mark on his face when he was eating til 1:00 p.m. he went to sleep. I did not see any marks on his face before [MLT] was sleeping. After [MLT] waked up at 4:00 p.m. I saw the red marks on his face and took the ice bag to cure him. For that incident I have reported to [MLT's] mum when she was there and my husband honestly reported to her without further detail of explanation why this happened and said there was his mistake. I was busy with [MLT] and his mum and other children yesterday 18 July 2016 so I think the good time to make a report today 19 July 2016 but you have come to my business. I have told you story but my talking language is not clear and can make you confused about the details of how and why the incident happened because of accent, shock and sadness. Therefore, please read this email as my official report to you. Please kindly be aware that I always fulfil all my paperwork of childcare on time. As conclusion I would like to inform that my husband has not intended to harm [MLT]. This is an accident and he honestly accepted his responsibility to [MLT's] mother about it. Secondly, [MLT's] health has not been significantly harmed. Thirdly, this unwanted incident has firstly happened in our business during my time of operation. For your consideration further, please be advised that all children's parents have been happy with my family day care and I love children very much as well as all children love me. Please let me to operate business again and I promise I will take all my best to care the children to avoid any incidents in future. Please also give your Incident Report plus with mine to send for insurance company on Thursday or Friday."
On 26 July 2016, DBF was interviewed by the FDC manager and Council staff. One of the staff members was Vietnamese speaking and used during the interview to assist as translator. Her responses were consistent with the version of events set out in the email from DBF to Council emailed at 11.27pm on 19 July 2016.
On 26 July 2016, DBD was interviewed by the FDC manager and Council staff. In relation to the allegations, and as transcribed from the interview, DBD said the following words to the effect: "[MLT] was a little bit excited, he [fought], he smack and he take the chopstick and he had the chopsticks and was pushing a little boy. I increased my voice and again [MLT] hit the chopsticks and poked and intended to poke other children as well. I then took his hand and took the chopstick and my hand hit [MLT's] hand or maybe the chopstick and it touched his cheek as well."
DBD agreed that it happened quickly and he may have used some power in grabbing the chopstick. DBD also agreed that his hand touched MLT's cheek, but it was not deliberate and he did not intend to hit him at all.
DBD believes that MLT had two chopsticks in his hand.
In response to the question if he was "out of control", DBD said he did not explain to MLT's mother what was going on at the time and what was happening that led to the incident.
DBD agreed that he did see his wife put an ice-pack on MLT's face after he woke up.
During the interview, DBD suggested the marks on MLT's face may have been caused by MLT's scratching his cheek while he was asleep or possibly they occurred when MLT was fighting with other children.
On 28 July 2018, a meeting was held between MLT's mother and Council FDC staff including a support worker who was also a Vietnamese translator. As transcribed from the interview, MLT's mother said the following words to the effect: 1. her sister collected MLT from DBF's home at 3:20 p.m. on 18 July 2016. Her sister was told by DBF that MLT was sleeping so she went away. 2. at 5:10 p.m. on 18 July 2016, she collected MLT from DBF's home. She saw a red mark on her son's face and asked him what happened. MLT said: "Uncle hit me" and "Uncle whacked me". 1. at 6:00 p.m. on 18 July 2016, she took MLT to a Medical Centre. No doctor was there but the nurse put some ice on his cheek and told her to see the family doctor the next day. 2. she attended the family doctor with MLT the following day for treatment. She said, "The doctor say at the moment it did not affect anything but just keep an eye on it because the hand is up here (pointing to left cheek bone) and the finger maybe on the ear (pointing at her left ear). So keep an eye on it." 3. Her sister telephoned DBF and DBF said that at the time she was very busy and the children were all hitting one another. The children were running around and not listening and then her husband was stressed and hit MLT. 4. at 7:30 p.m. on 18 July 2016, her sister texted DBF two photographs of MLT's injuries with a message that said, "What happened here?" 5. DBF's whole family then came to her house and explained the same thing. DBD said: "I guess I am stressed too because I have no job and my back is sore and I don't know why I did that. I whacked him". 1. DBF told her that the children were playing 'hit and run'. DBF said that her husband was: "out of control and just hit". 2. "When they visited they said they were sorry and that the husband could lose his job. They said that they never hit children but the husband said that when he hits my son, he thinks it is his son." 3. DBD and DBF said to her, "Don't make anything big, so I say I don't call the police". 4. When DBF's family day care was shut down on 19 July 2018 the family including DBD and their two children visited her home and waited outside from 5:00 or 6:00 pm and stayed there until 7:00 p.m. "…I don't want to meet [her] after I call her I said I don't want to see you…" 5. When she collected MLT on 18 July 2016 from DBF's home she wanted to call the Police but she did not because she thought if she called the Police: "Maybe they will arrest him and the children will lose their father and husband, has two sons, because in my country I see plenty childcare hit the children". 1. On the evening of 18 July 2016, MLT woke up at midnight and cried. She said MLT never wakes up at night. MLT said to her, he would not be going to DBF's house anymore because "Uncle hit me".
On 3 August 2016, the Council FDC Unit advised DBF that the allegation that DBD hit MLT on the face by DBD on 18 July 2016 had been sustained. The Council also advised DBF that she had been de-registered as a educator.
On 8 August 2016, the Council FDC Unit notified the NSW Ombudsman that the Unit had investigated an allegation that DBF's husband had hit a four-year-old child on the face, and that the allegation had been sustained.
On or about 15 August 2016, DBF registered with another FDC service and commenced providing a FDC service from her premises. DBD supported this new application. He participated in a medical clearance and completed the application documentation including a police check.
On 30 August 2016, the Children's Guardian notified DBD that an interim bar was imposed on his clearance.
On 28 March 2017, the Children's Guardian cancelled DBD's clearance, being satisfied that DBD posed a risk to the safety of children. This was based on the allegation, sustained by Council that DBD had hit a four-year-old child on the face.
The evidence is now considered under each of the subheadings of s15(4) and 30(1) of the Act.

Seriousness of any matters that caused the assessment in relation to the person

There was no medical evidence about the injuries to MLT available to the Tribunal but the Council FDC Manager, Ms Sportelli told the Tribunal that she viewed the photographs as showing a child with "multiple bruising on the child's face" and acted immediately to investigate the matter. Both DBF and DBD agree that the four photographs in evidence identify the marks to MLT's left cheek after the incident, although they both stated the photographs were 'stronger' than they recall. The Tribunal finds that the photographs depicted an injury being redness and marks on the left cheek of MLT.
The mother of MLT, having collected MLT from DBF's home asked DBF what happened to her son's cheek and later that evening, upon viewing the photographs of his injury sent a mobile text to DBF, stating "what happened here?". The child did not return to the FDC service the following day.
DBD did not agree that he hit MLT. He was not interviewed or questioned about the incident until he was interviewed by Council staff on 26 July 2016. He gave the following accounts as to how MLT sustained the injury:

On 26 July 2016, he told Council staff that his hand or the chopstick touched [MLT]'s cheek when he was taking the chopstick from [MLT]. He also suggested the marks on [MLT]'s face may have been caused by MLT scratching his cheek while he was asleep or possibly when [MLT] was fighting with other children;
On 12 September 2016, in his statutory declaration he stated "my fingers or chopsticks accidentally touched his [MLT]'s cheek";
On 22 February 2017, he was interviewed by police and he stated his palm or chopsticks accidentally hit [MLT] and he raised the possibility of the marks to [MLT]'s face being caused by [MLT] scratching his own face because he was itchy;
On 26 April 2017, he wrote to the Tribunal and suggested the marks on [MLT]'s face may be caused by an allergy;
On 12 July 2017, he was interviewed by Dr Lennings and suggested the marks may be caused by [MLT]'s eczema and he may have scratched himself in his sleep; and
In his evidence to the Tribunal DBD denied hitting MLT. Counsel for the Respondent put to him a view expressed by Dr Lennings in his report of 15 July 2017 that the marks on [MLT]s face could not have appeared "if only a light touch occurred". DBD disagreed with this statement.

The Tribunal finds that DBD did hit MLT with some force and caused the injury depicted in the photographs. It does not accept DBD's versions of how the injury occurred or may have occurred as set out above.
This finding is based on the nature and extent of the injury as shown in the photographs with redness and marking on MLT's red cheek. Such an injury is unlikely to be caused by a 'soft touch' as suggested by DBD. It is also based on the statement made by DBF to Ms Lazare at 12pm the following day in which she told Ms Lazare that her husband hit MLT on the left cheek and asked her husband why he hit MLT as he is only a child. The Tribunal finds this statement is most likely the accurate statement of what happened. It is the most contemporaneous statement and there is also no reason for DBF to alter or sanitise what happened as she was not aware at that time that her service would be closed. The statement is also corroborated by the statement of MLT's mother who confirmed in a statement to Council that DBD told her that he thought he was 'out of control' when he hit MLT.
The Tribunal agrees with the Respondent's submissions that DBF was proficient enough in English to accurately understand and respond to Ms Lazare in speaking about the incident on the 19 July 2016. This finding is based on DBF working with Council and operating a Council FDC for two years without the use of an interpreter. It is based on monthly meetings with Ms Lazarre conducted in English for two years without any suggestion or request for an interpreter. It is also based on DBF completing numerous courses in English on childcare and child protection over this period, with and without the assistance of her husband.
DBD suggested that the injury to MLT seen in the photos may have been caused at least in part, by a skin sensitivity due to a pre-existing condition of eczema or that MLT may have scratched himself in his sleep. However, there is no contemporaneous evidence of any such cause and therefore, the Tribunal finds that the contact with DBD's hand caused the injury to MLT's left cheek and there is no basis to find that another cause contributed to the injury.
The Tribunal makes no finding that DBD deliberately hit MLT but rather the more likely explanation is that he lost control of himself and it was an instinctive reaction to a likely stressful situation.

The period of time since those offences or matters occurred and the conduct of the person since they occurred.

The conduct occurred some 2 years ago.

The age of the person at the time of the offences or matters occurred.

DBD was 41 years old at the time of the incident.

The age of each victim of any relevant offence or conduct at the time it occurred and any matters relating to the vulnerability of the victim.

The child MLT was 4 years old at the time of the incident. He was vulnerable because he was not in the care of his parent or guardian but in the care and responsibility of the FDC service.

The difference in age between the victim and the person and the relationship (if any) between the victim and the person.

DBD was approximately 37 years older than the child at the time of the incident.

Whether the person knew, or could reasonably have known, that the victim was a child

DBD knew MLT was a child as the child had been in the care of his wife's FDC service. .

The person's present age

The present age of DBD is 42 years old.

The seriousness of the person's total criminal record and the conduct of the person since the matters occurred.

DBD has no criminal record. There are no previous incidents of misconduct or any other adverse reports.

a) The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition

The impact on a child of a repetition of an incident of the same type as the trigger incident in this matter would be traumatic for a child and could have lasting adverse psychological and emotional effects on the child.
Counsel for the Respondent submitted there was a likelihood of DBD repeating the same type of conduct in the future. In her view, DBD had not been candid or truthful to the Council, the police and the Tribunal on how the incident occurred. DBD had tried to absolve himself from responsibility or minimise his actions. In her submission, this failure to acknowledge his conduct demonstrates a willingness to put his own interests above the protection of children.
DBD filed a report from psychologist, Dr Lennings dated 15 July 2017. Dr Lennings had interviewed him on the 12 July 2017 and made a risk assessment of DBD.
Dr Lennings report stated, "In terms of a risk assessment it is almost impossible to assess risk in [DBD] for a number of reasons. The most obvious of these is that whilst there has been an accusation that he struck a child in what appears to have been an emergency situation he denies any intention to it. There have been no formal charges as a function of that event and there appears to be no sense that [DBD] presents a threat or a risk of harm to others generally. In regards to formal charges, the OCG letter implies that there is an ongoing police investigation that may yet result in charges. Even if that occurs, the risk assessment wont change from low risk, as there are no other elements to his behaviour that signify risk… As noted, [DBD] accepts responsibility for the injury, despite continuing to assert it was unintentional (accident caused by the energy of his response), that he has undertaken remedial action to improve his awareness, and continues to reflect respectful relationships in regard to others, including his own children. It is difficult to see how his behaviour (other than the incident) reflects any ongoing risk of harm to children. Ultimately, it appears a finding of fact will be required to ascertain whether an injury was accidental, and that [DBD] behaviour is unlikely to reflect characteristics that are associated with harm to children (that is there is no likely future risk of harm), or that [DBD] is more impulsive and aggressive than his history suggests and the incident was an intentional striking of a young child".
Counsel for the Respondent cross-examined Dr Lennings about whether it would cause him any disquiet or concern if the Applicant lacked insight about his misconduct and denied or minimised his misconduct. Dr Lennings stated that these circumstances would warrant a risk assessment but the risk would still be low. He referred to studies about denial and minimisation not being related to risk. The Tribunal may have misunderstood this evidence but it seemed to the Tribunal to be contrary to common sense. That is, a person who lacked insight and denied or minimised their misconduct would present a similar risk of repeating their misconduct in the future as another person who displayed insight and acceptance about their misconduct.

Any information given in, or in relation to, the application

DBD filed a number of personal references from previous employers but it is not known if the referees were aware of the circumstances and details of the trigger incident, at the time of writing. He also relied on references from parents who used the DBF's FDC service and attested to the good character of both DBF and DBD.
DBD completed a Child Protection Awareness Training on 1 September 2016.

j1) Any relevant information in relation to the person that was obtained under section 36A

There is no such information.

Any other matters that the Children's Guardian considers necessary.

The Respondent referred to the outcome of the police investigation into the allegations against DBD being that there was insufficient evidence to take criminal action against him.

Consideration

The Tribunal notes that DBD has no criminal history and no previous complaints or adverse findings against him. He has also been enrolled in an Early Childhood course and on 1 September 2016 completed a Child Protection Awareness Training course. He provided a number of personal and professional references that attest to his good behaviour. The Tribunal also accepts that he wishes to support his wife in her operating a FDC service.
However, the Tribunal refers to its earlier findings that DBD did hit the child, MLT with some force and caused the injury to MLT depicted in the photographs. The Tribunal found DBD's evidence and his previous explanations about how the incident occurred to be implausible and an attempt by him to absolve himself from responsibility for what happened. That is, he stated that he did not hit MLT, that MLT's injury was caused by a 'soft touch' of his hand or a chopstick, or that the marks were caused by MLT when he was fighting with other children. He also suggested that the marks could be due to MLT's skin sensitivity or by him scratching himself when sleeping.
Given the Tribunal's findings, it is concerned about DBD's lack of truthfulness and failure to accept responsibility for his role in the trigger incident that caused the assessment. It follows, therefore, that there is a risk that DBD may fail to act protectively towards children in his care, if it is contrary to his own interests.
Having regard to the paramount considerations being the safety and well-being of children, the Tribunal finds, on balance, that DBD poses a real and appreciable risk to the safety of children.
The Tribunal finds, therefore, that the correct and preferable decision is to affirm the decision of the Children's Guardian to cancel DBD's Clearance.
As the Tribunal is not considering making an order enabling DBD to work with children, there is no need to address the requirements of s 30(1A) of the Act.

Orders 1. The decision of the Children's Guardian to cancel DBD's working with children check clearance is affirmed.

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

Amendments 31 May 2018 - Paragraph 3 date corrected. 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: 31 May 2018

Child Protection (Prohibited Employment) Act 1998(NSW)

Commission for Children and Young People Act 1998(NSW)

Applicable Law and Legal Principals

The object of the Act is to protect children by not permitting certain persons to engage in child-related work, and by requiring persons engaged in child related work to have working with children check clearances: s 3 of the Act.
The paramount consideration is the safety, welfare and well-being of children, in particular, protecting them from child abuse: s 4 of the Act.
The Children's Guardian will consider those matters set out in s 15(4) of the Act in making a risk assessment. The Children's Guardian must grant a Clearance to a person who is subject to a risk assessment unless the Children's Guardian is satisfied that the person poses a risk to the safety of children: s 18(2) of the Act.
A person who has been refused a Clearance may apply to the Tribunal for an administrative review of the decision: s 27(1) of the Act. The Applicant must fully disclose to the Tribunal any matters relevant to the application; s 27(4) of the Act.
In this administrative review, neither party bears the onus of proof. There is no presumption that DBF poses a risk to the safety of children as would be the case under s 28(7) of the Act if she was a disqualified person. See McDonald v Director General of Social Security (1984)1 FCR 354; 6 ALD 6. Woodward J there observed in relation to the Administrative Appeals Tribunal (at 356-357(FCR): There is certainly no legal onus of proof arising from the fact that this is an "appeals" tribunal, because the AAT is required, in effect, by s 43 of the AAT Act, to put itself in the position of the administrator in carrying out its review and, in the light of the material before the AAT, (not the material before the administrator, Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577 at 589) make its own decision in place of the administrator's.
The burden of proof is the balance of probabilities. The decision of the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 establishes that there is some flexibility of decision making when applying the balance of probabilities test and this principle was affirmed by the High Court in Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 in which the High Court stated that: "the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to prove".
An application under s.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.
The jurisdiction of the Tribunal under s 27 of the Act is protective of children and not punitive of an Applicant: 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; R v Commission for Children and Young People [2002] NSWlRComm 101.
The issue for this Tribunal as required by s 18(2) of the Act is whether DBD, on the balance of probabilities, poses a risk to the safety of children. Young CJ in Commission for Children and Young People v V (2002) NSWSC 949 considered the test to be applied 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".
The Tribunal may not make an order on conditions, whether under s 27 or 28 of the Act: BJB v Children's Guardian (No. 2) [2014] NSWCATAD 164.
In determining this application, the Tribunal must first have regard to the factors set out in s 30(1) of the Act. If the Tribunal is considering making an order enabling an Applicant to work with children, the Tribunal must then consider the two-part test set out in s 30(1A) of the Act.

At a glance

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