MES v The Suitability Panel (Review and Regulation) [2022] VCAT 274

1 The Tribunal makes the following findings and determinations in accordance with ss 105 and 106 of the Children, Youth and Families Act 2005 (Vic) (the CYF Act):

(a) Under s 105(1) of the CYF Act, the Tribunal determines that the allegation that the Applicant physically abused a child, UYK, is proved on the balance of probabilities.

(b) Under s 105(5) of the CYF Act, the Tribunal makes a finding of misconduct against the Applicant.

(c) In making its determination, the Tribunal has had regard to the matters set out in s 105(2) of the CYF Act.

(d) Having made a finding of misconduct against the Applicant and having considered all the matters referred to under s 106(2), the Tribunal determines, under s 106(1), on the balance of probabilities, that the Applicant poses an unacceptable risk of harm to children.

(e) Under s 106(3) of the CYF Act, having found that the Applicant poses an unacceptable risk of harm to children, the Tribunal finds that the Applicant should be disqualified from registration under Part 3.4 of the CYF Act.

2 Having found that the Applicant should be disqualified from registration under Part 3.4 of the CYF Act, under s 106(5) of the CYF Act the Applicant is disqualified from registration under Part 3.4 of the CYF Act.

Ms E Frawley of Counsel instructed by Russell Kennedy Lawyers

1 On 22 January 2021, the Applicant lodged an application with the Victorian Civil and Administrative Tribunal (Tribunal) for review under s 118 of the Children, Youth and Families Act 2005 (Vic) (the CYF Act). The Applicant also made a stay application, which was subsequently withdrawn.

2 This review, which constitutes a de novo merits review, concerns the findings and determination of the Suitability Panel (the Panel) made on 28 October 2020.

1. Determined that an allegation of physical abuse against a child by the Applicant was proven under s 105(1) of the CYF Act;
2. Made a finding of misconduct against the Applicant under s 105(5) of the CYF Act; and
3. Determined that the Applicant poses an unacceptable risk of harm to children under s 106(3) of the CYF Act and therefore should be disqualified from registration under Part 3.4 of the CYF Act.

4 The Second Respondent, the Secretary to the Department of Health and Human Services, now known as the Department of Families, Fairness and Housing (DFFH), submits that the Applicant did abuse the subject child (referred to throughout these reasons as UYK) and that he does pose an unacceptable risk of harm to children. The DFFH recommends that the Tribunal adopt the findings of the Panel.

5 In April 2017, the Applicant was employed by Care Choice (Aust) Pty Ltd (Care Choice) as an out of home carer. During this time, the Applicant worked with different clients.

6 In or about March 2018, the Applicant started working with UYK, an eleven-year-old boy.

7 UYK had an intellectual disability and had suffered trauma whilst he lived with his parents.

8 When he commenced working for Care Choice, the Applicant:

1. Was and is a father of six (6) children aged about 11 years and under;
2. Had a degree in psychology and a Certificate IV in Disability;
3. Was a registered residential care worker; and
4. Had previously undertaken a course in positive behaviour.

9 On 18 May 2018, it was alleged that the Applicant had physically abused UYK whilst in his care at a residential unit in Werribee, by striking UYK's inner thigh with his open hand leaving a red mark on his thigh (the Alleged Incident).

10 The Alleged Incident was reported by Ms Karen Dowling immediately after she commenced her shift with UYK, taking over from the Applicant.

11 On 9 August 2018, the Secretary to the DFFH appointed an authorised investigator, Ms Sheila John of Sheila John Pty Ltd, to undertake a formal investigation into the Alleged Incident. Subsequently, Ms John reported to the DFFH of her finding that the Applicant had physically abused UYK.

12 By Notice of Referral (Referral) dated 9 November 2019, the DFFH referred the matter to the Panel.[2]

13 By a Notice of Hearing (Notice) issued on 13 January 2020, served upon the Applicant, the Panel advised that a hearing would be held on Thursday 19 March 2020. The allegation against the Applicant, as framed in the Notice, was as follows:[3]

It is alleged that on or about 18 May 2018, [UYK] (Date of birth ...) was physically abused by [the Applicant] (Date of birth ...) whilst placed in his care.

1. At all material times [the Applicant] was a registered out of home carer engaged as such by Care Choice (Aust) Pty Ltd (CareChoice).

2. At all material times [UYK] had been placed in [the Applicant's] care at a residential unit in Werribee.

3. [The Applicant] struck [UYK] with his hand on [UYK's] inner thigh leaving a red mark on his leg.

14 On 19 March 2020, the Panel conducted a hearing into the Allegation dated 9 November 2019 and contained in the Notice of Hearing dated 13 January 2020 and delivered its determination and reasons on 28 October 2020.[4]

15 From 1 January 2018 all residential care workers providing direct care in a department operated or funded care home were required:

1. To hold, or be undertaking, a Certificate IV in Child, Youth and Family Intervention or other recognised relevant qualification; and
2. Complete three mandatory units of competency, which covers trauma informed practise, providing residential care and managing behaviours.

16 In addition, the CYF Act provides for prescribed matters which a care service must have regard to before approving a carer (s 75) or employing a person (s 76); and what those prescribed matters may include (s 77). Regulation 10 of the Children, Youth and Families Regulations 2017 sets out the matters which must be considered for the purpose of s 77.

17 Accordingly, the CYF Act provides a comprehensive regime to ensure that only appropriately qualified and experienced persons are registered as out of home carers.

18 Under ss 81 and 82 of the CYF Act, the person in charge of a registered out of home care service must report to the Secretary, for investigation, upon receiving or becoming aware of any allegation of physical or sexual abuse of a child placed under care.

19 Section 105 of the CYF Act sets out the factors that are to be considered by the Panel (or Tribunal upon review) when making a determination as to whether a person has physically or sexually abused the child:

(1) At a hearing the Suitability Panel must first determine whether or not the allegation that the person has physically or sexually abused the child is proved on the balance of probabilities.

(2) In making the determination, the Suitability Panel must have regard to -

(a) the allegation referred by the Secretary to the Panel; and

(b) any evidence presented to the Panel by any of the parties to the hearing; and

(c) any other matters that the Panel considers relevant to its determination.

(3) The Suitability Panel must not consider any other allegations or findings of misconduct by the person when making the determination.

(4) The Suitability Panel must not draw any adverse inference from a failure or refusal by the person to answer any question by, or provide any information to, the authorised investigator or the Panel when making the determination.

(5) If the Suitability Panel determines that the allegation is proved, the Panel must make a finding of misconduct against the person.

(6) If the Suitability Panel determines that the allegation is not proved, the Panel must state that fact and that no finding of misconduct has been made against the person in respect of the allegation.

20 If the Panel (or Tribunal upon review) is satisfied, on the balance of probabilities, that an alleged act of physical or sexual abuse is proven and makes a finding of misconduct, then, in accordance with s 106, it must determine, on the balance of probabilities, whether or not the person poses an unacceptable risk of harm to children:

(1) If the Suitability Panel has made a finding of misconduct against a person, the Panel must then determine on the balance of probabilities whether or not the person poses an unacceptable risk of harm to children.

(2) In making the determination the Suitability Panel must consider any of the following factors that the Panel considers relevant, giving a factor the weighting that the Panel considers appropriate in the circumstances -

(a) the gravity of the misconduct;

(b) any previous findings of misconduct by the Suitability Panel in respect of the person;

(c) the likelihood of the person physically or sexually abusing a child in the future;

(d) the recency of the misconduct;

(e) the relevance of the misconduct to the role of the person as an out of home carer;

(f) the history of the person's work with the out of home care agency as an out of home carer.

(3) If the Suitability Panel finds that the person poses an unacceptable risk of harm to children, the Panel must find that the person should be disqualified from registration under this Part.

(4) If the Suitability Panel determines that the person does not pose an unacceptable risk of harm to children, the Panel must state that fact and that no finding of disqualification has been made against the person.

(5) If the Suitability Panel finds that the person should be disqualified from registration under this Part, the person is disqualified from registration under this Part.

21 Physical abuse, referred to in s 105, is not defined. In its reasons, the Panel developed a working definition of physical abuse as a guide to its application of these statutory provisions. The Panel's working definition is as follows:[5]

Non-accidental physical contact or the threat of physical contact to a child that causes or is likely to cause more than minimal or transient adverse physical or emotional consequences for the child.

• Physical abuse of a child can occur regardless of the intent of another person.
  • Actual or inferred intention of a person may be relevant as a matter to be taken into account in deciding whether or not physical abuse has occurred but does not of itself determine whether or not physical abuse has occurred.
  • Failure to avoid behaviour or to protect a child from physical harm which results in physical injury or harm to the child may amount to physical abuse of the child.

22 I accept the Panel's 'working definition' of physical abuse and the Tribunal will be similarly guided in the context of applying the above statutory provisions.

23 The DFFH's Counsel referred the Tribunal to two prior decisions of the Tribunal.[6] In a case concerning alleged physical abuse, the presiding member rejected the applicant's submission that physical abuse must mean something more than physical injury (under s 162(1)(c) or s 493(1)). I agree with the presiding member's position. Section 105 is concerned with children placed in out of home care, because they have been found to need protection. The standard expected and required of carers in this context must be commensurate with the vulnerabilities and special needs of the children concerned. It follows that an injury, which may objectively be categorised as minor or of short duration, might nevertheless have a serious immediate and lasting impact upon a vulnerable child who has been subjected to prior trauma.

24 The MEV case also concerned s 105 although was confined to an allegation of sexual abuse. The Tribunal accepted that an allegation of sexual abuse does not need to equate to a finding of criminal conduct. I agree that such reasoning equally applies to an allegation of physical abuse.

25 The Panel also referred to s 161B of the CYF Act as it prohibits certain actions in relation to a child placed with an out of home care service. Section 161B prevents the use of physical force as a form of punishment. So far as it is relevant, the following actions are prohibited:

The following actions are prohibited in relation to a child placed in accordance with this Act in an out of home care service, including a secure welfare service, or in the care of an out of home carer -

(a) the use of physical force unless it is reasonable and -

(i) is necessary to prevent the child from harming himself or herself or anyone else or from damaging property; or

(ii) is necessary for the security of the out of home care service, secure welfare service or place where the child is cared for; or

(iii) is otherwise authorised by or under this or any other Act or at common law;

(b) the administering of corporal punishment, that is, any action which inflicts, or is intended to inflict, physical pain or discomfort on the child as a punishment;

(c) the use of any form of psychological pressure intended to intimidate or humiliate the child;

(d) the use of any form of physical or emotional abuse.

26 Accordingly, the use of force is very carefully prescribed: to prevent the child harming themselves or others or damaging property; where necessary for the security of the out of home service or place where the child is cared for; or is otherwise authorised by statute or at common law.

27 Where the Panel makes a finding that the physical abuse is proven, and the perpetrator poses an unacceptable risk of harm to children, then an application can be made to the Tribunal to review such findings or determinations:

(1) A person may apply to VCAT for review of a finding or determination of the Suitability Panel under section 105, 106 or 112.

28 Accordingly, in summary, the Tribunal must determine, on the balance of probabilities, whether the Applicant physically abused UYK as alleged. If the Tribunal makes such a determination, the Tribunal must then:

1. Make a finding of misconduct against the Applicant;
2. Determine, on the balance of probabilities, whether or not the Applicant poses an unacceptable risk of harm to children; and if such a determination is made;
3. Find that the Applicant should be disqualified from registration under the CYF Act.

29 In addition to the evidence before the Panel, the DFFH relied upon the oral evidence and statements of the following witnesses:[7]

1. Acting Sergeant Carolyn Reiss (A/S Reiss);
2. Dr Lisa Barrow (Dr Barrow), Consultant Paediatrician;
3. Mr Greg Robertson (Mr Robertson), Social Worker;
4. Ms Silvana Vigilante (Ms Vigilante), Head of Human Resources, Kedgewicks;[8]
5. Ms Karen Dowling (Ms Dowling), Residential Support Worker;[9] and
6. Ms Elly Duff (Ms Duff), currently Education and Engagement Coordinator for MacKillop Family Services and previously the case manager for UYK.

30 I propose to set out relevant extracts from the summary of evidence which appears in the decision of the Panel[10] and add to that any additional evidence and clarification given by witnesses before the Tribunal.

31 Ms Sarah Dimasi was UYK's allocated case manager in the period 7 October 2017 to 1 May 2018. Ms Dimasi provided a statement to the Panel which set out information about UYK's personal and social background and behaviour:[11]

47. [UYK] was born on [date in 2006]. He has a history of complex trauma, including exposure to family violence and parental drug abuse; he has an intellectual disability, with an IQ of 40, and ADHD. [UYK] has no contact with his mother but does have access visits with his grandmother and a sibling. [UYK] presents as a risk for absconding, requires supervision to ensure his safety, and is vulnerable when in the community unescorted. He has a history of physical aggression but responds to diversion and demonstrations of affection.

48. Having regard to [UYK]'s behaviours as they manifested at about the time that he entered a contingency placement with Care Choice, a 'robust daily plan and safety behaviour management plan' were developed for [UYK]. This was intended to be responsive to particular behaviours of concern. In particular, so far as is presently relevant, these were defiance and refusal to follow instruction, swearing at carers, physically lashing out at carer e.g. hitting, kicking; frequent absconding from home; and school and property damage.

32 Ms Duff gave evidence about her prior case management of UYK and current supervisory role.

1. She has had no role regarding the Applicant;
2. Care team meetings were held fortnightly in relation to all children in care and she prepared the Care Team Meeting Minutes dated 13 August 2019 regarding UYK;[12]
3. She ordered an individual Behavioural Support Plan for UYK dated 21 February 2019,[13] which records 'no known incidents of self-harm';[14]
4. An email chain records advice she received regarding UYK involving an incident of self-harm (superficial scratch across his wrist) on 29 December 2020 and an incident of threatened self-harm on 1 February 2020.[15]

34 Under cross examination, Ms Duff explained some notations in the Care Team Minutes:[16]

1. An agency worker was engaged to care for UYK one day and, during an outing, UYK withdrew money using a House key card; the worker did not know where he had obtained the money; Ms Duff was brought in and, upon questioning, UYK said he wanted to purchase an iPhone, handed over the money but then became frustrated and caused some property damage;
2. UYK often struggles to maintain his peer relationships which can be displayed by him attempting to become really friendly with another young person and not giving them enough space; he can then get upset if boundaries are put in place for the time spent with that other person;
3. UYK will often break things to release his stress, for instance he will break down a door to get to a carer he wants to be close to; and
4. UYK can be triggered when people say 'No' which he did not experience when growing up with his family; UYK's response in these situations varies from simply not talking to becoming aggressive toward inanimate objects such as a door or a wall.

35 The above descriptions of UYK give a vivid picture of a highly vulnerable and traumatised boy whose management required particular care and attention to his behavioural triggers.

36 In May 2018, Ms Dowling was working for Care Choice as an out of home care worker. She adopted the following documents as part of her evidence:

1. A Client Incident Report (CIR) on 18 May 2018;[17]
2. Notes of an interview conducted by Ms Vigilante on 21 January 2019;[18]
3. Her written statement dated 12 September 2019;[19] and
4. Her evidence given to the Panel on 19 March 2020.[20]

37 Ms Dowling said that prior to the Alleged Incident, she had worked with UYK for about 3-4 months and got on well with him, but he could have difficult behaviours to manage. She had worked one and possibly up to three whole shifts and a handful of handovers with the Applicant and found him to be quiet.

38 In her CIR, which was made on the same day as the Alleged Incident, Ms Dowling reported:

On arriving on shift the door was propped open with a chair, [UYK] was lying on the sofa bed in the lounge room and sw was sat at table on his phone

I came in and sat on the edge of the bed to say hello to [UYK] and he broke down in tears saying [the Applicant] hit me and it really hurts Karen! and continued crying

By this time [the Applicant] was in staff bedroom on the phone I calmed [UYK] down and when [the Applicant] came out he told me that [UYK] was trying to open the door to get some fresh air and had starting hitting him and swearing at him, when [UYK] said [the Applicant] hit him he just laughed and said how can I hit you there when your heads up here??

When he left I sat [UYK] down and asked him to tell me what happened

He said that he had tried to open the door to get some fresh air in the room and [the Applicant] wouldn't let him and when he tried [the Applicant] had kept pushing him and pushed him into the couch and then hit him

He then showed me a large red hand mark on his thigh

I took photos of the injury and asked [UYK] if he had hit [the Applicant] and he said no

I then reported incident to Jessica at carechoice ...

39 Ms Vigilante made the following summary of her interview with Ms Dowling on 21 January 2019:[22]

Karen was asked if she could recap the incident involving [UYK] back in May 2018. Karen stated she had made a statement to police a couple of months ago and therefore she remembered the incident.

It was about half an hour after I arrived on shift so I could see the red mark. It was a large handprint. Karen stated that she knew [UYK] was a big boy, but his hands were not that big. Karen stated that [UYK] disclosed to her that [the Applicant] had hit him. Karen stated she believed what [UYK] had disclosed to her was true. She stated she had never seen him cry like he did.

Karen also stated that at the end of the shift [the Applicant] did not immediately leave the shift after handover and it was unusual for him to stick around. [The Applicant] usually left immediately after the shift and handover concluded.

40 In her statement, Ms Dowling said that UYK 'would target some staff members by swearing and trying to be intimidating. ... I did not see him target [the Applicant]'.[23]

41 Ms Dowling was the first person on the scene after the Alleged Incident and in her statement described what happened as follows:

4 I remember going into the Quest apartment to start my shift [which she later confirmed started at 8am]. The door was open, which was normal as [UYK] liked the door to be open. He was laying down on the sofa bed in the lounge area and I said hello to him.

5 He broke down in tears and I went to hug him and asked him what was wrong. [The Applicant] was on the phone at this time in another room. [UYK] said to me that [the Applicant] hit him on his thigh and that it really hurt. I noticed a red mark on [UYK's] thigh.

6 [The Applicant] then came into the lounge room and tried to make light of the incident, and said something like 'don't be silly'. ...

7 [The Applicant] was on the phone to Care Choice reporting what [UYK] had said. It took [the Applicant] a while to leave after his shift, which was unusual for him. Usually [the Applicant] would leave straight after a handover, be on his phone and not stick around.[24]

8 I am not sure why [the Applicant] was not leaving. I think he was trying to listen to what [UYK] was telling me.

9 Once [the Applicant] had left I took a photo of [UYK's] leg. The mark on his leg was red, indicating to me that this was a recent injury. The leg was also bruised which suggested to me that he had been hit with some force.

10 [UYK] told me that he had been trying to get out of the apartment to see me and [the Applicant] did not want him to open the door and slapped him.

11 I took [UYK] to school and the red mark had subsided by that time. I then reported the matter to Care Choice and forwarded a photograph of [UYK]'s leg.

42 Under re-examination, Ms Dowling was referred to her evidence before the Panel regarding UYK's behaviour whilst at school, on the day of the Alleged Incident. She confirmed that UYK absconded from school and when she picked him up in the school car park, she told the Panel:[25]

He was quite agitated and hyper. I asked him why he hadn't - what had happened at school and, like I say, he just said he didn't want to stay because of what happened that night.

43 Ms Dowling agreed that, emotionally, there was quite an impact upon UYK.

44 Under cross examination, Ms Dowling confirmed that:

1. When she first arrived for her shift at 8am, the Applicant was in the bedroom and she could hear him talking on the phone;
2. The Applicant came into the lounge room after about 5-10 minutes, whilst she was talking to UYK;
3. She assumed the Applicant heard her speaking to UYK as, when he came into the loungeroom, he immediately said 'don't be silly, you [UYK] were the one acting up trying to get out of the door and you were hitting me' and then the Applicant left;
4. She estimated that the Applicant remained about 10-15 minutes after his shift finished, which was a lot longer than he would normally remain as he is usually ready to leave when she arrives for her shift;
5. She took the photograph of UYK's leg about 15 minutes after UYK had disclosed the Alleged Incident, which was also after the Applicant had left;
6. She contacted Care Choice about 30 minutes after arriving at the apartment and was instructed to take UYK to school (where he normally remained for two hours) and then to the doctor;
7. By the time she took UYK to school, the red mark on his leg had subsided;
8. She did not take UYK immediately to the doctor 'as his leg wasn't bleeding and it did not seem to be such an emergency to take him straight away ... I was more concerned to calm him down ... I had never seen him so upset and crying before';
9. UYK was taken to see a general practitioner who said 'it [the leg] would be fine, a bit sore "slight bruising"'; and
10. She was familiar with the Client Support Profile prepared by Care Choice in relation to UYK and she applied the steps outlined to manage his described behaviours.[26]

45 In response to questions from the Tribunal, Ms Dowling confirmed that:

1. Normally a carer would take contemporaneous handwritten notes of what happened during a shift and these would be later collected by the team leader;
2. Regarding the CIR filed by the Applicant, Ms Dowling could not say when this was written or filed but assumed there would by other notes which the Applicant would have taken during his shift; and
3. When the Applicant came into the loungeroom, he made no enquiry of UYK about his leg or ask after him.

46 A/S Reiss gave evidence that, on 17 December 2018, she prepared a Victoria Police Brief - Consideration for Non-Authorisation[27] in which, in summary, she recorded:

1. The suspected physical abuse of UYK by the Applicant, reported by Ms Dowling on 18 May 2018;
2. That UYK had disclosed to Ms Dowling, after commencing her shift on 18 May 2018, that he was hit to the leg by the carer on duty;
3. That Ms Dowling observed a red mark to UYK's leg, which she photographed;
4. That a disclosure was conducted;
5. That on 25 July 2018, she conducted an interview (known as a disclosure interview)[28] for the purpose of ascertaining the scope of what has happened, whether a criminal offence may have occurred and whether a VARE interview with the child is going to be acceptable. UYK stated, in part:[29]
   1. Woke up one morning, hot in unit, opened the door
   2. Air con on he didn't let me
   3. He slapped me
   4. On my leg
   5. It hurt
   6. Red marks
   7. I told Karen she called Care Choice and told them
   8. Oh it was [Applicant's first name] - He used to be nice ...
6. That the crime scene was not examined;
7. That, on 1 August 2018, she conducted a VARE interview and made a precise list of the main points which UYK stated that he stayed at an apartment in Werribee in March and named Care Choice people who stayed with him, including the Applicant:[30]
   1. Sometimes he was mean to me
   2. It was hot.
   3. I opened the door
   4. He would not let me
   5. 0800 In the morning
   6. He used to slap me
   7. Hard
   8. Here on my leg
   9. I cried
   10. I told Karen
   11. I saw red fingerprint on my leg ...
8. That, on 19 August 2018, she conducted a field interview with the Applicant, which was recorded and during which he stated, in part, as follows:[31]

g) It happened 18th around 7.45 hrs I was doing sleep over with [UYK] and he woke up 0600 and I clean and prepare breakfast to go to school.
>
> h) In the evening he wanted to sleep in dining room not bedroom. I said why he said I don't feel like it.

1. I said OK. I slept in my room. I woke up got his breakfast while he was sleeping.

j) He got up went to bathroom and came back and opened the door. I was in the staff room writing notes getting ready for handover at 0800. He went to his bed then opens the door.
>
> k) I told him said don't open the door the neighbours and the other people staying need privacy too. He turned the TV on loud he likes loud to be everywhere. I said TV loud and door open give controller.

1. He got agitated and came to me assaulting and kicking then I went to my room again because I can't do anything when he like that I wait and come back then closed the door.

m) He see this and started charging and crying saying this not your room and then I say yes this is your room but outside when share with others so we cannot make noise. He start crying another worker came in she is Karen or something yeah Karen.
>
> n) She came in to check boy to take to school and I complain to her that Karen that [UYK] said I slapped him to thigh so then I say I did not do that slap him and that was it.
>
> o) I wrote the incident and what happened and sent that to Care Choice and I call them [UYK] don't want to close door he [attacked] me started slapping me and they say OK they will monitor the situation.
>
> p) So Karen came in I do hand over and left. Manager called me said I can't go back to [UYK] again.
>
> q) I have not worked for Care Choice since then.

47 The remainder of the report deals with A/S Reiss's recommendation.

48 Mr Robertson is a qualified Social Worker and was the Best Practice Manager with Care Choice at the time when he conducted interviews with UYK on 1 and 13 May 2019, about 11 months after the Alleged Incident.[32]

1. During his interview with UYK, he:
   1. First satisfied himself that UYK understood the nature and importance of telling the truth, which was standard practice; and
   2. Spent more time initially engaging with UYK to get his attention and using easy language for him to understand;
2. The interview was not long; and
3. He was mindful of the interval between the date of the Alleged Incident and the interview, and used the photograph by way of introduction.

14. At the hearing, Mr Robertson was referred to a note of his interview with [UYK], a note that he adopted as accurate. At interview with [UYK], Mr Robertson showed [UYK] a photograph said to be of a handprint on [UYK]'s thigh. [UYK] identified the photograph as having been taken by Karen, and he was asked if he remembered what had happened. Mr Robertson's note continued as follows:[33]

The client then stated 'was it...was it what's his name again? [Applicant's first name]'. When the client was asked again if he could tell us what happened the client said, 'when I opened the door, he [the Applicant] said no and he slapped me'. The client was then asked how many times he was slapped. The client stated, 'just once'. The client was then asked who he told. The client stated, 'I told Karen'. The client was asked if he was wearing shorts or pants. The client stated, 'I was wearing shorts'.

15. Mr Robertson told the Panel that his role as Best Practice Manager placed him in an advisory role, which he did by drawing on his clinical background, coaching staff and, at the time of the allegations involving [UYK], managing a team. Mr Robertson stated that an induction to employment with Care Choice involved instruction on the requirement of care, the concept of neglect, working with disability, professional boundaries, medication and disclosure of abuse to management.

16. Mr Robertson told the Panel that investigations into allegations concerning staff were carried out by members of a different team headed by an Incident Manager. An Incident Report is created, he said, and the matter is recorded on CIMS. Questioned by [the Applicant's] lawyer, Mr Robertson stated that he was aware that [UYK] suffered from some [cognitive] deficits, but stated that his task was solely to interview [UYK] and, for the first 10 minutes of their conversation, in order to get to know [UYK], he spoke with [UYK] about his school, his hobbies, things he liked to do, and how he liked living in the house. Also present at the time of his interview was Jessica Stitch, a support worker.

51 Under cross examination, Mr Robertson confirmed that:

1. When he commenced working for Care Choice as a Best Practise Manager in 2018, his primary role was to manage the coordination team and to provide support to out of home managers;
2. He was asked by HR to undertake the interview with UYK because of his prior experience in child protection and conducting these types of interviews;
3. At the interview, UYK was able to remember:
   1. The incident;
   2. The photograph;
   3. The Applicant's first name;
   4. He was wearing shorts;
   5. Some circumstances around how it happened (he wanted the door open);
   6. The time when it happened; and
   7. Who he informed (Karen);
4. Prior to interview, he had met UYK on one other occasion and did not meet him again after the interview; and
5. At the time of the Alleged Incident, there were policies dealing with reporting incidents[34] and abuse and neglect, although he had not joined Care Choice until after the incident and was not aware of what training the Applicant had received at the time.

52 Mr Robertson was referred to the following exchange at his interview with UYK:

1. Do you remember what time Karen started working?

53 Applicant's Counsel suggested that UYK did not know that the incident happened in the morning because he only said yes when it was suggested to him 'so it was in the morning?' I reject this suggestion in the context in which the questions and answers were made. UYK was clearly capable of answering, 'Yes', 'No', or 'I do not know' to questions.

54 Ms Vigilante is the Head of Human Resources at Care Choice. She confirmed that Care Choice has a robust recruitment which requires workers to have specific qualifications and skills; a genuine empathy and understanding of children; a Working with Children Check; and be registered as an out of home carer.[35] The Applicant also received training in how to deal with difficult clients prior to working with Care Choice.

55 She was not acquainted with either the Applicant or UYK before the Alleged Incident was reported.

56 Ms Vigilante investigated the Alleged Incident on 18 May 2018 and completed an Incident Investigation Report and Response Plan on 22 May 2019.[36] She interviewed Ms Dowling on 21 January 2019 and the Applicant on 16 March 2019. She found the allegation that the Applicant had physically abused UYK proven, by reason that, on the balance of probabilities:

1. UYK had recalled the incident and was clear in his evidence; compared to an earlier incident in March 2018 when police 'considered that he gave conflicting information and talked about different topics in an excitable manner';[37]
2. The different behaviour of the Applicant on the day of the Alleged Incident;
3. The photograph taken by Ms Dowling at the commencement of the shift;
4. What UYK had explained to Ms Dowling; and
5. Ms Dowling's statement.

57 Ms Vigilante had completed training on interviewing young people, and she had no concerns that UYK was a child with some intellectual disability. Her findings were consistent with her training. She said that young people have great memories and do recall stories. She had no reason to doubt the interview information or give less weight to it.

58 Ms Vigilante also made a statement dated 6 September 2019,[38] in which she records an earlier incident in March 2018. UYK asked for his allowance and was told that he will be escorted to the shops by a staff member to spend it. UYK then hit the staff member with a wooden spoon. When questioned, UYK stated that another worker had hit him with a wooden spoon, which was not substantiated upon investigation. Ms Vigilante had no concerns that UYK made unsubstantiated allegations against staff. She explained that UYK did not like being told what to do, which required a positive behavioural response. She would not describe this behaviour as manipulative.[39]

1. Had not met UYK and therefore could not comment upon other incidents;
2. Had not met Ms Dowling prior to commencing with Care Choice;
3. Was not provided with the full police brief and could not otherwise comment upon the decision not to lay charges against the Applicant;
4. Agreed that in his statement the Applicant said to the effect that UYK was upset because he was told not to leave the door open or play loud music but that 'this is what positive behaviour support is all about';
5. Agreed that Ms Dowling said in her statement that the Applicant did not immediately leave his shift, which was unusual;
6. Did not know whether the positive behaviour training undertaken by the Applicant is the same as what is currently offered; and
7. Noted in her statement that when UYK was interviewed in relation to the March 2018 incident, he continued to refer to the May 2018 incident with the Applicant 'as this was of greater concern to him'.[40]

60 The Panel gave the following summary of an interview conducted with UYK by the authorised investigator[41] on 2 October 2019:

9. At the very beginning of the interview, the investigator referred to a prior conversation she had had with [UYK], but other than as just stated, the content of the earlier conversation is not set out. The investigator's opening statement was:

...like I said to you before, one of the jobs I have is to make sure children are safe at all times. Like I said to you before, do you remember this picture taken of you? Do you remember?

10. [UYK] mentioned 'Karen' in response to this statement, then stated that she was 'the London person from Care Choice'. When asked what Karen had to do with the photo, and whether she took the photo, [UYK] replied 'Yes'.

11. After the investigator had asked [UYK] to state his name, he was then asked outright: 'And do you remember who it was who put this mark on your leg?'. [UYK]'s reply was '[Applicant's first name]', and then in response to further questions described him as 'African'. After some inconclusive and limited discussion, the investigator put the following to [UYK]: 'So he didn't listen when you wanted to open the door and it was hot. And then what happened'. [UYK] stated: 'Then he smacked me'.

12. In the course of more leading or prompting, the following information was obtained from [UYK]. [Applicant's first name] hit him with his hand; 'he just went bang'; [UYK] was sitting on the couch when it happened. Only the two of them were present at the time. [UYK] cried when hit, as it really hurt. Karen then came into the house, and he talked to her about it. She didn't say anything about it.

61 I note that this interview with UYK was conducted about 17 months after the Alleged Incident. Although UYK gave limited details, his answers were entirely consistent with other answers given on other occasions.

62 Dr Barrow[42] was provided by police with two photographs, said to be photographs of UYK's leg, taken by a carer using a mobile phone. Dr Barrow was asked to assess the images and comment on 'the actual leg the injury was on'; and 'whether the injuries could have been self-inflicted'. In her report, after describing the marks appearing in the photographs, Dr Barrow advanced the opinion that:

These marks may have been caused by a hand strike to the leg. The pattern seen is consistent with an injury caused by a slap with an open hand. Another cause cannot be ruled out. Given the angle of the injury and the location on the leg it would be difficult but not impossible to inflict this injury on oneself.

63 Before the Tribunal, Dr Barrow confirmed that she would never take the photographic images that she is asked to assess. In relation to her description of the images contained in the photographs supplied to her, Dr Barrow explained:

I state that because the pattern of the marks seen on the leg ... has distinctive parallel markings with a semi-circular ring at the end of those markings, different lengths of the fingers, I don't have the widths available to measure on the markings however based on the leg and the nearby hand they would appear to be of an appropriate size to be considered to be a hand ... created by a hand and that particular pattern we call that a patent bruise is actually something that is a recognisable pattern when it comes to injuries and it's particularly because of the shape of the fingers and the spacing of the fingers which causes that particular pattern where you get markings left by the gaps between the fingers rather than fingers themselves which is why you see more of an outline of the hand shape rather than the central area of the hand shape itself.

1. The pattern was consistent with an injury caused by a slap with an open hand as opposed to other forms of trauma or injury which may be caused by a closed hand or fist;
2. She was fairly confident that the injury was caused by a slap and there was no suggestion made to her of any other cause;
3. In her report she said that, from the angle of the injury and the location on the leg, it would have been difficult but not impossible[43] to inflict this injury on himself. A self-inflicted injury is something which she must always consider, however:

the angle of the hand hitting that leg is actually angled towards the body as opposed to the angle of the victim's hand which would more typically be pointing away from their own body a little more, once you start to turn a hand back on yourself to create an angle like that, that would be quite difficult to do because you actually lose biomechanical power, in trying to hit yourself from that particular angle, compared to pointing away from yourself... I believe that would be difficult to inflict on yourself with an open handed slap in the manner in which that injury appears to have been caused... it was fairly unlikely.

1. In her opinion it was 'fairly unlikely' for the injury to have been self-inflicted. Although her report had said that she could not rule out another cause, this was said only because she was not necessarily aware of other alternative mechanisms (in the particular circumstances); however, none were proposed to her;
2. The images appear to have been taken in artificial writing, meaning that it appears to have been taken in an indoors setting and she is always careful to ensure that there is no shadowing which may overlay the natural skin appearance of the subject area being assessed:

the shadowing on this particular one was not too bad but ... if I was asked to comment on the calf for example you can see that is quite some shadowing there so I couldn't really comment as to whether there's injury on the calf or not with any degree of certainty... but otherwise I'm happy that it's a fairly clear images [of the] injury itself I've commented on.

1. The images and information provided to her by police were enough to enable her to form an expert opinion in this case as this was a routine form of request; and
2. The images were consistent with inflammation alone or bruising and suggestive of physical injury caused by blunt force trauma, consistent with a slap to the leg by somebody else and unlikely to be self-inflicted.

1. That upon receipt of the photographs, she made inquiries to determine the source of the photographs and what she believed the cause of the injuries was and to understand what questions the requestor was seeking to have answered on the basis of those photographs;
2. The photographs were not taken with a ruler in place 'so I can't be specific about the size of the hand... it would appear that those marks are slightly larger than [UYK's] own finger widths but beyond that I could not comment';
3. She will only give an opinion where she is confident of the quality of the image and, in the case of the photographs presented to her, she said that she would not comment upon the lower leg which was subject to more shadowing;
4. She is familiar with the Victorian Forensic Paediatric Medical Service Guidelines for forensic evaluation of suspected child abuse[44] and is one of the persons who would be called upon to assist in the application of such guidelines;
5. The comment in her report - '[t]he author has interpreted apparent skin markings to be in the skin rather than on the surface of the skin':[45]

so if I look at these images I feel comfortable with that because I can actually see texture on the surface of the skin that makes me feel comfortable that these markings are within the skin itself and not on the surface of the skin as in applied in some other fashion so... I am taking the marks that I'm seeing (bruising or inflammation) to be a feature of the skin itself as opposed to something that has been artificially applied to the surface of the skin to simulate something, such as makeup.

1. The comment - '[t]he red marks on the leg appear to be patterned. They may be inflammation alone or bruising and are suggestive of physical injury'[46] - excludes other medical causes.

66 The Applicant gave oral evidence before the Panel and the Tribunal and tendered the following documents:

1. CIR dated 18 May 2018;[47]
2. Transcript of Interview between the Applicant and Ms Sheila John dated 25 October 2019;[48] and
3. Applicant's affidavit dated 9 June 2021.[49]

67 The Applicant denies physically abusing UYK on 18 May 2018 as alleged and says that UYK in fact assaulted him.

68 I note the evidence of the personal and educational background given by the Applicant to the Panel and before the Tribunal, including relevant courses completed, such as the Certificate IV in Disability;[50] the Positive Behaviour Support;[51] and Working with Children, Young People and Vulnerable Adults.[52] The Applicant also told the Panel that while at Care Choice, he had undertaken a Positive Behaviour Course and what he described as training in 'Awareness Behaviours'.[53]

69 In his oral evidence before the Tribunal, the Applicant said that he started with Care Choice in April 2017 and had thereafter worked with UYK for about a year. On the evening before 18 May 2018, the Applicant attended UYK for a sleepover. UYK wanted to sleep in the loungeroom, to which he agreed. In the morning, when UYK awoke, he put on the TV and loud music. The Applicant said that he came into the loungeroom to tell him that there were neighbours nearby. UYK then opened the door and went back to bed. The Applicant closed the door and UYK again got up to open the door and the Applicant closed it again. The Applicant said that UYK then became abusive and started kicking him, saying words like 'shut up, fuck you, bitch...its not your house'. The Applicant then went to write up his report for about 10 minutes because, once he completed the report, he could not add anything to it. He hand wrote a report which was then typed into his phone and sent to Care Choice. The next carer staff member arrived.[54] The Applicant was on the phone to Care Choice to tell them everything.

70 The part of the CIR completed by the Applicant and dated 18 May 2018 states:[55]

Estimated time for an incident report was about 07:45am when client wake up greeted the staff and went to the toilet He came back and then turned the TV on and open the front door of the house. Then the staff told him not to opening the door in early morning because the tv have a higher volume on and the door is opposite to the next neighbour. Without the staff completing the statement he felt agitated and started with high voice 'shut up! fuck you bitch' he said. He Started attacking the staff slapping, kicking with physical assault and abusing with aggressive and crying this is my room do not have rights to tell me he continued ... He sat on the chair and left the door open at door way so that the staff will not close the door again. Then after he left the door open and went back to his bed in the lounge room where he was sleeping at night and sleep again. At whilst the another staff came in then he started to crying and told her that the staff slap me at the thigh.

71 The record of interview with the Applicant, conducted by A/S Reiss on 19 August 2018,[56] is extracted above under A/S Reiss's evidence.

72 A summary of the Applicant's interview with Ms Vigilante on 6 March 2019,[57] relevantly reads as follows:

[UYK] went to sleep around 8pm and he wanted to sleep in the lounge room. I tried to get [UYK] to sleep in his bedroom, but I said to him if that's what makes you comfortable, you can sleep in the lounge room.

[UYK] then bought his bedding into the loungeroom.

[UYK] woke up about 6am in the morning. [UYK] opened the door and put the TV on. I was preparing the progress notes from the shift. [UYK] put the volume up on the TV. I said to [UYK], its early and people are sleeping. I closed the door. [UYK] got agitated when I closed the door. [UYK] was kicking and biting me. [UYK] was calling me names and yelling. [UYK] then placed the chair in front of the door to keep the door opened. I contacted CareChoice and they suggested I give [UYK] some space. I left the door open. [UYK] continued to watch the TV. The next support worker arrived. I was in the staff room. As soon as [UYK] saw Karen he started crying. I walked out to meet the other support worker. [UYK] told the other support worker that I had slapped him. I said to [UYK], how can I slap you, I'm taller than you. I then reported the incident to CareChoice.

Interviewer presented the photo to the alleged perpetrator. The alleged perpetrator stated he had not seen the red mark on the client's leg. The alleged perpetrator stated how can I do that; I didn't do that. The interviewer stated that's a photo of the client's leg that was taken immediately after he [the Applicant] left his shift. The alleged perpetrator stated he didn't do that. [UYK] is like my own kid; I could not hit him.

73 Under cross examination, the Applicant agreed that prior to 18 May 2018:

1. He knew how to deal with children with significant trauma and high behaviours of concern;
2. He had received training about behaviour support plans which are important as they indicate how to respond to behaviours of concern;
3. He had UYK's Client Support Profile; and access to his daily plan and safety and management plan;
4. He knew about UYK's trauma history;
5. He knew that there was a 'no touch policy' when working with clients and that under no circumstances could he hit clients; and
6. He knew UYK could engage in behaviours of concern if he was prevented from leaving a place.

74 In my view, the Applicant's recollection of the Alleged Incident was confused at best, inconsistent with accounts he had given in prior statements and interviews, and his answers were often evasive. The following is a summary of the Applicant's responses:

1. Initially he said he could not remember when he completed his part of the CIR; then he said that UYK accused him of hitting UYK on the thigh before Ms Dowling arrived,[58] and then he said he completed the CIR, before leaving the apartment;
2. He described UYK as verbally and physically abusive toward him, but upon arrival Ms Dowling found him under the covers and very upset and crying; the Applicant said he could not understand;[59]
3. The Applicant said he was writing his report which he could not complete in a short time; he had other work to do before the carer arrived; and he only did what he was required to do;
4. The Applicant's description of UYK's attack upon him varied between:
   1. Slapping and kicking;[60]
   2. Kicking and biting;[61]
   3. Kicking and punching;[62] and
   4. Kicking and charging.[63]
5. The Applicant explained these variations on the basis that they were given at different times, and he may speak differently to the way he writes, and has difficulty sometimes expressing himself in English;
6. He agreed that he suffered no injuries on that day;
7. When he said in Ms Dowling's presence, speaking to UYK: 'How can I slap you, I am taller than you', he said that he meant by that: 'because I am bigger than you I cannot do anything to you';
8. He denied slapping UYK; he denied being angry at UYK when he became aggressive; and he denied doing anything wrong;
9. He denied staying longer than usual, he was writing the report; and
10. Since the Alleged Incident, he has not done any further training in relation to managing difficult clients because he cannot get any work in the sector.

1. In regard to his comprehension of English, the Applicant confirmed that he understood everything that was said to him in English; and also confirmed that he had completed an undergraduate degree and was currently studying a Master's degree;
2. In view of some inconsistencies in prior documents and under cross examination, the Applicant was asked to clarify the sequence of events immediately prior to Ms Dowling commencing her shift up to the time when the Applicant left. In my view, the Applicant gave multiple conflicting accounts:
   1. Under cross examination, he said that, prior to Ms Dowling arriving, UYK accused him of hitting UYK on his thigh; he then left UYK in the loungeroom and he went into the bedroom/office to handwrite his report;
   2. When asked whether the above account was what he had said, he then said that prior to Ms Dowling's arrival, he was in the bedroom/office handwriting up his report, which at that stage only mentioned what had happened the previous evening and UYK's aggressive behaviour toward him that morning;
   3. He later said that when he walked into the loungeroom, he heard UYK telling Ms Dowling that the Applicant had hit him;
   4. He later said that when he walked into the loungeroom, Ms Dowling told him what UYK had said to her;[64]
   5. He then said that he went back into the bedroom/office to complete his handwritten report (now including UYK's accusation) and then typed the report in his phone and sent it to Care Choice, and then he left;
   6. He then said that he remained in the loungeroom to complete his handwritten report (now including UYK's accusation) and then typed the report in his phone and sent it to Care Choice, and then he left;
   7. He confirmed that he did not see how UYK got the injury; he did not later ask UYK to show him the injury or ask UYK how he got it;
   8. He left the handwritten notes of his report in the office to be collected by his manager.

76 I note that the handwritten notes of the Applicant's report were not produced.

77 In his final submissions, the Applicant's Counsel challenged the quality and reliability of the evidence on several grounds, summarised below.

78 First, Counsel submitted that the Tribunal should not accept the photograph by reason of the circumstances in which it was taken, on a mobile phone by Ms Dowling. I rejected this submission during the Hearing:

1. There is no evidence that the image on the photograph was manipulated in any way prior to it being supplied to Dr Barrow; and
2. Dr Barrow was familiar with examining photographs and expressed no concerns with the quality of the image for the purpose of making her assessment. Dr Barrow otherwise qualified her comments to the extent that part of the leg not under examination was subject to some shadowing.

79 Secondly, UYK should have been taken immediately to a doctor and medical records produced. The failure to do so has created a procedural and evidentiary unfairness for the Applicant. Counsel submitted to the effect that the Tribunal should give little weight to the evidence comprised in the photograph.

80 I also reject this submission. At no stage has the Applicant called for medical records of UYK or asked for him to be examined by a doctor. The Applicant simply denied any involvement in the injury to UYK's leg.

81 Thirdly, Counsel submitted that the Tribunal should take into account in the Applicant's favour that the police did not pursue a criminal charge. I also rejected this submission in the Hearing. The Tribunal is not concerned with the burden of proof relevant for a criminal charge and there were other factors relating to the vulnerability of UYK which could have influenced police in their decision.

82 Fourthly, Counsel referred to the evidence of subsequent self-harm and attempted self-harm and the prior evidence of UYK targeting carers and behaving in an aggressive manner. In my view, none of these matters have a bearing on the circumstances of the Alleged Incident. Furthermore, even if UYK had acted aggressively, as alleged by Applicant, there has been no basis advanced as to how the injury sustained by UYK was because of physical force permitted under s 161B of the CYF Act.

83 Fifthly, Counsel submitted that because English is not the Applicant's first language, he sometimes expresses himself differently, particularly between his oral and written accounts.

84 As indicated above, the Applicant has completed undergraduate and undertaken postgraduate courses in English. He did not ask for an interpreter and admitted that he understood everything said to him in English. I reject any suggestion that the inconsistencies and contradictions in his evidence arose because of any deficiency in his command of English.

85 Finally, Counsel submitted that even if the Applicant were found to have committed the alleged slapping of the child, his excellent record otherwise should strongly weigh in his favour regarding whether he would ever pose an unacceptable risk of harm to children in future. If the Applicant is disqualified from registration as an out of home carer, he will be excluded from the home care sector and his employability will be severely restricted.

86 For the reasons given below, I do find that the Applicant poses such an unacceptable risk. The likelihood that the Applicant's employment will be adversely impacted is not a relevant consideration.

87 The oral and documentary evidence has been set out above in some detail. The critical evidence of UYK, Ms Dowling and Dr Barrow was clear and consistent throughout. By contrast, the oral evidence of the Applicant was confused, contradictory and inconsistent with his prior statements.

88 Dr Barrow gave a detailed assessment of the image in the photograph. She also clarified her conclusion to the effect that the injury was very unlikely to have been self-inflicted. In my view, her evidence was clear, comprehensive and compelling.

89 Ms Dowling's oral evidence before the Tribunal was clear and consistent with previous statements. There is no evidence of animosity between her and the Applicant (and none was alleged by the Applicant); and no reason for Ms Dowling to fabricate evidence against the Applicant. Indeed, Ms Dowling was careful to qualify her evidence where she had no knowledge or current recollection and otherwise presented her evidence without apparent exaggeration. Ms Dowling's description of UYK's significant distress, which was unusual in her experience, is consistent with the account given by UYK of having been hit by the Applicant.

90 UYK gave a remarkably clear and consistent account of being hit on the thigh by the Applicant. He made a spontaneous complaint to Ms Dowling, when he presented in a highly distressed state, which was unusual in Ms Dowling's experience of her previous dealings with him. In addition, when interviewed on subsequent occasions, as extracted above, his recollection of events was consistent and he made no attempt to exaggerate, replying that the Applicant hit him 'only once'.

91 I also concur with the Panel's assessment of UYK's evidence:[65]

61 The Panel notes [UYK]'s apparently spontaneous report of his injury to Ms Dowling, and his concise and consistent description of what occurred both initially and his consistency throughout subsequent interviews. That spontaneous report, the immediate disclosure of the mark on his leg, and [UYK]'s highly distressed emotional state are significant indicators of the truth of his allegation. It is implicit in this observation that the Panel accepts the evidence of Ms Dowling, to whom [UYK] first reported his injury.

62 The Panel has also considered the descriptions of [UYK]'s behavioural issues, as set out in Ms Dimasi's report. The conduct that [the Applicant] claimed that [UYK] had engaged in, namely his demands that the unit door should be kept open, is consistent with the behaviours referred to by Ms Dimasi. It is possible, as [the Applicant] alleges, that [UYK] was assaultive towards him, and that he was required to restrain [UYK]. However, there is no suggestion that despite [UYK]'s alleged physical response to [the Applicant], for instance kicking at him, that [the Applicant] suffered any adverse physical consequences. Even if [UYK] behaved as alleged by [the Applicant], there would have been no reason, acting defensively, to slap [UYK] on the thigh, as is alleged. Further, [the Applicant]'s response, on hearing [UYK] claim that he had been slapped on the thigh - that he was too tall a person to be able to slap [UYK] on the thigh - is at best doubtful. Equally doubtful is the assertion made by [the Applicant] that [UYK], a child with no history of self-harm, may have slapped himself with force on the thigh.

92 I concur with the DFFH's Counsel, as indicated above, that the Applicant gave significantly inconsistent evidence, particularly in relation to his initial CIR compared to other interviews, statements and oral evidence. He otherwise gave an improbable account of events without any credible account of his knowledge of how UYK came to bear the injury on his leg.

93 I also concur with the DFFH's Counsel that his response to UYK in Ms Dowling's presence as to why he could not have hit him is extremely unusual. In addition, it is inexplicable as to why, at the same time, he did not:

1. Respond in any way to UYK's distress; or
2. Ask to see UYK's leg; or
3. Make any inquiry of UYK as to when and how the mark on his leg occurred.

94 In my view there is clear, consistent, and compelling evidence that the Applicant hit UYK on the thigh as alleged by UYK. I am comfortably satisfied, on the balance of probabilities, that such an act by the Applicant constituted physical abuse of UYK. The physical force used by the Applicant was not accidental, and in the circumstances, as recognised by the Panel, was not permissible or justified in any way by reference to the permissible exceptions under s 161B of the CYF Act. The injury apparent in the photograph, as described by Dr Barrow, and the distress, both immediate and ongoing, exhibited by UYK, warrants the description of physical abuse.

95 Accordingly, in accordance with s 105(1) of the CYF Act, I determine that the Applicant physically abused the child, UYK, and find the Applicant guilty of misconduct under s 105(5).

96 Having made a finding of misconduct against the Applicant, the Tribunal must then determine, on the balance of probabilities, whether the Applicant poses an unacceptable risk of harm to children under s 106(1) of the CYF Act.

97 Section 106(2) of the CYF Act sets out those factors which the Tribunal must consider, to the extent relevant, giving such factors the appropriate weight in the circumstances. The Panel considered each of these factors in its reasons. Below I have extracted those parts of the Panel's reasons which I adopt in whole. I have also added further comments and observations, taking account of the additional evidence before the Tribunal:

The evidence before the Tribunal is consistent with a relatively minor physical injury, to the extent that the inflammation appeared to have largely subsided by the time that UYK was taken to school although there was still evidence of some bruising on the leg when he was taken to the doctor. More significantly is the evidence of UYK that the slap 'really hurt' and, as noted by the Panel, it was deliberately caused by the Applicant.

The Panel has found that [the Applicant] was not attempting to defend himself by slapping [UYK], but did so either to suppress [UYK]'s demands that the unit door be kept open, or to punish him for his contentious behaviour.

I accept that this last statement is a reasonable inference to be drawn from the circumstances in which the Applicant's physical abuse occurred.

The evidence discloses that [UYK] was extremely upset by [the Applicant]'s behaviour in slapping him, something that was apparent in his tearful disclosure to Ms Dowling. It is also apparent that [UYK] continued to remember the occasion, as his subsequent - and essentially consistent - reporting demonstrate. It is clear that this already seriously traumatised child with significant disability suffered on-going further trauma.

I further note the evidence of Ms Dowling that UYK absconded from school on the day of the incident and that that was linked to the physical abuse he had suffered in the morning.

I am satisfied that the gravity of the physical abuse extended beyond the physical assault on the day and the associated immediate pain and distress caused to UYK and extended to ongoing psychological distress for a significant time after, as evidenced by his clear recollection of the incident.

The gravity of the physical abuse is also aggravated by the Applicant's continuing denial of his behaviour and blaming of UYK.

(b) any previous findings of misconduct by the Suitability Panel in respect of the person;

There have been no previous matters before the Suitability Panel [or the Tribunal] in respect of [the Applicant].

(c) the likelihood of the person physically or sexually abusing a child in the future;

[The Applicant] came to work with Care Choice after completing relevant academic and training programs. He has a degree in psychology, and a Certificate IV in Disability. Whilst employed with Care Choice, he undertook other relevant training, particularly in respect of Behaviour Support. It is not known what supervision was provided to [the Applicant] in his role as a Residential Support Worker.

Whilst the Panel acknowledges that [UYK] had significant behavioural issues which were difficult to manage, [the Applicant]'s response to managing [UYK] was to slap him. [The Applicant] did say that he contacted Care Choice twice on 18 May 2018 for assistance in managing [UYK], the advice that he says he was given was to allow [UYK] to keep the door open. By inference, the advice was to disengage from [UYK] and to accommodate his demands. That is clearly not what happened and causes the Panel to doubt his ability to implement advice.

It is also of concern to the Panel that [the Applicant] took no responsibility for [UYK]'s injury. He claimed that [UYK] had hit himself, in circumstances where the child had no history of self-harm.[66] He makes the untenable claim that he was too tall to be able to hit [UYK] on his thigh - yet the forensic medical evidence tends to suggest that a person other than [UYK] inflicted the blow.

The report of Dr Barrow was available to the Panel but they did not have the benefit of her oral evidence. As indicated above in my analysis of Dr Barrow's evidence, in my view her examination of the photograph and explanation of the pattern which appeared on UYK's leg provided clear and compelling evidence that the inflammation and bruising observed was not self-inflicted and was highly likely to have been inflicted by another person.

Further, the fact that [the Applicant] remained in the unit after Ms Dowling's arrival does indicate a consciousness of guilt and a desire to hear what [UYK] might say to Ms Dowling.

I add to these comments that I accept the clear and consistent evidence given by Ms Dowling, before the Tribunal and in her previous interview and statement, to the effect that the Applicant remained longer than usual to listen to her conversation with UYK. I also note the confused and contradictory evidence given by the Applicant before the Tribunal, outlined above.

Taken together, these factors suggest that there is a real likelihood that when confronted with a difficult behavioural challenge from a child, [the Applicant] will resort to physical restraint or punishment, rather than act protectively and responsively to the child's trauma-driven behaviour.

I add to these comments that the risk of similar behaviour by the Applicant in future is heightened by the fact that the Applicant had already undertaken extensive relevant education and targeted courses, to equip him with appropriate strategies to manage challenging behaviours exhibited by traumatised children.

The conduct occurred on 18 May 2018. [The Applicant] has not worked in out of home care since that date.

(e) the relevance of the misconduct to the role of the person as an out of home carer;

The deliberate infliction of physical harm upon a child in care is directly antithetical to the obligations of any person charged with the child's care. Where the child already suffers from complex and cumulative trauma, the impact of such harm is more significant. A carer working in out of home care is expected to - and in [the Applicant]'s case - trained to recognize and accommodate a child's trauma in their approach to care. A further dimension, which is apparent in the present matter, is that the child also suffers from diagnosed cognitive and behavioural issues which were known to the carer and in respect of which the carer had undertaken some training.

(f) the history of the person's work with the out of home care agency as an out of home carer.

[The Applicant] has worked with Care Choice as a Residential Support Worker since April 2017. Until the happening of the subject incident, there had been no adverse reports about his performance in that role.

98 Section 106 is not exhaustive and does not limit the factors which may be considered relevant by the Tribunal. The Panel also noted that the Applicant had not sought to undertake further support or training, for instance in respect of behaviour-management. Before the Tribunal, the Applicant suggested to the effect that he had no opportunity to do so as he had not been able to work in out of home care, or in disability, since the termination of his employment with Care Choice. However, it is not apparent why he would be prevented from undertaking such relevant training, particularly if he wishes to pursue out of home or disability care in future. More significantly, the Applicant did not demonstrate any capacity to acknowledge or reflect upon how additional training might assist his capacity to manage vulnerable children with difficult and challenging behaviours.

99 Taking all the above factors into consideration, I am comfortably satisfied, on the balance of probabilities, that the Applicant does pose an unacceptable risk of harm to children. The most significant factors in reaching this conclusion are:

1. UYK's vulnerability and history of trauma;
2. The highly distressed state in which UYK was left immediately after the physical abuse;
3. The Applicant's apparent failure or refusal to recognise or attend to UYK's distress;
4. UYK's continuing clear recollection of the abuse some considerable time later;
5. The deliberate nature of the abuse without any suggestion that physical force was necessary to protect UYK from harm; and
6. The Applicant's total failure or refusal to acknowledge any responsibility.

100 On the evidence before the Tribunal, consistent with the findings made by the Panel,[67] the Tribunal makes the following findings of fact:

1. At all material times the Applicant was a registered out of home carer engaged as such by Care Choice;
2. At all material times UYK had been placed in the Applicant's care at a residential unit in Werribee;
3. The Applicant struck UYK with his hand on UYK's inner thigh, leaving a large red mark;
4. In striking UYK, the Applicant caused UYK immediate pain and distress and ongoing psychological distress;
5. The use of the physical force by the Applicant was prohibited under s 161B of the CYF Act and otherwise did not fall within any permissible exception; and
6. The Applicant's conduct in striking UYK, in the manner and circumstances described by UYK, demonstrates a serious failure by the Applicant to appropriately manage a child with challenging behaviours and a propensity to resort to inappropriate physical discipline.

101 The Tribunal concurs with the findings and determinations made by the Panel.[68]

102 The Tribunal makes the following findings and determinations in accordance with ss 105 and 106 of the CYF Act:

1. Under s 105(1) of the CYF Act, the Tribunal determines that the allegation that the Applicant physically abused a child, UYK, is proved on the balance of probabilities.
2. Under s 105(5) of the CYF Act, the Tribunal makes a finding of misconduct against the Applicant.
3. In making its determination, the Tribunal has had regard to the matters set out in s 105(2) of the CYF Act.
4. Having made a finding of misconduct against the Applicant and having considered all the matters referred to under s 106(2), the Tribunal determines, under s 106(1), on the balance of probabilities, that the Applicant poses an unacceptable risk of harm to children.
5. Under s 106(3) of the CYF Act, having found that the Applicant poses an unacceptable risk of harm to children, the Tribunal finds that the Applicant should be disqualified from registration under Part 3.4 of the CYF Act.

103 Having found that the Applicant should be disqualified from registration under Part 3.4 of the CYF Act, under s 106(5) of the CYF Act the Applicant is disqualified from registration under Part 3.4 of the CYF Act.

[1] By email dated 12 July 2021, the Suitability Panel did not propose to appear at the hearing and would submit to any order made (save as to costs), however it offered through its solicitors (VGSO) to respond to any request for information and to provide any assistance required by VCAT.

[6] Unreported decision of Senior Member Steele on 3 April 2014; and MEV v The Suitability Panel [2019] VCAT 770 (MEV case).

[7] Witnesses Dr Barrow, A/S Reiss and Ms Duff did not appear before the Panel.

[8] TB 184-186: Exhibit 6, Statement of Silvana Vigilante dated 6 September 2019.

[9] TB 182-183: Exhibit 8, Statement of Karen Dowling dated 12 September 2019; Exhibit 6.

[11] TB 233-237: Dated 13 March 2020; TB 15-16 [46]-[48]: Summary of relevant evidence in the Panel's reasons.

[12] TB 134-137: Exhibit 10, Care Team Meeting Minutes.

[13] TB 138-144: Exhibit 11, Behavioural Support Plan.

[15] TB 425-427: Exhibit 12, email chain.

[16] TB 134-135: Items 3 and 7; TB 138-139.

[18] TB 165: Exhibit 7, Notes of interview.

[19] TB 182-183: Exhibit 8, Signed 25 September 2019.

[21] Before the Tribunal, Ms Dowling confirmed that she remembered UYK saying these words.

[24] Before the Tribunal, Ms Dowling confirmed that she did more handovers than shifts with the Applicant, and this was her experience that he would leave straight after handover.

[28] Whilst Detective Senior Constable Brookman made notes of UYK's words.

[32] TB 162: Exhibit 3, Notes of Interview conducted by Mr Robertson with UYK dated 1 May 2019; TB 422: Exhibit 4, Allegation of Staff to Client Physical Assault dated 1 May 2019.

[33] Mr Robertson confirmed before the Tribunal that the words used in the document in quotes are the words which UYK used.

[34] TB 417: PL-15 Abuse and Neglect Policy, Mr Robertson confirmed that this policy has since been replaced by a new policy.

[35] TB 122-123: The Applicant completed a Certificate IV in Disability on 4 July 2016; TB 128: The Applicant completed a Positive Behaviour Support workshop on 12 May 2017.

[39] Referring to a suggestion made in [7] of Applicant Counsel's submissions.

[41] Ms Sheila John of Sheila John Pty Ltd, referred to above.

[42] Confidential Medical Report dated 12 November 2018 prepared by Dr. Lisa Barrow, Consultant Paediatrician, Victorian Forensic Paediatric Medical Service, Royal Children's Hospital, Melbourne.

[58] Which had never been stated previously by the Applicant.

[61] TB 164, in the interview with Ms Vigilante.

[62] TB 188, in the interview with Ms John.

[63] TB 404, in the interview with police.

[64] Namely that the Applicant had hit UYK.

[65] TB 19, under Panel's Consideration of the Evidence.

[66] As indicated in the evidence before the Tribunal, there was no history of self-harm by UYK, prior to the Alleged Incident.