FKZ v Children's Guardian

Prohibition order

1. Due to the sensitive nature of these proceedings and to protect against the identity of an alleged victim being disclosed, an order was made on 2 June 2022 pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act") that the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. The order was subsequently amended on 6 September 2022, the effect of which is that the pseudonym 'FKZ' (superseding the previous pseudonym 'FJE') is to be used for the applicant's name in these proceedings. To protect the identity of the applicant and any complainant or alleged victim, we have not disclosed the names of schools and teachers where children in the applicant's care attended or the precise dates on which the 2019 Criminal Trial took place.

Material and evidence before the Tribunal

1. The following material was filed on behalf of the applicant: 1. application for administrative review filed on 12 April 2022 annexing a copy of the Refusal Decision; 2. an affidavit made by the applicant on 23 September 2022 (marked for identification "Exhibit A1"); 3. an affidavit made on 23 September 2022 by Christopher Wozniak, the applicant's solicitor, annexing a copy of the report dated 20 September 2022 prepared by Dr Richard Furst, Forensic Psychiatrist (marked for identification "Exhibit A2"); 4. an affidavit of Christopher Wozniak dated 7 November 2022 annexing transcripts of interviews conducted on 21 February 2019 by the New South Wales Police with three children who were in the care of the Applicant (marked for identification "Exhibit A3"); 5. an affidavit made by the applicant on 14 February 2023 (marked for identification "Exhibit A4"); 6. Outline of Submissions filed on 1 March 2023.
2. The following material was filed on behalf of the respondent: 1. Evidence Bundle filed on 7 October 2022 (marked for identification "Exhibit R1"); 2. documents produced by Dr Furst in response to a Summons to Produce issued by the Tribunal on 7 October 2022 (marked for identification "Exhibit R2"); 3. Supplementary Evidence Bundle filed on 21 February 2023 (marked for identification "Exhibit R3"); 4. Submissions dated 2 February 2023.

Oral evidence

1. The applicant and Dr Furst were cross-examined during the hearing.

The applicant's family and employment history

1. The applicant is 55 years of age and has been in a long term marriage for almost 33 years. She has two biological adult sons and one grandchild, and is the adoptive mother of another son aged 22 ("Child C").
2. She worked as an authorised foster carer from July 2003 until March 2019 when her clearance was cancelled. Initially, she worked as a carer with FACS and then, in around August 2014, she provided foster care through Wesley Dalmar. As an authorised carer, she and her husband provided foster care services to around 120 children. Some foster placements were short term (overnight or weekly) and others were for longer terms.
3. Child C first came into her care in 2004 and was subsequently adopted by the applicant and her husband in 2014.
4. Another child ("Child T") was placed in the applicant's care in November 2004 and remained so until February 2006.
5. Three siblings from another family (referred to in these reasons as "Child 1", "Child 2" and "Child 3") were subsequently placed with the applicant on a long term basis as set out below: 1. Child 1, at the age of 3, was placed with the applicant in February 2007. He remained in the applicant's care for around 7 years and 4 months until she asked FACS to remove him in June 2014. The applicant believed the child was making false, serious allegations of a sexual nature about a neighbour and the Acting Principal of the school the child attended at the time. The allegations were investigated by the Joint Response Unit (comprising community services, NSW Police and NSW Health personnel) ("the JRU") and were found to be a fabrication. The applicant decided she could no longer care for him, given his sexualised behaviours and the false allegations of sexual conduct he was making about other people; 2. Child 2, the twin sister of Child 1, was also placed (at the age of 3) with the applicant in February 2007. Her placement lasted longer, for around 8 years and 9 months. She remained in the applicant's care for another 17 months after Child 1 was moved to another placement. In November 2015, Wesley Dalmar determined that Child 2 was at risk of sexual and psychological harm by the applicant's adopted son whilst in a placement with the applicant, and moved her to another placement; 3. Child 3, the younger brother of the twins, was placed with the applicant in July 2007 when he was two days old. He remained in her care for longer than his older twin siblings, for around 11 years and 8 months. He was moved to another placement in March 2019 when the applicant was charged with the alleged criminal offences against Child 1, and Wesley Dalmar was also considering allegations against the applicant that she had sexually harmed this younger child.
6. As well as raising her two biological sons, and having the care of her adopted son and the three siblings, we understand the applicant contemporaneously cared for six other foster children at varying times and for varying periods of time. Although the lengths of placements for those six other children were not identified, it is assumed that they were not on a short term basis, given the applicant's evidence that she cared for around 120 children.
7. Additionally, the applicant worked with the DoE from May 1993 until March 2019. She worked part-time three days per week when the twins were placed with her and then stopped working with the DoE when Child 3 arrived until he was around 3 years old. Initially, she was employed as a Special Needs Officer and then as a School Learning Support Officer (otherwise known as a Teacher's Aide). In her estimation, the applicant worked with more than two thousand children aged 4 to 18 in her capacity as a Teacher's Aide.

Medical and psychological assessments of children in the applicant's care

Child C (subsequently adopted)

1. According to the applicant's own evidence, her adopted son has a rare genetic condition called 7q11.23 syndrome which has affected his development. The applicant believed that the child's intellectual development was many years below his chronological age, such that his development when he was 14 years of age was equivalent to that of a 7 year old. In her assessment, this child struggled with literacy, meeting social norms and making mature decisions.

Child 1

1. Child 1 suffered horrific sexual abuse from his biological parents. His father was a known sexual offender of children, including his own. His mother had been charged with criminal neglect. He was removed from his birth parents due to issues of physical and sexual abuse, and neglect.
2. Various reports noted that the child has mild to moderate intellectual delay and that he experienced bowel incontinence as a result of the sexual abuse he suffered. Due to his involuntary soiling issue which continued until the time when he was enrolled in primary school, he wore pull-up nappies at night. He demonstrated age-inappropriate sexualised behaviours, which included approaching strangers to engage in sexual activities.
3. In 2011 and 2012, he had IQ assessments and was authorised for IM support class placement. In 2013, a review by a clinical geneticist suggested he had Aarskog syndrome. In 2015, he had moderate impaired language skills. In May 2018, a consultant paediatrician reported that the child (then aged 14) had intellectual disability, dysmorphism and persistent iron deficiency anaemia. In a writing test, he wrote a short sentence at about a grade 2 level. The paediatrician noted that the child could maintain a simple 'to and fro' conversation. He was reported to be socially naïve and required assistance/supervision to negotiate interactions, sometimes resulting in negative outcomes.
4. In August 2018, at the age of nearly 15, Child 1 was re-examined by the clinical geneticist who noted that the child was experiencing a good appetite, normal bowel motions and normal sleep. He thought that the child had mild to moderate intellectual disability because he struggled to read and write properly. At the time of re-examination, the correctness of the previous suspected diagnosis of Aarskog syndrome was queried because the child had started to grow quite significantly and no longer had a short stature.
5. In June 2021, drawing from the medical diagnoses, Wesley Dalmar's assessment of the child found him to be socially naive requiring assistance or supervision with his interactions which sometimes resulted in negative outcomes. His vulnerability was assessed at that time as being moderate, and professional therapeutic intervention was recommended to treat his experience living in the placement with the applicant.

Child 2

1. Child 2, likewise, had suffered sexual and physical abuse from her birth parents (although to a lesser extent than Child 1) and was removed for the same reasons. She has been variously described as being competent, articulate and well-spoken. However, this child repeatedly demonstrated an inability to discuss any abuse caused to her by her birth parents, or any abuse that she may have suffered at the hands of any siblings, the applicant or members of the applicant's household. Her vulnerability was assessed by Wesley Dalmar in July 2021 as being moderate and she was also recommended for professional therapeutic intervention.

Child 3

1. Child 3 was removed from his birth parents when he was born and thus was not exposed to sexual or physical assault by them. At the age of around 11, he was examined by a consultant paediatrician and a paediatric neurologist. A report in August 2018 from the paediatrician to the Wesley Dalmar Caseworker noted that the child suffered with Attention-Deficit/Hyperactivity Disorder (ADHD) and depression, and that he was medicated to treat those conditions. He was also receiving medication at night to help him sleep. His behaviour was described as good, although he appeared to be more withdrawn, and the report obliquely referred to a proposed adoption, noting there were some concerns regarding such a course of action. A paediatric neurologist in October 2018 noted that this child was receiving medication for his ADHD and anxiety.
2. In its risk assessment in July 2021, Wesley Dalmar noted that the child had been diagnosed with ADHD, anxiety, sleeping disorder, incontinence and expressive/receptive language delays. He too, demonstrated an inability to discuss negative experiences during his placement with the applicant. He wanted to return to the placement with the applicant and was cautious about saying anything in a formal setting, often denying disclosures he had previously made or incidents that had been reported. His vulnerability was assessed as being moderate, with the severity of harm classed as major.

Reasons for seeking a clearance

1. Since having her previous clearance cancelled, the applicant has been employed in the disability sector, as a carer for adults with disabilities. Dr Furst's report noted that her work involves helping people as a job coach/on-site support person.
2. The applicant requires a clearance in order to return to employment as a Teacher's Aide in special education, provide services as an authorised carer, have Child 3 (whom we note is now almost 16) returned to her care, and provide coaching in baseball and soccer.
3. In her written submission to the Children's Guardian, the applicant stated that she is $110,000 'out of pocket' and we understand this amount represents costs incurred in connection with criminal proceedings and the loss of her previous employment. We understand this is also a motivating factor for the application.

Disclosures made by Child 1 after leaving his placement with the applicant

1. The 2019 Criminal Trial arose from a series of disclosures made by Child 1 after leaving his placement with the applicant in June 2014. He then appears to have been in various care arrangements for 3 years before being placed with a Wesley Dalmar foster carer in June 2017. For ease of reference, we draw from the Judgment of the presiding Magistrate in the 2019 Criminal Trial ("the Judgment") to identify the various disclosures made by the child and the sequence in which those disclosures were made.
2. His first disclosure appears to have been to Ms Dins Bose, a Caseworker with FACS, on 5 December 2014, who asked him what he liked about his new placement. This was around 6 months after leaving the care of the applicant. He responded by saying that at least he wasn't hit in the new placement, and that the applicant used to hit him all the time, every day, with her husband's belt.
3. Ms Bose interviewed him on 26 February 2016. He repeated his allegation that the applicant had hit him with a belt and added a new allegation, that she had sprayed Glen20 into his mouth.
4. In May 2018, almost four years after ceasing to live with the applicant, the child was reported as having nightmares and screaming in his sleep. The Wesley Dalmar carer informed the Caseworker allocated to monitoring the child's progress that he had disclosed to the carer that the applicant had encouraged his younger brother (Child 3) to hit him over the head with a rake and that the applicant had broken a plastic plate over his head.
5. The Caseworker subsequently interviewed the child on 26 October 2018 during which he repeated his allegations that he had been hit by a belt, had Glen20 sprayed into his mouth, had been hit on the head with a rake and had plastic plates smashed on his head. His disclosures included other allegations and they are set out below: 1. "they" sprayed Glen 20 into his mouth; 2. "they" made him lick his blood off the kitchen sink (the reference to "they" was a reference to one of the applicant's biological sons); 3. he was hit with a belt; 4. "they" told him and his twin sister to sit on the stairs; 5. his younger brother was told by the applicant and her husband to hit him (Child 1) on the head with a rake; 6. he had plastic plates smashed on his head; 7. he was made to wet himself and forced to change in a carpark; 8. Child C had touched Child 1 rudely; 9. Child C did rude things with no clothes on, including jumping on Child 1 in bed.
6. A month later, on 27 November 2018, Child 1 made a further disclosure to the Caseworker that the applicant had put faeces on his toothbrush and had brushed his teeth with it.
7. On 19 December 2018, the Caseworker interviewed Child 1 to clarify the toothbrushing incident and, in the course of that interview, he made a further disclosure that the applicant had made him touch her vagina.
8. On 21 February 2019, Child 1 participated in a recorded interview at the Penrith Child Abuse Unit. He was asked questions about the allegations he had made. The transcript of this recorded interview formed his evidence-in-chief in the 2019 Criminal Trial.

Charges and proceedings precipitating the respondent's risk assessment

1. The applicant's conduct was alleged to have taken place at her home. The charges as described in the Court Attendance Notice are set out below (noting there appears to have been errors made in relation to the dates with respect to charges sequenced (5) and (6) because Child 1 left the care of the applicant in June 2014): 1. Common assault (under s 61 of the Crimes Act) between 1 January 2013 and 31 December 2013, particularised as the applicant forcing Child 1's mouth open and spraying Glen 20 into it ("the Glen 20 Allegation"); 2. Common assault (under s 61 of the Crimes Act) between 1 January 2013 and 31 December 2013, particularised as the applicant smashing a plate over Child 1's head ("the Kitchen Plate Allegation"); 3. Common assault (under s 61 of the Crimes Act) between 1 January 2014 and 31 December 2014, particularised as Child 1 being struck by a belt across his buttocks ("the Belt Allegation"); 4. Indecent assault person under the age of 16 years (under s 61M(2) of the Crimes Act) between 1 January 2014 and 31 December 2014, particularised as the applicant taking Child 1's hand whilst he was sitting in a bath and placing it on the outside of the applicant's vagina ("the Indecent Assault Allegation"); 5. Common assault (under s 61 of the Crimes Act) between 1 January 2015 and 31 December 2015, particularised as the applicant pushing Child 1's head into a toilet bowl and then flushing it ("the Toilet Allegation"); 6. Common assault (under s 61 of the Crimes Act) between 1 January 2015 and 31 December 2015, particularised as the applicant using a toothbrush to scrape faeces from Child 1's bottom whilst he was in the shower and then brushing his teeth with it ("the Shower Toothbrush Allegation").
2. The trial took place over three days in 2020 in the Parramatta Local Court, with His Honour's reasons handed down in March 2021. Child 1 was cross-examined on his evidence-in-chief. Witness evidence included that given by two teachers, the Wesley Dalmar Caseworker, Ms Bins, and the Wesley Dalmar foster carer. The applicant was cross-examined and denied all the allegations.
3. Child 1 was found to be a credible witness but after weighing the evidence as a whole, His Honour could not conclude that the prosecution case had eliminated all reasonable doubt as to the guilt of the applicant. All charges were therefore dismissed.

Government agency investigations into various allegations

1. The applicant has been the subject of nine investigations into her alleged conduct as a foster carer. The table below identifies, at a high level, the various investigations undertaken and their findings: Investigation Date Allegation Agency Finding(s) First 2006 Physical harm to Child T and Child C DOCS Not sustained No adverse findings or directions against the applicant Second Early 2014 Excessive disciplining of Child 1 and another child FACS Not sustained No adverse findings or directions against the applicant Third Sep & Oct 2015 Sexualised behaviour of Child C toward Child 1 and Child 2 FACS Not sustained No adverse findings or directions against the applicant however Child 2 was found to be at risk of sexual and psychological harm by Child C and a safety plan was implemented to protect her. Fourth Late 2015 and 2016 Inappropriate disciplining of Child 1 Wesley Dalmar (in this table, "WD") and then DoE Sustained (by WD) No adverse findings or directions by WD but subsequent investigation by DoE resulted in a direction to the applicant in 2018 Fifth 2016 Contact facilitated between Child 1, Child 2, Child 3 and Child C alleged to be contrary to a safety plan FACS Sustained in error and Wesley Dalmar conceded it had made a mistake and had encouraged the contact visit, and there were no adverse directions against the applicant. Sixth 2016 Withholding food as punishment of Child 1 WD Sustained but no action taken Seventh 2019 Applicant's husband showering with Child 3 FACS Not sustained No adverse findings or directions against the applicant Eighth 2021 Allegations that were the subject of the 2019 Criminal Trial DCJ/FACS Sustained Ninth 2021 Eleven allegations including those the subject of the 2019 Criminal Trial WD Not sustained and no adverse findings with respect to nine allegations Sustained with adverse findings in relation to two allegations

The Refusal Decision

1. The Refusal Decision issued on 5 April 2022 set out the reasons why, after completing the risk assessment, the respondent was satisfied that the applicant poses a risk to the safety of children and refused to grant a clearance. As a point of reference in recording the history of this case, we summarise our understanding of the reasoning in the Refusal Decision. In doing so, we do not presume or confirm the correctness of that decision.
2. From a threshold position, the Children's Guardian noted that children in foster care are amongst the most vulnerable children in the community and considered that the seriousness of the allegations was increased because of the applicant's status as a foster carer.
3. The Children's Guardian took into account a number of matters in the applicant's favour including: 1. her not insignificant 27 years of good conduct in child related employment with the DoE; 2. her denial of the allegations and submissions that Child 1 had made allegations about other people; 3. multiple personal character references supporting her application for clearance and commenting favourably on her conduct with children; 4. that Child 1 did not wish to provide a formal interview regarding allegations that the applicant's adopted son (Child C) had indecently assaulted him, and told police in that interview that he was safe; 5. the difficult behaviours of Child 1 and Child 2 due to their history of neglect.
4. In the respondent's overall assessment, the applicant posed a real and appreciable risk to the safety of children on the grounds that: 1. the allegations described sexual harm and cruel and unusual punishments toward significantly vulnerable children; 2. the similarity of harm described by unrelated children and adults increased the credibility of the various disclosures against the applicant; 3. it is likely that any child exposed to the alleged conduct would experience severe and enduring harm. Child 1 and Child 2 were particularly vulnerable because of their childhood experiences of abuse and the disabilities of Child 1 rendered the allegations of the utmost seriousness; 4. whilst acknowledging the applicant's denial of the allegations tried in the Parramatta Local Court, weight was given to His Honour's assessment of Child 1 as being a credible witness, and the respondent was not satisfied that abuse did not occur and held the view that it was reasonably likely the conduct occurred as alleged; 5. the applicant's criminal history of assault against an adult woman in a public venue in 2016 (in relation to which she pleaded guilty) strongly suggested that she has difficulty managing her behaviour when her emotions are heightened, including in the presence of children, and that this history gave support to the view that the applicant has a tendency to engage in behaviours that place children at risk; 6. the allegations described an enduring pattern of behaviour over an extended period of time despite directions from the applicant's employer and restrictions on her carer authorisation, and there was no information that she had engaged in counselling, professional development, training or remedial action to address concerns about the alleged conduct. As such, the respondent concluded there was a risk the applicant's behaviour would continue to be repeated; 7. repetition of the alleged conduct would place any child exposed at risk of severe and enduring harm.

Expert psychological opinion

1. Dr Furst provided his opinion on the risk of the applicant to the safety of children and the likelihood of the applicant engaging in future in the conduct the subject of the 2019 Criminal Trial.
2. Dr Furst's assessment report was based on a consultation with the applicant via an AVL link for 90 minutes and various documents including: 1. a letter of instruction from the applicant's solicitor setting out various factual matters including that the applicant had been charged with common assault of an adult in 2016; 2. Court Attendance Notice and NSW Police Facts relating to the 2019 Criminal Trial; 3. the Judgment; 4. the applicant's Curriculum Vitae; 5. the applicant's application and submission to the Children's Guardian for a working with children check clearance and references in support of her application; and 6. the respondent's Proposed Refusal Letter and Refusal Decision.
3. Dr Furst obtained an account directly from the applicant about her family background and general demographics, her employment history and that of her husband, as well as her psychiatric and medical history.
4. Dr Furst noted that common risk assessment tools including the Violence Risk Appraisal Guide (VRAG), the Violence Risk Scale (VRS), the HCR-20 (Version 3) and the Level of Service Inventory - Revised (LSI-R) provide a useful guide in relation to an individual person's risk of future offending however they are far from precise and have limitations in relation to the accurate prediction of human behaviour.
5. The expert identified the static (background) and dynamic (current) risk factors in the recognised literature, and the protective factors that can reduce the likelihood of a person engaging in future offending.
6. Based upon his review of the available history and documentation, and the information that the applicant provided to him, Dr Furst thought that the applicant did not pose any real or appreciable risk to the safety of children.
7. Overall, based on the applicant's static and dynamic risk factors, and protective factors, Dr Furst opined that the applicant posed a very low risk of committing the types of offences that she was charged with in the 2019 Criminal Trial.
8. During cross-examination, Dr Furst expanded upon and clarified his report. His opinion and oral evidence are further discussed in these reasons under "Consideration".

Protective jurisdiction of the Act

1. The protective jurisdiction of the Act is plainly evident from its stated object as set out in s 3: 3 Object of Act The object of this Act is to protect children - (a) by not permitting certain persons to engage in child-related work, and (b) by requiring persons engaged in child-related work to have working with children check clearances.

Paramount consideration

1. The paramount consideration in the operation of the Act is set out in s 4: 4 Safety, welfare and well-being of children to be paramount consideration The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act.
2. Having regard to that paramount consideration, the jurisdiction of the Tribunal under s 27 of the Act is protective, and not punitive, in nature: DAI v Children's Guardian [2017] NSWCATAD 308 at [8] (DAI); AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 at [34] (AYU); Commissioner for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The object of the Act is not to impose additional punishment on a person such as the applicant, but to eliminate possible risks to children: CYY v Children's Guardian (No 2) [2017] NSWCATAD 262 (CYY) at [26]; AYU at [34].

Test to be satisfied that a person is not a risk to the safety of children

1. Under s 18(2) of the Act, the Children's Guardian must grant a clearance to a person who is subject to a risk assessment unless it is satisfied that the person poses a risk to the safety of children.

Definition of "children" and the meaning of "risk to the safety of children"

1. "Children" is defined in s 5(1) of the Act to mean "persons under the age of 18 years".
2. The meaning of "risk to the safety of children" is defined in s 5B of the Act to mean a "real and appreciable risk to the safety of children." The meaning of the word 'risk' was considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 at [42]: "One does not define risk as meaning minimal risk. One would… exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word 'risk' with the words that follow, namely 'to the safety of children'…"
3. His Honour's consideration of the meaning of risk was cited with approval in a number of cases before the Tribunal and the NSW Supreme Court: CTE v Children's Guardian [2018] NSWCATAD 28 at [30]; BKE v Office of Children's Guardian [2015] NSWSC 523 (BKE) at [26] and AYU at [39]. Ultimately, the Tribunal must consider whether a clearance, if granted, will create a "real and not fanciful" risk to the safety of children: CXZ v Children's Guardian [2020] NSWCA 338 (CXZ) per Basten JA at [26].

Child-related work requires a WWCC clearance

1. The meaning of "child-related work" is set out in s 6 of the Act. Work that is referred to in s 6(2) of the Act that involves direct contact by a worker with a child or children and that contact is a usual part of and more than incidental to the work is defined as "child-related work" for the purposes of the Act.

Mandatory risk assessment triggered by Schedule 1 matters

1. A person is subject to an assessment requirement under the Act if any of the matters specified in Schedule 1 of the Act apply to the person: s 14 of the Act. In this matter, the applicant was charged with the offences discussed above and accordingly, it was necessary for the Children's Guardian to undertake a risk assessment, guided by the provisions of s 15(4) of the Act, to determine whether she posed a risk to the safety of children.
2. Further, under s 15(4A) of the Act, the Children's Guardian must not determine that an applicant does not pose a risk to the safety of children unless it is satisfied that the 'reasonable person' and 'public interest' tests are met: (a) 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, and (b) it is in the public interest to make the determination.

Issue for the Tribunal's determination

1. The issue for determination by the Tribunal is whether, applying the test in s 18(2) of the Act, it is satisfied that the applicant does not pose a risk to the safety of children.
2. Under s 63(1) of the Administrative Decisions Review Act 1997 (NSW) ("the ADR Act"), the Tribunal must determine the "correct and preferable" decision (whether the applicant poses a real and appreciable risk to the safety of children) with regard to the material before it, including material that may not have been before the respondent, and the applicable law: s 63(1) of the; YG & GG v Minister for Community Services [2002] NSWCA 247 at [25], per Hodgson JA (with whom Foster and Brownie A-JJA agreed); applied in BHY v Children's Guardian [2015] NSWCATAD 91 at [14].
3. Subsection 63(2) of the ADR Act allows the Tribunal, for the purpose of determining an application, to exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.
4. In determining an application, understanding the effect of ss 63(1) and 63(2) of the ADR Act, the Tribunal must not simply "stand in the shoes" of an administrator. As explained in DYH v Public Guardian [2021] NSWCATAD 136 at [21], the Tribunal must conduct its review without any presumption as to the correctness of an administrator's decision: "The effect of these two subsections is sometimes characterised as the Tribunal being required to "stand in the shoes" of the administrator who made the decision. But that is not entirely accurate. I must conduct this review without any presumption as to the correctness of the decision: McDonald v Guardianship and Administration Board [1993] VR 521 at [530] and I am required to decide what the correct and preferable decision is having regard to the material before me. It is clear that that may include material which postdates the making of the decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25], Drake v Minister of Immigration & Ethnic Affairs (1970) 2 ALD 60 at 77."
5. The Tribunal may make orders that include an order to affirm the Refusal Decision or vary it, or set it aside and make a decision in substitution, or set it aside and remit the matter to the respondent for reconsideration: s 63(3) of the ADR Act.

Mandatory considerations under s 30(1) of the Act

1. In determining this application, the Tribunal must consider the matters set out in s 30(1) as set out below: 30 Determination of applications and other matters (1) The Tribunal must consider the following in determining an application under this Part - (a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's criminal history and the conduct of the person since the matters occurred, (i) the likelihood of any repetition by the person of the offences or 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.

Further considerations under s 30(1A) of the Act

1. In addition, if the Tribunal is considering making an order enabling an applicant to work with children, it must then consider the two-part test set out in s 30(1A) of the Act: (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.

First limb of the two-part test under s 30(1A)(a) - the "reasonable person" test

1. The first limb of the two-part test is known as the "reasonable person" test. It requires the application of an objective standard based upon the views of the "reasonable person". It assumes that the "reasonable person" is acquainted with all the relevant facts of which the Tribunal is aware: CHB v Children's Guardian [2016] NSWCATAD 214 at [127]; CYY at [26].
2. The legislation in Victoria contains provisions similar to those in s 30(1A) of the Act. In VQB v The Secretary to the Department of Justice (Review and Regulation) [2013] VCAT 789 at [36] (VQB), the Tribunal held that an objective test was called for by the legislation: "… The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all of the matters that have been placed before me, giving an applicant for a positive assessment a right to be heard, as well as considering the material gathered by the Secretary. A reasonable person would not approach the task with a closed mind, thinking that once a person has offended, he or she can never be redeemed. The reasonable person, however, would not put aside all scepticism and reasonable caution in this most difficult area in some over-optimistic attempt to facilitate rehabilitation."
3. The reasonable person approach taken in VQB was endorsed in NSW in CRG v Children's Guardian [2017] NSWCATAD 295 at [85] and DAI at [90]. In DAI at [91], the Tribunal said: "In order to properly consider this test, a 'reasonable person' would need to know about the disqualifying offence, the circumstances surrounding the offence, the applicant's entire criminal history, the length of time since those offences occurred, his conduct since then and any expert assessment made for him."

Second limb of the two-part test under s 30(1)(b) - the "public interest" test

1. The second limb of the two-part test is referred to as the "public interest" test. The notion of "public interest" was addressed by the High Court of Australia in ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 162 in which French CJ, Gummow and Crennan JJ said at [20]: "The term 'in the public interest' is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question."
2. Accordingly, in proceedings under the Child Protection (Working with Children) Act 2012, the "public interest" must be considered in light of the paramount purpose of the Act, namely, to ensure the protection of children from sexual or physical harm: s 4 of the Act.
3. When applying the public interest test, the Victorian Supreme Court has endorsed a broad and not a narrow approach: ZZ v Secretary Department of Justice [2013] VSC 267 (ZZ) per Bell J at [205]. While emphasising the main purpose of the Victorian legislation (equivalent to the NSW legislation) is the protection of children from harm, the decision in ZZ at [202] also acknowledged the relevance and importance of rehabilitating offenders and their right to work. The private interests of an applicant such as their right to work in their chosen area of employment are also a factor to be taken into consideration insofar as those private interests also have a broader community benefit as per Bell J at [203]: "In the context of the right to work, the tribunal has (in my view, correctly) taken into account the public interest in enabling persons to engage in their chosen field of employment or in the field in which they are most suited to work, in not lightly turning people away from their commitment to a chosen career and in encouraging people to use their qualifications, experience and expertise for the benefit of others."
4. The concept of public interest has been determined by the Tribunal on the basis of giving priority to the broad interests of the community over private interests: Smith v Commissioner of Police [2014] NSWCATAD 184; CYY at [75].
5. If the Tribunal is not satisfied that an applicant has met either of the first or second limbs in the two-part test, it is precluded from making an order enabling the applicant to work with children.

No presumption that the applicant poses a risk to the safety of children

1. In undertaking this administrative review, there is no presumption that the applicant poses a risk to the safety of children. Neither party bears the onus of proof. However, the applicant has a statutory obligation under s 27(4) of the Act to fully disclose to the Tribunal any matters relevant to the application.

The approach to fact finding and the assessment of risk

1. In recognition of the protective jurisdiction of the Act and the paramount consideration being the safety, welfare and well-being of children, the Tribunal is bound to follow the decision in BKE at [33] when assessing risk: "Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven."
2. The approach to fact finding as explained in BKE at [33] has been approved by the Court of Appeal in Tilley v Children's Guardian [2017] NSWCA 174 (Tilley) at [34]-[45] and in CXZ per Simpson AJA at [57]: "The task of the Tribunal is, to expand on what Beech-Jones J said in BKE, to determine, even if it is unable to be satisfied one way or the other as to the truth of all or any of the allegations, whether, by reason of the possibility that the alleged conduct occurred, the applicant poses a risk to the safety of children. [emphasis in original] If so, the Tribunal must refuse to grant a clearance. Of course, in that process the Tribunal will give consideration to the strength of the evidence supporting the allegations and will, inevitably, reach conclusions about the truth or falsity of some. If it finds any allegation to be without foundation it will discard it from further consideration. If it is satisfied that the allegation is well founded, it will assign to it such weight as it sees fit, in the consideration (inter alia) of the circumstances listed in s 30. It is the allegations between those two extremes, those that are neither proved nor disproved, that the Tribunal must address in determining whether the applicant for a clearance poses a risk to children."
3. Thus, relying upon the analysis in CXZ at [51], many cases will not lend themselves to definitive factual determination. Where an allegation is neither "well founded" nor "groundless", the Tribunal must decide whether, on the evidence before it, the possibility that the conduct did occur justifies a finding that the applicant poses a risk to the safety of children: CXZ at [52]. The assessment and the weight to be assigned to allegations will depend upon the seriousness of the allegations, the strength of any evidentiary support for those allegations, and the relevance of the conduct the subject of the allegations to the risk to the safety of children if a clearance is granted to the applicant: CXZ at [53].
4. The protective jurisdiction of the Act was emphasised in CXZ per Simpson AJA at [58]: "It is plain that in some cases this will be the cause of potential injustice to the applicant for a clearance. A person entirely innocent of any allegations may be refused a clearance because the evidence does not permit a conclusion that the allegations are without foundation and the inability to reach such a conclusion leaves open sufficient possibility that the risk exists. Analysis of the relevant provisions of the Child Protection Act satisfies me that the legislature preferred the risk of injustice to an applicant to risk to the safety of children."
5. A positive finding by the Tribunal that alleged conduct has taken place will generally be determinative of an application: Office of the Children's Guardian v CFW [2016] NSWSC 1406 (CFW) at [14]-[15], per Justice Harrison: "The first proposition is that, in assessing whether there is a risk to the safety of children, the court or tribunal should first consider whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether the court or tribunal has "no hesitation in rejecting the allegation as groundless". A positive finding on the balance of probabilities that relevant conduct has taken place, if such a finding can be made, will generally have a "decisive impact" on the outcome of the application. The second proposition is that, even if no such "positive finding" can be made, the court or tribunal is still obliged to consider questions of risk that may be indicated by all of the facts, unless it is determined that the allegation is "groundless"."
6. In determining the application, the Tribunal is required to consider "the totality of the evidence": BKE at [28] citing The Commissioner for Children and Young People v IK [2005] NSWSC 1136 at [83]-[84]. The Tribunal is to make a decision based on the "cumulative effect" of the matters before it: CYY at [69]-[71].
7. The standard to which the Tribunal must be satisfied before making a positive finding in relation to an allegation is the civil standard, that is on the balance of probabilities, and not the criminal standard: CFW at [14]-[17], subject to the need to have regard to the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw). The Briginshaw principle can broadly be described as a standard of satisfaction to be reached where serious allegations are concerned. Put simply, serious allegations with serious consequences require more compelling evidence for the decision maker to reach the necessary state of reasonable satisfaction that the facts in dispute are more likely than not to exist.

The respondent's case

1. The key allegations upon which the respondent placed weight were: 1. those allegations that were the subject of the 2019 Criminal Trial; 2. allegations in 2015 that the applicant hit Child 1 with her hands, belt and spoon, and punished him excessively by requiring him to sit on stairs for prolonged periods of time; 3. allegations that the applicant punished Child 1 by withholding food; and 4. allegations that the applicant failed to protect Child 2 from sexual behaviour from Child C.
2. The respondent acknowledged that the applicant had a long history of caring for many children and as a Teacher's Aide, and did not cavil with the proposition that there is public interest in the applicant being permitted to work in those roles for the broader community benefit.
3. The respondent placed little weight on the expert's opinion, arguing that: 1. Dr Furst had assessed the applicant's risk on the basis that she did not engage in any of the conduct alleged; and 2. had Dr Furst considered the possibility that the applicant did engage in any of the conduct alleged, his assessment of her clinical risk profile would have been different.
4. In the respondent's submission, there is a high likelihood of repetition of the same alleged behaviour because the applicant has denied all allegations, has not demonstrated a great deal of insight into whether her conduct may have inadvertently caused harm, and has not engaged with a counsellor to reflect upon these matters and consider implementing strategies to ensure she does not engage in the same alleged conduct in the future.

The applicant's case

1. The volume of allegations against the applicant is significant, as reflected in documents before the Tribunal. Although the respondent placed weight on a smaller number of allegations than those articulated in the Refusal Decision to argue its case in these proceedings, it was submitted on behalf of the applicant that the allegations considered in the Refusal Decision framed the nature of the administrative review. That is not an unreasonable approach to take. The allegations identified in each of the nine government agency investigations were therefore addressed on behalf of the applicant and our reasons are structured accordingly.
2. Arguing that the Tribunal should find that the applicant does not pose a risk to the safety of children, the key grounds relied upon were: 1. the applicant's consistent denial of the allegations; 2. that Child 1's evidence suffered from credibility and reliability issues, taking into account the following: 1. he had made allegations that were considered to be fabrication; 2. his complaints were not made contemporaneously with the alleged conduct; 3. some of the individuals named by him as witnessing the alleged conduct did not give evidence in support; 4. some of his allegations were put in exaggerated terms; 1. that the applicant's care history had been favourably reviewed by agency officials as required from time to time and, indeed, at the 5 year mark, there were no concerns identified by Child C or any of the three siblings, all children appeared to be happy in the placement, and the applicant was assessed to be resourceful and to work well under pressure; 2. Dr Furst's opinion that the applicant had a low risk profile, having regard to the static, dynamic and protective factors identified; 3. that the severe impact upon the applicant of the criminal proceedings in 2016 and 2019 provided strong grounds on which to conclude that she would not, in the future, engage in conduct such as the conduct alleged or conduct the subject of the 2016 assault charge; and 4. character references by third parties (discounted depending upon the knowledge of the various referees) supported the applicant.

Mandatory considerations in s 30(1)(a)-(k) of the Act

1. In determining the application, we are obliged to consider the evidence under each of the headings in s 30(1)(a)-(k) of the Act. We first address those considerations in the context of the offences that gave rise to the 2019 Criminal Trial and then examine further matters we consider to be relevant in determining whether the applicant poses a risk to the safety of children.

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: s 30(1)(a)

1. The offences for which the applicant was charged and tried, but not convicted, include offences for physical and indecent assault, and are regarded as serious offences. The seriousness of the offences is heightened when considered in the context of the following dynamics: 1. the level of control that the applicant as the child's full-time foster carer could exercise over his welfare; and 2. the level of vulnerability and dependency of the child who had suffered significant abuse and trauma from his biological parents, had diagnosed disabilities, and was entirely reliant upon the applicant for his physical, emotional and psychological needs from the age of 3 until the age of 10, a period of around 7 years.
2. The applicant denied each and every allegation and maintained her denials during cross-examination in the 2019 Criminal Trial (and in the proceedings before this Tribunal).
3. After weighing the evidence as a whole, His Honour could not conclude that the prosecution case had eliminated all reasonable doubt as to the guilt of the defendant, and she was acquitted of all charges.
4. The various other allegations with respect to Child T, Child 2 and Child 3 made against the applicant in her capacity as a foster carer that did not result in any criminal proceedings against her are, likewise, considered to be serious. We say this because of the dynamics of control, vulnerability and dependency operating within the applicant's relationships with foster children in her care as set out above (noting that Child T's history is not known, and Child 3 was not exposed to the same trauma and abuse that Child 1 and Child 2 suffered).
5. The charge against the applicant of assaulting a woman in 2016 was a violent offence. It is considered to be less serious because the victim was not a child, however it was not disputed that the assault occurred in an area where children were present and could witness the assault. Any child who witnessed the assault would likely be at risk of suffering emotional and psychological harm. The applicant pleaded guilty to the charge and was sentenced to a 9-month good behaviour bond, without a conviction recorded.

The period of time since those offences or matters occurred and the conduct of the person since they occurred: s 30(1)(b)

1. The charges entered for the purpose of the 2019 Criminal Trial were generally and variously described as having occurred between 1 January 2013 and 31 December 2015. In his interview with police on 21 February 2019, Child 1 generally estimated the year in which the alleged conduct took place and his age at the time. From that interview, the allegations generally appear to concern conduct that occurred in 2013 and 2014. Accordingly, the period of time since the conduct was alleged to have occurred and the date when this Tribunal heard the application, is roughly between 9 and 10 years.
2. In relation to the other allegations the subject of investigations, we accept the submissions on behalf of the applicant that the period of time since the alleged conduct the subject of nine investigations is roughly: 1. 16 to 18 years, with respect to the First Investigation (concerning allegations of physical harm to Child C and Child T); 2. 11 years, with respect to the Second Investigation (concerning allegations of excessive disciplining of Child 1); 3. 8 to 15 years, with respect to the Third Investigation (concerning allegations of sexualised behaviour of Child C towards Child 1 and Child 2); 4. 8 to 15 years, with respect to the Fourth Investigation (concerning allegations of inappropriate disciplining of Child 1); 5. 6 years, with respect to the Fifth Investigation (concerning allegations of facilitated contact of Child 1, Child 2 and Child 3 with Child C) acknowledging that the respondent did not press or rely upon this allegation); 6. 8 to 15 years, with respect to the Sixth Investigation (concerning allegations of withholding food as punishment of Child 1); 7. 3 to 15 years, with respect to the Seventh Investigation (concerning allegations of sexual assault of Child 3); 8. 8 to 15 years, with respect to the Eighth Investigation (concerning allegations the subject of the 2019 Criminal Trial); 9. 8 to 15 years, with respect to the Ninth Investigation (also concerning allegations the subject of the 2019 Criminal Trial).
3. The period of time since the applicant was charged (in 2016) with the offence of common assault of an adult, is around 7 years.
4. There has been no further conduct of concern by the applicant, noting that: 1. Child T was not in her care after November 2006; 2. Child C was adopted by her and her husband on 13 May 2014; 3. Child 1 was relinquished from her care on 13 June 2014; 4. Child 2 was removed from her care in November 2015; 5. Child 3 was removed from her care in March 2019.

The age of the person at the time the offences or matters occurred: s 30(1)(c)

1. On the basis that the conduct the subject of the 2019 Criminal Trial was alleged to have occurred in 2013 and 2014, the applicant was in her mid-forties, between 45 and 47 years of age.
2. Again, accepting submissions made on behalf of the applicant, her age at the time of the alleged conduct the subject of nine investigations is estimated to have been: 1. 36 to 39 years, with respect to the First Investigation; 2. 43 or 44, with respect to the Second Investigation; 3. 39 to 46 years, with respect to the Third Investigation; 4. 39 to 46 years, with respect to the Fourth Investigation; 5. 48 or 49, with respect to the Fifth Investigation (not pressed); 6. 39 to 46 years, with respect to the Sixth Investigation; 7. 39 to 51 years, with respect to the Seventh Investigation; 8. 39 to 46 years, with respect to the Eighth Investigation; 9. 39 to 46 years, with respect to the Ninth Investigation.
3. The applicant was around 49 years old at the time she committed the offence of common assault of an adult in 2016.

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: s 30(1)(d)

1. Child 1 was in the care of the applicant between February 2007 and June 2014 when he was between 3 and 10 years old. Based on his interview with police, the conduct the subject of the 2019 Criminal Trial was alleged to have taken place in 2013 and 2014 when Child 1 was somewhere between 9 and 11 years of age. Child 2 was the twin of Child 1, and Child 3 was their sibling, 3 years younger.
2. Child 1 lived with the applicant in her home and was fully dependent upon her for his physical, emotional, psychological and developmental needs. He was particularly vulnerable due to his intellectual disability, young age, status as a child in foster care, previous traumatic history of neglect caused by his birth parents and previous sexual abuse resulting in his immature bowel control as a very young child and his observed age-inappropriate sexualised behaviours.
3. Child 2, likewise, was objectively vulnerable because of her exposure to sexual abuse and neglect by her biological parents, her young age, her status as a child in foster care and being fully reliant upon the applicant for her welfare and care, and her observed emotional fragility and distress when interviewed.
4. Child 3 had not been exposed to the abuse and neglect that his siblings had suffered. However, he was vulnerable by virtue of his status as a child in foster care and his various medical diagnoses.

The difference in age between the victim and the person and the relationship (if any) between the victim and the person: s 30(e)

1. The applicant is 36 years older than Child 1, and was his foster carer for around 7 years. The applicant's relationship with this child appears to have been complex and difficult, given that she relinquished his care due to concerns she held about his sexualised behaviour. The applicant's evidence in cross-examination was that his behaviour was difficult to deal with and she struggled with his soiling problem. When asked to describe her emotional relationship with Child 1, she said she had to be quite guarded because of the fear that when she showed affection to either Child 1 or Child 2, it could be misunderstood by them to be a sexual advance. As a result, her evidence was that she and her husband were "never affectionate with the twins" compared with the other children in the household. She acknowledged that she got frustrated and "lost it" with Child 1. However, she said that did not stop her from loving him. She also said she did not punish Child 1 any more than any other child. She acknowledged that she had described Child 1 as being a liar and predator (in the sense that he frequently sought to engage in sexual behaviour with strangers), and did not resile from that position. The applicant's relationship with Child 1 is examined in greater depth in these reasons when assessing her overall risk to the safety of children.
2. The applicant is also 36 years older than Child 2 and was her foster carer for a slightly longer period of time, around 8 years and 9 months. The applicant appears to have had a stronger relationship with this child although she has described the child as a liar and a bully. The child herself described the relationship with the applicant as being "pretty good".
3. The applicant is 39 years older than Child 3 and was his foster carer since he was only 2 days old and stayed in her care for around 11 years and 8 months. The applicant appears to have built a strong bond with this child who is now almost 16 years of age, and would like to have him restored to her care.

Whether the person knew, or could reasonably have known, that the victim was a child: s 30(f)

1. The applicant knew the victim was a child, being his foster carer (and indeed the foster carer of his siblings and Child T) at the relevant time(s) when allegations were made against her.

The person's present age: s 30(1)(g)

1. The applicant is currently 55 years of age.

The seriousness of the person's criminal history and the conduct of the person since the matters occurred: s 30(1)(h)

1. The seriousness of the applicant's criminal history was discussed above in relation to ss 30(1)(a) and 30(1)(b) of the Act.
2. There have been no further criminal charges laid against the applicant.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition: s 30(1)(i)

1. It is clear from the applicant's submission dated 7 April 2021 to the Children's Guardian that she has suffered emotional and psychological distress from the events associated with the 2019 Criminal Trial and the criminal proceedings associated with her assault of an adult in 2016. She has struggled to cope with the removal of Child 3, whom she refers to as "her son". She had several psychologist appointments to help her manage her mental health associated with that loss. She described losing her son, her job, her self-respect and her self-confidence, and said that her family was destroyed. We accept that the applicant's distress over these matters will be protective factors against future inappropriate conduct.
2. However, in describing what she had learned from her experiences and her engagement with a psychologist, her submission to the Children's Guardian contained the following statement: "Just because someone says bad things about you it does not make them true. I also learnt that you should NEVER allow yourself to take on board someone else's issues, they are simply that, someone else's …"
3. In our view, her submission is defensive and suggests she had not fully reflected upon the circumstances surrounding the allegations made by Child 1. Her submission sought to deflect blame and did not hold herself accountable.
4. Dr Furst explained that the tools used to predict the risk of future violence were primarily concerned with violent offending. He maintained that the risk prediction tools he had applied were a useful guide but conceded that they are far from precise in terms of accurately predicting human behaviour, especially at the individual level.
5. He agreed that children can be harmed by behaviour that falls below the level of criminal violence, and acknowledged there are not many tools specifically targeted at lower levels of behaviour such as harsh parenting. He readily conceded that his expertise was not in the area of parenting styles.
6. When asked whether the applicant's assault of an adult demonstrated emotional dysregulation over a relatively minor inconvenience, Dr Furst's confident opinion was that the applicant did not meet the threshold for emotional dysregulation. In his opinion, the reason for the applicant assaulting the victim was not relevant. In his view, what really matters is a pattern of offending (as in the number of offences) and the age of onset for such offending.
7. Under cross-examination, he acknowledged that if he had proceeded on the basis that the allegations against the applicant were true, her clinical risk profile would be different.
8. We accept Dr Furst's opinion on the static, dynamic and protective factors identified as being relevant to assessing the applicant's risk. However, noting his explanation of the limitations of the tools applied to predict human behaviour, his acknowledgment that his expertise is in violent crime and not parenting behaviour, and that his opinion was based on an assumption that the allegations against the application were not true, his opinion does not greatly assist in our evaluation of the applicant's risk to the safety of children.
9. The applicant has recently undertaken two online parenting courses over four hours and received certificates for completing "Advanced Parenting Skills" and "Positive Parenting Program" courses. Topics covered in the courses included dealing with anxieties and emotions, discipline strategies, age-appropriate exclusions, children's mental health issues, behavioural issues and reinforcing positive behaviours. She said she believed she had developed and refined skills in areas of discipline. The applicant identified steps that she would take in the future including that she would not hit children or make them sit on stairs for long periods of time as a punishment. However, under cross-examination, she did not indicate a great deal of insight as to how to apply the knowledge acquired in the courses when dealing with difficult behaviours in children.
10. Dr Furst's report noted that the applicant was continuing to consult with a clinical psychologist on a regular basis, but no further information was provided to us. Absent any information that the applicant has engaged in counselling to reflect upon the contribution that her conduct (whether intentional or inadvertent) may have had on the relationship dynamics or the context in which various allegations were made against her, we find it likely that she will not engage in mitigation strategies to ensure the conduct is not repeated.

Any order of a court or tribunal that is in force in relation to the person: s 30(1)(i1)

1. The Tribunal understands there are no other orders of a court or tribunal in force in relation to the applicant to be taken into consideration.

Any information given by the applicant in, or in relation to, the application: s 30(1)(j)

1. In support of her application the applicant's submission to the Children's Guardian on 7 April 2021 argued that: 1. the allegations made by Child 1 were made in spite, and were completely untrue; 2. the Wesley Dalmar Caseworker had told her that Child 1 had to stop making allegations against her and this was revealed in the trial; 3. she had been cleared of all charges in the criminal trial; 4. Child 1 had made false allegations against other people; 5. no allegations had been made against her by any other children in her care.
2. In response to a question about what the applicant thought was important in keeping children safe, she stated: 1. supporting children, allowing them to achieve the best in their lives; 2. always being there for them; 3. allowing children to learn and encourage them to be who they are; 4. loving them unconditionally.
3. She provided eleven character references in support from friends, neighbours, a former student, the parents of students where the applicant worked, a colleague and an executive officer of FACS which attested to her: 1. strong bond with Child 3 and her grief in his removal from her care (referee Ms R, referee Ms F); 2. composure and calm nature despite dealing with difficult circumstances (referee Ms F); 3. honesty, caring nature and support to others when dealing with tragic circumstances, her hard work in taking care of her own family, building confidence in her boys with school, work and sporting interests, and that she instilled in her boys values to be courteous, polite, helpful and friendly (referee Mr S); 4. kindness, family orientation, and a person who always put her family first and noted that the children in her care adored her (referee Mr M); 5. caring and nurturing relationships with both her own children and those in her foster care, noting that she had looked after the referee's own children on various occasions and they enjoyed being with the applicant (referee Ms LF); 6. ability to make a student feel safe (referee Ms E); 7. ability to help students and provide good advice for their future (referee Mr S); 8. warmth, compassion, gentle and caring nature, and her commitment to school events, fundraisers and working bees (referee Ms M); 9. ability to help students with special needs and their families, and a person with a "beautiful soul" (referee Ms B); 10. professional and caring manner when dealing with the educational and welfare needs of students, and the referee stated that she supported the applicant in engaging in unsupervised child-related work (referee Ms J); and 11. provision of love, attention and expert care to foster children over around 20 years, and the referee said the applicant has the character, skill and abilities to manage children effectively in a home or school environment (referee Mr B).
4. We also note the comments made by the principal of a school where the applicant had been a staff member and Child 3 a student. The principal described the applicant in a positive manner and expressed her belief that the applicant was not capable of harming Child 3.
5. On balance, on the basis that the referees' statements do not disclose that they are aware of the facts before the Tribunal, we have given their statements only a small amount of weight.

Any relevant information in relation to the person that was obtained in accordance with section 36A: s 30(1)(j1)

1. The Tribunal understands there is no other relevant information in relation to the applicant obtained in accordance with s 36A of the Act (exchange of information to bodies in other jurisdictions) to be taken into consideration.

Any other matters that the Children's Guardian considers necessary: s 30(1)(k)

1. The Refusal Decision set out the matters that the Children's Guardian considers necessary, as discussed earlier in these reasons.
2. Written and oral submissions on behalf of the Children's Guardian also addressed those matters which the Children's Guardian considers necessary.
3. It was submitted that the primary position of the Children's Guardian is based on risk, and the need to be particularly careful about the characteristics of a person who works with vulnerable children as a carer and works with children with learning difficulties and special educational needs.
4. In the Children's Guardian's assessment, the overall picture that emerged from the allegations showed a concerning pattern of repeated physical and psychological harm to very vulnerable children with a traumatic history. It was submitted that, consistent with the observations of caseworkers over time, the applicant showed a pattern of targeting and scapegoating Child 1 and Child 2, and characterising them as perpetrators, bullies and liars. This, it was submitted, resulted in the applicant not taking disclosures by the children seriously.
5. Whilst it was not suggested that the applicant deliberately set out to cause harm, the Children's Guardian considered that the applicant showed no insight into whether her behaviour had inadvertently caused issues for children with a traumatic history and had not sought counselling to assist her to reflect upon that possibility.
6. The Children's Guardian submitted that a reasonable person, made aware of all the matters before the Tribunal, would not allow their child to have unsupervised contact with the applicant.

Tribunal's approach to weighing the available evidence to make findings and assess the applicant's risk

1. In deciding the application, the protective jurisdiction of the legislation towards children must prevail, even if the consequences are that a person who is innocent of allegations is denied a clearance because the evidence leaves open sufficient possibility that he or she is a risk: CXZ per Simpson AJA at [58].
2. Applying the criminal standard, His Honour dismissed the charges in the 2019 Criminal Trial. However, when assessing whether a person poses a risk to the safety of children, this Tribunal examines allegations at the lower threshold, on the balance of probabilities, subject to having regard to the Briginshaw principle.
3. Moreover, in evaluating the evidence before us, it is not necessary for this Tribunal to find that the offences or the alleged conduct occurred. It is sufficient to conclude that it is possible that the alleged conduct occurred before then proceeding to consider whether, based on the allegations, the applicant poses a risk to the safety of children.
4. We agree with the oral submissions made on behalf of the Children's Guardian that this is not a straightforward case, but one involving a very delicate balancing act. The competing requirements to be balanced concern, on one hand, the consequences of allowing the applicant to work with children who may suffer harm (and those consequences may be severe) and, on the other hand, the consequences of finding she is a risk to the safety of children and denying her the opportunity to undertake work that provides a community benefit.
5. The volume of documentary evidence before us is substantial. Unfortunately, the material relating to various government agency investigations into allegations against the applicant in her capacity as a carer is not comprehensive. In relation to some investigations, we only have a reported outcome of the investigation and do not have the complete record of what had been considered. That posed a difficulty for this Tribunal in weighing up the evidence in order to make findings.
6. In weighing the evidence, assessing the credibility and reliability of statements made by each of the three siblings is not without complication. We have taken into account the medical opinions regarding Child 1 and Child 3, and the assessed vulnerabilities of each of the three siblings. The dynamics in this family were peculiarly complex, with varying degrees of resentment among the three siblings towards each other.
7. When assessing the credibility and reliability of Child 1's evidence, there is no expert opinion before this Tribunal on which we can rely, to consider whether repressed memories of the abuse and neglect suffered by him at the hands of his birth parents may have been confused with memories of his time in care with the applicant. There is no objective material on which we can rely to assess whether his intellectual disability or medical diagnoses may have contributed to any confabulation or exaggeration of events.
8. In her statement dated 11 April 2019, the Wesley Dalmar Caseworker noted his intellectual disability and queried the accuracy of his memory: "[Child 1] has been diagnosed with an intellectual disability and in my conversations it has been difficult to establish context and further detail from [Child 1] about what he has experienced. This causes me to question the accuracy of his memory when I consider his trauma background in terms of where events occurred and who was involved."
9. The Caseworker's statement does not purport to express an expert opinion (nor is it taken in that vein) that the child's disclosures suffer from inherent unreliability due to his intellectual disability and trauma history. Nonetheless, as previously noted, there are a number of aspects to the child's evidence that reduce the credibility and reliability of his disclosures.
10. It is reasonable to regard the child's disclosures with caution when we also take into account a number of factors including that his allegations were not made contemporaneously and were largely not corroborated. The accuracy of his memory of events may have suffered with the lapse of time between leaving the applicant's care and being placed with his new Wesley Dalmar foster carer. Some of his disclosures were expressed in the plural (referring to "they") and some were exaggerated accounts. He may have blurred the lines between fact and fiction, as evidenced by his reference to scenes in movies to describe his own alleged experience. He had previously made false allegations of a serious nature about sexual activity involving other people, and those allegations were found to be a fabrication.
11. We have structured our reasons to make findings in three areas: 1. the charges that gave rise to the 2019 Criminal Trial; 2. the offence of common assault of an adult in 2016; 3. the nine government agency investigations.

The indecent assault allegation

1. The complainant maintained his allegation that he was made to touch the applicant's vagina whilst he was bathing in an upstairs bathroom. However, parts of his testimony during cross-examination were inconsistent with his evidence-in-chief. When asked about the alleged incident, he asserted that before the applicant made him touch her, she asked him which private part he wished to touch, and he said "none of them". This new detail was not mentioned at all in his recorded interview. Indeed, when asked during the interview whether the applicant had said anything to him, he answered "no". Although found to have good concentration and to be a credible witness, the reliability of his evidence beyond reasonable doubt suffered as a result of his additional assertion during the trial.
2. His Honour noted the "horrendous abuse" suffered by the complainant as a very young child and commented that memories of such severe abuse would be expected to remain in his mind and have on-going effects. His Honour further commented that the child's last minute addition of such an important detail as a request by the applicant that he nominate which private part he wished to touch "prompts concern about the overall reliability of his account and whether he might be confused about other events earlier in his life involving other people".
3. We have before us an allegation by the complainant about a serious offence and a clear denial by the applicant that the conduct occurred. In seeking to be satisfied one way or another on the balance of probabilities as to the truth of the allegation, we have taken into account a number of matters, namely: 1. the applicant's denial of the alleged conduct; 2. the applicant's evidence that, in the year that the child was placed in her care, he stopped having baths because of his soiling problem; 3. Child 1 asserted that he had been in the bath in the upstairs bathroom with his twin sibling before the alleged incident but that she had finished bathing and had left the room so that he was then alone in the bath. However, there were no corroborating accounts from Child 2 or Child 3 that they and Child 1 bathed upstairs at that time in their lives. Indeed, in a recorded interview on 19 March 2019, Child 2 gave a clear explanation about the bathrooms in the household and how they were used. She said that they had baths when they were young, but mostly had showers when older because it was quicker. She said she did not have baths with her brothers. The further available evidence is that the children mostly had showers downstairs since the applicant had difficulty going up stairs because of a knee problem, and baths were avoided because of Child 1's soiling problem; 4. the applicant's evidence that she had had surgery on both knees and had difficulty climbing the 18 stairs in her house to reach the upstairs bathroom, even though she had not mentioned that in her police interview; 5. concern about the overall reliability of Child 1's account given inconsistencies in his evidence; 6. that there is no corroborating evidence that the alleged conduct took place; 7. that there was no contemporaneous complaint or disclosure made by Child 1 although we accept that a child may be reticent to complain about a carer whilst still in a placement. However, it was open to him to tell his teachers with whom, as noted in paragraph 116 of the Judgment, he had regular and sympathetic contact; 8. the child's disclosure about such a significant matter was not made until the third occasion on which he was interviewed; 9. the child's intellectual disability and traumatic history of being sexually abused by his biological parents; 10. the child's history of making allegations against other people of inappropriate sexual conduct that were found to be false; 11. there is no evidence of the applicant having sexual interest in children or engaging in sexual misbehaviour towards children, and no evidence of her having any sexual interest in Child 1; 12. the applicant's relationship with Child 1 was not emotionally close (as observed by teachers) such as to provide a context for potential sexual approaches and, indeed, the applicant's own evidence was strongly that she was very guarded about showing affection to Child 1 because of his sexual history.
4. Drawing from the Judgment, we agree with His Honour's assessment at paragraph 104: "The touching described by [Child 1] clearly connotes sexual interest in him by [the applicant] and, if it occurred, would most likely have been instigated by her for the purpose of sexual gratification Sexual interest of that kind is inconsistent and difficult to reconcile with the other allegations of sadistic, physical abuse which strongly imply dislike if not outright hostility by [the applicant] towards [Child 1] who at the time was still a prepubescent boy. There is no other evidence of sexual interest in children or sexual misbehaviour towards them by [the applicant]."

Finding

1. On the totality of the evidence before us, we are satisfied that the allegation of indecent assault has no foundation. Accordingly, we have discarded the allegation in our assessment of the applicant's risk towards the safety of children.

The Glen20 Allegation

1. We have before us an allegation by the complainant about a serious offence and a clear denial by the applicant that the conduct occurred, and no other evidence to corroborate the allegation.
2. Child 1 alleged that after he showered in the downstairs bathroom, he was still standing in the shower when the applicant took the Glen20 from under the sink, approached him in the shower, forced his mouth open with her finger and sprayed Glen20 into his mouth for around 10 seconds. He alleged that, before spraying the Glen20 into his mouth, the applicant told him to not spit it out, and then she told him to take the garbage out. He said that he spat the Glen20 out when he was outside so that the applicant couldn't see because he thought she would have hit him if she knew he had ignored her direction.
3. If the allegation was truthful, it was a sadistic and cruel act by the applicant. It is also an act that a person on the receiving end would never forget and an act that would cause physical and sustained psychological harm to a child.
4. At the time of his recorded interview, Child 1 was aged 15 years and 6 months. His answers to questions were unsophisticated. He had no hesitation in describing the alleged assault although he provided unnecessary details at times and that additional commentary suggested that he was easily distracted
5. His account of the Glen20 allegation was, at times, disjointed. He could not describe in detail the pyjamas that he said he changed into, although he added detail about turning off taps. He could not remember why Glen20 was sprayed into his mouth. He initially said that the applicant said nothing to him, but then said that she had told him to open his mouth, swallow the Glen20, not spit it out, and to then go to get the garbage. He described the doors to the shower as being sliding doors, but then said they were a "glass pull and push door". He gave the appearance of having a good memory about some details, but not others.
6. The applicant's unequivocal evidence in the trial was that the cannister of Glen20 was always kept on the bathroom window sill, and never in a cupboard. She also rejected the assertion that Child 1 had taken out the garbage. Her evidence was that whilst he may have taken out the bin twice in the time he lived with the applicant, it was not his job to take the rubbish out.
7. The child's initial disclosure to the Wesley Dalmar Caseworker was that "they used to spray Glen20 my mouth". Under cross-examination he corrected that detail and said that it was the applicant, and that it had only happened once. He also denied having said what the Caseworker recorded as the words he had used. We do not regard the child's correction or denial as an inconsistency such that it contradicts his essential claim about what he alleged took place. However, it detracts from both the credibility and reliability of his disclosure.
8. Whilst a period of 10 seconds may ordinarily be regarded as a very short amount of time, a person who is on the receiving end of having a toxic chemical sprayed directly into their mouth for a sustained period of 10 seconds would, we suggest, find that period of time to be so long as to be unbearable. The estimate of 10 seconds may simply have been given without careful thought, or had been exaggerated. The complainant said that he felt he was going to vomit, yet he managed to hold the chemical in his mouth until he was outside, taking out the garbage. We do not find this account to be plausible.
9. There is no evidence of the allegation other than the child's account. There is no contemporaneous disclosure of the allegation to his siblings in the household or to his teachers who supported him or caseworkers.

Finding

1. In weighing up the evidence before us, we are not satisfied on the balance of probabilities that the conduct, as alleged, took place. On the material before us, it is not safe to conclude that there was a possibility that the alleged conduct occurred. Accordingly, in our assessment of risk, we do not place any weight on the allegation.

The Kitchen Plate Allegation

1. Again, there is an allegation by Child 1 about serious, violent conduct towards him by the applicant, and a clear denial by her.
2. Child 1 alleged that, in the same year as the Glen20 allegation, the applicant broke a plate over his head. He recalled that the applicant's husband, her two biological sons and one of those son's girlfriends, Child C and his two siblings (Child 2 and Child 3) were all in the house, although not all in the same room. His recollection was that the applicant's husband, Child C and his two siblings were present at the dinner table. After he finished dinner, he put his plate in the sink, describing the plate as being made of hard plastic, white, with flowers and a blue ring around the top. He said the applicant took the plate from the sink, smashed it over his head for no reason and then said "Look what you made me do" which he said reminded him of the song of the same name by Taylor Swift. He said that pieces of the plate were smashed everywhere and the applicant used a dust pan and small broom to clean them up. He said he felt pain on his head and then wet himself. He asserted that everyone in the room saw what happened.
3. Again, his account is interspersed with statements that reflect an unsophisticated demeanour.
4. The applicant denied hitting Child 1 over the head with a plate although she recalled an incident when he had jumped up from the table, knocking a plate of food out of her hand and onto the table where it smashed. The applicant believed the plate would have been part of a white Corelle dinner set with blue flowers.
5. Neither Child 2 nor Child 1, when interviewed, recalled an incident involving such violence.

Finding

1. On the evidence before us, we are not satisfied on the balance of probabilities that the conduct, as alleged, took place. It is not safe to conclude that there was a possibility that the alleged conduct occurred. Accordingly, in our assessment of risk, we do not place any weight on the allegation or on the fact that the allegation was made.

The Belt Allegation

1. Child 1 alleged that he had been in bed when the applicant called him to her bedroom, pulled his pants down and slapped him on his bare bottom with her husband's belt, for no reason. In his interview with police, he described the belt as black leather with a silver or chrome buckle, and the one the applicant's husband wore for work. His account was that once he arrived at the doorway to the applicant's bedroom, she took his arm and dragged him into the room, laid him on her bed so that his legs were hanging off the bed, pulled his pyjama pants and pull-up nappy down, grabbed the belt and then hit him twice to his bare bottom. He described what he felt as hard leather that made a mark because it stung for around 10 or 15 seconds and then the pain went away. His recollection was that the husband was at work at the time and that the other children were upstairs in their bedrooms. He said that he did not know why he was hit with the belt, and that afterwards he went up to bed to sleep. He said that he didn't tell anyone about what had occurred.
2. The applicant participated in an interview with police on 18 March 2019 and a transcript of that interview was admitted in the 2019 Criminal Trial.
3. The applicant denied that she used a belt to hit Child 1. Her evidence in the trial was that her husband didn't like belts and he only owned one brown belt which he had to wear with this work pants to hold them up.
4. When it was put to him in cross-examination that the applicant's husband never had a black belt and that he had a brown belt, the complainant said "he probably got rid of the black one." The Child's evidence was that the applicant's husband was at work when he alleged he was hit. If that was the case, on the evidence of the applicant, the belt was not at her disposal at that time since her husband always wore it to work.
5. Apart from a number of inconsistent statements made by Child 3 about whether the applicant used her hands or a belt to hit Child 1 (examined in relation to the Fourth Investigation), there is no evidence to corroborate the allegation.

Finding

1. On the evidence before us, we are not satisfied on the balance of probabilities that the conduct, as alleged, took place. It is not safe to conclude that there was a possibility that the alleged conduct occurred. Accordingly, in our assessment of risk, we do not place any weight on the allegation.

The Toilet Flushing Allegation

1. Child 1 described the allegation. He had been playing outside with toys when the applicant called him inside and asked whether he had done anything naughty, to which he replied that he had not. The applicant then pushed him with the palm of her hand to the bathroom and followed him into the bathroom. While the child was standing, the applicant pushed his head so that it was inside the toilet with his neck touching the rim of the toilet bowl and then flushed the toilet for 30 seconds, drenching his head and hair with water. After the water stopped flushing, he told the applicant to stop and she moved her hand away.
2. When asked how many times this had happened to him, he said "many other times" and then estimated that it had happened four times.
3. We note that the child's answers to questions in his recorded interview were unsophisticated and were naively literal in the sense of how he described things. For instance, when asked what he was feeling when having his head flushed in the toilet, he answered "cold", but did not describe his emotional response to the alleged act. He made reference to the "chipmunks" movie in the sense that chipmunks had their head pushed in a toilet and also a movie called "Meet the Fockers" as depicting a dog and cat flushing a toilet. He became distracted in relaying events in the movie before being brought back to the questions being asked.
4. The applicant denied the allegation, saying in the criminal trial "That didn't happen by me, no".
5. The applicant said Child 2 didn't like her twin brother and was aggressive towards him. She said that Child 2 and her friends had flushed Child 1's head in the toilet at school a few times, although she was unable to clarify how many times it happened.
6. The evidence of Child 1 having his head flushed in the toilet at school and whether it was investigated by the school at the time is insufficient to conclude either way.
7. On the evidence before us, it is difficult to assess whether the child's account has blurred fact and fiction, in light of his references to movie scenes. It is also possible that the child has confused events over time about having his head flushed in toilets, including at school.

Finding

1. On balance, we are not satisfied that the conduct occurred, as alleged. On the evidence, it is not safe to conclude that there was a possibility that the alleged conduct occurred. Accordingly, in our assessment of risk, we do not place any weight on the allegation.

The Shower Toothbrush Allegation

1. Child 1 alleged that the applicant used the bristles on his toothbrush to retrieve faeces from his bottom whilst he was in the shower in the downstairs bathroom and brush his teeth with it. He asserted that this occurred in the same bathroom as the Glen20 Allegation and that the applicant had entered the bathroom and taken the child's toothbrush from the toothbrush holder on the sink, told him to turn around and bend down. She then retrieved faeces from the area around his anus with the toothbrush, put the toothbrush in his mouth and brushed his teeth with it, saying nothing. He asserted that he told her to stop and yanked the toothbrush out of his mouth, she then washed the toothbrush under the tap and he rinsed his mouth out with water from the shower. He described feeling sick at the taste of the faeces and subsequently rinsed his toothbrush really well. He said there was no one else in the bathroom at the time and he did not tell anyone about the incident until after he left the placement.
2. The applicant denied the allegation and denied that she punished the child for soiling himself.
3. In weighing up the evidence, we have carefully considered the child's description of the incident during his recorded interview. His account was detailed and appeared to not be embellished or exaggerated, saying the amount of faeces on the toothbrush was a "little bit". His evidence during the trial was consistent with his recorded interview. Despite being challenged under cross-examination on precisely when and to whom he disclosed the allegation, the child maintained that the incident did actually happen with the applicant.
4. In a statement dated 31 July 2019, a class teacher recorded that: 1. Child 1 often soiled himself and was fearful to tell anyone that he had had an accident; 2. she had found three or four bags of soiled clothes in his school bag that had not been removed; 3. in her observation, the child had a fear when addressed by the applicant, and adopted a subservient voice.
5. When cross-examined during the 2019 Criminal Trial, this teacher did not recant her statement.
6. Another teacher, in her statement made on 31 July 2019, recalled that: 1. Child 1 had said words such as "I got into trouble for pooing my pants so I didn't get the same dinner as [Child 2]"; 2. she had talked with the applicant about how the school could support the child with his soiling problem and asked her to pack more underwear and that the applicant had said words to the effect of "I know he has a problem with that but he has to learn"; 3. the school would wash the child's underwear and send him home in the same underwear so he wouldn't get into trouble at home; 4. the child would run up to the applicant at the end of the day to greet her, but she would dismiss him, and he would try to keep up with her as she walked towards the gate; 5. there was no loving interaction from the applicant to the child, and whenever she spoke about him it was negative.
7. When cross-examined, the second teacher said that she did have a recollection of one particular day when the applicant and Child 2 were walking together, with Child 1 walking behind, chasing them and looking up. Her cross-examination revealed nothing further.
8. Neither of the teachers directly observed harsh physical treatment or violent behaviour by the applicant towards the child. Overall, their statements generally refer to the impressions they each formed about the relationship between the applicant and Child 1 and the child's concerns about any possible ramifications at home for soiling himself. However, their recollections of actual conversations had with the applicant were clear.
9. We have taken into account the applicant's acknowledged frustration with the child, and the evidence of two teachers concerning her attitude towards him and his soiling problem.
10. Against that, we have taken into account the following matters: 1. the applicant's denial of the alleged conduct; 2. the absence of eye-witness evidence corroborating the allegation; 3. the absence of a contemporaneous complaint or disclosure to the child's siblings or teachers about what would have been a severely unpleasant and confronting experience for him on a number of levels (although we accept that he may have been reticent to complain about his carer whilst still in her care); 4. that the child's disclosure about such a sadistic and confronting act was not made until the fifth occasion of making disclosures (27 November 2018).
11. His Honour's remarks about the nature of some of the alleged abuse by the applicant are found in paragraph 113 of the Judgment: "The use of faeces smeared toothbrush, flushing his head in the toilet and spraying Glen 20 in his mouth are uncommonly malicious forms of abuse to be perpetrated on a child which could only reflect a deep personal dislike and/or sadistic tendencies."
12. In giving her evidence before this Tribunal, the applicant gave the appearance of not being overly pre-occupied with concerns about the child's soiling behaviour, and said she had left it to the child to manage. The teacher's observation that bags of soiled clothing were left in the child's schoolbag over a number of days possibly support this. However, the applicant acknowledged to this Tribunal that there were occasions when she was frustrated with the child's behaviours (not necessarily limited to his soiling problem) and "lost it".

Finding

1. The evidence of the teachers is persuasive and links the soiling problem to their observation of the applicant's detachment and lack of empathy towards the child. Taking into account the teachers' statements and the applicant's acknowledgement that she struggled with the child's soiling behaviours, we cannot ignore the possibility that the alleged conduct occurred. We therefore find, on the balance of probabilities, it is possible that the alleged conduct occurred. We have given this finding a substantial amount of weight in assessing the applicant's risk towards the safety of children.

The 2016 assault of an adult

1. The applicant's affidavit evidence on her assault of an adult in 2016 was that she clearly regretted her conduct. Under cross-examination in the Tribunal hearing, she said that she regretted that the victim of the assault had forced her (the applicant) to defend herself. Her evidence was that the assault was not simply about her irritation over the victim's failure to bring swimmers and a towel to the pool, but that there had been multiple things leading up to it. She said that she had admitted that she had engaged in the assault and had pleaded guilty to the charge because she could not deny that she had been at the pool at the relevant time and had slapped the victim, but she was adamant that she had been forced to defend herself.
2. Her version of events was somewhat difficult to follow in terms of understanding the timing and sequence of the asserted "multiple things" and the substance of exchanges between the parties that culminated in the assault. It appears that an allegation had been made that the victim's son had "touched" Child 2 at a swimming event and the victim had said the applicant would "be paying for that", the applicant asked the victim to stop those things from occurring, the victim went "off her rocker" about her son being investigated, the applicant's unwell mother (wearing a colostomy bag) had at some time during the fracas been pushed by the victim, the applicant was physically backed into a corner and against a wall, with the victim "coming" at her, and she defended herself by slapping the victim's face.
3. The COPS narrative recorded a different version of what occurred, based on the victim's account. It also noted that the victim had had little to do with the applicant and had actively avoided her due to what was described as an unrelated matter that had occurred three months before the assault, suggesting that there had been unresolved issues between the parties prior to the assault.
4. The Facts Sheet prepared by police contained further details about the incident as obtained from each of the parties. The applicant participated in a recorded interview with police during which she said that she had acted in self-defence after feeling threatened by the victim.
5. We accept the opinion of Dr Furst that, in terms of risk assessment, the reason for the applicant assaulting the victim was not relevant. We also accept his opinion that the applicant does not meet the threshold for emotional dysregulation.
6. The sequence of events on the evening of the assault demonstrate that the applicant was not able to regulate her behaviour on that occasion. When asked how she would handle a similar circumstance in the future, her answer was that as soon as she encountered signs of anger in a third party, she would remove herself and not become involved. We are satisfied that the applicant's deep remorse over the incident and her humiliation and embarrassment over the court proceedings will serve as a deterrent against any risk of repetitive like behaviour.

Finding

1. Taking those factors and Dr Furst's opinion into account, and since there is only one incident of this nature in her criminal history and it is arguable that the assault occurred after provocation, it is not safe to conclude that the applicant may not be fully in charge of her emotional responses to irritating or aggressive behaviour in a domestic violence context. We therefore have not taken the incident into account when assessing her risk to the safety of children.

Findings in respect of government agency investigations

1. The mere fact of an allegation having been made is not sufficient to raise an argument that the Tribunal should conclude the possibility that the conduct occurred. In assessing an allegation, we are obliged to consider the seriousness of the allegation and the strength of the evidence supporting it. Where there is no substantiating evidence, it is not safe to conclude the truth or falsity of an allegation, or the possibility that the alleged conduct occurred.
2. The material before the Children's Guardian and this Tribunal concerning investigations undertaken by various government agencies and Wesley Dalmar is not comprehensive. In a number of instances, only the outcomes, and not the full record, are available. Some reports note that material is missing.

First investigation by DOCS - Allegations of physical abuse of Child T and Child C, and withholding food from Child T

1. In 2006, DOCS investigated 7 allegations that the applicant physically abused Child T in her care, did not provide enough food to him and withheld food from him as punishment. The time period for the allegations was said to be in late 2004 and between late 2004 and early 2006. One of the allegations also asserted that the applicant smacked Child C (her adopted son) on the bottom, arms and legs as a form of punishment.
2. All seven allegations were determined by DOCS to be "Not Sustained - False".

Finding

1. There being no further material before this Tribunal other than the outcome of the investigation, it is not possible to assess the merit of the allegations. In the absence of any supporting evidence either way, the possibility that the alleged conduct occurred cannot be considered. Accordingly, we do not give any weight to the allegations when assessing whether the applicant is a risk.

Second investigation by FACS - Allegation of excessive discipline of Child 1

1. In February 2014, FACS advised the applicant of the result of its investigation into 5 allegations against her concerning Child 1. We note that, at this time, the child was still in the care of the applicant. The investigation relied upon casework records and the applicant's discussion with casework staff. It was alleged that on 30 August 2011 the applicant became cross at Child 1 for soiling his pants and pushed him on the forehead with her hand and made him clean his poo off the floor using a wet wipe and then put the soiled wipe in his mouth. It was also alleged that "on occasions" the applicant smacked the child on the bottom for breaking toys and not cleaning his soiled underpants. On another occasion, it was alleged she pushed him, causing him to fall on hard grass. A fifth allegation asserted that the applicant had on one occasion several years previously smacked a child (not identified) on the hand.
2. The fifth allegation was found to not constitute reportable conduct and the remaining allegations were found to not be sustained.

Finding

1. There is insufficient evidence available for this Tribunal to assess the merit of the allegations or consider the possibility that the alleged conduct occurred. We do not give any weight to the allegations when assessing whether the applicant is a risk.

Third investigation by FACS re sexualised behaviours of 3 children and safety plan

1. In September/October 2015, when he was no longer in the care of the applicant, Child 1 attended the Liverpool JIRT in relation to allegations that Child C had indecently assaulted him and his twin sister, but Child 1 declined to be formally interviewed. Child C was 14 at the time, and Child 1 and Child 2 had turned 12. A file noted dated 8 October 2015 recorded that Child 1 had asserted that Child C and his sister were having "S-E-X" and that all 3 children were running naked from their bedrooms into each other's bedrooms. A file note dated 13 October 2015 recorded allegations by Child 1 that Child C had done something "disgusting" to him, including squeezing Child 1's penis and that Child C had put his penis in Child 1's anus.
2. Child 2 was interviewed on 9 October 2015 and, when asked whether anyone had touched her in places they shouldn't, she answered "yes". However, she became very upset and refused to identify who had touched her. She acknowledged that something had happened around one month before at home, and she was frightened to say anything.
3. Following the interview with Child 2, FACS spoke with the applicant who recalled two incidents involving the child. First, at the special Olympics, the child had been touched on the leg by a male competitor. Second, around 3 months previously, Child C had entered Child 2's room and lay on top of her. FACS' file note recorded that the applicant said that Child C only did to Child 2 what Child 1 did to Child C.
4. In her affidavit, the applicant acknowledged that Child 2 had run naked into Child C's room, and that she had counselled them both about that behaviour. Her evidence was that she never viewed the incident or any prior incidents as sexualised behaviour, and that she believed that Child C had the developmental age of a 7 year old at the time. Her evidence was also that she did not believe the allegations.
5. The allegations of sexual abuse perpetrated by Child C against Child 1 and Child 2 could not be substantiated because Child 1 refused to be interviewed and Child 2 refused to engage whilst being interviewed.
6. Nonetheless, FACS concluded that the likelihood of sexual abuse occurring was very high and developed a safety plan for Child 2 to remain in the placement.
7. FACS took the view that the applicant did not adhere to the safety plan. The applicant's evidence was that she had complied with the safety plan and had not been informed that there was any issue over compliance with the plan. In any event, a decision was made to remove Child 2 from the applicant's care in November 2015. Following this, the applicant's carer authorisation was restricted so that only Child 3 remained in her care.
8. The investigation report into the sexualised behaviour of Child C against Child 1 and Child 2 was not available to us. By the applicant's own evidence, she was informed by the Reportable Conduct Unit that Child 2 was at risk of sexual and psychological harm in the applicant's care and the applicant was identified as a person of interest.
9. Having regard to the statements made by Child 2 and the applicant's acknowledgment of what occurred (without believing there was sexual intent), we find that the allegations made by Child 1 about the adopted son's sexualised behaviour were truthfully made.
10. We have concern that the applicant acted protectively towards her adopted son, excusing his behaviour on the basis of his developmental age, and did not act protectively towards Child 1 or Child 2. Indeed, she defended her adopted son's behaviour on the basis that his slow development meant he did not have any sexual intent, and that he had merely copied the behaviour of Child 1.
11. The applicant's evidence before this Tribunal was that Child 2 was not at risk of harm by her adopted son because there was no sexual intent by him, and she believed that Child 2 was thus not at risk in the applicant's care.
12. There was no acknowledgment by her that, even if her adopted son at the age of 14 had no sexual intent because of his delayed development, his sexualised behaviour nonetheless may have placed Child 2, who had a traumatic history of sexual abuse, at risk of sexual, physical, emotional and psychological harm.
13. The applicant's firm opinion on this issue demonstrated a lack of insight into the seriousness of the reported behaviours. Her views reflect her failure to be protective towards a prepubescent girl whom she knew was vulnerable. We find this to be a matter of deep concern.

Finding

1. We find that the sexualised behaviours in the household occurred, and that the applicant failed to act protectively towards children in her care, exposing them to emotional and psychological harm.
2. We have given this matter a substantial amount of weight in assessing the applicant to be a risk to the safety of children.

Fourth investigation by WD - Allegations of excessive punishment and physical abuse of Child 1

1. Wesley Dalmar investigated numerous allegations made by Child 1 (after leaving the applicant's care) concerning ill-treatment, neglect and physical assault. Its final risk assessment report dated 29 July 2016 refers to various interviews held with the applicant, her husband, Child 1 and Child 3. We also understand that statements made by Child 2 were taken into account.

Allegations by Child 1

1. Child 1 was interviewed on 26 February 2015 (aged 11 at the time) in which he made numerous allegations pertaining to both himself and his sister. The allegations included: 1. that breakfast was withheld from him (being told to eat at school) and withheld if he misbehaved; 2. that on one occasion he recalled being excluded and denied food such as McDonalds when others were having take-away; 3. that he was made to sit on the stairs for hours and not move; 4. that the applicant told him not to speak to the teachers or anyone else or they would get into trouble; 5. that both he and his sister were hit by the applicant and Child 3; 6. being locked outside the house; 7. being hit with a black leather belt because the applicant thought that he had sworn (asserting that he had been hit 4 times with the belt, and then that it had only occurred once); 8. that the applicant gets angry and screams at the children and hits them with a wooden spoon.

Evidence of the applicant

1. On 7 December 2015, the applicant participated in a reportable conduct interview. Her evidence was that she never hit any child with a belt, but that Child 1 was hit by his twin sister "every day". She said that the other children would hit Child 1 from time to time, but that only Child 2 hit him every day. She asserted that Child 2 "slaps, hits, kicks, bites, you name it". We note that, at the time of this interview, Child 2 had been removed from the applicant's care.
2. The applicant denied owning a wooden spoon, insisting that she had only ever owned plastic spoons. In cross-examination, she emphasised this point, saying that she considered wooden spoons to be unhygienic. Wesley Dalmar inspected the applicant's utensils drawer in her kitchen and found no evidence of a wooden spoon.
3. On the subject of discipline, she said that Child 1 would be asked to sit on the stairs for time out, as a discipline, but that if he stayed longer, it was his own choice because he liked to read or play with his lego on the stairs. She acknowledged that once or twice a month he may sit on the stairs from breakfast until lunch, playing.
4. The applicant was adamant that food was never withheld from Child 1 and that if he refused the food including take-away that was offered, she would provide him with a sandwich. She recalled an incident when Indian take-away had been ordered, however Child 1 refused to eat that, and also that he "threw the sandwich" that was offered to him, and so he went to bed without eating.

Evidence of the applicant's husband

1. The applicant's husband was interviewed on 18 April 2016. He said that he had not ever seen the applicant hit the children, and said there was no wooden spoon in the house. He said "No I don't hit my own kids when they do wrong things". He said that they "dawdle" a bit when going out and that he would lead them to the door with his hand at the back of their head. On the subject of whether the children were hit with a belt, his statement was reported as being "Not in this house. Might have been mucking around. Usually when I am getting dressed."

Evidence of Child 3

1. Child 3 appears to have been interviewed on at least two occasions, on 7 December 2015 and 4 March 2016, at the age of 8. He spoke freely and clearly, saying many times that Child 1 had been smacked on the head for digging up and pulling out grass and if he wasn't doing what the applicant asked. He also recalled an occasion when Child 1 had to have a sandwich because he had been "pulling the grass out". He also said that the applicant didn't talk to Child 1, and that she only spoke to himself and Child C. He said that Child 1 was always naughty, digging holes, pulling out grass, lying and hurting people.
2. In his interview on 4 March 2016, his statements were more detailed, saying that Child 1 would get a "smack on the head" every day because he was naughty, and also saying "my dad used to go WACK. Sometimes dad smacks him with the belt and hands". He said that Child 1 got into trouble "every single day" and that every time he was naughty the applicant used her hands to smack him. He physically demonstrated the use of an open hand in a slapping motion. He also said that Child 2 was smacked "a lot", with hands because she was always lying and when she was found stealing. Child 3 made inconsistent statements about whether the applicant only smacked with her hands or whether she had used a belt, but was generally consistent in describing the number of times that Child 1 was hit for being naughty.
3. On the subject of discipline, he said that he sometimes got into trouble but nothing much happened. He said that his older brother had to sit at the bottom of the staircase for "the whole day, or something". Child 3 said that he himself had to sit at the bottom of the staircase once but he couldn't remember the reason, but that it was for "5 minutes, or something". His statements, despite occasional inconsistencies, generally corroborate the applicant's evidence regarding discipline.
4. Child 3's recorded interview on 29 March 2019 occurred 3 years after his previous statement about the physical abuse metered out to his older brother. He was then aged 11 and had recently been removed from the applicant's care. He repeated his statement that his older brother got into trouble "every single day" for things such as "pulling out the grass".

Evidence of Child 2

1. Child 2 was interviewed on 29 March 2019 in connection with the 2019 Criminal Trial. At that time, she was no longer in the care of the applicant. She was 15 and had not been living in the household for more than 3 years. On the subject of discipline in the household, she said that they didn't really get in trouble a lot but that, if they did, they sat in the time-out spot for 5 or 10 minutes, either outside or inside. She said that the punishment was the same for everyone, corroborating the applicant's evidence.
2. Wesley Dalmar sustained the following allegations : 1. that Child 1 was made to sit on the stairs for hours and not allowed to move; 2. that Child 1 was hit every day and all the time; 3. that the applicant hits with her hands; 4. that the applicant hits children with a belt.
3. Wesley Dalmar's report is incomplete, with missing information. It is therefore difficult to assess with confidence the weight of evidence upon which some of the allegations were sustained.
4. After being informed of Wesley Dalmar's findings, the DoE undertook its own assessment. The applicant denied the allegations, submitting the following arguments: 1. that a "sustained" finding did not mean the conduct had occurred; 2. that the chances of the conduct as alleged occurring in a home seemed unlikely; 3. that she was still an authorised foster carer and in the process of applying for adoption; 4. that the chances of the allegation happening in a school setting with so many 'eyes' on her is highly unlikely.
5. The DoE declined to make findings of ill-treatment or assault on the basis that the sufficiency of evidence and quality of the agency's investigation was disputed. However, the department expressed concern about the nature of the allegations and issued a direction to the applicant in the following terms: "I now direct you not to come into any unnecessary physical contact with any child or student in your care, whether in a professional or personal capacity and environment. I further direct you not to engage in any conduct towards any child or student that could reasonably be taken to be intimidating, offensive or harassing in nature."
6. We acknowledge that various statements by Child 3 contain inconsistencies. The applicant sought to discredit Child 3's evidence on the basis that he was only 8, imaginative, had ADHD and liked to please others by telling them what he thought they wanted to hear. We do not accept that proposition as one to dismiss the child's statements entirely. He was still in the applicant's care at the time of his interviews and his statements appear to be straight-forward and transparent. He had a close bond with the applicant. A more cautious or knowing child who suspected if they said anything negative about their carer that might jeopardise their placement, might be expected to withhold statements about the carer administering physical punishment. For that reason, we accept that his statements were based on his own observations and were plain, truthful accounts of a young child. By the time he participated in a recorded interview in March 2019 he was 11 and, after three years, he persisted in his description of Child 1 being punished for being naughty.

Finding re excessive punishment on stairs

1. We accept the applicant's evidence that Child 1 liked to sit on the stairs for hours, playing by himself, even if that activity had been instigated as a "time-out" measure. The evidence of Child 2 and Child 3 generally corroborate the applicant's evidence. There is insufficient evidence to corroborate Child 1's allegation that sitting on the stairs for hours was a punishment. We find that the allegation is not founded, and afford no weight to it in assessing the applicant's risk.

Finding re leather belt and wooden spoon

1. We have previously addressed the allegation that a leather belt was used to punish Child 1.
2. The care history for the twins noted that their birth father had hit all children with a wooden spoon. It is therefore possible that Child 1's allegation has confused other traumatic physical abuse in his life and attributed it to the applicant. We find that the wooden spoon allegation is not founded and afford no weight to it in assessing the applicant's risk.

Finding re physical abuse

1. However, when considering Child 1's very first disclosure to the FACS Caseworker in December 2014 that at least in his new placement he wasn't hit every day, and taking into account the repeated corroborating statements of Child 3, we find that the applicant smacked Child 1 frequently with her hands. The experience of being repeatedly smacked on his head, would have caused emotional and psychological harm to the child.
2. We afford a substantial amount of weight to this finding and assess the applicant as being a risk to the safety of children.

Fifth investigation by FACS - Allegation concerning contact visit

1. This matter was not pressed by the respondent. The applicant relied upon the respondent's concession that Wesley Dalmar had been consulted over a contact visit involving the three siblings and Child C, and had apologised for its error.

Finding

1. Accordingly, we did not take this matter into account when assessing the applicant's risk.

Sixth investigation by WD - Allegation of withholding food as punishment

1. The Refusal Decision referred to an adverse finding by Wesley Dalmar after investigating allegations by Child 1 apparently made in 2012, 2015 and 2016 that the applicant had withheld food and used food as punishment in response to his soiling behaviours. Wesley Dalmar made an adverse finding, apparently largely upon reliance of statements provided by teachers at the child's schools. We note that this allegation and investigation appears to be the same as the allegation numbered 11 in the Ninth Investigation by Wesley Dalmar, with findings made available on 8 September 2021.
2. The applicant denied the allegations. She said that she was informed of the allegations against her but did not recall participating in an interview.
3. Both Child 2 and Child 3 denied knowledge of their brother missing out on treat meals as a consequence of soiling himself.
4. We considered statements provided by two teachers at a school where Child 1 and Child 2 attended, to assess the allegations.
5. In her statement dated 31 July 2019, one class teacher recorded that: 1. in a conversation with the applicant at the end of a school day, after being told that Child 1 had not had a great day, the applicant said her punishment for him would be eggplant for dinner while everyone else would have pizza, and the following week she confirmed that she had indeed given him eggplant for dinner and she found it "hilarious" that he had liked it; 2. in another conversation the applicant said that if Child 1 had not cleaned his room or did something wrong, she would use food as an incentive; 3. if the child had not eaten all the food in his lunchbox, such as a half-eaten apple, it was returned the next day, and his lunchbox was occasionally filled with cockroaches.
6. When cross-examined during the trial, this teacher had a very clear memory of her conversation with the applicant about the child having eggplant, intended to be a punishment.
7. In connection with the Shower Toothbrush Allegation, we have already considered the statement of another teacher. That statement also recalled that: 1. on several occasions, Child 1 was found looking for food from bins and in her view, he was starving; 2. he was not allowed the food that the rest of the family were having, as punishment for soiling himself or not cleaning his room.
8. When cross-examined, this teacher's statement that Child 1 was punished for soiling himself by not being allowed food the rest of the family had, was not challenged.
9. The applicant denied the allegations. She had no recollection of plastic bags containing soiled underpants piling up in the child's schoolbag, saying the children were responsible for unpacking their own bags. Her evidence is that she holds the view that it is not appropriate to withhold food as a form of punishment.

Finding

1. On the material before us, we are satisfied on the balance of probabilities, that it is possible the applicant excluded Child 1 from treat meals as punishment for his behaviour or soiling problem. Being excluded from family treat meals, particularly for soiling problems that are beyond the control of a child, would likely have a severe, enduring, negative impact upon child's emotional and psychological well-being.
2. We give this a moderate amount of weight in assessing that the applicant poses a risk to the safety of children.

Seventh investigation by FACS - Allegation concerning Child 3

1. There appears to have been an allegation that on 21 May 2019 Child 3 made a casual comment to his new foster carer that he had sometimes showered with the applicant's husband. There was no suggestion that the child had been abused in the shower.
2. In an interview on 11 July 2019, the child stated that he showered on his own and answered "no" when asked if he ever showered or bathed with anyone. Otherwise, he made no disclosures.

Finding

1. There is scant material before this Tribunal concerning this allegation. Accordingly, it is not possible to consider whether the conduct occurred, or the possibility that the conduct occurred, and we have not afforded any weight to these matters in assessing the applicant's risk.

Eighth investigation by DCJ - Allegations the subject of 2019 Criminal Trial

1. DCJ conducted an investigation into a number of allegations against the applicant following an interview with Child 1 on 21 February 2019. The allegations appear to mirror those that were subsequently the subject of the 2019 Criminal Trial and included additional allegations.
2. FACS' records reported that Child 1 disclosed multiple incidents of physical harm including two incidents of indecent sexual harm perpetrated by the applicant. We are not aware of an allegation of indecent assault other than the matter previously addressed.
3. FACS substantiated the allegations based on the child's interview. However, the child's evidence was not tested, no other independent witnesses (such as Child 2 and Child 3) were interviewed, and the applicant was not interviewed. FACS did not provide a detailed report on its investigation.
4. We have previously assessed the allegations that were the subject of the 2019 Criminal Trial. In the absence of evidence to support additional allegations that may have been investigated by FACS, we make no findings.

Ninth investigation by WD - Multiple allegations including those that were the subject of 2019 Criminal Trial

1. After the conclusion of the 2019 Criminal Trial, Wesley Dalmar conducted its own investigation into 11 allegations, some of which had been the subject of the 2019 Criminal Trial.
2. The allegations and findings made by Wesley Dalmar are set out in the table below: No. Allegation Finding
3. That the applicant hit a child in her care with a thong (Noting that this allegation appears to have been possibly confused with an allegation that the applicant's husband threatened to hit Child 3 with a belt for not brushing his teeth) Non-Adverse
4. That the applicant regularly co-slept with a child (Child 3) in her care Non-Adverse
5. That the applicant regularly allowed a child (Child 3) in her care to touch her breasts Non-Adverse
6. That the applicant made a child in her care (Child 1) brush their teeth with faeces on their toothbrush Adverse
7. That the applicant made a child in her care (Child 1) touch her vagina Non-Adverse
8. That the applicant instructed a child in her care (Child 3) to strike another child in her care (Child 1) with a rake resulting in a laceration to their scalp Non-Adverse
9. That the applicant smashed a plate over a child (Child 1) in her care Non-Adverse
10. That the applicant flushed the head of a child (Child 1) in her care in a toilet bowl Non-Adverse
11. That the applicant removed the clothes from a child in her care (Child 1) who had soiled themselves whilst in a car park, resulting in the child being driven home naked Non-Adverse
12. That the applicant made a child in her care (Child 1) stand naked on her front veranda for five minutes Non-Adverse
13. That the applicant used exclusionary repercussions as a consequence to a child in her care Adverse

1. In considering the allegations, Wesley Dalmar relied upon the available material from the 2019 Criminal Trial and interviews with the applicant, her husband and the three siblings who had been in her care.

Allegation 1 - Physical punishments using a thong or belt

1. Despite apparently making a disclosure that the applicant had hit him once with a thong, Child 3 subsequently withdrew the allegation and denied that the applicant was physical with him if he did the wrong thing. The applicant denied the allegation in an interview on 10 June 2022.
2. On 31 May 2021, Child 3 specifically denied having been threatened with a belt.
3. In an interview on 10 June 2022, the applicant's husband denied an allegation that he had threatened to hit Child 3 with a belt for not brushing his teeth, saying "I don't recall that ever happening".

Finding

1. Having regard to Child 3's inconsistent statements, and the absence of other corroborating evidence, we find that the allegations have no foundation. We have not given them any weight in assessing the applicant's risk.

Allegation 2 - Co-sleeping

1. Relying upon interviews with the applicant, her husband and Child 3, it appears that the practice of the child being in the applicant's bed was limited to when he was young (3 or 4) or not well, and only until ten or ten thirty at night. After that time, more often than not, the child was toileted and transferred to his own bed. He rarely stayed in their bed the whole night. There was no suggestion that the child and the foster carers were not clothed and no suggestion of inappropriate touching or behaviour occurring. We accept the evidence of the applicant and her husband.

Finding

1. On balance, we do not find that the applicant and her husband regularly co-slept with Child 3 such that any harm was caused or could have been caused. Accordingly, we have not taken the allegation into account when assessing the applicant's risk.

Allegation 3 - Allowing a child to touch the applicant's breasts

1. The allegation that Child 3 was permitted to touch the applicant's breasts appears to have emanated from an episode when he accidentally touched his sister's breasts when they were jumping on a trampoline. Child 2 disclosed that after the accidental touch, Child 3 had said that he did it all the time with the applicant, sometimes after a shower and sometimes dressed.
2. In an interview with police, Child 3 denied knowledge of any incident where he touched his sister's breasts on the trampoline and denied being allowed to touch the applicant's breasts.
3. In an interview on 10 June 2022, the applicant denied allowing the child to touch her breasts, stating "[Child 3] is not allowed to touch my breasts, never has and never will be". Her affidavit evidence is that she did not allow the child to touch her breasts at any time.
4. Child 2's disclosure of the incident on the trampoline and her assertion as to what her younger brother had said about touching the applicant's breasts is surprising when viewed against her general reluctance to discuss her time in the care of the applicant.
5. In light of Child 3's subsequent denial that he had disclosed any activity to his sister, his denial that an incident had occurred on the trampoline and his denial that the applicant had allowed him to touch her breasts, there is no other corroborating evidence to support the primary allegation.

Finding

1. We regard the allegation as groundless and have not afforded any weight to it in assessing the applicant's risk.

Allegation 4 - Toothbrush allegation

1. We have already assessed this allegation and found, on the balance of probabilities, that it is possible the conduct occurred.

Allegation 5 - Indecent assault

1. We have already assessed this allegation and found that the conduct did not occur and there was no possibility that the conduct occurred.

Allegation 6 - Encouraging Child 3 to physically assault Child 1 with a rake

1. Child 1 alleged on a number of occasions via various reporting paths that the applicant had encouraged his younger brother to hit him over the head with a metal rake. In his interview with police, he added that he had been hit in the head "a couple of times". He asserted that the applicant had told Child C to take the rake "off the roof" and give it to Child 3, and told Child 3 to hit Child 1 in the head with it. He said he did not know the reason for the alleged incident.
2. The applicant denied that she had encouraged the younger sibling to hit his brother. She also gave details which were inconsistent with Child 1's account of the location of the rake.
3. It is evident from conversations with Child 2 on 21 December 2018 and again on 9 January 2019 with FACS and Wesley Dalmar caseworkers, that Child 2 was extremely reluctant to talk about her experience in the placement with the applicant. However, she openly described an incident where her younger brother had retaliated against "annoying" behaviour by her older brother. He had picked up a rake and hit his brother on the back of the head, such that it required medical attention. She was clear that it had not been something that the applicant had encouraged Child 3 to do.

Finding

1. On balance, we give weight to the applicant's denial and the evidence of Child 2 whose explanation of the incident was clear and articulate. We find that the allegation against the applicant (as opposed to the allegation that Child 3 had hit his brother in the head with a rake) was not well founded. We have not taken it into account when assessing her risk.

Allegation 7 - Smashing a plate over Child 1's head

1. We have already addressed this allegation and found that the conduct did not occur and that there was no possibility that the conduct occurred. We have not given it any weight in assessing the applicant's risk.

Allegation 8 - Flushing Child 1's head in the toilet bowl

1. We have already addressed this allegation and found that the conduct did not occur and that there was no possibility that the conduct occurred. We have not given it any weight in assessing the applicant's risk.

Allegation 9 - Removing Child 1's clothing in a car park because of soiling

1. Child 1 asserted that the applicant had removed his clothing in a child centre car park and driven him home whilst he was naked, in the car with his siblings.
2. The applicant denied the allegation in her interviews with Police and Wesley Dalmar.
3. Neither of his siblings corroborated the allegation.

Finding

1. On the evidence before us, we find that the allegation has no foundation. We have not taken it into account when assessing the applicant's risk.

Allegation 10 - Requiring a child to stand naked on verandah as punishment for wetting his pants

1. Child 1 alleged that the applicant made him stand naked on the front verandah of their house after he had wet his pants. He asserted that his siblings had witnessed the incident.
2. The applicant denied the allegation. Neither of Child 1's siblings corroborated the allegation, and denied witnessing the incident.

Finding

1. On the evidence before us, we find that the allegation has no foundation. We have not taken it into account when assessing the applicant's risk.

Allegation 11 - Excluding Child 1 from family treat meals

1. This allegation has already been addressed in relation to the Sixth Investigation.

Assessing the applicant's approach to working as a carer

1. Whilst a carer's authorisation may be granted subject to conditions, a person who is granted a clearance can work in child-related employment without any restrictions. A higher standard is applied to foster care because children are subjected to an environment in which carers have a high degree of control 24/7 over the children placed with them, and the potential for harm to be caused is increased.
2. It was apparent to this Tribunal, given the number of children in the household with high, complex needs (noting the various disabilities and vulnerabilities of Child C, Child 1, Child 2 and Child 3) and her employment as a Teacher's Aide, coupled with the fact that her husband worked very long hours out of their home, that the applicant was the primary carer and led a very busy life.
3. Overall, she gave her evidence before this Tribunal in a dispassionate, matter-of-fact manner, without embellishment. She presented as a person who goes about her day balancing multiple and competing priorities as efficiently and pragmatically as she can manage, despite minor annoyances. There is no doubt that she took a disciplined approach in optimising her skills and experience to work as a carer for nearly 16 years, and a Teacher's Aide for almost 27 years. By all appearances, she was intuitive and resourceful, undertaking her responsibilities as a carer without a great deal of advice or assistance from caseworkers. She did this almost unsupported, since her husband worked long hours out of the home.
4. We do not underestimate the logistical arrangements associated with bringing up 3 sons as well as 3 sibling foster children, whilst also providing short term care for around 120 children and medium to longer term care for 6 other children over a period of 15 years. Overlay that with the applicant's employment as a Teacher's Aide, and the organisational skills and energy required to plan and implement routines at home for children with high needs, and attend to the school drop-off and pick-up routines, would likely deplete any parent. And yet, this applicant also coached soccer and baseball. She was motivated to give her adopted son the opportunity to train for potential participation in Special Olympic swimming. She put her family first and, by her own testimony, her needs were always last in the pile of things to do.
5. Although she had two sons of her own, she and her husband demonstrated their commitment, love and empathy towards a child with disability in their care by proceeding to formally adopt him. Her natural compassion was evident to this Tribunal when she expressed in very simple terms her joy in being able to help the damaged children in her care achieve, and take pride in, relatively easy tasks such as properly using cutlery at dinner and learning to dress themselves. In describing her achievements with Child 1, her comments were unreserved and emotional in acknowledging that she felt she had never succeeded in teaching him to choose appropriate clothing, and she then added: "I gave him everything that I could and I gave him everything that I gave the other kids".
6. Material before us demonstrates that the applicant's carer authorisation was favourably reviewed by agency personnel who supervised the placement. The applicant was found to have demonstrated a capacity to meet the needs of each child in her care. The other children did not express any concerns in the placement and the applicant's only concerns were that she did not receive the support she would have liked from the relevant agencies. In a five-year review, she and her husband were described as "wonderful advocates for the children in their care when needed", that they were "very family focused" and "treat[ed] the children as part of their family".
7. On the subject of Child 1 soiling himself, she projected an attitude of being unconcerned by what must have been, at times, frustrating and unpleasant to deal with. She said that the child had learned to clean himself up and that she directed him to do so as and when required, without seeking to discipline him. She projected an attitude of calmness, and that the episodes of Child 1 soiling himself were so commonplace that she was unperturbed, and not agitated.
8. However, in material before this Tribunal, there is evidence that the applicant disliked Child 1 and indeed it was reported that she had said she hated him.
9. His Honour's remarks about the nature of some of the alleged abuse by the applicant are found in paragraph 113 of the Judgment: "The use of faeces smeared toothbrush, flushing his head in the toilet and spraying Glen 20 in his mouth are uncommonly malicious forms of abuse to be perpetrated on a child which could only reflect a deep personal dislike and/or sadistic tendencies."
10. The documentary evidence included a risk of significant harm report on 31 August 2011 (when Child 1 was still in the care of the applicant) recording that Child 2 had insisted that a mark on her brother's forehead had resulted from the applicant pushing him because he had soiled his pants at school and had refused to wash them. This lends support to the proposition that the applicant harboured hostility towards Child 1 because of his soiling problem.
11. The assertion by Child 1 that white marks around his mouth had resulted from him sucking the penis of a teacher at school appears to have ultimately been the final straw that drove the applicant to relinquish the care of Child 1. An investigation by the JRU, found the allegation to be a fabrication She could no longer cope with his sexualised behaviours and allegations about sexual conduct with other people.
12. The applicant's relationships with both Child 1 and Child 2 were observed to be complex. As early as 2010, it was clear that the applicant thought Child 1 was a liar and perpetrator and that Child 2 was a liar and a bully. They were not relationships in which the applicant and her husband felt they could express affection because they recognised early on that offering affection could be misunderstood by the children as a sexual advance. His Honour's comments in paragraph 98 of the Judgment about the potential relationship dynamics in dealing with a child who had previously been abused are insightful: "The allegations as a whole depict a new, abusive chapter in [Child 1's] already blighted life. There is no doubt [Child 1] would be a challenge to anyone entrusted with his care after his removal from his birth parents. Occasional responses by a carer which might be categorised as excessive discipline or as a frustrated, spontaneous loss of control in the face of testing behaviour might be understandable but the picture emerging from the prosecution case is one of sustained, deliberate cruelty by the person who voluntarily took on the burden of caring for a child with very special needs. What emerges from the allegations is an attitude of hostility and intolerance expressed as both physical and sexual abuse."
13. As noted in the Judgment, the evidence of Child 1's teachers suggested a degree of indifference or lack of empathy by the applicant toward him.
14. The applicant worked for almost 27 years with the DoE to support children with special needs. On her own evidence, she deeply understands disability and the needs of those affected by disability. We accept this as a truthful statement. She has cared for a great many foster children. She took in three siblings and possibly strove to maintain their connection with each other by continuing to care for them all despite not having strong positive emotions towards Child 1 and, to a lesser extent, Child 2. She is now grieving for "her son", the youngest of the siblings who was removed when she was subject to the 2019 Criminal Trial. The likely scenario that developed over time is that she allowed herself to become depleted. She did not recognise that her relationship with Child 1 had become one in which any empathy she may have had for him in his very young years had dissipated to the point where she was emotionally disconnected from him, and may have experienced disdain towards him.
15. On balance, based on the overwhelming material before us, it appears that the applicant felt resentment and hostility towards Child 1, arising from his soiling problem for at least 3 years which would have been a challenge on a daily basis, and his overt sexualised behaviours towards complete strangers. To a lesser extent, it is apparent that she also harboured negative sentiments towards Child 2. In our view, whether intentional or inadvertent, her differential treatment of Child 1 and Child 2, compared with her close and protective relationships with Child C and Child 3, was likely perceived by all children in the household. Child 1 and Child 2 were likely to have felt isolated and excluded, suffering psychological and emotional harm.
16. The applicant has not acknowledged this possibility, and has not shown insight into it or reflected upon it. There is no evidence before us that she has changed her circumstances or engaged in therapeutic counselling to apply strategies to ensure that, if she was granted a clearance, a negative relationship dynamic would not reoccur with any other child placed in her care.
17. The applicant has expressed remorse over assaulting an adult in 2016. However, that remorse is expressed in self-serving terms, namely that the applicant regrets she was backed into a corner and forced to defend herself. The rationale behind her expression of regret appears to be that she had been forced to acknowledge that she had been present at the time (because she was there and did slap the victim) and she therefore pleaded guilty.
18. However, her approach to the allegations against her by Child 1 appears to be that since, in her mind, the allegations are false there is no cause for remorse. She has not acknowledged the possibility that a child on the receiving end of such conduct would suffer harm. Without reflection on this, she cannot possibly acknowledge whether her conduct may have inadvertently caused harm. Without reflection and acknowledgment, it is not possible to mitigate against that conduct being repeated in the future. Repetition of the alleged conduct would place any child exposed to the risk of severe and enduring harm.

Conclusion

1. For the reasons set out above, the Tribunal is satisfied on the evidence before it and on the balance of probabilities that the applicant poses a real and appreciable risk to the safety of children, and should not be granted a clearance.
2. It is therefore not necessary to consider the reasonable person and public interest tests in ss 30(1A)(a) and 30(1A)(b) of the Act.

Orders 1. The decision of the Children's Guardian dated 5 April 2022 to refuse to grant the applicant a 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 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: 28 June 2023