DTS v Children's Guardian

NCAT Administrative and Equal Opportunity|2019-09-12

Introduction

The applicant, DTS, seeks review of the decision of the respondent, the Children's Guardian, to refuse to grant her a working with children check clearance (a clearance) under s 18(2) of the Child Protection (Working with Children) Act 2012 (NSW) (WWC Act).
The applicant is 46 years of age and the mother of three children, aged 20, 19 and 10 years. She applied to the respondent for a clearance, on 1 December 2017, as she wants to work in the disability sector, for which she requires a working with children check clearance. Having made her application for a clearance, she was initially no longer restricted in engaging in child-related work: WWC Act, s 8(1)(b).
However, on 20 February 2018, the respondent imposed an interim bar on the applicant because she was of the opinion that that it was likely, pending a risk assessment, that there was a risk to the safety of children if the applicant were to engage in child-related work: WWC Act, s 17(1) and (2).
The likelihood of a risk was based on the findings in a December 2013 investigation report of the Reportable Conduct Unit (RCU), of Family and Community Services (FACS), concerning allegations made by the foster children in the day-to-day care of the applicant and her husband Mr B, as kinship carers: Children and Young Persons (Care and Protection) Act 1998 (NSW) (Care Act), s 137. The report also dealt with an allegation arising from burns to the upper arm and body of one of the foster children while in the care of the applicant and Mr B. The foster children were in the care of the applicant and Mr B between 2006 and 2010.
The interim bar, having been in force for 12 months, ceased to have effect after 20 February 2019: WWC Act, s 17(4)(c).
On 28 February 2019, the respondent determined to refuse the applicant's application for a clearance, as following a risk assessment, she was satisfied that the applicant posed a risk to the safety of children: WWC Act, ss 14, 15 and 18(2).
The applicant made this application for administrative review under s 27 of the WWC Act, on 22 March 2019. There is no dispute that the decision of the respondent is an administratively reviewable decision under the Administrative Decisions Review Act 1997 (NSW) (ADR Act): WWC Act, s 27(1).

The legislative scheme - WWC Act

The objects of the WWC Act are 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 a working with children check clearance: see WWC Act, ss 3, 8 and 9.
The paramount consideration in the operation of the Act is: 'the safety, welfare and well-being of children and, in particular, protecting them from child abuse': WWC Act, s 4. Hence, the jurisdiction of the Tribunal in reviewing a decision of the respondent made under that Act is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61].
Child-related work is broadly defined in ss 6 and 7 of the WWC Act and includes working as an employee or an unpaid volunteer in chid-related work. It is not for the Tribunal to determine whether the work for which an applicant seeks a WWC clearance is, or is not child related work. That is, a WWC clearance is not granted for a specific category or type of child-related work. Once granted, it is a clearance for any child-related work: see BKE v Office of the Children's Guardian & Anor [2015] NSWSC 523 at [27].
Section 18 of the WWC Act sets out how the respondent is to determine an application for a clearance. For the purpose of this application, the relevant provision is as follows: 18(2) The Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children's Guardian is satisfied that the person poses a risk to the safety of children.
A clearance cannot be granted subject to conditions.
The term 'risk to the safety of children' is now defined in s 5B of the WWC Act as follows: 5B Meaning of "risk to the safety of children" A reference in this Act to a risk to the safety of children is a reference to a real and appreciable risk to the safety of children. (inserted by Sch 1, cl [2], of the Child Protection (Working with Children) Amendment (Statutory Review) Act 2018,)
Section 14 of the WWC Act provides that a person is subject to a risk assessment under that Act if any of the assessment requirement triggers specified in Schedule 1 apply to that person (i.e. 'an assessment requirement'). In this case, it was the findings in the December 2013 RCU report which gave rise to the assessment requirement (i.e. trigger offences/incidents): WWC Act, Sch 1, cl 2(b).
Section 15(4) of the WWC Act sets out the matters the respondent may consider in undertaking a risk assessment.
Where the respondent refuses to grant an applicant a clearance on the ground that she is satisfied, following a risk assessment, that the applicant poses a risk to the safety of children, s 27(1) of the WWC Act gives that applicant a right to seek administrative review of that decision by the Tribunal.
Where an application for review is made to the Tribunal, s 27(4) of the WWC Act requires the applicant to fully disclose to the Tribunal any matters relevant to his or her application.
In determining an application made under s 27, the Tribunal is required to consider the matters set out in s 30 of the WWC Act. These matters are similar to those the respondent could have regard to, under s 15 of the WWC Act, when undertaking her risk assessment.
Section 30 provides as follows: 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 … matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those … matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the … matters occurred, (d) the age of each victim of any relevant … 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 criminal history and the conduct of the person since the matters occurred, (i) the likelihood of any repetition by the person of the … conduct and the impact on children of any such repetition, (i1) any order of a court or tribunal that is in force in relation to the person, (j) any information given by the applicant in, or in relation to, the application, (j1) any relevant information in relation to the person that was obtained in accordance with section 36A, (k) any other matters that the Children's Guardian considers necessary. (1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that: (a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and (b) it is in the public interest to make the order
The Tribunal has adopted the approach taken by the Victorian Supreme Court, under a similar legislative scheme, in regard to the application of s 30(1A) of the WWC Act: see CTM v Children's Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] and ZZ v Secretary, Department of Justice [2013] VSC 267. That approach is one where the matters prescribed in s 30(1A), only need to be considered once the risk factors in s 30(1) have been considered and a determination is made in regard to risk. Hence, if satisfied that the applicant poses a risk to the safety of children, there is no need for the Tribunal to go on and consider the matters in s 30(1A).

Background

In the late 1980's, the applicant formed a defacto relationship with Mr A, an Aboriginal man. Mr A had four children from a previous marriage, who also became members of his household and that of the applicant.
In September 1990, the daughter of the applicant and Mr A was born. The applicant was 17 years of age at that time. Sixteen months after the birth of their daughter, the second daughter of the applicant and Mr A was born. The applicant's second daughter has cerebral palsy.
In the late 1990's, the applicant and Mr A separated.
In August 2002, the applicant married Mr B. The applicant was 29 years of age at that time.

Placement of Foster Children into the care of the applicant and Mr B

In September 2006, FACS placed two children into the care of the applicant and Mr B, as kinship carers. The children were siblings, a boy and a girl, who were grandchildren of Mr A.
In these reasons for decision we have referred to these children as Child SA and Child SB (Child 3 and Child 4 in the respondent's submissions). At the time, Child SA was 7 years old and Child SB was almost 6 years old. Both Children had been in several placements before being placed with the applicant and Mr B. The Children referred to the applicant as 'nan' and Mr B as 'pop'.
After Child SA and Child SB were placed into the care of the applicant and Mr B, asked if they could have more children placed into their care (R1, Tab 6, p 128).
In December 2008, FACS placed another two children into the care of the applicant and Mr B. Again the children were siblings (two boys). They were also cousins of Child SA and Child SB.
I these reasons for decision we have referred to these children as Child CA and Child CB (Child 2 and Child 1 in the respondent's submissions). At the time, Child CA was 6 years old and Child CB was almost 5 years old. Both Children had also been in several placements before being placed with the applicant and Mr B. The Children also called the applicant by the name 'nan' and Mr B by the name 'pop'.
Shortly after Child CA and Child CB were placed into the care of the applicant and Mr B, the applicant told FACS that the boys were exhibiting difficult behaviours, including alleged sexualised behaviour between them and towards the other Children. Subsequently, FACS found the allegations not to have been sustained.

Child CB's burns - 2009

In late January 2009, four to six weeks after Child CA and Child CB had been placed into the care of the applicant and Mr B, Child CB received burns to his arm, shoulder and back while he was in the bathroom having a shower.
Child CB's school recorded him as being absent from school on 29 and 30 January 2009 and again on 2, 3, 4 and 5 February 2009 (R1, Tab22, p267). On 16 February 2009, the caseworker for Child CA and CB had a telephone conversation with the Principal of their school (R1, Tab 12, p236). In her file note of that telephone conversation, the caseworker wrote: … [Child CB] had started school … on his birthday - [day] February 2009 due to him having burns. … [the Principal] said that [Child CB] had accidental burns to his face and back and asked whether I was aware of this . I told [the Principal] that I hadn't heard and [the Principal] said … that [Child CB] was either getting into or out of the shower and he turned the tap himself and burnt himself on the forehead and a bit on the back. [The Principal] said that [the applicant] had rushed in and that he had a few blisters on him but he was now fine. …
In late August 2009, a FACS psychologist reported that the applicant and Mr B needed some input as they were struggling with Child CA's behaviour (R1, Tab17, p253).

Child CA - placed into alternative care

In early September 2009, the applicant took Child CA to the local hospital, reporting that he tried to hang himself (R1, Tab49, p541). He was admitted and discharged three days later and placed in alternative care.
Subsequent to Child CA being placed in alternative care, he made a number of allegations of abuse and physical harm against the applicant and Mr B.

Birth of applicant's son - Feb 2010

In late February 2010, the son of the applicant and Mr B was born.

AAE Unit investigation of allegations made by Child CA -

In March 2010, Child CA made further disclosures of alleged physical harm and ill treatment by the applicant and Mr B while he was in their care. These allegations and the earlier allegations, which included being whipped with a horsewhip, were subsequently referred to the Allegations Against Employees Unit (AAE Unit) of FACS (R1, Tab39, p 413).
In late April 2010, an officer of the AAE Unit interviewed Child CA and Child CB (R1 Tab46 and p47). Child SA and Child SB were interviewed a few days later. The applicant was spoken to about the allegations subsequently. On 11 August 2010, the applicant provided a response to the allegations. On 30 November 2010, the Assistant Director of the AAE Unit wrote to the applicant to advise that the allegations (eight in number) were found 'not sustained'. The letter noted that a finding of 'not sustained' meant that the evidence did not support the conduct having occurred. These allegations were subsequently reinvestigated, twice, in 2011 and were also the subject of the 2013 RCU report.

FACS initiated assessment of the placement of the Children with the applicant and Mr B in June and September 2010

In early June 2010, the FACS Manager Caseworker interviewed/spoke to Child CB (R1 Tab21, p262). In the file note of that interview, the Manager Caseworker noted that this was the third major interview of Child CB that year. She also noted that Child CB had been clear that his safe haven was with the applicant and Mr B.
In June 2010, FACS engaged a consultant to review the placement of Child SA and Child SB with the applicant and Mr B (R1, Tab38, p411). In her report to FACS, the consultant noted that she had spoken to both Children and that they showed no anxiety. Nor did they seem to be guarded or ill at ease. The consultant recommended that the placement be supported.
In September 2010, FACS engaged a consultant psychologist to assess Child SA and SB (R2, Tab55, p563). In his report the psychologist said 'neither child seemed extremely anxious' when he saw them. The psychologist went on to say: I was surprised to be asked about allegations from [Child SB] that a whip had been used for discipline. This was certainly not mentioned. Neither [Child SA] nor [Child SB] mentioned ANY inappropriate disciplinary procedures in the household. However, boundaries exist within the household, & both children are aware of them.

Removal of Child CB from the care of the applicant and Mr B - October 2010

In late October 2010, on the recommendation of a Consultant Psychiatrist, FACS removed Child CB from the care of the applicant and Mr B and placed him in the same placement as his brother, Child CA. We understand that the removal was also based on the numerous allegations Child CA had made against the applicant and Mr B.

Examination of Child CB's burns by Dr A

In early November, Child CB was examined by Dr A, a Paediatrician, about the burns to CB's body (R1, Tab 26, p294). In his report Dr A said: There was an old burn probably of at least six months age or perhaps older, involving his arm, his back in a V shaped distribution, on his buttocks, at the base of his penis, and on his legs one or two linear burns, [Child CB] was not willing to disclose how they occurred other than a vague comment of "a man spilled something hot on me". The extent of the burns is 15% and I was told … that no record of any medical attention existed at any hospital. I would normally have expected that a burn of this size would have been treated at any hospital. …

Removal of Child SA, Child SB and the applicant's son - November 2010

Later, in November 2010: 1. Child SA and Child SB were removed from the day to day care of the applicant and her husband; and 2. the applicant's son was also removed from the care of the applicant and Mr B. The applicant's son was placed into the care of the applicant's mother. In April 2011, by order of the Children's Court, the applicant's third child was returned to her care and that of Mr B (R1, Tab 29, 314).
In February 2011, for the purpose of the Children's Court proceedings in relation to the son of the applicant and Mr B, the applicant was assessed by a Psychiatrist (R2, Tab 67). She was diagnosed as having Acute Stress Disorder and was referred for treatment to a psychologist. In his report, the Psychiatrist also expressed having some reservations about the extent to which the applicant was forthcoming about her history and any significant emotional or psychological difficulties. In October 2011, the applicant's psychologist reported that the applicant had complied with what was required of her and she was now able to "challenge many of her cognitive errors'.

Expert report of Dr B in regard to Child CB's burns - December 2010

On 23 December 2010, FACS obtained an expert report, pursuant to s 177 of the Evidence Act 1995, from Dr B, a Paediatrician (R1, Tab 33, p382), in regard to the burns on Child CB's body. Dr B did not examine Child CB. Instead, her report was based on the report of Dr A, 'copies of six photographs of [Child CB]' and information provided by the instructing officer of FACS. In her report, Dr B said: 18. With regular medical follow-up of these burn injuries it is probable that [Child CB's] would have required skin grafting to some of the deeper burns e.g. the burns to his lower back and the burn to his right arm. Ongoing treatment for these burns would have been expected to include close monitoring of the healing process, use of moisturizing creams as needed to soften the scar tissue …

2011 - JIRT and Police investigation of the allegations made by Child CA and the burns to Child CB's body

In February 2011, Child SA, Child SB, Child CA and Child CB were individually interviewed, by officers of the Joint Investigation Response Team (JIRT) of FACS in regard to the allegations made by Child CA and the burns to the body of Child CB (R2, Tab56, 57, 58, 59, 60 and 61 transcripts and interview notes).
In late November 2011, Dr C, an Associated Professor and Head of the Burns Unit at a hospital for children, assessed Child CB. In his report to the JIRT caseworker, Dr C said: [Child CB] himself tells me there were two separate occasions of the burns. The first occurred when he was showering and someone changed the water setting from outside. He said he did not know who that was. The second burn he tells me occurred when his nan threw hot water from the kettle onto his right arm. He did not specify whether the buns on his legs, base of his penis or his left foot occurred at the same or other occasions. He was not sure. … He did not report any bullying or emotional issues related to the burns and certainly no physical symptoms. The burns comprised of what appears to be scald burns beginning at the base of his neck and passing down his back. This burn …would be consistent with a burn from hot shower. A further burn which appears more recent is present on the lateral aspect of the right upper arm. This is less confluent, the scars are slightly raised. … In terms of distress, particularly the burn down the back and the right arm were undoubtedly have (sic) caused a degree of physical and distress. There (sic) would have been advantageously treated with first aid, but it is difficult to know in retrospect what effect that would have on the ultimate scars. …
In December 2011, a criminal investigation was conducted in regard to the burns on the body of Child CB. Each Child was individually interviewed again (R2, Tab 62, 63, 64 and 65 contain the notes of these interviews). The focus of the investigation was on whether the applicant had caused the injury (i.e. grievous bodily harm) and whether the applicant had failed to provide Child CB with the necessities of life (e.g. medical treatment).
In December 2012, NSW Police decided not to press charges against the applicant in regard to the burns on the body of Child CB. An email, sent on 3 December 2012, to the FACS caseworker provides an explanation why police did not lay any charges (R2, Tab66, p1085). In that email, the author said: I have received verbal legal advice that we cannot use 43A of the Crimes Act with failing to provide a child with the necessities of life (this includes medical treatment). … Unfortunately given … brief medical records and the fact … has been reprimanded by the … for failure to appropriately record the injury and examination results of one of her consultations with [Child CB], we cannot overcome this. Also the [applicant] states she visited [the local Aboriginal health service] to obtain advice about the burns but they didn't record it. This is possible given the other matter. [The applicant] states as a result of advice from [the local Aboriginal health service] she attended a chemist and obtained bandages and ointments etc to treat the burns. Enquiries with the [chemist] confirmed that [the applicant] was a regular visitor, however given the length of time that has passed … they could not confirm if she bought bandages etc for the burns. The other children stated that [the applicant] attended a chemist to get supplies for [Child CB]. … … [Child CB] was not able to give a lot of information in relation to the circumstances surrounding [the applicant] pouring hot water on him. … [Child CA, Child SA and Child SB] all still believe incident occurred in the shower as a result of [Child CA] turning the cold water tap on at the sink resulting in hot water burning [Child CB] in the shower. [Child CB] still believes he was burned in the shower which he talked about in his interview with me. [name of person] investigated this and found that the [applicant] applied for and received new taps that regulate the water as a result of complaining about the incident. …. Given [Child B] and the other children corroborate [the applicant and Mr B's] version of this particular incident there is insufficient to say [the applicant] inflicted the burn. …

The RCU investigation

Following the advice of the police, the RCU decided to undertake its own investigation in regard to the allegations that had been made by the Children and the circumstances surrounding the burns to Child CB, in particular whether the applicant had caused the burns and/or whether she had neglected Child CB by failing to provide adequate medical treatment for his burns. In all there were eight allegations, some of which were broken up into several separate allegations. Of the eight allegations, five were made against the applicant and the remaining allegations (three) were made against Mr B.
The Children were not re-interviewed by the RCU investigator. Instead, the RCU investigator relied on the transcripts of the interviews with each Child in February 2011, the interview notes of the interviews with the Children in December 2011 and February and March 2012, the internal reports of FACS and the medical reports relating to the Children, especially those relating to the burn marks on Child CB.
The applicant was not made aware of the RCU investigation. Hence, she was not given an opportunity to respond to these. However, her responses to the allegations Child CA had made in 2009 and 2010 were taken into account, as were any records held by FACS and the Children's school that had recorded claims and responses the applicant had made about the any of the Children, in particular Child CA and Child CB.
In December 2013, the RCU investigator completed her investigation report on the allegations made by Child CA, and the burns to the body of Child CB. In her report, the RCU investigator found each allegation to have been sustained, sustained in part, or not sustained.
In conclusion the investigator found: 1. 'a serious physical assault occurred against [Child SA, Child CA and Child CB]' by the applicant, and 'because the assault had the potential to result in a serious injury' a notification to the Office of the Children's Guardian was required; and 2. the placement (i.e. a placement with the applicant and Mr B) was unsuitable for any child to be placed in future.

Separation of the applicant and Mr B

Since August 2014, the applicant has been living alone with her children as she and Mr B had agreed to separate.

The RCU investigation report (R1 T4)

At a directions hearing, prior to the hearing of the applicant's application, counsel for the applicant made a general objection to the hearsay evidence that was included in the material the respondent had filed and served and which was intended to be relied on at the hearing of the applicant's application. This included the material relied on by the RCU investigator and the findings of the investigator in regard to the allegations the subject of her investigation.
After hearing from the parties, the Tribunal, constituted by Senior Member Higgins, made an order allowing this material into evidence subject to weight.
As we have noted the RCU investigation related to five allegations made against the applicant, three of which related to allegations made by the Children (in particular Child CA) against the applicant (allegation 1, 2 and 3). The remaining allegations related to the burns sustained by Child CB, one of which alleged that the applicant had caused the burns (allegation 4) and the other alleged that the applicant had been neglected Child CB in failing to provide him with adequate medical treatment (allegation 3).
Each allegation made by the Children was made up of several incidents, each of which was a separate allegation. While the RCU investigator found each allegation sustained, she did not find that each incident that made up that allegation had been sustained. We have not considered any further those incidents that were found not to be sustained.
The RCU investigator also found the allegation that the applicant had caused the burns to Child CB not to be sustained. In these proceedings, the respondent has conceded, and appropriately so, that there is insufficient evidence to establish, on the balance of probabilities, that the applicant did in fact cause the burns to Child CB. However, for the reasons set out in our consideration of the s 30(1) factors below, in our opinion, the circumstances giving rise to those burns remain relevant to the issue of risk.
The RCU investigator found the allegation of neglect to have been sustained.
As the respondent relies on the findings of the RCU investigator, it is necessary to briefly set out the terms of the allegations the RCU investigator found to be sustained, together with her findings in regard thereto.

Allegation 1 -

Child CA alleged that the applicant had engaged in physical discipline as follows: 1. smacked and used a horse whip on Child SA; 2. whipped Child CB with a horse whip; 3. …
The RCU investigator noted that, in August 2010, when Child CA had first made an allegation of whipping, in her written response to this allegation, the applicant said that Child CA's allegation regarding a horsewhip was inaccurate. Instead, the applicant had explained that: 'We have a horse 'crop' which resides in the shed 40m from the house and is used by the children when riding Dolly who can be reluctant to move …'
In support of her finding that allegation 1(a) was sustained, the RCU investigator relied on the following statements of the Children as recorded in the transcript of their respective December 2011 interviews with JIRT: 1. Child CA said that the applicant, had bought a whip and that every time 'somebody would tell a lie she would smack' him and would 'whip one of us if we didn't tell the truth'; 2. Child SA said that the applicant would smack 'us' with the whip if 'we were really naughty'; and 3. in response to a question by the JIRT Officer as to who he had seen the applicant whip, Child CB responded by naming Child SA, himself and Child CA.
The RCU investigator also noted that, in her interview with the JIRT Officer, Child SB had said that the applicant used a 'naughty corner' if the children were naughty. She also responded with a 'no' when asked if the applicant used a whip. The RCU investigator rejected the evidence of Child SB, because 'she had demonstrated a lack of credibility in her evidence'. That lack of credibility was based on a September 2010 report of a treating psychologist who had formed a view that Child SA and Child SB had been coached. Notwithstanding this report, the RCU investigator accepted the evidence of Child SA, because she found that his account was consistent with that of Child CA and Child CB.
The RCU investigator relied on the same information set out above in support of her finding that allegation 1(b) was sustained. She also relied on the transcript of an interview with Child CA, in April 2010, with a FACS caseworker. In that interview, Child CA was asked whether he had seen Child CB being whipped to which he responded - 'a couple of times'.

Allegation 2

Child CA alleged the applicant had: 1. …; 2. whipped him on his 'rude part' (not sustained, but found that the conduct amounted to an assault); and …
In support of her finding that the applicant had assaulted Child CA, the RCU investigator relied on a file note of CA's interview in February 2011 and his subsequent interview with JIRT in December 2011. In summary, CA alleged that the applicant had tied him up to the double bunk bed, when he was naked, and whipped him. In his February 2011 interview, CA said the applicant had tied up his right arm with a pink bra, his left arm with a yellow rope and his legs with red rope. Despite some inconsistencies in Child CA's account of events, the RCU investigator found that Child CA had given a consistent account of this incident when interviewed in February 2011 and again in December that year. In this regard, the RCU investigator noted that Child CA made no mention of a pink bra, or the colour of the rope in his December 2011 interview.
The RCU investigator also noted that the applicant had not been specifically spoken to about this allegation.

Allegation 3

Child CA alleged that the applicant had: 1. whipped him with a horse whip; 2. tied him up in the bath overnight; 3. tied him to the bed and whipped him with a horse whip; 4. …
The RCU investigator's finding that allegation 3(a) was sustained was based on the same evidence on which she found allegation 1(a) and 1(b) to have been sustained.
The RCU investigator's finding that allegation 3(b) was found to be sustained was based on what Child CA is recorded as having said during his February 2011 interview with JIRT. In that interview, Child CA said: '… like she tied me to the bath, the sort of bathroom thing and, she like ties me, like my hands when I was laying down in the bath and sometimes she would start, she'd chuck ah cold water on me to wake me up' and that he was left tied up 'Til morning'.
The RCU investigator noted that the applicant had not responded to this allegation. Nevertheless, she anticipated that the applicant's response would be the same as it had been previously to another allegation of Child CA being tied up in the bathroom. In that response, the applicant had said that Child CA was only sent to the bathroom to shower and clean himself. The RCU investigator said that the evidence of CA was supported by the evidence given by Child SA and Child SB that the applicant would send Child CA to the bathroom for time-out.
The RCU investigator concluded that in his February 2011 interview Child CA had given 'a credible and detailed disclosure' of the incident and 'in the circumstances and on balance, it is likely that [Child CA] was tied up in the bath overnight by [the applicant]'.
The RCU investigator's finding that allegation 3(c) was sustained was based on the same evidence on which she had found allegation 2(b) to have been sustained.

Allegation 5

It was alleged that the applicant neglected Child CB by failing to provide access to adequate medical treatment for the severe and extensive burns on his arm, shoulder and back which led to excessive scarring.
In support of her finding that this allegation was sustained, the RCU investigator relied on what Child CB had said during his February 2011 interview with JIRT. He said he could not remember if the applicant had taken him to see anybody about the burns. He said he did not cry when he was burnt and the applicant did not put anything on the burns.
In his February 2011 interview with JIRT, Child CA had said that the burn to Child CB may have happened when he, Child CA, turned on the taps to wash his hands while Child CB was in the shower. He said that the applicant put 'gel' on the burns and put Child CB in the shower to stop the pain. In an interview with Child SA, in March 2012, Child SA said he did not see the burns to Child CB because the applicant had 'wrapped him in glad wrap' and 'put this plant stuff on him'. He also said Child CB was in pain and crying.
The RCU investigator also relied on the report of Dr A, who had examined Child CB, in November 2010. The RCU investigator noted that Dr A said he would normally have expected medical attention having been sought at any hospital for the burns of this kind, but there was no record of such having occurred in this case. This, the RCU investigator noted, was supported in the expert report of Dr C that was obtained by Police in their investigation. The RCU investigator also noted that in their investigation, police spoke to the nurse at the local Aboriginal Health Service, who said she had examined Child CB, but that examination was not about the burns he had sustained.
The RCU investigator also had regard to the November 2010 affidavit evidence, the applicant and Mr B had submitted in the Children's Court, in support of their application to have their son returned to their care. In that affidavit, the applicant said medical help was sought from the local hospital and the local Aboriginal Health Service. She said that Child CB displayed minimal pain. She said she had made a call to the caseworker, but was told that she was on holidays. She said that the person she had spoken to at FACS, took her details and said someone would call her back - which nobody did.
The RCU investigator concluded: On the basis of the medical and photographic evidence … it is likely that the appearance of the burns would have prompted a reasonable person to seek immediate medical treatment. … it appears [the applicant and Mr B] failed to seek immediate medical assistance when required. Furthermore, it appears that they failed to seek ongoing medical assistance and advice. …
The RCU investigator found that there was no further risk to the four Children, or the applicant and Mr B, as the Children were no longer in the care of the applicant and Mr B.

The applicant's evidence

In support of her application, the applicant relied on two statutory declarations she had made for the purpose of the respondent's risk assessment (i.e. statutory declarations dated 7 May 2018 (A1) and 7 November 2018 (A2)) and a further statutory declaration filed and served in these proceedings (statutory declaration dated 1 August 2019 (A3)). She also relied on: 1. a statutory declaration of her eldest daughter, dated 23 March 2019 (A5); 2. a statutory declaration of her mother dated 31 May 2019 (A6); and 3. two reports of Dr Christopher Lennings, a Clinical Psychologist, dated 7 July 2019 (A4) and 26 August 2019 (A7).
The applicant gave oral evidence at the hearing and was cross-examined by counsel for the respondent.
Dr Lennings also gave oral evidence at the hearing by telephone. He was also cross-examined by counsel for the respondent.

The evidence of the applicant

In her statutory declarations of 7 May 2018, the applicant said the following in regard to the incident where Child CB was burnt while showering: 1. the incident occurred in late January 2009 at around 6.00pm. She took child CB into the bathroom to have his daily shower and followed the procedure she had taught all of the Children - they checked that the water was warm enough by running the water on to their hands - when she was sure the water was right for Child CB to use by himself, she left the bathroom and went to the laundry to do a wash; 2. when doing the washing she thought she heard an odd sound above the noise of the washing machine and looked out but heard no more and went back to her washing, but as she did so she heard yelling and the words 'Hot! Hot! Hot!' She said she quickly rushed to the bathroom followed by Child SA; 3. when she entered the bathroom the flexible tubing of the shower was spinning around with water going everywhere - she immediately reached over and turned off the taps. Child CB was at the back end of the bath, standing on the ledge that was used to put shampoo and other items on. CB looked like he was trying to get away from the water; 4. when she saw Child CB he was not crying or making any sounds of distress, but when she examined him she could see his right shoulder was very red and thought he might have been burned. She turned on the cold tap and Child SA let Child CB know it was cold - on being assured the water was cold, she began running cold water over Child CB. She and Child SA then removed Child CB from the shower and wrapped him in a damp towel; 5. she left Child SA and Child CB in the bathroom while she got the telephone and called the local hospital for advice. She spoke to the triage nurse and after answering a number of questions asked of her, the triage nurse told her to keep an eye on Child CB and if he experienced any pain, temperature, or difficulty breathing to not hesitate and bring him in for a check up; 6. Child CB then went to his room and got dressed putting on a long sleeve shirt - when he came out of his room she put some burn cream on his right shoulder and he then joined the other Children playing games - he did not appear to be in any distress, nevertheless, she set up a bed close to her room so that she could be there if he did become distressed and also to check on him; 7. on the following day, she took Child CB to the Local Aboriginal Health Service. The nurse at the Health Service, who was known to her, treated Child CB's burns with Vaseline gauze and anti-bacterial cream. She said the nurse did not ask for one of the doctors to examine Child CB - but did say to bring him back or take him to the hospital if there were any signs of an infection, or if he was in pain. The local hospital was a 10 minute drive from the Health Service and had she been advised that Chid CB should have been taken to the hospital she would have done so; 8. on the recommendation of the nurse, she purchased Vaseline gauze and cream from the local Chemist that day and continued to apply the gauze and the cream for several weeks. She could not recall any difficulty with the burns healing, other than when Child CB began to pick at his skin as it began to peel 'as children do after they have had too much sun and it begins to heal and itch'; and 9. 'I have since realised that [Child CB's] reaction to the burns he suffered may have been down played due to what had happened to him previously and his ability to express his feelings of pain may have been supressed by him. Were something similar to happen to a child in my care I would not hesitate to take them directly to hospital.
In her statutory declaration of 7 November 2018 the applicant said; 1. she has always considered herself to be kind and considerate towards others and has never used physical punishment in the rearing of her own children or in caring for her foster Children; 2. she has learnt a great deal from the time the foster Children were in her care and can now recognise the signs when a child is not simply being naughty, but is exhibiting behaviour which requires specialist care. She and Mr B had no idea how difficult it would be to care for all four foster Children. Had they been left to care for Child SA and Child SB only, she believes they would have remained as a family; 3. she has never been, nor will she ever be a risk to the safety of children; and 4. she is not a violent person and the allegations made by Child CA are simply untrue.
In her statutory declaration of 1 August 2019, the applicant said: 1. she has learnt from her mistakes and is now experienced and trained to understand and assist those with complex needs. She recently completed a Certificate III in Aged Care and Disability and had been granted a clearance to do her practical training; 2. she has an 'extensive knowledge and skill basis to care for people within our community including the most valuable people being the aged and the young'. In this regard she has learnt from caring for her own three children; 3. when she and her husband decided to be foster carers for the Children, they were naïve and that she now realise that they should have undertaken training before they took on that responsibility. She said she thought that she knew what to do, as she had cared for Mr A's children and had also raised her eldest daughter; 4. after the Children were placed into her care, she soon learnt that each Child had their individual needs, which she and Mr B set out to cater for. The examples she gave were that Child SA was good at athletics and loved horse riding, Child SB loved dancing and playing soccer, Child CA loved to play in the pool in the warmer weather and Child CB loved to play soccer and play on the trampoline and arrangements were made for the Children to engage in their loved activities; 5. when Child CA and Child CB came into her care and that of Mr B, it became clear to her that Child CA was exhibiting some concerning behaviours and that she had her suspicions that he had some form of disability: 'Unfortunately [Child CA] was later diagnosed with having Asperger Syndrome and ADHD but this was after he left my care. Having cared for [Child CA] it has given me the ability to recognise the symptoms of Asperger's should I come into contact with someone suffering from that particular condition. [Child CA] had incontinence problems which I put down to him not having been toilet trained. …' 1. she is 'aware of the reality of the outcome from the horrible burn accident that occurred with [Child CB] in the shower while in her care and the burn sustained from the accident'. She said that after the accident she contacted FACS, but did not receive a response; 2. she acknowledged that this was a 'horrific accident' where the injuries sustained were from the 'accidental water temperature in the unregulated shower' and not through any intentional act on her behalf. As a result of that accident she had expanded her knowledge base to ensure that water regulation is a priority and visual supervision is paramount to the children in her care. This was an isolated incident and now, if she were to find someone with burns, she would immediately provide first aid and take them to the nearest hospital; 3. she now realises that she should have been more concerned about Child CB's burns and pursued further treatment for him from a doctor; 4. she was shocked to read that Child CB had alleged that she had thrown a kettle of boiling water on his right arm. She said there was only the one incident where Child CB's skin was burnt - this was the January 2009 incident in the bathroom. She explained that their water supply was tank water and only essential use of water was permitted. She also explained that the main part of the house was open plan, which included the kitchen where the hot water kettle was kept. As her second daughter would wander in and out of the kitchen, she was especially concerned about her coming into contact with any hot water. Hence, the Children were asked not to go into that area where the kettle was kept: 'the children would not even get their drinks from the fridge which would have required them entering an area of the kitchen and I would get their drinks for them to avoid this taking place'; 5. the description given by Child CA in regard to the allegation that he was tied up to the top of the bunk bed in the Children's bedroom was 'ridiculous'. Had this occurred the other Children would have been present. While she was bigger than Child CA she could not have managed to lift him up and tie him to the top bunk. She also did not have a pink bra and there was no rope in the house, or any red and yellow rope on the property 6. in regard to Child CA's allegation of being tied up in the bathroom overnight - he was often sent to the bathroom to clean up as he had difficulty in controlling the passing of faeces and he did spend more time in there than usual, as he liked to spend time on his own. The bathroom door could not be locked and was used by all the Children who would wonder in and out; and 7. the allegation of being horse whipped was 'ridiculous'. The only whip on the property was a 'stock whip', which was used by Child SA as a crop when he was riding his horse. The whip was kept in the shed in a box together with other gear used for riding. Child SA had a key to the box and the whip was not used on any other animal and it was only used as a prod for Child SA to get his horse moving.
In her oral evidence, the applicant said she was at no time stressed when the Children were in her care. She said she found it busy to have that many children in her care. She said she would look after children again if offered the opportunity to do so. She said that the property, where they lived was a five-acre property. The house on the property was a two-storey home with three bedrooms upstairs and one bedroom downstairs. The three boys (Child SA, Child CA and Child CB) shared the downstairs bedroom and Child SB had her own room upstairs.
During the time the Children were in her care, FACS had not allocated a caseworker to support their placement. While she did not call for help from FACS, she nevertheless felt a little frustrated because she was provided no guidance. She said she was very saddened when the Children (Child SA, Child SB and Child CB) were removed from her care.
She said that she was given limited information about the Children when they came into her care. However, she was told that the former carers of Child CA and Child CB 'could not handle them any more'. She explained that Child CA had behavioural issues and often sat away from the other Children. Child CB was 'jumpidy' and 'talkative' and could not sit still. She said she used the 'time out' method when disciplining the Children. That is, she would give three warnings and then there was time-out on the mat that was located downstairs in an open area.
She said she did not make Child CA stand against the wall. The Children equally needed to be disciplined and they were all required to sit on the mat.
The applicant denied that she kept Child CA away from school because she was afraid that he would make allegations against her. She said he was kept away from school, as he needed to see his chiropractor and required occupational therapy.
In regard to the burns to Child CB, the applicant: 1. reiterated that the incident occurred around 6-7 pm on a day in late January 2009 when she was in the washing machine area and Child CB was in the shower; 2. said that when she went into the bathroom it was steamy and the showerhead was lying in the back of the bath - she believes Child CB had turned the wrong tap off. She called Child SA, who was about 10-11 years of age and asked him to sit with Child CB while she made a phone call. She said Child CB had a blanket around him; 3. she did not have a first aid certificate; 4. she said the local hospital was about 40 minutes away from their home. She only remembers seeing burn marks on the neck and right arm of Child CB and reiterated that he was very quiet and did not show signs of pain. She said she felt very un-at-ease about Child CB saying he had no pain; 5. she again denied that she had thrown hot water on Child CB; 6. she said she telephoned the local Aboriginal Health Service the next day - she was asked to bring him in, which she did. She would regularly take the Children to this Service if they had a cold etc. as she trusted them; and 7. after the incident, she and Mr B engaged a plumber and electrician to check their hot water and their taps.
The applicant said she was aware of the allegations made by Child CA in 2009 and 2010. However, she was unaware of the subsequent allegations made by him, or the 2013 RCU investigation. She said she became aware of the 2013 investigation in 2016, when she was doing her Certificate III Course. She noted that her police check nevertheless came back clear.
The applicant again denied that she whipped the Children. She said there was only one whip on the property and that was the whip she described in her statutory declaration. There was no shorter whip as described by the Children.
The applicant acknowledged that the allegations made against her were serious, but denied that she had whipped or abused the Children as alleged. In regard to the burns to Child CB, the applicant said she did act immediately when it happened in that she called the hospital. She would however, knowing what she knows now, take a child with burns to hospital.

The evidence of the applicant's eldest daughter

In her statutory declaration, the applicant's eldest daughter explained that she was no longer living with her mother and Mr B when Child SA and Child SB were placed into their care. Nevertheless, she met the Children and Child CA and Child CB and regarded the as family. She said they referred to her as 'aunty'.
In response to her mother having used physical punishment on the Children, the applicant's daughter said: … [My] mother never uses physical punishment, if I or my siblings were being difficult she would put on a serious face saying "time out mat". There was always a mat in the house that was designated as the time out mat and you had to sit there for up to 5 minutes until you calmed down before you could get up and go back to playing. [The Children] took their times on the mat for being disruptive just as I had. …

The evidence of the applicant's mother

In her statutory declaration, the applicant's mother said: 1. she recollects Child CB being quiet and polite; 2. on or about January 2009, she received a telephone call from her daughter who said that Child CB had been in the shower and the water was very hot and he had been burnt. She tod her daughter that she should run some cold water over him and ring the hospital; 3. on the following day she went with her daughter to the local Aboriginal Health Service - where they saw a nurse, who put some dressings on his arm and shoulder and told her get some more dressings from the chemist; 4. she did not recall Child CB complaining about being in pain; and 5. her daughter is not a violent person - she practices the 'Time out method' which she taught her.

The evidence of Dr Lennings

Doctor Lennings, a clinical psychologist of considerable experience, interviewed and assessed the applicant in early July 2019. The 7 July 2019 report of Dr Lennings (A4) is very comprehensive. It is unnecessary to deal with the report in its entirety in these reasons for decision. However, we note the following remarks of Dr Lennings, based on the information he was provided and his psychological assessment of the applicant: 1. it is difficult to see how the applicant poses a risk to the safety of children. However, to some extent this requires a finding of fact about what took place in regard to the issues raised in the RCU investigation report (see at para 119); 2. the assessment did not find any evidence of the applicant being aggressive, ill tempered, unable to manage stress, anti-social, personality disordered, or subject to conditions or behaviours that disinhibit her behaviour. He noted that the risk that had been identified occurred in the context of a specific situation where she had: 122. … [six] quite challenging children by dint of age, and developmental and behavioural disorders. That context in unlikely to re-occur. Any conceivable future employment is not going to involve her as a foster parent with in effect sole care of traumatised children. … In the context that she would be unlikely to [be] a sole carer caring for numerous challenging children her risk of future harm to children is low.
Dr Lennings made a similar remark in the last paragraph of his report.
In his subsequent report, after having been provided with a copy of further material filed and served by the respondent, Dr Lennings said his opinion had not changed as a result of the additional information he had been provided with.
In his oral evidence and under cross-examination, Dr Lennings agreed that the applicant was a forceful advocate. He agreed that the applicant thinks she is right and has difficulties in seeing things from the other person's perspective. He said, because her life demands were now very different to what they were in 2008-2010, he would not have concerns about the applicant having children in her care on respite. He went on to say that, while he had some concerns about the applicant's cognitive ability, he believed she would act differently today and in the future, because of her past experiences.

Applicable Legal Principles

The applicant is not a 'disqualified person' and there is no statutory presumption that she poses a risk to the safety of children: see WWC Act, ss 18(1)(a), 28(1) and 28(7).
This means that the general principle of administrative law applies in that neither party bears a burden of proof in establishing that the decision of the respondent was, or was not, 'the correct and preferable' decision: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 at [39]-[40]; BSR v Office of the Children's Guardian [2015] NSWCADTAD 264 at [17] and BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 at [32]. The applicant however has a practical onus of identifying material which will support her application.
Even though s 38(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides that, subject to the rules of natural justice, the Tribunal in not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, it is also accepted that where a matter in issue requires proof, regard should be had to the principles set out in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at p362: see BKE v Office of the Children's Guardian & Anor [2015] NSWSC 523 at [33]. That is, a matter requiring proof should be proven to the civil standard, on the balance of probabilities: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139, (1980) 44 FLR 41, [1980] FCA 85 at [15] per Dean J; BSR (supra) at [18]; BJB (supra) at [32] and Holbrook and Australian Postal Commission (1983) 5 ALN N46, [1983] AATA 40 at [23].
In BKE (supra) at [30], his Honour Justice Beech-Jones said that, where there are allegations of child abuse by an applicant for a clearance under the WWC Act, significant guidance as to the approach to be adopted when considering the allegation of risk can be derived from the High Court's decision in M v M [1988] HCA 68; (1988) 166 CLR 69. His Honour went on to say at [33]: ... [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.
As we have noted above, the applicant is not a 'disqualified person'. Hence, unlike the applicant in BKE, in this case, there is no onus on the applicant to disprove the existence of a risk. Nevertheless, in this case, the question remains as to whether, on the material before the Tribunal, we can be satisfied that the alleged abuse found by the RCU investigator to have been sustained: 1. is established to the requisite standard, on the balance of probabilities; or 2. did not occur; or 3. the circumstances surrounding the alleged abuse means that there is a real and appreciable risk to children.

(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

It is accepted that, if true, the allegations that are the subject of the 2013 RCU investigation are very serious. Those allegations can conveniently be categorised into three groups: 1. the applicant was excessive in her discipline of Child CA (the alleged whipping and tying to bed and bath taps); 2. the applicant was excessive in her discipline of Child SA and Child CB (the alleged whipping); and 3. the applicant failed to meet the medical needs of Child CB after he was burnt by hot water while showering.
We agree that the allegations the RCU investigator found to have been sustained were not in fact proven, to the requisite standard, on the balance of probabilities. Nor did the RCU investigator assert this to be the case. However, the RCU investigator did make an assessment of risk of harm to children based on the allegations she found sustained on the material before her.
In this case, we have the additional evidence of the applicant, the applicant's mother and her eldest daughter.
In her written submissions, counsel for the applicant submitted that, given the applicant's denials of having used excessive discipline on the Children no weight should be given to these allegations. Counsel for the applicant went on to submit that no weight should be given to the fact that these allegations had been made, as counsel for the respondent had limited her cross-examination to the burns incident and failed to cross-examine the applicant on the allegations of excessive discipline.
In our view, counsel for the respondent did not limit her cross-examination of the applicant. For example, the applicant was specifically cross-examined on her methods of discipline and whether, at the relevant time, there was one horsewhip, or two horsewhips at her home. The applicant was also cross-examined on a number of the specific allegations made by Child CA, her reasons for leaving Child CA at the hospital, in September 2009, and how Child CA might have felt being left behind. A copy of the material relied on by the respondent was given to the applicant well before the hearing and in her written evidence she gave a general response but also responded to more specifically to some of these.
In regard to the evidence of the applicant, overall, she did not impress us as a witness who was fully frank. She appeared to be very controlled, detached and matter of fact in her evidence. Her responses to questions asked of her were short, direct and often self-serving. As noted by Dr Lennings, the applicant has a sense of always being right. We were left with the impression that there was much more the applicant could say, but chose not to do so, or alternatively she failed to understand the seriousness of what had been alleged against her.
While we make no finding, on the balance of probabilities, that the applicant did in fact excessively discipline the Boys in the terms alleged, we are not satisfied that the methods the applicant said she used to discipline the Children was limited to three warnings followed by time out on the mat downstairs. On the material before the Tribunal and for the reasons set out below, we find that the circumstances surrounding the allegations made by the Boys, especially those made by Child CA, give rise to a serious risk of harm to children: 1. the fact that Child CA had made allegations against previous carers that were found to be false did not mean that the allegations he made after he left the care of the applicant and Mr B were also made without any substance. We note that in a record obtained from Child CA and Child CB's school, the Principal made a note of the applicant having attended the school in late May 2009 to say that the Boys were demons and lied a lot and needed to be taught to tell the truth (R1, T 12 p154). The Principal noted the applicant had initially requested that the Boys be punished by way of detention. The school did not find that the Boys lied and the Principal noted that she was left with the impression that the applicant wanted Child CA to be removed from her care; 2. although, the applicant's mother and her eldest daughter supported the evidence of the applicant that she was not a violent person and that she used the time out method to discipline the Children, the applicant's mother, nor her daughter said they had seen, or witnessed the applicant discipline the Children, let alone discipline them in the this way. They appear to have had limited contact with the applicant while the Children were in her care and that of Mr B; 3. in their interviews, none of the four foster Children explained that this was the applicant's method of discipline. On the contrary, the three Boys said they had been whipped with a horsewhip if naughty. Child SB explained that the applicant had a naughty corner; 4. the applicant did not dispute that there was a horsewhip on the property that was used by Child SA when he rode their horse 'Dolly'. Child SA described the whip as one with 'a square bit on the end made of leather'. Child CA gave a similar description of the whip (i.e. a horse whip, about a metre long, with a short leather piece on the end). In her August 2010 response to the allegations made by Child CA, the applicant described the horsewhip as a 'crop'. In her evidence at the hearing, the applicant's description was that it was a much longer whip without a square bit at the end. In our view, her earlier description of the whip as being a shorter 'crop' is not only more consistent with the description given by Child CB and Child SA, but it is also more consistent with what a child of 10 or 11 years of age would have been using at that time, if riding a horse; 5. notwithstanding the inconsistencies and gaps in the accounts given by each Child that were identified in a schedule prepared by the applicant, in our view there was sufficient consistency in their respective accounts to indicate that some form of excessive discipline was used by the applicant, especially in regard to Child CA. The evidence is that Child CA had considerable behaviour issues, which included regularly soiling himself and engaging in inappropriate behaviour with his own faeces. The other Children made references to this in their interviews and that he would be disciplined if he soiled himself. The applicant did not deny that this was so. While the applicant said he was sent to the bathroom to clean himself up - we are left with the impression that the applicant also sent him to his bedroom and the bathroom as a form of punishment. This is consistent with the applicant having complained about the behaviour of Child CA to FACS and his school, believing that the issues surrounding his faeces were related to him not being toilet trained and what the Children said in their interviews.
We make a similar finding in regard to the circumstances surrounding the applicant's response to the burns sustained by Child CB: 1. this incident appears to have occurred some time around four to six weeks after Child CA and Child CB came into the applicant's care. The evidence is that the applicant was well aware that the hot water at her home was very hot and likely to burn. It was for this reason that she had given the four foster Children strict instructions not to go into the kitchen. These instructions appear to have been given mainly for the protection of her second daughter, who had a tendency to wander into this area. Yet she did not appear to have the same concerns about the Children when showering, even though it was the same hot water; 2. the date on which Child CB sustained his burns is unclear. We note there is evidence of the applicant having sent an email to FACS, on 28 January 2009, to say that Child CB would not be at school for two weeks as he was sick and the 'Dr said to keep him home for two weeks away from lots of kids' (R1, T12 p 184); 3. the evidence is that the applicant kept Child CB at home on the day his school year commenced (29 January 2009). He was kept at home for another four school days (30 January and 2, 3, 4 and 5 February). Whether the incident occurred on the day before school started or earlier than this is not explained. However, on the evidence it would appear to have been much earlier, as had it occurred the day before school was due to start, one of the Children, or the applicant would have said so; 4. the fact that Child CB's caseworker had not followed up on what she had been told about Child CB's burns in mid February 2009, by the Principal of his School does not excuse any failures of the applicant in regard to what she did in having burns to Child CB's body treated. In this regard, we note he applicant relies on a short note she states she wrote to FACS, in March 2009. This note was written at least five to six weeks after the incident and provided no details about the extent of the burns to Child CB, how she had treated the burns, or how Child CB was; 5. although, in her evidence in these proceedings, the applicant described Child CB's burns to have been 'horrific', this is not how she described them in her evidence before the Children's Court in 2011. Instead she endeavoured to explain why the healing of his burns appeared to make them look worse; namely his scratching due to his dry skin and the chlorinated water in their pool; 6. given the extent of the burns and the subsequent severe scaring on the arm of Child CB, we do not accept the evidence of the applicant, or her mother that Child CB exhibited no signs of pain immediately after he sustained his burns, or on the following day. In their interviews, the other Children all state that Child CB was screaming and was evidently in pain. The Children also infer that the applicant reprimanded Child CB for what had happened. We make no finding in this regard but do not accept the applicant's evidence that Child CB exhibited no pain; 7. we accept there was only one incident where Child CB was burnt while in the care of the applicant and Mr B. This is consistent with what the Children said in their interviews. They also said that the incident had occurred in the bathroom. While Dr B and Dr C indicated in their respective reports that there might have been two burns, they did not elaborate on the basis they had formed this opinion; 8. we accept the opinions of Dr A, Dr B and Dr C that burns of the kind suffered by Child CB would be expected to have been immediately treated at a hospital. We accept these opinions, regardless of whether there had been a better outcome of the injuries, as in our view, any reasonable parent or person having the day-to-day care of a child who had suffered such extensive burns would not hesitate to take the child to a hospital or doctor for immediate assessment and treatment; 9. on the evidence we accept that, on the night of the incident, the applicant telephoned the hospital and spoke to the triage nurse. In the absence of any record of what the applicant said, we are left with the impression she failed to fully disclose the severity or extent of the burns. This is consistent with her acknowledgement at the hearing that she may not have explained how old Child CB was and the material before the Tribunal; 10. there is a question as to whether the applicant did take Child CB to the local Aboriginal Health Service on the day after Child CB sustained his burns, however, we make no finding in this regard and accept the evidence of the applicant that she did take him to the Health Service, which was ten minutes away from the hospital; and 11. the applicant's ongoing failure to explain why she did not at any time seek medical advice from a doctor in regard to the very extensive burns to Child CB's body, especially as the burns were more likely than not to leave lifelong scars on Child CB's arm and body. At no time has the applicant said that she was unable to immediately take Child CB to the nearest hospital. Nor has the applicant said that she could not take Child CB to the hospital, or a general practitioner, the following day or at any time thereafter to have his burns assessed and treated. That Child CB needed assessment and treatment is evidence from the evidence the applicant relied on in the 2011 Children's Court hearing, in that she acknowledged that Child CB's scratching or picking at his scars made them worse. It would appear from the evidence the applicant either failed to appreciate the seriousness of the burns, or decided to treat them herself for a reason we do not know. At the same time, the seriousness of the burns must not have escaped her because she kept Child CB at home from school for more than a week - whether this was because the burns themselves were serious or the incident was serious for other reasons is not known.
Accordingly, we find that the circumstances giving rise to the allegations the RCU investigator found to be sustained established do give rise to a serious risk of harm to children. We are also satisfied that the risk of harm arising from these allegation is a risk of child abuse as they involve violence and neglect.

(b) the period of time since those offences or matters occurred and the conduct of the person since they occurred

It is between 9 and 10 years since Child CA was in the applicant's care and Child CB sustained his burns.

The applicant was in her mid-thirties during the time she had all four Children in her care and when Child CB sustained his burns.

(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

Child CB was almost 6 years of age when he sustained his burns. At that time Child CA was 8 years old, Child SA was 10 years old and Child SB was 9 years old.
Each Child, being a foster Child, was especially vulnerable. They were young with complex needs, as a result of having experienced abuse and neglect while in the care of their birth parents. This was especially so for Child CA and Child CB, who had not been in reliable, stable and safe care environments prior to being placed with the applicant and Mr B.

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

The applicant was 20 to 25 years older that the Children. She was their caregiver and responsible for their day-to-day care. She was their 'nan', the person they relied on to provide for their day-to-day safety, welfare and well-being.

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

The applicant knew the ages of the Children.

(g) the person's present age

At the time of the hearing the applicant was 46 years of age.

(h) the seriousness of the person's criminal history and the conduct of the person since the matters occurred

The applicant does not have a criminal history. In late 2010, the applicant was the subject of an apprehended violence order for the protection of Child CB. That order was made after Child CB had been removed from the care of the applicant and Mr B. It was alleged that the applicant sought to remove Child CB from the care of his new carers.
There is no evidence of any further adverse report about the applicant. Since the removal of the Children from her care the applicant has cared for her disabled daughter and her son.

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

We are not persuaded by the evidence of Dr Lennings that, in the event the applicant were to granted a clearance, there was no likelihood of the applicant finding herself in a similar position to that she found herself in 2008 and 2009. The evidence is that, if granted a clearance, the applicant intends to work in the disability and aged care sector, which includes caring for children with special needs and challenging behaviours.
We are also not persuaded that the applicant has learnt from her experiences and is unlikely to pose a risk of harm to children today. While her evidence is that, today, if a child sustained burns while in her care, she would immediately take the child to hospital, she has exhibited little insight into the consequences of her conduct in failing to seek medical help from a doctor when Child CB was burnt in 2009. Nor has she acknowledged that her method of disciplining the Children, especially Child CA, may have been unnecessarily harsh. Her response continues to be that the allegations made by the Children were 'ridiculous' and she has no idea why they might have complained about her.
The evidence is that it was the applicant and Mr B who pressed to have more foster children placed into their care. While the applicant was critical of not having been told more about the Child CA and Child CB before they were placed into their care, we doubt she has ever questioned her own decision to press for more foster children and the impact that would have on herself and the children already in her care. It was her evidence that she was not stressed. Yet in February 2011 she was diagnosed as having an Acute Stress Disorder. There is no evidence of the applicant having any further treatment for this disorder after her son was returned to her care.

(i1) any order of a court or tribunal that is in force in relation to the person

There are no orders of a court or tribunal that are in force in relation to the applicant.

(j) any information given by the applicant in, or in relation to, the application

We accept the applicant has at all times cared for her own disabled daughter and there have been no adverse reports of the care she has taken of her son.

(j1) any relevant information in relation to the person that was obtained in accordance with section 36A

This factor is of no relevance to this application.

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

No further matters were raised by the respondent.

Does the applicant pose a risk to children?

The question is whether, on the material before the Tribunal and having regard to paramount consideration in s 4 of the WWC Act and the matters in s 30(1) of that Act, we are satisfied that the applicant poses a real and appreciable risk to the safety of children today, if she were granted a clearance.
It is around ten years since the allegations were made and there are no further reports of any allegation being made against the applicant that give rise to a real and appreciable risk of harm/abuse to children. On the contrary, the evidence is that applicant has cared for her own disabled daughter and her young son without any reports of an incident. We note that no such reports were made during the twelve months after the applicant's son was returned to her care, when she was subject to being supervised by FACS.
While these are all factors in her favour, the allegations that were made against the applicant were made in a child-related work environment. It is not disputed that the allegations are serious and while we have not found the allegations to have been proven, on the balance of probabilities, we have found that the circumstances giving rise to the allegations give rise to a serious risk of harm. In our view, for the reasons set out above, we are not satisfied that this risk has been sufficiently mitigated to find that there is no longer a risk of harm. We make that finding on the basis of the applicant's failure to fully explain what occurred and her apparent lack of insight into her own conduct.
Hence, for the reasons set out above, we are not persuaded that, if granted a clearance today, there is no or a low likelihood of her finding herself in a similar situation she was in during 2008 and 2009, or that she would act differently because of her past experiences during this time. In this regard, she continues to blame others for the situation she found herself in. While we we accept that today, the risk of harm to children in the event the applicant were to be granted a clearance is moderate to low, having regard to the paramount consideration in the operation of the WWC Act, we are satisfied that, as at the date of hearing, the applicant continues to pose a real and appreciable risk to the safety of children.
Accordingly, as the safety, welfare and well-being of children is paramount, in particular protecting them from child abuse, we are satisfied that the applicant poses a risk to the safety of children.

Section 30(1A) matters

As we are satisfied that the applicant poses a risk to the safety of children, it is unnecessary for us to consider the matters in s 30(1A) of the WWC Act. However, in the event we are wrong, we would nevertheless have found that we could not be satisfied that a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in any child-related work. That is, on the material before the Tribunal we were not satisfied that the first part of the test in s 20(1A) was met.

Conclusion and Orders

For the reasons set out above, we are satisfied that the applicant poses a risk to the safety of children. Hence, we find that the correct and preferable decision is to refuse the applicant's application for a working with child check clearance.
We order: 1. The decision of the respondent, made on 28 February 2019, to refuse the applicant's application for a working with child 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 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: 02 July 2020

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