Kumar v Secretary Department of Education

The Relevant Legislative Provisions

1. It is not in contest that the Respondent's decision of 28 September 2020 (the decision) is amenable to review (s192(b)(vii) of the National Law).
2. This Tribunal is the relevant jurisdiction to which an application is made for external review of the Respondent's decision (see Two Cubed Pty Limited v Secretary of the Department of Education NSW [2019] NSWCATAD 122 at [28] (Two Cubed); Kendrick v Secretary of the Department of Education NSW [2019] NSWCATAD 45 at [29] (Kendrick).
3. The Tribunal has powers as set out in s193 of the Act which includes the power to confirm or amend the decision or substitute the decision of the Respondent with our own decision.
4. When reviewing a decision of the Respondent the Tribunal is to make the 'correct and preferable decision on the material before it'; Two Cubed at [28].
5. The Tribunal's review is a review on the merits of the case on the material produced at the hearing (DBU v Secretary, Department of Education [2017] NSWCATAD 257 at [24]-[26]). Section 3 of the National Law sets out the objects and guiding principle, which include the best interests of the child being paramount. The legislation is aimed at protecting the rights and best interests of children. When deciding what is the 'correct and preferable decision' the Tribunal must consider the rights and interests of children as being 'paramount' (Two Cubed at [75]; Kendrick at [64]).
6. A Prohibition Notice is justified if there 'may be an unacceptable risk of harm to a child or children if the person were allowed to provide education to children' (s182(1) of the National Law).
7. In CMD v NSW Office of the Children's Guardian (2018) NSWSC 1348 at [60] (CMD), the assessment of whether an educator constitutes an unacceptable risk to the safety, health or wellbeing of any child should 'unashamedly prefer the safety of children to all other considerations'.
8. While CMD was a proceeding associated with assessing an application for a review of the Children's Guardian under the Child Protection (Working With Children) Act 2012 (WWC Act), we accept the Respondent's submissions that, by analogy, it equally applies to the National Law which holds the rights and interests of the child as paramount.
9. The Tribunal is not required to determine that the risk of Mrs Kumar engaging in unreasonable discipline is more likely than not to determine that there may be an unacceptable risk of Mrs Kumar engaging in unreasonable discipline. In CMD, McCallum J held the Tribunal could still be satisfied that a person poses a risk to the safety of children without making firm findings as to the occurrence of the particular conduct. McCallum J said at [60]: '… the statute plainly contemplates that, whereas the imposition of a criminal penalty requires proof of a specific allegation beyond reasonable doubt, it is enough to disqualify a person from clearance under the Act that there exists a real and appreciable risk to the safety of children. This is an evaluative judgement. It is to be taken in a very different context from the assessment of the allegations in the criminal context, most importantly including the fact that the applicant has a statutory duty to disclose all relevant information. I do not see any conceptual difficulty with the proposition that a Tribunal might fail to be satisfied on the balance of probabilities as to whether any specified act occurred and yet hold a sufficiently strong apprehension concerning whether any of the conduct might have occurred as to be satisfied that the person in question poses a real and appreciable risk to the safety of children. That is the third category of the case explained by Harrison J based on the approach approved by the High Court to Family Court matters where the question of risk arises. It is an approach which unashamedly prefers the safety of children to all other considerations. To hold that the Tribunal could not be satisfied that a person poses a risk to the safety of children without making firm findings as to the occurrence of a particular conduct specified with the particularity of an indictment would undermine that protection. The Act puts the safety of children above all considerations. So much is made plain by s4 of the Act …'
10. In Kendrick, and Two Cubed, the Tribunal has applied similar approaches to those which were examined in CMD when applying the National Law. When evaluating whether an applicant posed an unacceptable risk for the purpose of reviewing a Prohibition Notice the Tribunal in Kendrick stated at [70] and [71] that: 'The relevant section of the National Law (s182) refers to the phrase 'unacceptable risk of harm'. It was submitted in this matter that the approach articulated by the High Court and the Supreme Court, and adopted in the Tribunal in the context of decisions made about Working With Children Check Clearances, applies in relation to the context of the decision to be made in this matter. The assessment of unacceptable risk of harm is dependent upon a consideration of the objectives under the National Law, and unacceptability of risk involves consideration of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate. And at [84]: 'The determination of the correct and preferable decision must regard the rights and best interests of the child who may receive the benefit of the service as paramount and to ensure the safety, health and wellbeing of children attending education and care services. The National Law also facilitates the provision of a national education and care services quality framework for the delivery of education and care services to children.'
11. The National Law does not define an 'unacceptable risk'. In Kendrick, the Tribunal held, at [70], that: '[T]he assessment of unacceptable risk of harm is dependent upon a consideration of the objectives under the National Law, and unacceptability of risk involves consideration of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate.'
12. In Nilufar v Secretary, Department of Education [2020] NSWCATAD 37 (Nilufar), at [58], the Tribunal explained that 'a risk is unacceptable if it is not compatible with, or would detract from ensuring the safety, health and wellbeing of children … and promoting the rights and the best interests of children' which reasoning we adopt.

Onus

1. No one party bears the onus of proof; Kendrick at [32] to [38], and Global Family Day Care Limited v Secretary, Department of Education [2020] NSWCATAD 248 at [39]. However, the Tribunal in Kendrick stated that the practical (or 'forensic') onus is generally to be carried by the applicant; Kendrick at [38]. The Tribunal in Kendrick applied the High Court decision in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at pp16-17 quoting: 'This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial, and that there is an onus upon neither an applicant nor the Minister. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean the Minister is to bear a legal onus, just as, in those cases in which applicant is better informed, the applicant is not to be so burdened.'
2. It is submitted by the Respondent that, just as it seeks to show the Tribunal that Mrs Kumar 'may be an unacceptable risk of harm to children', Mrs Kumar forensically ought to show the Tribunal that she does not pose an unacceptable risk of harm. We accept these submissions and note that Counsel for Mrs Kumar also accepted the Respondent's submissions as to the applicable law.

Standard

1. The Appeal Panel in Yousef v NSW Vehicle Services Commissioner (2020) NSWCATOD 85 (Yousef) considered the authorities concerning the standard of proof in administrative review; at [30] to [45].
2. As referred to in the written submissions of the Respondent, which we adopt, the following was said in Yousef: 1. 'Administrative review proceedings in NCAT are administrative and inquisitorial in nature, with no onus of proof on either the applicant or respondent' at [30]; 2. 'Although the notion of onus of proof has no part in administrative proceedings, in some circumstances one or the other party may bear a practical onus to prove facts in issue' at [31]; 3. 'Tribunals exercising administrative review jurisdiction are not bound, as a matter of law, to apply Briginshaw principles' at [36]; 4. 'The fundamental obligation is to make findings of fact based on logical probative material. Such obligation is to be discharged in accordance with the principles of procedural fairness and natural justice as recognised in the NCAT Act' at [43]; and 5. 'When making findings of fact which have 'serious' consequences to a party, the more centrally relevant a particular fact may be to the decision reached, the Tribunal may express greater caution in evaluating the factual foundation for the decision to be reached' at [45].

Evidence

1. Mrs Kumar's evidence:

• Application Form (A1).
• Mrs Kumar's Affidavit sworn 29 January 2021 (A2).
• References (A3)

1. Respondent's evidence:

• Statement Educator 2 (R1)
• Statement of Centre Director (R2)
• Incident reports x 4 (R3)
• Unedited CCTV (R4)
• Edited CCTV (R5)
• Affidavit Ms Morris 18.12.20 (R6)
• Affidavit Ms Morris 16.02.21 (R7)
• Affidavit Paul Sylvester (R8)

Evidence of Mrs Kumar

1. Mrs Kumar relies upon an Affidavit sworn on 29 January 2021.
2. She outlines her education and vocational history which is uncontroversial.
3. In relation to the subject incident, Mrs Kumar says that after reading all statements and having viewed the CCTV recording: 'a. As I have stated previously, I have no recollection of the incident that I am alleged to have committed. b. Upon receiving the video on a number of occasions, after 18 December 2020 when the Brief was served on my Solicitors, I concede that the arm which reaches out to hold the child's hair was mine. c. Previously, I denied pulling the child's hair because, in my mind, this is something that I could have never knowingly done. The child, at the time, said or did nothing to alert me to the fact that I had grabbed her by the hair. I certainly, as a form of discipline, would never pull a child's hair. All I can say is that my reaction was so spontaneous that it did not register in my subconscious that I pulled a child's hair. d. As I have stated previously, children should never be physically disciplined. I have never intentionally physically disciplined any person or child.'
4. On 7 September 2020, Mrs Kumar spoke with the Centre Director about the incident. In cross-examination, Mrs Kumar said that at this point in time she had not seen the CCTV footage. Mrs Kumar said to the Centre Director that in effect she was telling Educator 1 that she was showing a child's long hair. In the cross-examination the following exchange took place: 'Q And, your response to that was, 'I was telling [Educator 1]' - that [Educator 1]? A Educator 1. Q You were telling her, 'Oh, wow, she has such long hair' that's in reference to the child having long hair? A Correct. Q And, after saying that, that's when you heard [Educator 2] say, 'Mary, don't pull her hair.' A I'm a bit confused in that because that conversation did happen but not at that time. I was confused, and I [indescribable]. Yeah. Yeah, it - that conversation happened. Q I just want to put it to you - my question is at the time you were having this conversation with [Centre Director], that's what you told [Centre Director], didn't you? A Correct. … Q Okay. And, I suggest you said this to [Centre Director], that you were saying, 'Oh, wow, she has such long hair' and then [Educator 2] said, 'Mary, don't pull her hair' because you were trying to convey to the Centre Director that [Educator 2] had misread your conduct. A I can't get you proper, madam, can you repeat, please? Q You were trying to suggest that there was a misreading of your conduct at that time, a misinterpretation of what you were doing. A Yes. Q You were trying to suggest to the Centre Director that there - that [Educator 2] had misinterpreted what you did when you were holding the child's hair. A I did.'
5. The cross-examination moved to a Statutory Declaration provided by Mrs Kumar, sworn on 15 September 2020. Mrs Kumar agreed that she understood the importance of a Statutory Declaration in that it must contain true and accurate statements. Mrs Kumar said 'At that time I was so confused, depressed, whatever came into my head I - whatever I recollected I wrote.'
6. The following cross-examination continued: 'Q In paragraph 4 of the Statutory Declaration it says, 'As soon as [anonymised] returned from the bathroom' - can you see that? A I did. Q And, that's where you, again, describe holding the child's long braided hair? A I did. Q And you describe hearing [Educator 2] saying, 'Stop pulling the hair.' A That's what I wrote here. Q I suggest you said that to - in your Statutory Declaration to distance yourself from what you knew had occurred. A No, madam. This incident happened later on, which is not on the CCTV. If you have a look at the whole day's CCTV footage you will see that it's happening. That's when - when. Q Okay. Alright. You told, in your record of interview with the investigators - do you remember that record of interview with the investigators of the respondent? A Correct. Yeah. Q You said that the incident, with you holding the child's hair, and talking to [Educator 1], happened at about 2.50 p.m., didn't you? A That's what I said, correct. Q And, that wasn't captured on CCTV, was it? At 2.50 p.m.? A This happened later, but at - in that incident, at that time, it - yeah, it - it's not at that time. But, it did happen later, which I did. Q Mrs - Mrs Kumar, I suggest to you you knew you pulled the child's hair as a way of behaviour management. A No, madam. I didn't pull. Q And, you knew [Educator 2] said, 'Stop pulling the hair,' because she'd just seen you pull the child's hair. A I heard her say that, but it doesn't register that I pulled the hair. I did hear her say that. Q And, you told, in your Statutory Declaration, that you had just held the child's hair to distance yourself from what really occurred. A Madam, likewise, I'm telling you at the time - during - at - during that time, in that room, I did - when I was going to get the sunscreen, before the group time, I - she - this little girls stood in front of me and I did say she had - she had beautiful hair. But, what does that not register me pulling the hair at any time.'
7. Mrs Kumar in cross-examination, confirmed that she was given the opportunity to read the 'record of conversation' prior to her signing it as being accurate. She said she was confused when she told her employer this narrative about showing a child's hair to have occurred earlier than 2.15 p.m. We find as a matter of fact there is no evidence on any CCTV showing that such an encounter occurred.
8. The same version was provided to the investigator, Mr Sylvester; that is, that Mrs Kumar did not pull Child A's hair and that (Educator 2) shouted to Mrs Kumar 'Stop pulling [Child A's] hair' when Educator 2 saw Mrs Kumar showing Educator 1 Child A's hair.
9. Despite the CCTV being shown to Mrs Kumar by the investigator, it was revealed that Educator 1 was not in the room. Mrs Kumar continued to maintain her denial and at one point suggested to the investigator that it could have been a child that pulled Child A's hair. Her evidence is this regard is totally inconsistent given the admission made by Mrs Kumar and having had the benefit of viewing the CCTV. To suggest it could have been a child pulling Child A's hair is fanciful.
10. We are not satisfied that the explanation provided by Mrs Kumar happened, namely that she was showing Child A's hair to [Educator 1] and was told by [Educator 2] to stop pulling the child's hair. The CCTV evidence is inconsistent with that explanation, as is the evidence of both Educator s 1 and 2. Mrs Kumar's evidence was confusing and it is clear in our mind she attempted to convey to the Centre Director that Educator 2 had misread her conduct. We find it was more probable than not that Mrs Kumar knew she had pulled Child A's hair and that the statements were to distance herself from her conduct which, after it was pointed out that Educator 1 was not in the room, Mrs Kumar shifted the narrative to suggest that the showing of Child A's hair occurred earlier, to remove any criticism about the reliability and credibility of her evidence. Even in Mrs Kumar's evidence in this hearing see paragraph [32] she said: "Upon receiving the video on a number of occasions, after 18 December 2020 when the Brief was served on my Solicitors, I concede that the arm which reaches out to hold the child's hair was mine." [our emphasis] Mrs Kumar has continued to use the word 'hold' in reference to her actions when the video clearly depicts Mrs Kumar pulling child A's Plait. We find that Mrs Kumar even at the date of the hearing was attempting to minimise her actions despite accepting that she had pulled the child's hair. Indeed, if the CCTV was showing Mrs Kumar holding the child's hair, this is inconsistent with her explanation that the holding and showing of child A's hair happened at a different time.
11. Mrs Kumar's evidence was that her action in pulling Child A's hair was not intentional and "it did not register in her subconscious". As a result of it not registering in her subconscious, Mrs Kumar contends that is the reason why she maintained her denial to the investigator and the Centre Director that she was the person who did pull Child A's hair. She denied repeatedly in cross-examination that she consciously pulled Child A's hair and used the words 'It didn't register pulling - grabbing - her hair'.
12. Despite Mrs Kumar denying in the cross-examination that she attempted to provide an innocent explanation for why Educator 2 might have said 'Stop pulling the hair', we find that Mrs Kumar was attempting to do so. Having had the benefit of seeing Mrs Kumar's and hearing her evidence, we find that there are fundamental and significant inconsistencies in differing versions of events that she told the Centre Director, the investigator, Mr Sylvester, and the Tribunal which cannot be explained by the incident 'not registering in her subconscious' at the time or weeks and months after it occurred. Particular weight is given to Mrs Kumar's change in the narrative concerning her explanation that she was showing a child's hair to Educator 1 which prompted Educator 2 saying 'Stop pulling the hair'. Mrs Kumar's change in this narrative only occurred after she looked at the CCTV vision which did not support her original version of events. Mrs Kumar also said that the CCTV did not show her pulling Child A's hair and said it could have been a child. We find that Mrs Kumar was attempting to distance herself from the events which occurred.
13. Mrs Kumar was not an impressive witness and in our view was attempting to minimise the seriousness of the event and, as best as possible, remove all responsibility of her pulling Child A's hair. Mrs Kumar's explanation that 'It did not register in her subconscious' is a continued failure of her to accept responsibility for the entirety of the incident itself. Even if we were to accept, which we do not, that Mrs Kumar's actions were a momentary response, this in itself causes us concern as to how she may react in the future with respect to carrying out the role of an early childhood educator. This incident was not one where Child A was in imminent danger that may have required an immediate momentary response to remove the child from danger. The incident, even if we were to accept Mrs Kumar's explanation, was one where the child was attempting to leave a group reading circle and Mrs Kumar pulled the child's hair to stop her from doing so. Mrs Kumar's explanation that it was an immediate reaction and did not register in her subconscious is, in our view, implausible. Rather, we find that Mrs Kumar, for an unexplained reason, did not wish the child to leave the reading circle and pulled her by the hair to stop her from doing so. In our minds, this is unacceptable discipline.
14. Mrs Kumar participated in an interview with Mr Paul Sylvester, Investigator employed in the Compliance and Investigation Unit of the Early Children Education Directorate of the Department of Education. She denied the allegation that she pulled Child A's hair. Mr Sylvester and Mrs Kumar had the following conversation: 'Sylvester: Okay. Okay. So, Mary, it's been alleged that at about 2.58pm, you pulled Child A's hair, causing her to fall backwards. What's your version? Kumar: I saw the video. Hair was pulled, but I didn't pull the hair …'
15. Further in the interview the following was said: 'Kumar: I held her plait with both my hands at the bottom, and I lifted it up. And, I told (another child), I said, 'Child A has beautiful long hair.' And, I put her hair down.' Referring to holding Child A's hair.'
16. Mrs Kumar said that she was showing Child A's hair to educator 1, about 5 to 10 minutes before educator 2 shouted 'Stop pulling hair'. Her explanation to Mr Sylvester that she was showing Child A's hair to another child is yet again inconsistent with the version she was showing Educator 1 the child's hair.
17. Further in the transcript, Mrs Kumar was asked on a number of occasions 'did you pull child A's hair ?' and she denied that she did so. Mrs Kumar also said to Mr Sylvester that Educator 1, was present in the room at the time of the incident which was incorrect. Mrs Kumar said in the cross-examination: "nothing that I said to Mr Sylvester about that issue was intended to mislead him."
18. In a Statutory Declaration sworn by Mrs Kumar on 15 September 2020 provided to Mr Sylvester, the following is recorded.
19. Mrs Kumar denied the allegation that she pulled Child A's hair. Mrs Kumar said in relation to the accident: 'I then explained that just before group time I heard Ms [educator 2's] voice saying, 'stop pulling the hair'. I told both [educator 3] and [educator 4] that I did scanned to room to see if a child was pulling another child's hair but there was no sign of anyone doing that behaviour. I told both my supervisors that while I was on my way to get the sunscreen Child A followed me and at the pillar she came and stood in front of me. Smiling at Child A I said to [educator 1] (staff) who was standing at the trolley in front of me 'Child A has beautiful hair'. I told [Educator 3] (Director/Supervisor) and [educator 4] (Education Leader) that I held her hair and complimented Child A's hair, but I did not pull her hair. [Educator 4] wrote up my statement and asked me to sign it. As I read the statement, I told [educator 4] that the statement I gave was not that that was written there. [Educator 4] asked me 'why'? I told her that 'firstly it was not group time as she had written and secondly [Educator 2] said 'stop pulling the hair' only once, not as you have written 'stop pulling the hair' twice. [Educator 4] forced me to sign the document as she said she would correct it later. [Educator 3] told me to go back into the room.'
20. In the electronically recorded interview between Mrs Kumar, Mr Sylvester, Mr Scott Watson and Ms Nancy Walker, Mrs Kumar maintained her denial. Despite being shown the CCTV footage and agreeing that what she saw that was done to Child A could be described as being unreasonable discipline, Mrs Kumar denied that it was her pulling Child A's hair. Shortly before the hearing, Mrs Kumar now admits that it was she that held, or pulled, Child A's hair.

Evidence of [Educator 1]

1. [Educator 1] was not cross-examined. She says that at the time of the subject incident she was on her lunch break and did not witness the incident. We have placed significant weight on Educator 1's evidence as it contradicts the previous version of events provided by Mrs Kumar, namely, that Mrs Kumar was showing Child A's hair to her when Educator 2 said 'stop pulling the child's hair". Educator 1 was not in the room at the time. We also have considered that Educator 1 is silent on Mrs Kumar's contention that was showing her a child's hair at a different time to the subject incident of Child A's hair being pulled.

Evidence of [Educator 2]

1. In the investigation undertaken by Mr Sylvester, [Educator 2], room leader and Educator with the Early Childhood Service, provided a statement dated 8 September 2020. The statement was admitted without objection.
2. [Educator 2] said that around 2.45 to 3.00 p.m. on 4 September 2020 she was in the Grateful Room with another person and Mrs Kumar. [Educator 1] was on her lunch break and was not in the room at all. She observed Mrs Kumar sitting on the couch doing some group time with children in front of her. Mrs Kumar was singing songs for group time and some of the children moved away from her: 'Child 1 was crawling away from Mary when I saw Mary reach out with her arm and use her hand to take hold of Child A's hair and pull her hair backwards. I saw Child A's head move backwards a little bit but only slightly. I called out to Mary and said 'Do not pull her hair, it's not the right thing to do'. Mary let go of Child A's hair as soon as I spoke. Mary held Child A's hair for 1 or 2 seconds.'
3. [Educator 2] reported the incident to, the Centre Director ("Centre Director").
4. [Educator 2] also refers to an incident occurring in around April 2020 at about 3.00 p.m. She said that she observed Mrs Kumar yelling at a child and grab the child by both shoulders and shake her back and forward. Mrs Kumar then pulled the child downwards and made her sit down on the slide. [Educator 2] said that she should not shake kids like that and reported the incident to the Centre Director.
5. In examination in chief [Educator 2] said that she had made a number of notes which she recorded in her mobile telephone and later put those complaints in writing and forwarded them to the Centre Director.
6. [Educator 2] agreed in cross-examination that she did not report the April 2020 incident immediately to her supervisor, which she said was in breach of the educational centre's Ethical Conduct Policy.
7. [Educator 2] agreed that she provided a typed-up document of four pages outlining matters raising her concerns about Mrs Kumar soon after the September 2020 incident.
8. We accept [Educator 2] generally as a truthful and reliable witness.

Evidence of [Educator 5]

1. The investigation report prepared by Mr Sylvester included a statement of [Educator 5] dated 8 September 2020. The statement was admitted absent objection. [Educator 2] was employed by the Early Learning Centre as a Room Assistant and Educator. She had worked at the service for about 3 years and was in the room with Mrs Kumar and Educator 2 at the time of the subject incident [Educator 1] was not in the room at the time as she was having a break. [Educator 5] said she recalls Mrs Kumar shouting something to the effect 'You are not listening, you need to listen.' She describes Mrs Kumar as sounding upset. The following is recorded in her statement: 'I looked towards the reading corner to see if Mary was okay. Mary was sitting on the couch in the reading corner with the kids in front of her. I saw Mary holding Child A's hair in her right hand. I saw Mary's hand holding Child A's hair for about 2 seconds. She was just holding the hair. I did not see her pull Child A's hair.'
2. [Educator 5] said that after Mary was holding Child A's hair, Child A appeared to be 'completely fine'.
3. We accept [Educator 5] as a reliable witness. We have placed less weight on her evidence given that it is unlikely [Educator 5] witnessed the incident which has been revealed on the CCTV vision. [Educator 5] clearly did not see Mrs Kumar pull Child A's hair. It is, therefore, more likely than not that [Educator 5] did not see Mrs Kumar pulling Child A's hair which is depicted on the CCTV vision.
4. [Educator 5] was not called for cross-examination.

The CCTV Footage

1. The CCTV footage of the incident was tendered on behalf of the Respondent. The footage captures Mrs Kumar, [Educators 2 and 5] in the room between 2.45 p.m. and 3.00 p.m. Mrs Kumar can be seen participating in a reading group with a number of children sitting on a mat. Child A appears to leave the group and whilst doing so is stopped by a person (Mrs Kumar), the person (Mrs Kumar) pulls Child A by her plait. Her head moves backwards and she falls to the ground. The CCTV footage does not show Mrs Kumar's face, however, it is conceded by Mrs Kumar that she is the person depicted in the CCTV who did pull Child A by the hair.
2. The Respondent submits this action was discipline to Child A; that is, to stop Child A from leaving the reading group on the mat. It is uncontroversial that the Room Supervisor, Educator 2, saw the incident and reported Mrs Kumar to the Centre Director. It is also uncontroversial that on the day of this incident there were four Educators working, namely, Educators 1, 2, 5 and Mrs Kumar. The CCTV also shows that at the relevant time Educator 1 was not in the room.

Other incidents concerning Mrs Kumar's prior behaviour

1. The Respondent contends that the incident on 4 September 2020 was not an isolated incident. Other incidents, which are set out below, are alleged to be matters where Mrs Kumar has had to be disciplined by her employer or where staff had held concerns about her treatment of children which support the decision of the Respondent to issue a prohibition notice. The Respondent also contends that her knowledge of the National Quality Framework or application of day care policies and procedures are further matters to be considered.

Second dose of antibiotics

1. The Centre Director gave evidence that on 12 April 2019, close to 1 month after Mrs Kumar started her employment, she administered a second dose of antibiotics to a child which was unauthorised. The Centre Director said that she wished for Mrs Kumar to leave the early childhood centre immediately but was directed otherwise by management. In Mrs Kumar's affidavit, she sets out that she administered the appropriate paperwork for the extra dose of antibiotics. Despite in the cross-examination being shown a business record that she signed and stated having failed to complete the appropriate documentation regarding the administered antibiotics, Mrs Kumar maintained that she had indeed filled out that paperwork.
2. Mrs Kumar was cross-examined extensively over this incident. She agreed that she had filled out and signed, which is annexed at "J" to the Affidavit of the Centre Director, a document described as a disciplinary record. The record indicates: 'Educator had also not filled any paperwork to state she had administered it.'
3. Mrs Kumar agreed that she had signed that disciplinary record but denied that she did not fill out any paperwork in relation to the second administration of the antibiotic for that particular child. She said that she had filled out paperwork and it is recorded and 'it should be in the admin file'.
4. There is no evidence of any additional paperwork as referred to by Mrs Kumar. The disciplinary record 'Coaching, Counselling, Disciplinary and Termination Notification' in our view speaks for itself. Mrs Kumar agreed that she had signed that record and we accept that at the time she did so, she agreed that she had not filled any paperwork to administer the second antibiotic to the child. We do not accept Mrs Kumar's explanation in cross-examination that there was another document apparently 'included in the admin file'.

Giving a child the wrong milk

1. Mrs Kumar deposes that on 2 May 2019 she administered full cream milk to a child contrary to documented directions that the child's dietary requirement required 'A2' milk. Mrs Kumar says she had a (later) conversation with the mother of the child, which was not challenged in cross-examination, suggesting that the child could drink either type of milk. In the Coaching, Counselling, Disciplinary and Termination Notification document (Annexure O in the Affidavit of the Centre Director) Mrs Kumar recorded her response to this incident as: "On the allergy board states A2- doesn't say milk - always seen him have water". During cross examination, Mrs Kumar denied responsibility or accountability for the administration of the incorrect milk. Mrs Kumar denied that she gave the child the wrong milk. When that allegation was put to her in cross-examination she said 'No, that's incorrect. The child did insist, but we didn't - I didn't give any.'
2. Mrs Kumar was asked about the Coaching, Counselling, Disciplinary and Termination Notification she was given to sign concerning administering the wrong milk to the child. She said that the handout was given to all staff. She said that she signed the form at the bottom but this was done later and it was not her handwriting.
3. Mrs Kumar's evidence was confusing in this regard. At one point she said she signed the document and then she said she did not but may have at a later time. Whilst the administration of milk is in our view a minor matter, we are satisfied, given the unreliability of Mrs Kumar's evidence, that it is more probable than not that the incident occurred. We do not accept Mrs Kumar's evidence that she did not sign the Coaching, Counselling, Disciplinary and Termination Notification. As to when the form was signed, we find that the date inserted next to her signature is 2 May 2019 and is, therefore, consistent with the form being signed on that date.

Allegations by Educator 2 about various incidents

1. Educator 2 gave evidence that she recorded a number of different events of concern in relation to Mrs Kumar and children at the early childhood centre. Educator 2 recorded these events on her telephone and later transcribed them into a document. She said in cross-examination that she was 'worried about the children's safety' and for that reason created a document which she gave to the Centre Director in September 2020 setting out her concerns, which included the following incidents: 1. inappropriate behaviour guidance/discipline; pushing children (incident dated 7 June 2020), grabbing children by their arms (incident dated 25 June 2020), forcing a child to sit down by holding him during group time (incident dated 27 July 2020); 2. letting a child sleep in a hoodie (incident dated 28 July 2020); 3. not following policies and procedures in terms of reporting accidents or injuries (incidents dated 30 June 2020, 3 August 2020, and 5 August 2020); and 4. not supervising children in a bathroom and leaving the floor (incident dated 13 August 2020).
2. Mrs Kumar denied each and every of these allegations recorded by Educator 2.
3. We have placed limited weight on Educator 2's evidence in relation to these various allegations. Educator 2 in her statement says that she told the Centre Director the next day of her observations orally and then typed a written record of the allegations of breach of policy and physical assault. However, the Centre Director in cross-examination had no recollection of being told about the shaking incident by Educator 2. Given that the policy and procedure of the early childhood learning centre was to complete a Coaching, Counselling, Disciplinary and Termination Notification document in relation to all types of incidents, there is no evidence of any document of this nature in response to the reports made by Educator 2 to the Centre Director, except the report of minor injuries on 30 June, 3 and 5 August and 4 September 2020 as set out in the next paragraph (exhibit R3). Given the meticulous records held by the early childhood centre in relation to the administration of milk and antibiotics and other matters, we are not satisfied, based on Educator 2's evidence alone, that these events were reported to the Centre Director. Limited weight, if any can be placed on Educator 2's evidence in relation to these alleged reported incidents in the absence of corroborating documentary evidence which exists in relation to other matters concerning Mrs Kumar. The inference that could be drawn is that these events either did not occur or were of an insignificant nature that did not require documentation and recording or follow up by the Centre Director. Further, there was no written warning or other disciplinary action taken in relation to the incidents as outlined by Educator 2 which further supports our findings in relation to the events either not occurring or being insignificant in terms of the required follow up action which ordinarily was likely to have occurred.
4. Following the cross-examination of Educator 2, the Respondent tendered incident reports concerning events on 30 June, 3 August, 5 August and 4 September 2020 (R3). Those documents include incident, injury, trauma and illness reports concerning: 1. a child bumping a second child's head and hitting her forehead purportedly signed by Mrs Kumar; 2. an incident where a child came up to Mrs Kumar and showed his little left finger which had a bruise where Mrs Kumar comforted the child and applied a cold sponge, also purportedly signed by Mrs Kumar; 3. a cold sponge applied on a child's hand purportedly signed by Mrs Kumar; 4. a child pushing a toy truck and falling over and injuring his knee also purportedly signed by Mrs Kumar.
5. During cross-examination Mrs Kumar was shown these reports and denied signing them and in effect stating that her signature had been forged. The Centre Director gave evidence that the incident report forms were signed with the finger of a person as an electronic signature. Despite Mrs Kumar saying that she had not worked at the day care centre long enough to have signed and witnessed these incident report forms, her evidence suggests otherwise. Mrs Kumar had been working for over a year at the day care centre by the date of those reports being prepared in 2020. In our view, Mrs Kumar's attempts to distance herself from the incident reports undermines her credibility and therefore affects her reliability generally.

Evidence of Ms Sharna Morris

1. Ms Sharna Morris, Senior Field Officer with the Department of Education. Ms Morris presented as a reliable witness. Ms Morris sets out the emotional and physical consequences of force on a child as a measure of discipline. She indicates that children learn respect and how to solve problems by following and watching their carers, attachment figures and teachers. Of particular importance during cross-examination Ms Morris stated: 'What I saw on the CCTV footage was a child forcibly pulled backwards and fall onto her back as a result of her hair being pulled. So, regardless of it registering or not, that, to me, is a risk to the child.'
2. We accept the evidence of Ms Morris.

Evidence of Paul Sylvester

1. Mr Paul Sylvester is the investigator who conducted the investigation concerning Mrs Kumar and Child A. He is an employee of the respondent. Despite a robust cross examination, we accept Mr Sylvester as a reliable witness. We have referred to the various parts of his evidence above.

Our consideration

1. We have set out our findings regarding the plausibility of Mrs Kumar's evidence, namely, she did not admit to pulling Child A's hair because 'It did not register in her subconscious'. This in our view is of significant concern. Whilst we do not accept Mrs Kumar's evidence in this regard, even if we had, her conduct of pulling a child's hair, after verbally chastising the children, according to Educator 5, is of concern to us when evaluating risk of harm to children. We find that her conduct, whether it was knowingly intentional, or a reaction which did not register in her subconscious, is inappropriate discipline. In our view, Mrs Kumar's conduct presents an unacceptable risk to children. We find her conscious or otherwise use of inappropriate discipline and lack of attention to the medication and dietary needs of children evidences a likelihood of the risk eventuating again and the gravity of the risk that may eventuate is a risk to the safety and wellbeing of children. It is a material factor we have taken into consideration in affirming the decision of the Respondent.
2. Mr Gillett, Counsel for Mrs Kumar, submits that Ms Kumar's actions on 4 September 2020 were not acts of discipline upon a child, either punishment or chastisement, but rather, a spontaneous reaction by her of a very short duration involving no element of discipline. We do not accept this submission.
3. The Respondent submits that Mrs Kumar poses an unacceptable risk of harm to children if allowed to provide education and care to children because of the matters set out above and, further, because: 1. there should never be an excuse or explanation for inappropriate or unreasonable discipline on a child; 2. the safety of the child should be unashamedly preferred; 3. the Applicant readily used this form of discipline (consciously or subconsciously), despite knowing it was inappropriate. That readiness is evidence of unacceptable risk; 4. there have been other concerning incidents regarding the Applicant's treatment and care of children; 5. the age range of children that the Applicant, if permitted, would educate/care for, is irrelevant. Unreasonable discipline has a significant impact on children 0 to 5 years of age. Children in this age range are most vulnerable because they cannot readily communicate (nor at times understand or process) the harm perpetrated on them. Unless the harm is seen by other colleagues or noticed by a parent it would likely go unaccounted for, and probably be repeated. That risk is unacceptable; 6. the Applicant showed no understanding of or insight into the allegations nor acceptance of any responsibility for them.
4. The Respondent says that Mrs Kumar has not evidenced that she does not pose an unacceptable risk of harm to children.
5. Apart from the incident on 4 September 2020, Mrs Kumar has demonstrated a lack of accountability or responsibility for a number of incidents where there is evidence of contemporaneous business records attributing responsibility to her, and which affect in our view her evidence. When challenged about these incidences, whether fault is alleged against her or even in circumstances where it is not, we find that Mrs Kumar has been less than candid in her evidence and was seeking to distance herself from any wrongdoing, or carelessness, which taints the reliability of her evidence.

Our findings

1. The National Law legislation is aimed at protecting the safety and wellbeing of children. The interests of children are a 'paramount' consideration when deciding what is the 'correct and preferable' decision under review.
2. A prohibition notice is justified if there 'may be an unacceptable risk of harm to a child or children if the person were allowed to provide education and care to children' (see s182(1) of the National Law). In CMD, McCallum J referred: "The assessment of whether an educator constitutes an unacceptable risk to the safety of children, health or wellbeing or any child should 'unashamedly' prefer the safety of children to all other considerations".
3. As set out above, the Tribunal need only consider whether Mrs Kumar may pose an unacceptable risk to children if allowed to provide education and care to children.
4. The primary and most compelling event which in our minds evidences that Mrs Kumar may pose a risk of harm to children is that she engaged in the inappropriate discipline of Child A. We do not accept Mrs Kumar's explanation that she acted 'subconsciously'. However, even if we did, that in itself is of significant concern as it suggests that Mrs Kumar unknowingly reacts in a way which could have detrimental effects to a child. We have also taken into consideration the evidence of Educator 5 that Mrs Kumar was heard saying 'You are not listening, you need to listen' and sounded upset. The CCTV and the evidence of Educator 2, depict Child A moving away from the reading circle and Mrs Kumar taking hold of the child by the plait, pulling the child backwards, causing her to fall onto the ground. In our view, this was an inappropriate form of discipline to stop the child from removing herself from the reading circle.
5. We accept the submissions of the Respondent that, for the reasons which are set out above, Mrs Kumar attempted to minimise her involvement in the incident, absolutely denying it, and even when she was provided with an opportunity to view the CCTV, changed the narrative about the events which occurred. Mrs Kumar attempted to explain her denial and change of the narrative concerning Educator 1 being shown the child's hair by Mrs Kumar as a result of the event not registering in her subconscious. She provided another explanation to Mr Sylvester that she was showing Child A's hair to another child and proposed that her arm seen in the CCTV pulling the hair could have been a child. We find that Mrs Kumar attempted to mislead the investigator and the Centre Director so as to not have any adverse findings made against her with respect to her conduct.
6. Similarly, we find that Mrs Kumar attempted to distance herself from the administration of an antibiotic and milk to a child contrary to the children's standing instructions. Whilst these events are of a less serious nature to Child A, they nonetheless could have had serious medical consequences. and add some weight to our determination. The incident concerning Mrs Kumar administering an antibiotic to a child holds more weight than the milk incident. In both circumstances, we do not accept Mrs Kumar's evidence that the contemporaneous documentation was incorrect as she alleges. The weight we attach to these incidents in assessing risk of harm to children is moderate.
7. We accept the evidence of Ms Morris concerning the education and training an educator would have about the different forms of discipline to be used on a child. In our view, Mrs Kumar's actions fall well below that which would be expected of a reasonable educator in the same circumstances. We also accept the evidence of the Centre Director that Mrs Kumar, despite being provided with an orientation and policy guidelines concerning the boundaries of appropriate behaviour with children in her care, has acted outside of those boundaries.
8. We have taken into consideration the references provided on behalf of Mrs Kumar which were marked as Exhibit A3. The first reference is dated 4 February 2020 and is from a psychologist who states: 'It is shocking for me to come to terms that Mary, as an educator who has a passion for children is being alleged for pulling a child's hair.' The reference would seem to question whether Mrs Kumar did pull the child's hair by use of the words 'being alleged'. It can be inferred that at the time the reference was requested, Mrs Kumar continued in her denial that she did not pull Child A's hair. We have placed limited weight on that reference.
9. The second reference, also dated 4 February 2020, is from a person who is an Executive Director of a disability advocacy association also questions the 'allegation' that Mrs Kumar is alleged to have pulled the hair of a child. The referee indicates that the CCTV does not depict Mrs Kumar in the video which would suggest to us that the referee is questioning whether Mrs Kumar herself acted in the way that she now admits she did. We have placed limited weight on this reference. We do note that Mrs Kumar is well spoken of in other respects, which we have considered.
10. We have also taken into consideration the vulnerability of the particular children under the care of Mrs Kumar, being age 0 to 5 years. Particularly, the age of Child A being 3 years where inappropriate discipline was used by Mrs Kumar. In considering the ongoing risk of harm to children, given their vulnerability within that age group and the likely cohort Mrs Kumar would continue to provide education services for, we are not satisfied, given our findings and weighing the protection of the health wellbeing and safety of children, that we should make an order, other than affirming the decision of the Respondent.
11. We have placed some weight, but not to a high degree, on Mrs Kumar's simple understanding of the National Quality Framework. This in itself is not in our view a material factor which has led to our determination to affirm the decision of the Respondent. Mrs Kumar, like other educators, could undergo retraining around the policies and procedures and effect of the National Quality Framework to reduce the risk of harm and promote best practice of care. We have also placed little weight on there being no character reference from her previous employer, notwithstanding she worked with that employer for 4 years prior to her commencement with the subject early childhood learning centre.
12. Overall, we find that Mrs Kumar used force which was inappropriate and unreasonable against Child A on 4 September 2020. Even if we accept Mrs Kumar's explanation that it did not register in her subconscious, we still have concern that a similar reaction to disciplining a child from leaving a reading circle by pulling her hair and causing her to fall to the ground, could occur again in circumstances where Mrs Kumar has not realised that she has acted in that way. Thankfully, the incident on 4 September 2020 did not lead to any injury to the child. In our view, that was probably by luck rather than design. Pulling a child by the hair backwards could lead to a serious head injury which may have had devastating and long-lasting effects. In our view, ensuring the protection of children, Mrs Kumar by her actions, and by her response and behaviour since the allegations have been made, poses an unacceptable risk of harm to a child.
13. Mrs Kumar may in the future decide to obtain an expert opinion as to the likelihood of the repetition of her behaviour should she decide to seek to have the prohibition notice considered further.
14. For these reasons we make the following order: 1. The decision of the Respondent made on 28 September 2020 is affirmed.

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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: 20 December 2021