Patel v Secretary to the Department of Government Services (Review & Regulation) [2025] VCAT 663

Under section 51 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the decision under review is affirmed.

1. In October 2023, Mr Kunal Patel applied to VCAT seeking review of a decision by the Secretary to the Department of Government Services (the Secretary) to give him a Working With Children exclusion (WWC exclusion) under the Worker Screening Act 2020 (Vic) (WS Act). This revoked his Working With Children clearance (WWC clearance).
2. He asked VCAT to set aside the Secretary's decision and direct the Secretary to restore his WWC clearance.
3. This required determination of a WWC Category C Application, under section 108 of the WS Act.
4. The Secretary opposed Mr Patel's application.
5. On 27 November 2024, the application came to hearing. Both parties were legally represented.
6. I heard evidence from Mr Patel, in the context of substantial documentary evidence, and submissions from both parties and at the end of the hearing reserved my decision.
7. With the providing of final orders unfortunately delayed, on 17 March 2025, the Supreme Court of Victoria published its decision in Secretary to the Department of Justice and Community Safety v Loos [2025] VSC 107. Legal issues decided by the Court impacted the decision in this case. The parties were provided with and took the opportunity to provide further submissions, received by early June 2025.
8. On 29 July 2025, VCAT provided orders reasons to the parties, inviting the parties to advise the Tribunal as to any confidentiality issues that should be addressed before online publication. This published version of the orders and reasons addresses some confidentiality issues and corrects a person's name and a document date.

1. In May 2021, Mr Patel received a volunteer WWC clearance which in September 2021 then changed to an employee WWC clearance, allowing him to work as an employee providing child-related services.
2. On 24 January 2023, the Commission for Children and Young People (CCYP) notified the Secretary that the CCYP had substantiated four allegations against Mr Patel concerning him singling out four young girls for cuddles, carrying them and inviting them to sit on his lap.
3. This concerned alleged conduct by Mr Patel when working at Kool Kidz Merrifield Early Learning Centre (Kool Kidz), from 17 June to 7 September 2022.
4. The CCYP found this to be 'reportable conduct', defined as 'sexual misconduct' against each of the four children. I refer to this as the 'CCYP Kool Kidz Referral' [1]
5. The Secretary reassessed Mr Patel's eligibility to hold his WWC clearance under section 86(1)(a) of the WS Act, because Mr Patel had, 'become subject to a relevant disciplinary or regulatory finding'.[2]
6. On 15 May 2023, the Secretary gave Mr Patel an interim WWC exclusion. As invited to do, Mr Patel provided submissions, references and a report from a psychologist, described as a psychosexual assessment (see below).
7. On 31 May 2023, the Victorian Institute of Teaching (VIT) advised the Secretary that the VIT had decided to suspend Mr Patel's early childhood teacher registration under Part 2.6 of the Education and Training Reform Act 2006 (Vic).
8. This was based on the VIT's assessment that Mr Patel posed an unacceptable risk of harm to children, and the suspension was necessary to protect children. The VIT reconsidered, and maintained the suspension, three times over June to August 2023.
9. On 14 September 2023, the Secretary revoked Mr Patel's WWC clearance and issued him the WWC exclusion. The Secretary's reasons said in part:

Despite Kunal PATEL having no prior offence history, the recency and possible sexual nature of conduct raises significant concerns regarding their capacity to control impulses and their understanding of approximate sexual and personal boundaries. These concerns are compounded by the information from CCYP and VIT which indicates that there were multiple alleged victims and witnesses at two separate childcare centres and that Mr Patel had been advised to cease the conduct yet continued to behave in this manner.

In noting the paramount consideration of the Secretary being to protect children from sexual and physical harm it is therefore submitted that, despite Mr Patel's denial of the behaviour being sexual in nature and them having provided a psychological assessment suggesting they may be considered a low risk of sexual recidivism, concern remains regarding Mr Patel's suitability to engage in child related work. The ages and number of alleged victims, along with the context in which the alleged behaviour occurred at two separate childcare centres suggests that Kunal Patel may experience difficulty controlling impulses and may have limited understanding of appropriate sexual and personal boundaries.

For the purpose of assessing this factor, the information currently available to WWC Check Victoria suggests that Mr Patel may pose a future threat to the of children, given the recency and the sexual nature of the alleged conduct against children.

It is further submitted that the risk is unjustifiable because of the significant potential harm inherent in sexual behaviour against children and that a reasonable person fully appraised of the allegations would not allow their child to have unsupervised contact with Mr Patel in any type of child-related work.

1. On 20 September 2023, the VIT cancelled Mr Patel's early childhood teaching registration because he had been issued with the WWC exclusion.
2. While this VCAT case was in its early stages, on 8 January 2024 the CCYP notified the Secretary of new findings of reportable conduct (the 2024 Notification). In January 2024, the Secretary provided a copy of the 2024 Notification to Mr Patel.
3. This concerned alleged conduct by Mr Patel when working at Where We Grow Early Learning Centre, Craigieburn (Where We Grow) from 27 March to 21 April 2023. I refer to this as the 'CCYP Where We Grow Referral'.

1. The key purpose of the WS Act is to assist in protecting children from sexual and physical harm by providing for screening of persons who work with, or care for, children (section 1(b)).
2. Section 11 of the WS Act provides that in the conduct of this review, the protection of children from sexual or physical harm is the paramount consideration.
3. VCAT's jurisdiction in this case is set out in section 108 of the WS Act which says:

Jurisdiction of VCAT - WWC category C

(1) In a review of a decision to give a WWC exclusion on a WWC category C application or in relation to a WWC category C re-assessment, VCAT must determine whether in the particular circumstances it would be appropriate to refuse to give a WWC clearance, having regard to any matters to which the Secretary must have regard under section 65(2).

(2) VCAT must determine that it is appropriate to refuse to give a WWC clearance unless VCAT is satisfied that -

(a) a reasonable person would allow their child to have direct contact with Mr Patel while Mr Patel was engaged in any type of child-related work; or

(b) Mr Patel 's engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children.

(3) Even if VCAT does not determine under subsection (1) or (2) that it would be appropriate to refuse to give a WWC clearance, VCAT must determine that it is appropriate to refuse to give the clearance unless it is satisfied that it is in the public interest to give the clearance.

1. Section 108 of the WS Act requires VCAT to answer four questions:

a) Is it appropriate to refuse to give a WWC clearance, having regard to any of the ten criteria in section 65(2)? > > b) Must the Tribunal refuse to give a WWC clearance because VCAT is not satisfied that: > > 1. A reasonable person would allow their child to have direct contact with Mr Patel while he was engaged in any type of child-related work; or > 2. Mr Patel's engagement in any type of child-related work not pose an unjustifiable risk to the safety of children?

1. Is it appropriate to refuse to give a WWC clearance because VCAT is not satisfied that it is in the public interest to give that clearance?

1. To give context to the allegations in this case, it is useful to set out Mr Patel's relevant employment history and related allegations.
2. In 2021, Mr Patel successfully completed 40 of his required 60-day student placement with Kool Kidz.[3] Kool Kidz then employed Mr Patel from 17 June to 8 September 2022.
3. On 7 September 2022, Kool Kidz management conducted a meeting with Mr Patel concerning him being observed sitting children on his lap. No record or file note of this meeting was made.[4]
4. Mr Patel signed and acknowledged the Kool Kidz Code of Conduct Child Safety and Protection.
5. The Code in part says that staff must not develop any special relationships with children which could be seen as favouritism and must not exhibit behaviours with children that may be construed as unnecessarily physical, for example inappropriate sitting on laps.[5]
6. A staff member then observed Mr Patel, in the opinion of the staff member, holding a child in his lap in an inappropriate way. The staff member reported this. On 8 September 2022, Mr Patel's employment was terminated.
7. From approximately October to December 2022, Mr Patel worked with Happy Hippo Childcare Annadale (Happy Hippo).[6] No allegations of misconduct arose from Mr Patel's employment with Happy Hippo.
8. From approximately January to March 2023, Mr Patel worked at Green Leaves Highlands (Green Leaves). No allegations of misconduct arose from Mr Patel's employment with Green Leaves.
9. From 27 March to 21 April 2023, he was employed by Where We Grow. [7] Substantial allegations against him during this employment are set out below.
10. On 3 July 2023, Where We Grow engaged Safe Space Legal to investigate and prepare a report about the allegations of sexual abuse by Mr Patel against two children at Where We Grow (referred to below as the Second WWG Allegations). The 124 page report, dated 20 December 2023 (Safe Space Report), quoted at length below, formulated two allegations and found them largely substantiated.
11. From 29 May to 7 August 2023, Mr Patel was employed by Good Start Early Learning Centre Craigieburn (Good Start).[8] On 7 August 2023, Mr Patel's employment at Good Start was terminated because of the suspension of his VIT registration.[9] No allegations of misconduct arise from Mr Patel's employment with Good Start.
12. The substantial allegations of misconduct against Mr Patel arise from his employment at Kool Kidz and Where We Grow.

1. The regulatory system that surrounds people working in early childhood centres caused eight separate 'reports' to be created concerning Mr Patel's conduct. They are:

a) Letters to Mr Patel and to Kool Kidz from the Department of Education and Training (DET) dated 13 October 2022, which found the Kool Kidz allegations were not substantiated; > > b) The undated Kool Kidz Investigation Report which Kool Kidz provided to the CCYP; > > c) The CCYP Kool Kidz Referral to the Secretary dated 24 January 2023;[10] > > d) Victorian Institute of Teaching Notice of Interim Suspension of Registration dated 31 May 2023 (VIT Suspension Notice); > > e) A 30 August 2023, letter from DET to Mr Patel which found an allegation against him of inappropriate discipline of children at Where We Grow substantiated, giving him a warning: > > f) The Safe Space Report dated 20 December 2023, commissioned by Where We Grow; > > g) The CCYP Where We Grow Referral to the Secretary dated 8 January 2024 finding allegations concerning two children ( Child 1 and Child 2) substantiated;[11] and > > h) The letter from DET to Where We Grow dated 26 February 2024, finding the second Where We Grow allegation concerning Child 1 substantiated.[12]

1. This Report plays an important role in this case. It led to the following issue arising, which I raised with the parties in orders dated 14 May 2025, in anticipation of a directions hearing that was held on 21 May 2025. I quote from my remarks concerning the orders:

... in November 2024, I heard the application for review by Mr Kunal Patel for review of a decision of the Secretary, Department of Government Services to give him a working with children exclusion notice under the Worker Screening Act 2020 (Vic), reserving my decision.

Unfortunately, while some work was done in 2024, I was not able to return to this in substance until last week.

On Tuesday, 6 May 2025, I realised that the investigation report by Ms Patrice Fitzgerald of Safe Space dated 20 December 2023, which is evidence in the proceeding, was written by now VCAT Member Patrice Fitzgerald.

In September 2024, Member Fitzgerald was appointed as a member of VCAT on the basis of her expertise in child welfare.

It was not until late December 2024 that my first substantive communication with Member Fitzgerald (by email) occurred. I had sent a brief 'congratulations on your appointment email' in September.

We did not meet until probably late January 2025.

This year, I have worked with Member Fitzgerald, mainly concerning a stay application and decision with respect to a 'child welfare case' (not a 'working with children case').

Concerning this proceeding, I am reasonably progressed, and progressing, toward providing final orders and reasons in this proceeding.

That said, I am obliged to advise the parties concerning the above situation to discover whether either party has any concern about me continuing to make final orders in this proceeding.

My view is that there is no reason for me to recuse myself from this proceeding on the basis that the reasonable bystander might think that I might be biased in my work on this case ,with a VCAT member also an author of a report in evidence in the case.

I have not and do not intend to discuss the situation with Member Fitzgerald, who as far as I know is unaware of the situation.

1. At the 21 May 2025 directions hearing, the parties accepted that the above did not require me to stand down from making the decision in this case.
2. I have not discussed this case with Member Fitzgerald and it is highly unlikely that she is aware of it. I will advise her of the decision after it is provided to the parties.

1. As described above, on 24 January 2023, the CCYP, through the CCYP Kool Kidz Referral advised Working with Children Victoria that the following allegations against Mr Patel, whilst working at Kool Kidz from 11 August to 8 September 2022, had been substantiated.[13]
2. The CCYP Kool Kidz Referral referred to four 'alleged victims', two four year old females and two three year old females. The 'summary of allegation' against Mr Patel concerning each of the children was that he favoured the child, singling her out for cuddles, carrying her and inviting her to sit on his lap.
3. The referral named Ms Annette Tiernay, Lead Service Consultant, with the Collective Childcare Group Pty Ltd (Kool Kidz) as the relevant investigator. It appears Ms Tiernay wrote the Kool Kidz Investigation Report.
4. In the CCYP Kool Kidz Referral, under the heading, 'Organisations reasons for the finding', it says:

The investigator interviewed three members of staff and the subject of allegation and reviewed the CCTV. The investigator did not interview any of the alleged victims, but one parent reported that her child had told her that she was Mr Patel's favourite.

Mr Patel denied any wrongdoing.

Two adults working in the room with Mr Patel provided clear and consistent evidence that they had observed him singling out particular children and engaging in concerning conduct, including sitting with the child on his lap in 'an inappropriate way', asking the alleged victims if they wanted him to change their nappy and playing with specific children when he had been allocated other children to supervise.

On 7 September 2022, these concerns were raised with Mr Patel and he re-signed the organisation's Code of Conduct. Staff subsequently reported that the conduct was continuing.

The investigator determined that the conduct met the threshold for sexual misconduct, which [included] showing favouritism, cuddling, holding and carrying the alleged victims and encouraging them to sit on his lap.

The organisation found that the conduct breached the organisation's code of conduct (of which Mr Patel was aware as he had been previously warned about the conduct) and was overly personal and intimate and constituted 'sexual misconduct under the Reportable Conduct Scheme'[14]

1. It is critical to note here that Kool Kidz use the term 'sexual misconduct' to mean conduct by Mr Patel that was overly personal or intimate. Kool Kidz did not conclude that Mr Patel's conduct involved his actual sexual arousal or gratification (see paragraph 58 below).
2. It is convenient to record here that there was no CCTV footage provided as evidence in this case. Counsel for the Secretary advised that the Secretary had requested all relevant material from the DET, but CCTV footage was not provided to VCAT or Mr Patel.
3. The Referral noted that Mr Patel's employment with Kool Kidz was terminated on 8 September 2022. It also noted that the matter was referred to Victoria Police as the CCYP assessed that it met the threshold for criminal conduct referral. Victoria Police then advised it was taking no action.
4. The materials considered by the CCYP, leading to the CCYP Kool Kidz Referral, appears to include the undated 'Reportable Conduct Scheme Investigation Plan', here referred to as the Kool Kidz Investigation Report. The Report names Ms Tiernay as 'Investigator'. [15]
5. It names the decision makers as, 'the head of the organisation, approved provider, Clinton Downing and Ms Tierney'.
6. This three page Report, unsigned, apparently in standard form, presumably filled out by Ms Tiernay provides an 'Investigation Overview': [16]

On 8 September 2022 ... [Ms] Tiernay was contacted by Liana Riccio, Service Manager at ... Kool Kidz ... raising concerns regarding [Mr] Patel. [Mr Patel] was employed as an Assistant Educator at the service. He was newly employed (with his probationary period) his colleagues had previously spoken to [Mr Patel] and then Service management about interactions with children that appeared inappropriate and contravened service policy. These interactions included unnecessary cuddling, holding, carrying and encouraging to sit on laps with a particular group of 5 children (all female).

On 7th September [2022], Service Management discussed with [Mr Patel] the Organisations Code of Conduct and highlighted areas which he appeared to be breaching (sitting on lap, etc). He resigned [after] this [meeting].

On 8th September, [Ms Riccio] was advised this had occurred again.

[Ms Tiernay] arrived to conduct a meeting where information was provided to Mr Patel and he was provided opportunity to respond. Given that the subject was in his probationary period, HR advised that a termination was appropriate.

1. In fact, Mr Patel did not resign on 7 September 2022. He was dismissed on 8 September 2022.
2. The Plan records one allegation:

Between 11 August 2022 (Approx) and 8 September 2022 it has been alleged that Kunal Patel may have engaged in the following conduct:

• sexual misconduct in that the subject displayed inappropriate affection to [four children].

It is alleged these children were treated with favouritism and were repeatedly singled out for cuddles, invited to sit on the subjects lap, carried.

1. The Report describes as "current information" statements by colleagues at Kool Kidz, Colleague 1, Colleague 2 and Colleague 3.[17] They each provided a statement. There was an email from the parent of an alleged victim.[18] It appears the CCYP had access to CCTV footage dated 7 September 2022 at 12:07pm.[19] It also refers to a response from Mr Patel.
2. The Kool Kidz Investigation Report provides 'Findings/Conclusions':

Victoria Police referred the matter to SOCIT who advised that no investigation would occur. DET completed an investigation with an outcome provided "Unsubstantiated"

The organization was unable to obtain further statements from witnesses or seek further questioning. The organization considered that the subject denied any wrongdoing however, was able to assess that the conduct, which was a direct breach of company policy, was repeated despite further training and support for the subject. The organization deems that while the matter does not meet a criminal threshold the behaviour can be considered "sexual misconduct" by standard of the CCYP in that it was overly personal and intimate. CCTV footage also depicts a child, somewhat, pull away from the subject but was held tightly to remain close.

1. I turn to the available statements from those who were working at Kool Kidz. They seem to have been attached to the Kool Kidz Investigation Report.
2. Colleague 1 was a fellow worker at Kool Kidz. Their handwritten statement, dated 8 September 2022, says: [20]

Over the period of last 3 - 4 weeks I have noticed [Mr Patel] being close to some specific girls in my form. 3 girls age ... 3.5 and above are his favourite and he always mention to them to say this that "you are [Mr Patel's] favourite."

We had discussions with him and explained him in a nice way that don't always stay with these specific girls. But he ignored me (7th Sep 2022)

During outdoor play yesterday I send some children outside with [Mr Patel] and those 3 girls were inside with me. He had 12 children outside but he stood next to the door and ask those girls to come outside to play with him. I told him leave them inside they are playing but he did not acknowledge and kept saying to the girls to come outside. Later he took them to big yard and [Mr Patel] and one girl sat together on a bench and he was just engaging with her.

...

• - On different occasions I heard him asking the child "Do you want me to change your nappy. Do you want [Mr Patel] to change your nappy".

1. Colleague 2 was a fellow worker at Kool Kidz. Their handwritten statement, dated 8 September 2022 says:

This morning, I noticed [Mr Patel] was holding the child in his lap in an inappropriate way according to me. I straight way remove the child from his lap and keep that child with me busy in an activity

8th September 2022

At 8:45am I started in Butterflies room [Colleague 3] (Assistant educator butterflies room) notified me the incident and she explained to me that she noticed [Mr Patel] holding a child in his lap and she removed child and explained appropriate way to hold child.

Then I notified the management immediately.[21]

1. On 8 September 2022, Kool Kidz terminated Mr Patel's employment. A letter to him of that day explained this was because of his 'serious misconduct', 'in particular':

... conducting yourself inappropriately with children including behaviours such as favouritism, unnecessary physical contact (including encouraging children to sit on your lap and cuddling).

1. A 24 October 2022 letter, from Kool Kidz to Mr Patel, advised that Kool Kidz would not be re-employing him. The letter explained:

For the avoidance of doubt, we confirm that our investigation confirmed your misconduct included the following:

- Breaching the Company's Child Safety and Protection Code of Conduct by unnecessarily holding and cuddling children and encouraging them to sit on your lap. This conduct occurred with a particular group of children who appeared to have been treated favourably.

The company has concluded that this constituted 'sexual misconduct committed against a child'. Specifically, we determined that your conduct was overly personal or intimate, even though we did not conclude that your misconduct involved your actual sexual arousal or gratification. In accordance with our statutory obligations, our findings have been reported to the Commission for Children and Young People (Commission).

At this time and in keeping with the principles of procedural fairness, we confirm that the Company has now advised the Commission that as substantiated allegations of reportable conduct have been made, the Commission will now refer the matter to the Department of Justice and Community Safety for a review of your Working with Children Check.

We further note that the Department of Education (Department) undertook a separate investigation of the matter. We understand that the purpose of the Department's investigation was to determine whether any children's services laws or regulations have been breached. The Department has since confirmed that no laws were breached and conducts their investigation under a higher threshold.[22]

[my emphasis]

1. The allegations were referred to Victoria Police by both Kool Kidz and the CCYP. Victoria Police advised it was not taking any action.[23]

1. The Kool Kidz allegations were referred to DET, which did not substantiate them. The 13 October 2022 letter from DET to Kool Kidz advising of non-substantiation said in part:

... The notification related to the interactions of an educator Kunal Patel and four female children:

• On 7 September 2022, [redacted] parent of child [redacted] raised concerns regarding the preferential treatment Kunal displays towards [redacted].
• On 8 September 2022, two educators advised management of their concerns regarding Kunal's 'special relationships' with certain children.
• Kunal was also observed to have a female child placed on his lap and holding her bottom.

On the basis of the evidence collected during the investigation, including direct observations of investigating officers, information and documents provided by the approved provider, educators, and other witnesses, I am satisfied that non-compliance with the Education and Care Services National Law Act 2010 (National Law) and the Education and Care Services National Regulations 2011 (National Regulations) has not been substantiated.

1. A Safe Space Legal file note records that in a phone call with Ms Fitzgerald, the General Manager of Kool Kidz advised: [24]

Department of Education investigated - our witnesses were not cooperative with the Department. They didn't want to be a part of it. They weren't involved in the Department's Investigation. The Department then relied on his evidence and didn't substantiate.

1. However, neither the DET's letters nor the underlying investigator's report give that sense of the investigation. The DET investigator's report said in part:

There was CCTV available at the service in the outdoor environment only. This was viewed however no interactions of concerns were identified by the investigating officer. It was evidence of several female children had established a bond with Mr Patel and were regularly observed seeking out this educator.[25]

1. During her investigation of the Where We Grow Allegations, Ms Fitzgerald had a telephone call with the General Manager of Kool Kidz. A file note[26] by Ms Fitzgerald records:

[Mr Patel] was employed at Kool Kids Merrifield so she doesn't have a huge information about him. She only met him when the allegation first arose

Kool Kids terminated his employment during his probation period

[The General Manager] doesn't have a huge context of all the details- he was employed for less than 6 months

[Mr Patel] was a student prior to being employed at Kool Kids

...

The first thing that came about - a parent had disclosed that her child went home and said 'I'm really tired... because this educator always wants to cuddle me' - that prompted us to further look into it

A couple of days prior another educator had spoken to the leadership team - The educator had told us that she had spoken to him about not having children sitting on his lap unnecessarily - the Educator stated that there had been occasions when children were playing and he would say 'come and sit on my lap and come and give me a cuddle' and interrupting play for no reason

That was addressed with him - he attended a meeting, he was told not to do this, shown Code of Conduct, he signed that off Then there was a further instance that a parent had made a complaint

Also, other educators had come forward and had same conversation with him about not sitting children on his lap and cuddling them.

The RCS investigation all allegations were substantiated- allegations related to 'favouritism' unnecessary contact, interrupting play for a cuddle and to sit on his lap

We also had a 'brief snippet' of CCTV footage showing 'unnecessary closeness' to the point where children were pulling away

The CCCTV footage showed all the children were female about 4 years old, blonde hair fair skin and similar looking

The CCTV surveillance was in the outdoor yard

An Educator brought forward a time on surveillance he kept 'drawing these particular children for cuddles and forcing them, holding them' other children were attempting to get his attention, 'one child was attempting to put on a shoe and he was dismissive of this child'

We found that the girls with blonde hair and fair skin were treated differently

Were the concerns reported to Police? : Yes, they were reported to Police - Police 'sort of went through a bit of a journey and went to his house[27] to then not doing anything, then it was closed very quickly'.

...

The RCS Investigation was done internally by myself.

Police didn't end up interviewing him - we don't think they did. We struggled to go back and forth with Police - we didn't get a clear outcome. They told us it wasn't of the criminal threshold. We gave police surveillance footage - but it was very much sitting on laps and cuddles

We have a small tight knit community - we were alerted he was employed at the service across the road for a couple of weeks. Rumours were that he was terminated from there. I don't believe they did any investigation. Happy Hippo in Mickleham.

...

Prior to these allegations, there were some other concerns about his conduct - educators had informed us that they had interactions with him. Staff had conversations with him saying 'that's not ok' but then he would do it again. We saw a pattern when all the educators came together - 'alarm bells'. Interactions from colleagues and mentors 'you can't be doing this' but he kept doing whatever we told him to do.

Something 'that doesn't sit well with me' and is probably not relevant to investigation - Prior to Merrifields and Mickleham I believe he worked at Toll (logistics) and there was a complete sector change, his biggest concern was on the effect that it would have on his residency. He was terminated from Happy Hippos then he chose to stay within the sector. 'If his residency in the country is relevant to his employment then why would he stay in the sector?'

Also, 'we were never able to get a uniform back from him. There was lots of back and forth that he didn't want to return the uniform.' The approved provider called the Police, 'he seemed so desperate to hold onto the uniform that his intent is not right.' There was so much back and forth and he refused to send it back. So it was flagged with Police that there was substantiated allegations of sexual misconduct and he has a uniform from an ELC - 'we were worried he was wearing a uniform is he trying to present as more trusting. This is just speculation. but he was desperate to retain the staff uniform.'[28]

1. Mr Patel's first written statement concerning Kool Kidz is dated 3 October 2022:
2. In response to the Secretary on 15 May 2023 giving him an Interim WWC exclusion, and inviting a submission, on 24 May 2023 Mr Patel provided the following: [29]

My Statement

... I was wrongfully terminated and was accused on an unhearable offence of showing favouritism and un-necessary physical contact with children. So, the basis of termination according to me is un-biased and gender discrimination which involved harassment and mental trauma. With this letter, I will put forward my side of the clarification in the points below.

When I was studying Graduate Diploma in Early childhood education back in 2021. We had to do 60 days of un-paid placements which was an opportunity for us to get practical "on the job" experience. For that I was assigned to Kool Kidz. This was my first time getting to know the centre. Out of those 60 days, I did my 40 days of placement in the centre where I was given exceptionally well report by my mentors. Because of the exceptional reviews my parents and staff, later when they had a job opening, they called me from their end and offered me the job (little that I knew at that time that they thought of hiring with the intentions that because of my qualification and I will get VIT soon and will be able to work a teacher in of the kinder rooms). As I was comfortable with all the staff, already knew the routines, and it was closer to my home. I decided to accept the offer.

On my first day of job, I was given a position of assistant educator. I was not assigned to a particular room but was being used as a floater. There was no induction provided to me during this process. Till this day, I have no knowledge about their fire exit plan and during the time I was there, there was no evacuation drill done ever.

Management kept on constantly chasing me if I have received my VIT registration or not. As they hired me with this thought that sooner or later, I will get my VIT and I will be able to work as an (Early Childhood Teacher) in one of the 4 kinder rooms. When they realised that I gave my English exam but I couldn't pass it. That is when they started to flip against me.

My pay was supposed to increase on 1st July 2022. Management didn't increase my pay. As, I was in my probation period and I had a job, I didn't want to make a fuss about it and I kept my quiet.

On 7th Sep 2022, I was called in the office by Liana and Sara. This was first time I was called in and was given a verbal warning and they said that I was giving cuddles to children and they asked me to stop doing it. I agreed with them and left the room.

On 8th Sep 2022, I was at work when around 9am Sarah came to my room and she made sign my employment contract in the backdate. At that time she said that "they are just updating the documents". At 11 am, I was called in to the office by head office staff. They told me that I was still cuddling the children and there was a complaint by a parent of one of the children in my class. So, they are terminating my contract and reporting to the department and the police.

I was threatened by the management staff that they will call police on me and send police to my home. I was not given any information about the complaint. I was just straight away fired without any written warning and no gap period. They asked me to leave the premise straight away after the end of the meeting. I was told that there is a complaint by 1 parent. No further information was provided to me.

I went into mental trauma. I sat in my car for couple of hours trying to process what just happened to me. As it was out of the blue and the allegations were very harsh. I had a rush of emotions. I cried and thought of ending my life. I got scared about my future, my job, my family and my career in this field. It's a small suburb, news spreads like a wildfire. I thought everyone will know about this in my neighbourhood. Not even in my dreams, I could think of being accused of such a horrific crime.

I deny all the allegation made against me by the management and [Colleagues 1, 2 & 3]. [Colleagues 1 and 2] are very close to management, as they are in the same room from the past 4-5 years, which I reckon, is unfair.

I have treated all children no matter what caste, religion, gender and ethnicity they come from. It is not in my nature to push away or hurt any children. I never initiate any child to come and hug me or allow them to sit on my lap. But if the child willingly wants to hug me as a gesture of them showing happiness or if they sad over something and they just want a small cuddle. I felt obligated and couldn't push away the children. I have seen other female educators giving cuddles to children of all genders. Children feel safe with me and my teaching moto is to keep them active by playing lots of games with them and I am not afraid of getting my own hand dirty while playing with them.

When it comes to partiality, I believe I am same with all the children and provided them with same respect, care, focus and support. There were many male children who used to ask for cuddles and I used to give them happily. On the other hand, I have seen educators who have children in the same centre, used to take their children into their own rooms during the day to give them extra attention and extra food particularly [Colleague 3] who had a child when I was doing placement.

I believe I was targeted because I am a male educator in a female dominated industry.

Parents and children were happy with me and my style of teaching as I was engaging with both. In fact, [redacted] parents were always welcoming and happy with me. This was one of the children which was named in the complaint.

Management is highly unprofessional; they have never provided any inclusions staff. Ratio is always an issue we are always understaffed and not enough support is being provided my management there are always more student compared to the children. Before taking action against me, no cross verification was done with other staff members. They started doing that after firing me from the job. Which was highly unprofessional on manager's part.

[Colleague 2] has a history of getting educators removed from her room by wrongfully accusing them. I was told by the other staff that it had happened to more then 3 times before me and it was in the knowledge of management and head office. No action was taken against her.

Since I used to interact with children, play with them, do fun activities with them. It was not liked by [Colleagues 1 and 2]. Their approach of teaching is not play based learning. They focus on intentional teachings. I have observed her multiple times denying the children of their desired play and forcing them to sleep, do activities which she wants them to do. Because of this difference in style of teaching. Children enjoyed my company rather than hers. This is one of the reasons she is against me, other reason is me being a male educator. She asked me multiple times why I am working in this industry being a male. She was scared that once i pass my exam, I will become a room leader, threatening her position. According to me, this droves her to make false accusations about me.

[Colleague 1], recently being an ECT, she treated all other educators as if she is the boss and we were her employee. She treats children in a rude manner. I was seen her pulling children force fully and sending them to the other room if they were not following her rules. She used to say to me that I should not stay in this industry and should find a job more appropriate for male. Apart from this management always supported her as they know she is not going to leave this centre because of her private reason, which she had made it public to all staff, so management use to support her blindly.

I was given only day warning. And if it was an ongoing issue, why didn't the management change my shift timings or my room. No action was taken on this. But in fact, management forced me to do extra shifts and come to work even on my off day. On this day as well, I was not being made aware that I am grooming child and touching them inappropriately like putting my hands in children's private part.

Initially there was just 1 parents' complaint. Later on, after 3-week, department told me that there are another 3 parents. But today on 3rd Oct 2022, I got to know from Kathy Barnes that there was never a complaint by parents and it was always the management and [Colleagues 1, 2 and 3].

There were multiple times when I was asked to stay back. When I asked, they said they have "time in lieu". As of today, 3 Oct 2022, I have not been paid for my time in lieu and my pending annual leave hours.

I have support letters on a Statutory Declaration from [9 colleagues] who are willing to vouch for me as they know I haven't done anything wrong with their children as well as behave professionally with them as a co-worker and as a parent. There are some other staffs who were willing to give me letter but due to threat of losing job by going against management has stop them from doing so.

1. Mr Patel attached nine statutory declarations from former colleagues in childcare. They stated (slightly edited) that Mr Patel:
   • Was a 'very good educator and friendly with the kids. Children liked him as their educator. He always fulfilled his duties and responsibilities in a positive manner.'
   • Was 'a kind educator... able to fulfill his duties perfectly... he is very hard working and a good mannered educator.'
   • (with this person also a parent of a child in Mr Patel's care), 'approached us with respect and integrity' ... very polite and kind... he is very hard working and dedicated and never leaves a job unfinished during his shift. ... [the colleague felt] comfortable and stress free' when Mr Patel was working with their child ... He is very hard-working and dedicated and never leaves a job unfinished during his shift'.
   • Was a 'a very nice guy... very polite ... very comfortable with my being around him... He was very nice to all the kids and my kids as well'.
   • Caused the referee to 'always feel safe and secure working with Kunal Patel... he is very kind and polite to all... He approached to staff and children respectfully.'
   • Was 'very kind, professional person' ... the children really like him and seems to enjoy his presence.'
   • Was a 'nice, calm, kind and friendly towards children ... Worked very professionally and in a supportive way. He always fulfilled his duties in a positive and professional way.
   • (with this person also a parent of a child in Mr Patel's care),was 'very professional ... He always enjoyed himself with the children in activities. The children liked to play with him. He helped his co-workers. ... as a parent, 'always felt comfortable to approach him.'
   • (with this person also a parent of a child in Mr Patel's care), observed Mr Patel to be 'very polite and respectful towards staff and the children' ... felt 'very comfortable to leave my child with him.'
2. In the tenth statutory declaration, a person who studied with Mr Patel, described having known him for about two years. She described him as being moral and respectful. ... a very positive, hardworking, helpful and optimistic person and that, while studying with her, Mr Patel did not make her feel insecure ... 'I have always heard praises about him from every centre he visits and job offers pouring on him. He enjoys playing with children, inventing fun games which are enjoyed by all children. There was never a case of dis-respectful behaviour or misconduct in class and in placements.' As an early childhood educator, the referee described Mr Patel as working in a professional way and 'even in his personal life is very simple, warm and welcoming'.
3. On 1 June 2023, the Secretary requested Mr Patel to provide further information, having received further information from the VIT. On 20 June 2023, Mr Singh, solicitor, advised the Secretary that he had been engaged to act on Mr Patel's behalf and requested further time to respond.
4. On 18 August 2023, Mr Patel provided the following submission to the Secretary:[30]

I am writing to formally appeal and provide my submission against the suspension recently imposed upon me on 31 May 2023 by the Victorian Institute of Teaching (VIT). I am deeply committed to maintaining the highest standards of professionalism and ethical conduct within the education field. I appreciate the opportunity to address the concerns that have led to this decision and provide my perspective on each matter raised.

During my pursuit of the Graduate Diploma in Early education in 2021, I undertook placement at Kool Kids Merrifield where I was given exceptional feedback reports by my mentors, staff and parents. I have Statutory Declarations from multiple parents and staff that can prove that I have always behaved in a professional manner (attached at the end of the letter)

Subsequently upon a job opening I was offered a position at Kool Kids. An induction was not conducted as part of my employment process. I initially worked in the three year-old kindergarten room and was then moved to another room without explanation.

Following this I was a floater across four different rooms.

I was given a verbal warning on 7th of September 2022 by Liana and Sara for cuddling children and was asked to stop to which I agreed. However, the subsequent day, a head office staff member had a meeting with me to address allegations of continued misconduct, following a complaint from a parent, resulting in my contract termination notice and my conduct reported to the department and the police.

What I believe happened on the 8th of September 2022 is that before starting my shift a child and I entered simultaneously and as a form of greeting because she was happy to see me she tried to cuddle me and as I was standing up she was hugging my legs. Three weeks later I was told that there are now 3 parents' complaints despite me hadn't been at work.

To date I lack information regarding the complaints and their specifics.

I have always treated all the kids the same and never initiate a hug towards a child or have asked them to sit on my lap. However, if a child requested a hug from due to be happy or upset over something I felt obliged and did not want to push the children away.

I have seen other female colleagues hugging the children of all genders.

Within my employment another ECT named Joe and I would work together and when children would sit on his lap voluntarily, he would tell them no and to get off. As I did not want to be harsh with the children when they would sit on my lap or ask for cuddles, I would instead gently engage them in an activity or asked them to give me high fives instead of telling them off.

I have since familiarised myself with the Child Safe Standards and recognise the rationale behind maintaining personal space between educators and children. I believe I was targeted because I am a male educator in a female dominated industry.

I have previously been told by [Colleague 1] who I have been told made a complaint about my actions that "I Should not stay in this industry and should find a job more appropriate for a male".

The main reason for my room changes while working within Kool Kids was because [Colleague 2] who also made a complaint against me also believed that men should not be employed within the education field.

Employment at Happy Hippo and Greenleaves Highlands

Following my termination, I applied for a position at Happy Hippo online, was interviewed and employed. A colleague from Kool Kids provided my reference for this position.

After a week of employment someone had informed the directors at Happy Hippo about the circumstances of my termination at Kool Kids being framed as sexual harassment.

I informed the directors about the incident and provided a letter from QARD Investigation Officer, Kathy Barnes.

Our meeting resulted in their support, allowing me to continue my role as an ECT within the four-year kindergarten room for a span of three months.

I left Happy Hippo based on not feeling supported when it came to planning time leading to work related stress and pressure.

Subsequently, I joined Greenleaves Highlands as an ECT. However, I encountered discomfort in working with special needs children due to both a lack of support and my limited experience in this realm. This led to heightened stress and ultimately prompted my resignation. Throughout my tenure at both establishments, there were no issues or allegations levelled against me.

I then started working at Where We Grow Craigieburn in March 2023 by applying online. I used the same reference as before to get my previous position.

I was the first ECT and began working in a combined three- and four-year-old kindergarten room.

I did not go through a formal induction, was not given any policy and procedures to read or modules to complete.

I had not yet updated my resume to include Happy Hippo.

During my tenure, access to a single laptop was shared among staff for capturing images of children engaged in activities, meant to showcase their progress and shared with their parents.

Limited resources resulted in 3 teachers/ educators waiting to use the laptop at times. There was also a lack of a company email system available to staff.

I noticed that other senior experienced permanent staff would take pictures on their personal devices and send them to their email to do their paperwork on time without having to wait.

I was previously told that I was not allowed to carry my personal phone within the centre and therefore I would keep it in my car as I did not have access to a locker.

However, a misunderstanding arose on one occasion as I had to use my personal iPad to access my email and include the content in our activity planning to incorporate the information into the plan and had no other intentions of breaching any person's privacy; this was misconstrued as a personal use. I was just ensuring that the children's education is not compromised because of lack of resources by the centre.

I had a special needs child within my room ... who would occasionally eat things from the floor such as crayons and even her own facies and because of this as I was working mainly on my own in this room I asked for an additional educator to better cover the room and provide for the kids.

I also had another child with special needs that I needed to get NDIS plans from the parents and seek KIS funding.

At times I had more than 11 children in the room and 2-3 days a week I worked full time in the room on my own and when the three and four year group would come together it was even more difficult

On one occasion all the children were drawing together. There were about 7-8 children at the table and I was sitting with the children at the table.

... came into the room crying and was very upset, so I picked her up and gave her a cuddle and was standing in the doorway. At this point some of the children went to the kitchen corner and started to draw on the walls.

I instructed the children to sit on the mat however as ... continued to cry and this added to the challenge and my main focus was to calm her down so I initiated a time out session to temporarily stop the planned activity by taking the crayons away and only leaving the papers on the table.

My intentions were to calmed ... down and sit with the children and discuss why we should not draw on walls and perhaps put papers on the walls for them to draw on at any moment that they wished. At this moment the director entered the room and told me to go on my break while she sorted the situation at hand.

After my break the director reported my approach as not being permitted according to the centre's guidelines as there were alternative strategies that were to be utilised. I was issued a warning which I declined to accept.

The Area Manager of Happy Hippo's daughter worked at Where We Grow, I believe she may have discovered the false allegations from the past as I had a previous discussion at Happy Hippo about the false allegations and utilised that information at Where We Grow which created a stigma and ultimately led to my termination.

I firmly believe that a secure environment for children encompasses:

• Upholding respectful and appropriate physical boundaries, which I have endeavoured to achieve by gently involving children in alternative activities and encouraging high fives, steering clear of being overly stern with them.

• Promoting transparent communication and cultivating trust. My primary goal is to engage with children in sit-down discussions to address any instances of misbehaviour, rather than resorting to raised voices.

• Safeguarding the emotional and psychological well-being of children. Accordingly, I recognize that diverse behaviours are necessary to soothe children based on their individual needs.

• Fostering inclusivity and maintaining a setting free from discrimination.

• Enforcing effective child protection policies and procedures. I am of the belief that these protocols should be applied to all staff, irrespective of their gender, when engaging in physical interactions to calm children down.

I underwent a psycho-sexual evaluation conducted by Dr. Gina at Healey & Cindoni Psychologists on July 21, 2023, as it was advised by Mark Windisch from WWC Victoria. The report is attached for your viewing.

In conclusion, I kindly request the VIT to reconsider the suspension decision in light of the false accusations against me. I believe based on the evidence demonstrated underlines a different narrative which contradicts with the allegations that have led to my suspension. The intricacies of each circumstance, when examined in depth reveal a pattern of dedication, ethical conduct and a commitment to the well-being of the children under my care. I believe, that I have been targeted due to my gender in a predominantly female dominated field leading to unfair scrutiny of my actions and behaviours

I am grateful for your consideration of my appeal and am fully prepared to participate in any necessary discussions or procedures to address these concerns.

1. The psycho-sexual evaluation is summarised and discussed below.
2. I summarise Mr Patel's evidence in chief at the VCAT hearing concerning the Kool Kidz Allegations.
3. He described starting working in the childcare industry after completing his graduate diploma and getting a job at Kool Kidz after completing a placement there. At the time, he did not hold VIT registration as an early childhood teacher. He described being dismissed by Kool Kidz based on the allegations, which he denies.
4. He gave evidence that on 7 September 2022 he was called into a room by the Director. Someone from head office was there. He does not know her name.[31] He was told that he was hugging children and touching children in an inappropriate way. They said they had been collecting evidence including CCTV footage. They did not explain what kind of hugging and touching was inappropriate. He denied this. He was told he needs to stop doing this. He was not shown any of this evidence at the time and has never seen the CCTV footage. He was asked to sign a warning letter, which he refused to do. Mr Patel viewed signing that letter as an admission of guilt, where he denied being at fault. He did agree to and did sign a copy of the Code of Conduct.
5. Mr Patel gave the following evidence about what happened the next day:

... when I came to the work there was one child. She came from the door like she was entering into the room and it was me who was attending at the centre at the same time and that child came and gave me a cuddle and just like a good morning and they said hi, how are you? And I said oh, good, and then that's when she came and gave me a cuddle. I didn't ask her or anything, and I gave her one cuddle and then I just went straight into the room, and after a certain time at around 8.30 or 9, the director called me into the room[32]

1. Mr Patel continued to give evidence that the Director dismissed him, giving him a termination letter. He was told he had continued his inappropriate conduct. He was also told that the police had been called and he could expect them to come to his house and interview him.
2. According to Mr Patel, during these two meetings he was not shown any evidence. Before this there was never any discussion of poor performance by him. He had been hired because of good performance during his student placement.
3. Mr Patel gave evidence that he was the victim of conspiracy. He described the complaints against him as being from room leaders, who were scared of having to work under him. They did not like that he was a new person or that he was a male educator. He described being asked, every day, why he wanted to work as a childcare educator when he was working in a good industry beforehand. Mr Patel had worked as a transport supervisor for a logistics company.
4. According to Mr Patel the two educators who made the accusations never discussed them with him.
5. Mr Patel gave evidence that after he had been dismissed, Ms Kathy Barnes from the Department of Education, advised him of the Department's investigation. His evidence was that Ms Barnes said that parents denied that Mr Patel was unnecessarily touching students and that the parents said that Kool Kidz was forcing them to make accusations.
6. Concerning the complaint to Victoria Police, his evidence was that Victoria Police never spoke to him.
7. Mr Patel described working as a casual educator after he was dismissed by Kool Kidz and then starting full-time at Happy Hippo. The Happy Hippo management came to learn of the Kool Kidz allegations. With the DET's investigation ongoing, and no substantiation, the management allowed him to continue. Mr Patel gave evidence that Ms Barnes had told him that he did not need to disclose the allegations to future employers, while the allegations were not substantiated. Mr Patel described while working at Happy Hippo, gaining his VIT registration in early childhood teaching.
8. While he was working at Happy Hippo, DET advised him that it had not substantiated the Kool Kidz allegations.
9. He described a deterioration in his working conditions where Happy Hippo reduced the planning time available to him for his work, requesting that he prepare in his own time at home. He described leaving Happy Hippo due to pressures he was facing and feeling insufficient support from the centre.
10. Mr Patel described then briefly working at Green Leaves and leaving because, being new to the industry, he did not feel equipped to work with children at the centre who had special needs. Mr Patel said that there was insufficient support from the centre and if there had been sufficient support he could have continued. He briefly mentioned previously working at Good Start early learning, where he liked working with special needs children. He left Green Leaves and went to Where We Grow.
11. Concerning CCTV, Mr Patel gave evidence that Ms Barnes told him that there was no CCTV footage.[33]
12. According to Mr Patel, there were no complaints about his performance from parents.
13. During cross-examination, Mr Patel:

a) Said that at the 7 September 2022 meeting he did not properly read the Code of Conduct he signed and had not previously read the code. He gave evidence that he knows that unnecessary physical contact is not appropriate, knows special contact is not appropriate and doing things of personal nature was also not appropriate; > > b) Repeated his view that the allegations were made up because the supervisors wanted to support the 'old workers' over him. Allegations made by one worker were because Mr Patel was male and getting his VIT registration and that he might become a room leader and the current room leader would be demoted; > > c) Agreed that there was another male educator at Kool Kidz. Mr Patel had worked with him and the educator was a mentor to Mr Patel. Mr Patel denied that in fact he was welcomed as a male educator; > > d) Denied that because he had failed his English examination while at Kool Kidz, other staff would have no concern about him becoming room leader; > > e) Denied allegations in the Kool Kidz termination letter dated 22 October 2022; > > f) Denied that after the warning he had received on 7 September 2022, the next day he was seen holding a child inappropriately on his lap such that the child had to be removed from him, and that his evidence about the child hugging his leg on the morning of 8 September was untrue and was him minimising the situation; > > g) Agreed that, as he said in a submission to the Secretary, he believes the basis of his termination was wrong and he should be compensated for the damages he has suffered. He described wishing to press charges of mental harassment, gender discrimination, bullying and defamation. That said, he never made a claim for compensation against Kool Kidz. He spoke of not taking that step because at the time he did not have 'a good Visa situation'. He then became a permanent resident; > > h) Concerning Where We Grow, Mr Patel denied the content of an interview recorded in the Safe Space Report with the General Manager of Where We Grow concerning her observing Mr Patel being 'very fascinated towards the girls in the room' with him observed at the end of March 2023 with a little girl sitting in his lap working with her instead of working with a group of children and an incident where that girl pushed another girl off a slide and Mr Patel yelled at the girl who was pushed off, sitting the 'pusher' in his lap. Mr Patel explained that the General Manager's mother used to work at Happy Hippo and she was seeking revenge against him for Mr Patel having a pay dispute with Happy Hippo after he left;

1. Denied telling the director of Happy Hippo that he had to take his sister to hospital, the next day was a public holiday and then Mr Patel resigned without explanation. Mr Patel said he gave a reason which he had sent in a text message. He confirmed that he resigned because he was stressed in the role, and he moved on because he had an offer of better pay. He confirmed that the lack of planning time was an issue and that another worker was given planning time;

j) Agreed that when he applied for the job at Where We Grow, he did not tell them about working at Green Leaves and did not include it on his resume; > > k) Denied that he had not been truthful about why he left Green Leaves and in fact he was asked to leave, with counsel referring to a Safe Space File Note of an interview with the executive service manager that she had been told, 'you made everyone feel sick when he worked there. He made a lot of staff cry and he was actually asked to leave';

1. Denied that he was desperate to keep his Kool Kidz uniform, saying that he did not return it because he refused to pay for the postage and he had a pay dispute with Kool Kidz and wanted to keep the uniform until that was settled. He denied keeping the uniform so he could present himself as working at a centre, when he already had a job in another centre. In re-examination, Mr Patel's evidence was that he put the uniform in the bin; and

m) Denied wanting to continue in childcare so he could access four year old girls for improper purposes.

1. On 27 March 2023, Mr Patel started employment with Where We Grow.[34] He worked there until 21 April 2025. His evidence was that for the first five days he was supervised, with another staff member in his classroom.
2. Two sets of allegations of misconduct arise from Mr Patel's time at Where We Grow.
3. The first set of allegations were investigated and reported by Where We Grow to the VIT, which led to the termination of Mr Patel's employment.

1. The first allegations arise from the period of 27 March to 21 April 2023.[35]
2. The term allegation is somewhat of a misnomer. It is better to focus on the reasons for Where We Grow dismissing Mr Patel, the taking of photographs of a staff member and children at the Centre, in the context of inappropriate discipline of a group of children on an earlier day.
3. The Secretary's statement of reasons for cancelling Mr Patel's WWC clearance, in part relied on the photographing allegation.
4. The Secretary also referred to 1 June 2023 advice from the VIT to the Secretary that the VIT had given Mr Patel a notice of interim suspension of early childhood teaching registration.

1. The VIT Notice referred to allegations that in September 2022 while working at Kool Kidz, Mr Patel made inappropriate comments to children such as "you are my favourite girl, hugged children, touched children on the waist without a reason to do so, touched children on their bottoms, sat on a chair, placed a child on his lap and held the child's bottom. The Notice stated that a witness stated that this looked like a sexual position. The VIT Notice said that as result of these allegations, Mr Patel was terminated from Kool Kidz.[36]
2. The VIT Notice did not state the evidence on which these allegations about sexualised behaviour by Mr Patel were based. If it came from the description of the allegations in the 13 October 2022 letter from DET to Kool Kidz, that appears to be a poor source given the DET did not substantiate such allegations and Kool Kidz did not accuse Mr Patel of conduct for the purpose of sexual gratification.
3. It is convenient to state here that the allegation in the VIT Interim Notice was not a focus at the VCAT hearing and is not given any weight.
4. The Notice went on to say that concerning Where We Grow, it was alleged that in April 2023 that Mr Patel took photographs of children and colleagues without their consent and sent them to his personal email address from the early learning centre device.

Where We Grow Investigation and Termination of Employment

1. On Friday 14 April 2023, an incident occurred in which Mr Patel was alleged to have inappropriately disciplined children. An anonymised witness note, apparently by a fellow teacher, describes the incident as follows:

I was in the Office at around 1:15pm on Friday the 14th of April and heard some abnormally loud noise coming from the kinder room which it sounded like an educator rising their voice. So, I walked into the room and saw 5 children sitting down around the table and then saw Kunal with one child on the other side of the room not acknowledging the children around the table.

I went to set with the children at the table and asked them what activity they were doing one of the children stated that they are not playing because they were in trouble. the other children on the table stated that they were being naughty and that they are sitting at the table and not allowed to move. When I asked why they thought that they were in trouble one child said that one child had drawn on the walls and they are all naughty children.

When I asked Kunal if this was true, he said yes, and they need to own up to what they did and think about their actions. I said to him that it was not an appropriate action and if he can please leave the room and go on planning and I will talk to the children.

Following his exit from the room I reassured the children that they where not naughty and everyone make mistakes and together, we cleared the wall and room and then the children continue with their day.[37]

1. On Monday 17 April 2023, Where We Grow appears to have sent a letter to Mr Patel. It invites Mr Patel to a meeting the following day to discuss the 14 April incident.[38]
2. At a meeting on 18 April 2023 with the Centre Manager, HR and 2IC of Where We Grow, Mr Patel is recorded as describing there being five or maybe six children in the room, one diagnosed with autism, with him having no support in the room. He said he provided crayons for drawing at a table. Three of the children started drawing on the wall. He told the children that if they wanted to draw, they could go back to the table, but if they did not return to the table they would not be allowed to draw. Despite repeated requests they did not listen. He denied raising his voice. Then, his colleague came in and two of the children said they had been punished.[39]
3. He was told that this was not acceptable and there are more appropriate ways to address negative behaviours, such as going down to the child's level and discussing the wrong behaviour and how to make it right (my summary). He was told that his conduct, sitting them at a table and stopping them from doing an activity, was against the Centre's values and teaching philosophy as well as against the Code of Ethics.
4. Mr Patel did not accept that. In his view he simply told them to sit at the table and, 'think about what they did wrong and what was right'.[40]
5. At a further meeting on 19 April 2023, Mr Patel was handed a first and final warning letter to sign. This concerned the discipline incident.
6. A file note of the meeting (it is unclear by who) records Mr Patel reading a warning letter, disagreeing with it and refusing to sign. He was told the warning in any case stood. He said he would resign as at the end of the day. Regret was expressed about his intention to resign. There was to be a further discussion with the general manager after which Where We Grow management would come back to him the next day.[41]
7. On 20 April a discussion was had with Mr Patel. A note of this discussion (again it is not clear who is writing) records Mr Patel saying he does not accept the warning, that he did nothing wrong, but he would not resign until a DET investigation was complete. Mr Patel was happy to sign the Code of Ethics. A discussion concerning strategies for assisting the child with autism followed. The note recorded that the centre would monitor and make sure Mr Patel had another educator in the room as support every day. He was asked to critically reflect on the incident.[42]
8. On 21 April 2023, a further meeting was held with Mr Patel by Zoom. Note records that three other people (names redacted) were at the meeting. The following is recorded.
9. Mr Patel was advised that it had been discovered that he had taken pictures using the centre's iPad without permission including a picture of an educator on her phone, and the taking of such pictures was not allowed, as had been recently discussed with staff. It had also been discovered that he had taken photographs of children's faces and sent them to himself. This was regarded as a breach of policy and gross misconduct. Where We Grow was terminating his employment and he was not to return to the centre.
10. The note records Mr Patel's response and conversation which followed. Mr Patel claimed to have only one picture of the staff member as evidence that the staff member was texting at work. He admitted that he was logged into his personal email on the Where We Grow iPad, to make work observations. When asked whether parents knew he has taken photographs of their children and sent them to his private email, he denied this. When confronted with evidence of the photographs sent from the iPad to his email account he responded that they see his emails because I am logged in and 'everyone does this. And for this reason you can't terminate me.'
11. Mr Patel declined an offer to read the Privacy and Confidentiality Policy and the Code of Conduct, to understand his breach and left the meeting.
12. The note records Mr Patel 'barging' back into the meeting to ask what action would be taken concerning the texting staff member. He was advised that would be separately dealt with. There was a comment that while Mr Patel had images of children in his private email without consent, Where We Grow did not yet know what the other staff member was doing on her phone.
13. Somewhat confusingly, Mr Patel is recorded as saying those photographs stay with him and he does not send them to anyone, but 'if something goes wrong from today onwards, you can't chase me. So if I post those photos, and something goes wrong now, you can't blame me, because I am terminated'. Where We Grow responded that if he distributed the photos the Police would be called. Mr Patel left.
14. Where We Grow terminated his probationary employment, effective immediately, with 14 days pay in lieu of notice and notified DET.
15. On 21 April 2023, Where We Grow sent Mr Patel a letter of termination. This letter states:

I am writing to you about the termination of your employment with Where We Grow ELC (S & E Education Pty Ltd) effective immediately.

As set out in your contract, your employment was subject to an initial probationary period of 6 months. During your probationary period your suitability for the role of Early Childhood Teacher (ECT), and performance in the role, was assessed.

It had come to my attention this morning 21st April 2023, that you had breached our Privacy and Confidentiality Policy as well as the Code of Conduct, resulting in evidence of accessing your personal email and distributing pictures of children to yourself on the Company Ipad. As discussed with you, you have also received one Written First and Final Warning.

Where We Grow ELC has therefore decided to terminate your employment during your probationary period. The decision to terminate your employment has been made on the basis of Gross misconduct (unethical and unprofessional behaviour). Under our obligations, we have had to advise the Department and VIT of this behaviour.[43]

1. As noted in Where We Grow's termination letter, the discipline incident on 14 April and the photograph incident were referred to the VIT for investigation.
2. On 31 May 2023, the VIT made an interim decision to suspend Mr Patel's early childhood teaching registration.[44]
3. On 25 August 2023, the VIT suspended Mr Patel's registration.[45]

1. On 30 August 2023, the Department sent Mr Patel a letter which stated:

It was alleged that you, Kunal Patel, while educating and caring for children at Where We Grow ELC, 5-7 Craigieburn Road, Craigieburn, on 14 April 2023, in contravention of section 166(3) of the National Law did not ensure that children in the kinder room being educated and cared for by the service, were not subjected to any discipline that unreasonable in the circumstances in that, you, Kunal Patel were overhear raising your voice at children, and a small group of children were observed to be sitting without any resources and were told by you to sit and think about their actions in response to them drawing on the wall. The children stated they were not playing because they were in trouble and naughty and not allowed to move.

On the basis of the evidence collected, non-compliance with the Education and Care Services National Law Act 2010 (National Law) has been substantiated.[46]

1. The letter makes no reference to what evidence and material was considered. The Department gave Mr Patel a warning, recommending further training and reflection.

1. In the Tribunal Book in this case, partially redacted photographs of Mr Patel's email inbox, as taken by an employee of Where We Grow, were included.[47]
2. These photographs show Mr Patel emailing his personal email account photographs of children.
3. An anonymised file note dated 21 April 2023 in the Tribunal Book records this regarding the photographs.

Around 6.00pm on the 20/4/2023 Educator and myself were following our Closing Procedure while collecting and checking all iPads for any open Tabs as it users a lot of battery. The Educator noticed A Gmail and Facebook account open it was open on the kinder iPad that educator flipped the iPad around to show me what she had seen.

I see a Gmail tab open with an email address that had Kunal the Kindergarten teachers name and face, so we knew it was his email, he had sent to himself a photo of an Educator and a child from Where we grow at this point, I was really concern, I also seen a couple of photos been send to the same email address with different children doing something.

While that was happening there was another tab next to it that said Facebook with notifications. In the meantime, I Called the 2IC and notified her.[48]

1. Concerning the First WWG Allegations, Mr Patel's evidence at the VCAT hearing was his first five working days at Where We Grow were supervised and the next 15 days were unsupervised.
2. He described the discipline incident in which children were drawing on the wall, and doing unnecessary paintings, not listening to him. Mr Patel was paying attention to a special needs child. Some of the children were being aggressive. He told other children to not fight. Another educator came in and thought he was disciplining the children by forcing them to sit down. In his view, his actions were reasonable. He described after the discipline incident, continuing to work at Where We Grow, with some supervision.
3. He described being terminated after taking photographs of staff and children. He described taking a photo of a staff member on the work iPad and emailing it to himself, because he was concerned that the staff member was texting on her phone while at work. He described being concerned about the children's safety as the staff member focused on her phone.
4. His explanations as to why he took photographs, include his explanations set out at paragraphs 69, 112 and 128 in these reasons.
5. He described being called into a room to be told that he had been taking photographs of the children and he was being dismissed, immediately walking him off the property.
6. During the psychosexual assessment report described below, Ms Cidoni recorded an explanation by Mr Patel of why he took the photographs:[49]

During the course of his employment, he also had access to one laptop that was used by the staff to take photos of children engaged in lesson activities. The purpose of capturing these moments was to showcase the children's progress to their parents. On one occasion, he used his personal iPad to access their email and incorporate the content into the activity planning. This was done solely for the purpose of including the information in the plan, without any other intention. However, there was a misunderstanding, and he said he was reported for using the iPad for personal reasons.

1. Between March and May 2023, the parents of Child 1, an attendee at Where We Grow in Mr Patel's class, noticed a change in Child 1's behaviour. This was in the form of increased toilet accidents, aggression, touching her vagina, increased clinginess and food refusal.[50]
2. In May 2023, the parents of Child 1 raised their concerns with Where We Grow. The parents also raised concerns with the GP about whether it was possible that Child 1 had been sexually assaulted.[51]
3. The parents then reported that on about 23 May 2023, Child 1 made a series a disclosures alleging sexual abuse committed by Mr Patel, which they recorded in a written timeline.[52]
4. On 23 May 2023, the parents notified Where We Grow of Child 1's disclosure by email.[53] The parents also notified Victoria Police.
5. On 24 May 2023, Where We Grow notified the CCYP.
6. On 3 July 2023, Where We Grow engaged Safe Space Legal to investigate and report about the second allegations under the Reportable Conduct Scheme.
7. Safe Space Legal did not make any findings about the first WWG allegations because the concerns about the taking of photographs and inappropriate discipline did not fall within the Reportable Conduct Scheme.[54]
8. On about 26 July 2023, Victoria Police advised Safe Space Legal they would not be taking further action at that time in relation to Child 1's disclosures of sexual abuse.[55]
9. On 5 October 2023, the Herald Sun published an article about Mr Patel, detailing that he was under investigation for alleged sexual assault of a young girl in his care.[56]
10. Following the publication of the Hearld Sun article, and during the Safe Space Legal investigation, a parent of Child 2 raised concerns with Ms Fitzgerald about a regression in Child 2's behaviour. The concerns were in relation to an increase in toilet accidents.
11. Two independent witnesses had advised Ms Fitzgerald that Mr Patel had taken an interest in Child 2 and had seen her sitting on his lap and cuddling with him in ways that they considered inappropriate.
12. The scope of the Safe Space Legal investigation was expanded to include Allegation 2, as outlined below, in relation to Child 2.
13. On 20 December 2023, Safe Space Legal finalised its report. The Safe Space Legal report forms the basis of the Second WWG Allegations.
14. I note here that while the Safe Space findings form part of the basis for the decision in this proceeding that Mr Patel not be given a WWC clearance, the conduct substantiated in the Report is not found by VCAT to have occurred (see discussion from paragraph 211 below).
15. Concerning Child 1 the Report substantiated allegations 1(a) to 1(k) related to or describing sexual abuse allegedly perpetrated by Mr Patel.
16. Concerning Child 2 the Report substantiated allegations 2(a) to 2(e) related Mr Patel engaging in favouritism and/or special treatment, unnecessary physical conduct, multiple incidents of cuddling once while cuddling rubbing and or touching Child 2's thighs and frequently following Child 2 in the playground or spending time with the child in preference to other children.

1. Safe Space Legal's investigation Report of 124 pages, with 74 Annexures, was included in the Tribunal Book.

1. In assessing Allegation 1, Ms Fitzgerald noted:

...

The Investigator also considered whether [the parents'] questioning of [Child 1] may have influenced [Child 1's] disclosures as the videos depict [the parents] asking a series of closed questions and prompting her for information, rather than engaging in non-leading open questions. The Investigator also notes that [the parents] acknowledged that they did not follow the direction of SOCIT to refrain from engaging in further questioning of [Child 1] in relation to her disclosures.

Despite the above, it is evident from [the parents'] interviews and documentary evidence provided, that [the parents] acted in good faith, as distressed parents who were witnessing their child experience significant trauma, and they too had also been impacted by the traumatic events of hearing their child make serious disclosures. The Investigator accepts that [the parents] were attempting to obtain information from [Child 1] in order to better understand [Child 1's] disclosures, so that they could ensure that the disclosures were properly reported and investigated by Police and to source appropriate supports and assistance for [Child 1] including through doctors, the hospital and counselling, in which they proactively attended after the disclosures were made.

The Investigator finds that the evidence provided by [the parents] in relation to [Child 1's] disclosures, despite their questioning of [Child 1], appear to be genuine disclosures of serious sexual abuse, provided with extensive detail for a child of [Child 1's] age and stage of development. Despite the concerns raised above in relation to potential influence, the Investigator finds that the disclosures made to [the parents] are credible and detailed and likely a true recall from [Child 1's] memory.[57]

...

As part of the evidence, [the parents] provided a number of video and audio recordings of [Child 1's] disclosures. In their oral evidence, they both stated that [Child 1] made spontaneous disclosures 'very randomly' and 'purely on her terms', which prompted them to start recording and ask her to repeat what she said so that they could ensure that it was documented. The Investigator accepts the evidence of [the parents] that [Child 1's] disclosures were mostly spontaneous and that they followed up with recording and asking further questions in attempt to obtain further information.

...

[Ms X, a colleague of Mr Patel] provided evidence that she observed Mr Patel to be in the bathroom with children. [Ms X] stated that she had spoken to Mr Patel about being in the bathroom and stated that 'he would often be in the bathroom with the children' and she had explained to him that he should not enter the bathroom but could 'stand at the door [and ask] "are you okay?"'. [Ms X] said that 'on multiple occasions as [she] was walking past, [she had] physically seen him in the bathroom. He'd be just standing there. Because [she] would be walking past that pre-Kinder room, but he would be in the bathroom with the children'. [Ms X] also said that her own daughter, who attended at WWG, had disclosed to her that Mr Patel 'was in the bathroom and she said that she yelled at him because he was in the bathroom with her, so she said that she yelled at him and she told him to go away'.[58]

1. In finding on the balance of probabilities (to the 'Briginshaw standard') that Mr Patel engaged in the conduct as particularised in Allegation 1, Ms Fitzgerald stated:

1. Mr Patel had opportunity to engage in the conduct. Mr Patel was often left alone with the children, was directly witnessed to be present in the bathroom with children on more than one occasion resulting in a staff member speaking to him about this conduct, and a staff member who was also a parent provided evidence that her daughter had disclosed to her that Mr Patel had entered the bathroom when she and were toileting. 2. Child 1 made multiple disclosures [of sexual assault] to [her parents] ... 3. The oral evidence provided by [Child 1's parents] is corroborated by the documentary evidence and audio recordings of [Child 1's] disclosures of sexual abuse and misconduct perpetrated by Mr Patel. 4. [Child 1's parents] observed significant emotional, social, behavioural and psychological changes in [Child 1], which are consistent with indicators of harm generally observed in children who have experienced sexual abuse. 5. The Investigator also spoke to a number of witnesses who raised concerns for Mr Patel's conduct at both Kool Kidz and WWG, demonstrating that he has a tendency to engage in sexual misconduct towards female children aged four years-old.

oo) The Investigator also finds on the balance of probabilities to the Briginshaw standard, that it is more likely than not that Mr Patel engaged in conduct which constituted physical violence against [Child 1] ... > > pp) The Investigator finds on the balance of probabilities that it is more likely than not that Mr Patel engaged in conduct which caused significant emotional or psychological harm to [Child 1], as evidenced by the behavioural changes and indicators of harm observed by [Child 1's parents], which were in stark contrast to her behaviour and personality prior to Mr Patel commencing employment at WWG. The Investigator notes that [Child 1's parents] have provided evidence that such emotional and psychological harm has continued and they have sought external support through Kids First to engage in sexual abuse counselling.[59]

1. In relation to Allegation 1, the primary evidence relied upon was:

a) Ms Fitzgerald's interviews with the mother on 12 September 2023, the father on 18 September 2023, the Executive Services Manager on 20 September 2023, the Early Childhood Educator on 20 September 2023 and the General Manager on 23 October 2023; > > b) A chronology of events prepared by parents of Child 1; and > > c) A video recording[60] of Child 1 making disclosures.

2. While I have read and considered Ms Fitzgerald's records of the interviews with the parents, it is not necessary to record them here. Ms Fitzgerald's analysis and findings reflect the substance of the interviews.
3. Ms Fitzgerald did not interview Child 1 for the following reasons:

The Investigator also notes that Child 1 is young, and of tender years.

Given Child 1's response to being interviewed by Victoria Police SOCIT, her reluctance to speak with adults including a trauma informed counsellor, and concerns for Child 1's vulnerability, the Investigator determined not to interview as it was not in [Child 1's] best interests to attempt an interview to the possibility that it may cause her further trauma.

1. The manager described being at Where We Grow from October 2022 to April 2023, being second in charge while Mr Patel was employed.
2. The manager described Child 1 as attached to her sibling, not gravitating to new children and rarely eating at the centre. She missed her brother when he went to start prep. The manager said that before Mr Patel arrived at Where We Grow, Child 1 had no toilet accidents and was independent.
3. Ms Fitzgerald recorded the manger saying that 'they', presumably people at Where We Grow, knew about Mr Patel's time at Green Leaves. Someone who had said that he made a lot of staff cry and he had been asked to leave.
4. The manager briefly described the discipline incident.
5. On the issue of Mr Patel and young girls, the manager described Mr Patel gravitating towards the young girls, letting the boys do their own thing.
6. She witnessed a little girl sitting on his lap and he was working with her rather than the other children. She also witnessed an incident with the same girl where the girl pushed a child down the slide and yelled at the other child, not her for pushing. He then comforted her with her sitting on his lap. The manager did not witness Mr Patel cuddling other children. She did not ever witness Mr Patel alone with Child 1.

1. The educator stated to Ms Fitzgerald that before Mr Patel started, Child 1 was independent. She would go outside and to the toilet. She was a quieter more reserved child. The manager did not personally observe behaviour changes after Mr Patel started.
2. The educator said that Mr Patel liked to touch Child 2 and would place himself next to her.
3. Generally, the educator reported witnessing Mr Patel rub thighs of a child while sitting in his lap and being in the bathroom with children on multiple occasions. The educator warned him on one occasion that he should not go in and raised concerns with the manager about Mr Patel going into the bathroom with children.
4. The educator's child (not Child 1 or Child 2) raised concerns about Mr Patel. The child told the educator that on one occasion the child yelled at Mr Patel to get out of the bathroom. The educator described there being no room that Mr Patel could have taken children alone.
5. Finally the manger saw the images that Mr Patel took. One photo was of her daughter.

1. The General Manager said she had never met Mr Patel and there was no CCTV footage in the rooms. She approved the termination of Mr Patel's employment, based on him taking photographs of children. This was in context that Mr Patel had already been given a warning based on the 14 April discipline incident.

1. As part of her investigation Ms Fitzgerald watched four videos recorded by the mother of Child 1, making disclosures. The transcript of the videos[61] contains Child 1 giving disturbing short descriptions of Mr Patel licking her 'bum and vagina', wiping her bum, putting a finger up her bum, showing her his penis and asking her to touch his penis. That said, the child's statements are in amongst a disjointed narrative (no criticism of the mother intended).
2. The videos were not in evidence at VCAT.

1. Allegation 2 as formulated in the Safe Space Report was that in his role as an educator at Where We Grow, between approximately 27 March 2023 to 21 April 2023, Mr Kunal Patel engaged in misconduct against Child 2.
2. The Report substantiated the allegation with respect to 'sexual misconduct committed against a child' and 'sexual misconduct committed in the presence of the child or children', each with respect to five particulars, summarised at paragraph 145 above.
3. In reaching these conclusions, Ms Fitzgerald conducted extensive interviews as recorded in the report.[62]
4. The Report provided the following 'Reportable Conduct Analysis - Sexual Misconduct':

a) The Act states that Sexual Misconduct against, with or in the presence of a child is a type of reportable conduct under the Scheme. > > b) Sexual Misconduct is a category of reportable conduct in the Act which is not defined. Information Sheet 9 provides further information about what constitutes 'sexual misconduct' for the purposes of the Scheme. > > c) Namely, Information Sheet 9 states that in order to substantiate a finding of sexual misconduct, the following three elements must be satisfied: > > 1. The conduct must amount to misconduct; > 2. The conduct is of a sexual nature; and > 3. The conduct occurred against, with, or in the presence of, a child. > > d) Information Sheet 9 provides that the definition of 'misconduct' includes intentional or seriously negligent conduct involving a departure from the accepted standards of the role performed by an employee or volunteer. > > e) Information Sheet 9 provides that the definition of 'sexual nature' requires the Investigator to consider the area of the body involved in the conduct, whether at least one of the reasons for the conduct was for sexual arousal or gratification, or whether the conduct was overly personal or intimate. > > f) As per the analysis of the allegations above, the Investigator finds that Mr Patel engaged in the conduct as alleged. > > g) The Investigator finds that Mr Patel has engaged in sexual misconduct under the Scheme as he engaged in: > > 1. Misconduct which was an intentional departure from accepted standards of his role as an Early Childhood Teacher by engaging in physical contact with [redacted][63], cuddling her, rubbing her thighs and displaying favouritism and/or special treatment towards her; > 2. Conduct which was of a sexual nature due the area of the body involved, the misconduct being for the purpose of sexual arousal or gratification, and being overly personal and intimate; and > 3. Conduct which was against a child, [redacted], and also in the presence of other children, being other children who were present in the kinder room and the outdoor play area. > > h) Mr Patel engaged in a series of conduct against [redacted]which constituted favouritism and special treatment by approaching her and comforting her in situations where another child was hurt, or ignoring other children to focus his attention on [redacted] and her needs. Mr Patel also engaged in a series of conduct against [redacted] which included physical contact such as touching [redacted], having her sit on his lap, cuddling her, and rubbing her thigh.

1. Ms [redacted] and Ms [redacted] provided evidence that they had observed Mr Patel engaging in this conduct with [redacted] at WWG on multiple occasions.

j) Ms [redacted] provided evidence that Mr Patel had engaged in similar conduct at Kool Kidz of touching children, cuddling children, having them sit on his lap and demonstrating favouritism towards particular children who were female and aged approximately four years of age. Some of this conduct was captured on CCTV footage and resulted in a multiple substantiated findings of sexual misconduct in a reportable conduct scheme investigation which she conducted. > > k) The Investigator also relies on the findings of Allegation 1 in relation to [redacted] and finds that Mr Patel had a tendency to engage in sexual misconduct and sexually abusive behaviour against female children in his care.

1. Mr Patel's conduct amounts to misconduct on the basis that he engaged in a series of behaviour which was an intentional departure from the expected standards of his role as an Early Childhood Teacher. Information Sheet 9 also states that conduct can be misconduct by way of physical actions, in-person communication and online communication.

m) Mr Patel held the role of Early Childhood Teacher at WWG and Kool Kidz and was subject to disciplinary action at both early learning centres within his probationary period. As part of WWG and Kool Kidz disciplinary procedures, he was asked to re-sign their respective Codes of Conduct. Mr Patel would have been aware of the expectations of his role and the various policies, procedures, rules, professional standards and other guidelines which underpin his role as an Early Childhood Teacher and allow him to hold a Working with Children Check and VIT registration. Following this disciplinary procedure, Mr Patel continued to engage in similar conduct, which shows that his conduct, despite being aware that it was misconduct, was intentional and to satisfy his own needs. > > n) Mr Patel's conduct was intentional, as he engaged in sexual misconduct against [redacted] in a deliberate and voluntary way. The evidence provided by WWG staff shows that Mr Patel engaged in persistent physical contact with [redacted] and was observed to be frequently touching her, having her sit on his lap, finding reasons to sit next to her and finding ways to cuddle her. > > o) Mr Patel's conduct would also be considered of a sexual nature because of the area of body involved in the conduct, if the physical contact was unwanted or inappropriate. Mr Patel was observed to have [redacted] sitting on his lap 'he started to rub her thighs' and 'he stroked her legs'. Although a person's legs would not be considered an intimate part of the body ordinarily, in the context of an educator stroking a child's legs, the Investigator finds that this conduct is overly personal and intimate, and so overly personal and intimate that it was sexual in nature. When this incident occurred, [redacted] was observed to '[get] off instantly and walked away' and was also seen to 'get up and walk away' when Mr Patel placed her on his lap. The action of [redacted]getting up and walking away shows that Mr Patel's conduct was unwanted and inappropriate. > > p) Mr Patel's conduct against [redacted] is considered sexual in nature because it is considered overly personal or intimate and given the findings made in relation to [redacted] , it is more likely than not, that his conduct was also for his own sexual arousal or gratification. Misconduct can be of a sexual nature if there is potential to cause sexual arousal or sexual gratification. Mr Patel provided no evidence which supported or refuted the allegation that he had engaged in sexual misconduct against [redacted] and [redacted] has not made any disclosures regarding Mr Patel's conduct and there is no evidence explicitly stating that he was sexually aroused or gratified from the conduct. However, the circumstances surrounding his conduct would suggest that he engaged in such misconduct for the purpose of sexual arousal or sexual gratification given his persistence in seeking physical contact with [redacted] and the favouritism he displayed towards her. > > q) Information Sheet 9 states that misconduct can amount to sexual misconduct if the conduct is overly personal or intimate in nature. By virtue of his role, Mr Patel had care, supervision and authority over [redacted] and had power, influence and control over her. Mr Patel failed to maintain appropriate boundaries with [redacted] by having her sit on his lap without reason, cuddling her, engaging in physical contact with her, displaying favouritism and special treatment towards her and spending increased time with her in preference to other children.

A reasonable person would regard Mr Patel's misconduct as sexual in nature as is evidenced by multiple staff members raising concerns for Mr Patel's conduct towards [redacted].

r) The Investigator acknowledges that [redacted] has not participated in the investigation and has not made any disclosures regarding Mr Patel's conduct. The Investigator accepts the evidence of Ms [redacted] and Ms [redacted] that Mr Patel was seen to repeatedly engage in conduct which constitutes sexual misconduct against. The oral evidence of Ms and Ms is supported by the documentary evidence and oral evidence of other witnesses as part of the investigation which establish that Mr Patel has engaged in similar conduct previously and that he has a tendency to engage in the conduct as alleged.

s) The Investigator also finds, based on the evidence provided, that Mr Patel engaged in sexual misconduct against [redacted] in the presence of other children. In their evidence, Ms [redacted] and Ms [redacted] stated that Mr Patel was observed to engage in sexual misconduct against [redacted] in the presence of other children. The evidence provided states that Mr Patel:

1. was 'very fascinated towards the girls' and 'let [the boys] do their own thing', suggesting that other children were present when he was engaging in misconduct with female children.
2. was 'really working with just [redacted] instead of working with the group on children' when he was seen with [redacted] sitting on his lap, confirming there were other children present when this misconduct occurred.
3. was 'cuddling' and comforting [redacted] when she pushed [redacted] down the slide, confirming that [redacted] was present and suggesting other children were present because the incident occurred in the outdoor play area.
4. would 'put himself in between' [redacted] and [redacted], confirming that was present when Mr Patel was engaging in misconduct.

1. As noted above, the hearing of this case occurred on 27 November 2024.
2. The Secretary relied on Evans v Secretary to the Department of Government Services [2024] VCAT 55, submitting it was not open for VCAT to look behind the reportable conduct findings to potentially substitute different conclusions in this case.
3. On 17 March 2025, Quigley J handed down Her Honour's decision in Secretary to the Department of Justice and Community Safety v Loos [2025] VSC 107. She ruled that it is open to VCAT to look behind reportable conduct findings.
4. Quigley J said:

[at 125] ...The Tribunal standing in the shoes of the Secretary on review is entitled to look at all of the material that was before the Secretary and make an assessment of it. The Tribunal formed a different view of the seriousness of the allegation and this was a matter which was open to it to evaluate. The Secretary's argument conflates the trigger for the process which led to the Secretary's decision with the merits of the decision.

...

[127] The Secretary submitted that the Kooyoora Report contained a finding of substantiated conduct for the purposes of a WWC category C reassessment and, thus, the Tribunal was not permitted to look behind the Kooyoora Report's "finding" or the substantiation of the alleged conduct in its assessment of the section 108 criteria. The Secretary treated the alleged conduct as being proven and it is clear from the submissions made to the Tribunal that the Secretary ran its case commencing from this position.

The manner in which the Secretary ran its case at the Tribunal was to forcefully put that the alleged conduct was proven. The Secretary's submissions to the Tribunal equated the "substantiated" finding in the Kooyoora Report as being the foundation upon which the Tribunal should be satisfied that the alleged conduct was established and its assessment based on that proposition. When challenged about this proposition, the Secretary submitted that the evidence the Tribunal should take into account included the statements obtained by the investigators (notwithstanding that they were unsworn, often unsigned, incomplete and untested) and the two sworn statements of the investigators as to their investigation.

As the Tribunal noted in its reasons, the Secretary called no evidence. None of the individuals whose statements were included in the Kooyoora Report, nor either of the investigators, were called to give evidence at the Tribunal. The case for the Secretary was based on the documents which were produced in the Tribunal Book. Rev Loos was cross-examined at length, taking almost one full day to do so. A character witness was also called by Rev Loos who was also cross-examined. The comments by the Tribunal that the Secretary called no evidence to fill the "gaps" garners a different complexion when the manner in which the Secretary put its case below is considered.[64]

...

[148] It was appropriate and necessary 'in the particular circumstances' for the Tribunal to consider the process which led to the 'substantiated' allegation. The allegations made against Rev Loos are not and have never been subject to police investigation let alone any criminal charges. It is relevant for the Tribunal to look at the background and material which was relied upon by the Commission and the Secretary. ...

[150] ... there is no obligation on the Secretary to produce any evidence. There was a forensic choice and she chose to rely on the material in the Kooyoora Report to support her case. There are consequences to the forensic choice and those consequences here are that Rev Loos was believed and the weight of evidence was found to be in his favour. This is hardly surprising given the paucity and unreliability of the evidence against him. There was nothing further before the Tribunal to persuade it to arrive at a different view. ...

1. Given the Loos decision, the Secretary, no longer relied on the Evans decision but submitted that with reference to the material as a whole, VCAT should not be satisfied of any of the tests set out at section 108 of the WS Act and should conclude that Mr Patel should continue to be refused a WWC clearance.[65]
2. Mr Patel submitted that VCAT cannot uncritically accept the CCYP's report or treat it as determinative. Rather, the Tribunal must approach the matter with fresh eyes and apply the statutory criteria independently and rigorously.

1. I first set out the introductory submissions on behalf of Mr Patel, and the Secretary's submissions.

1. Concerning the CCYP Where We Grow Referral, it was submitted this should be given no weight. No author is named. The person referred to as 'the Investigator' is not named. The Investigator's qualifications are not set out. The investigator is described as relying on disclosures by [Child 1] made to the parents, witness statements from educators and management at Where We Grow, Mr Patel's response and records from Where We Grow.
2. Consistent with Loos, those deficiencies are directly relevant to the weight the Tribunal may place on the findings therein. Therefore, it was submitted, VCAT is not entitled, without analysis or scrutiny, to accept a prior substantiation finding where the material said to support that finding is not persuasive, is based on hearsay, was not the subject of cross-examination, and where no criminal charge or police investigation has followed.
3. It was submitted that the absence of any police involvement, particularly following a formal referral, significantly undermines the probative value of the allegations. This context was said to align with the observations in Loos, where the Supreme Court cautioned that the absence of police investigation is a relevant factor when assessing whether a substantiated finding should be accepted at face value.
4. It was submitted that various evidence in the Safe Space Report should be given no or little weight because the Where We Grow allegations were based only on the evidence of direct colleagues, not parents, other staff or the children involved. The children were not interviewed. There was no CCTV.
5. Mr Patel relied on what was described as the findings of a detailed psychosexual assessment conducted by Ms Cidoni (see below), which concluded that he poses no risk to children and exhibits no psychological traits or tendencies that would indicate a propensity for inappropriate conduct. It was submitted that this expert opinion goes to the heart of the statutory test and should be given significant weight in assessing whether Mr Patel poses an unacceptable risk to children.

1. The Secretary submitted that VCAT's role is to analyse the strength of the evidence concerning the allegations and in light of that, determine the extent of risk that Mr Patel poses of causing sexual and/or physical harm to children.
2. It was submitted that the conduct alleged is of utmost gravity and is directly relevant to child-related work.
3. The alleged conduct resulting in the Kool Kidz allegations was described as sexual misconduct against four children: two three-year-old girls and two four-year-old girls. Each of those girls had blonde hair, fair skin, and were similar looking.
4. I note again, the term 'sexual misconduct' as alleged did not allege any element of sexual arousal of Mr Patel. The term encompassed sitting the children in his lap.
5. It was submitted that Mr Patel's denials and accusations of discrimination and conspiracy against him were implausible, lacked any evidentiary basis and should be rejected.
6. The Secretary submitted that the Safe Space Report was credible and thorough and should be afforded significant weight.

Appropriate to give a WWC clearance? - the section 65(2) factors

1. Under section 108(1) of the WS Act, VCAT must determine whether in the circumstances it would be appropriate to refuse to give a WWC clearance, having regard to any matters to which the Secretary must have regard under section 65(2). Discussion of those matters follows.

**Section 65(2)(a) - the nature and gravity of the conduct and its relevance to child-related work

1. It was submitted that if the alleged conduct was proven, it would constitute serious sexual offending, of course directly related to child-related work.
2. It was also submitted that the evidence was not sufficient for VCAT to find the alleged conduct proven.
3. First, while the allegations make substantial reference to CCTV footage recording conduct by Mr Patel, no CCTV was presented to him at interview by an employer, or to Mr Singh, who represented Mr Patel from the early days of the events in question, and no CCTV footage was in evidence at VCAT.
4. If the CCTV footage was provided to Victoria Police along with the reports of Mr Patel's conduct concerning alleged sexual misconduct against children, it did not cause Victoria Police to engage in any investigation besides taking a report. Victoria Police never interviewed Mr Patel and never provided him with any copy of any report or statement provided to or taken by Victoria Police. This was submitted to be significant. Mr Singh advised that he was speaking from experience being an ex-police officer who prosecuted sexual offences.
5. Second, the basis of the allegations was in part described as children saying something to the parents, parents raising this with staff members, and the staff members, who passed on concerns to the relevant centre management.
6. Concerning Kool Kidz, there is no recorded statement by any child before VCAT. There are no sworn statements by any witnesses, including parents.
7. Third, Mr Patel has given evidence that he regards this as a classic case of workplace politics where a young male wishes to engage in childcare services. He describes being questioned every day about why he is working in childcare and when he is making progress, staff members become jealous and make reports. He believes they just wanted him out.
8. Fourth, Mr Patel has always and continues to deny all allegations against him. Therefore, no negative inference can be drawn against him in terms of his insight into conduct. This is not a situation such as where a person has been found guilty of an offence and later when seeking a WWC clearance, denies the conduct.

1. The submissions for the Secretary were made in the context of:

a) The CCYP substantiating the Kool Kidz allegations as seen in the CCYP Kool Kidz Referral; and > > b) The Safe Space Report.

2. The submissions first turned to Mr Patel's evidence that he was the innocent victim of workplace politics or an internal staff dispute. It was submitted that this characterisation must be rejected.
3. To accept that evidence, requires accepting a highly improbable to impossible conspiracy of self-interested, sexist, vengeful and retaliatory actions by early learning educators across a number of different centres over many months.
4. Concerning Mr Patel's explanation as to why the Kool Kidz allegations were made, there is no basis for him to attribute this to his gender. He was employed on the basis of who he was, a man. There was another man at the centre who doesn't appear to have been the subject of any allegations that Mr Patel was the subject of.
5. It was submitted there was no evidentiary basis for alleging that Colleague 1 was driven to make false accusations because the worker was scared that once Mr Patel passed his exams he would become room leader, threatening her position.
6. Those room leaders had been employed for five years before Mr Patel arrived. They were more experienced. They had no reason to feel threatened. Mr Patel had not yet been registered as an early childhood teacher with the VIT and had not yet passed the English test. They had no reason to make false allegations.
7. It was submitted that similarly, Mr Patel's evidence that in making a statement to Ms Fitzgerald, the Kool Kidz General Manager (of all Kool Kidz sites and locations), lied about staff speaking to Mr Patel concerning inappropriate cuddles and laxity because she was supporting her staff should be rejected. The General Manager had no motive to lie. Mr Patel was no longer employed by Kool Kidz. The investigation by Kool Kidz was done. The General Manager had seen CCTV footage described above.[66]
8. Similarly, the submission that the statement by the Executive Services Manager, Where We Grow to Ms Fitzgerald in September 2023 was false and motivated by a desire for revenge and retaliation, because Mr Patel did not give more notice before he left employment and queried his pay, should be rejected. It was submitted this was inherently implausible.
9. These allegations of conspiracy are in the context that there were independent witnesses to Mr Patel's conduct. He was observed throughout his time at Kool Kidz and Where We Grow engaging in inappropriate physical behaviours. A child victim herself with respect to Where We Grow disclosed what had happened during toileting. Her parents saw her changed behaviour which is powerful circumstantial evidence of the abuse, which was accepted by Ms Fitzgerald.
10. Therefore, the Secretary submitted, the whole of the material paints a picture of multiple teachers across different and separate early learning centres observing the same type of concerning behaviour and attempting to deal with it, including by raising it with Mr Patel, to no avail.
11. This was no mere series of collusions, coincidences or misunderstandings in which Mr Patel is the actual victim. His allegations are wholly implausible and would leave the reasonable person to distrust Mr Patel even more.
12. It was submitted that VCAT should give significant weight to the Safe Space Report, a thorough investigation by a very competent investigator, given the significant corroboration throughout the materials and the fanciful nature of Mr Patel's response.
13. In particular:

a) Mr Patel had opportunity to engage in the conduct. He was often left alone with the children, was directly witnessed to be present in the bathroom with children on more than one occasion resulting in a staff member speaking to him about this conduct. A staff member who was also a parent provided evidence that her daughter had disclosed to her that Mr Patel had entered the bathroom when she and another child were toileting; > > b) The parents of Child 1 (Where We Grow) were assessed as credible, consistent and honest, providing a truthful recollection of memory, despite concerns as to unintentional evidence contamination. Ms Fitzgerald accepted the disclosures from the parents were 'likely a true recall from the child's memory'. The mother observed behaviour changes in the child that were 'serious indicators of harm which are consistent with sexual abuse'. She was well placed to have done so; > > c) The parents described behaviour regressions, fears, and unusual sexualised activities following the alleged sexual abuse, indicating harm was caused to the child. Staff at Where We Grow corroborated changes in the child's behaviour, including avoiding Mr Patel in the yard and becoming more emotional during morning drop-off; > > d) Child 1's disclosures were themselves, believable: they were unprompted and spontaneous, 'on her own terms', consistent and age-appropriate; > > e) There was corroboration by way of documents, recordings, and concerns of a tendency to engage in sexual misconduct towards female children aged around four years-old; and > > f) It is not sufficient to say that a child is simply 'making-up' allegations of child abuse. As was noted in the Safe Space Report, 'false allegations of child abuse and neglect, including child sexual abuse, are rare... false complaints are very rare and typically few in number'. Instead, a child who has experienced sexual abuse is more likely to deliberately choose to instead, not disclose the abuse or, alternatively, to not disclose it because they have blocked it from memory.

a) If VCAT gives any substance to any of the allegations, that is enough to satisfy the Tribunal that it is inappropriate to give a WWC clearance, having regard to the paramount consideration and section 65(2); > > b) Tellingly, while Mr Patel has given his version of events concerning the Kool Kidz findings, he has said nothing about why the findings arising from his time at Where We Grow should not be accepted, other than a blanket denial, consistent with his non-responses to Ms Fitzgerald; > > c) The grave nature of the conduct is powerfully relevant to child-related work. It is precisely the type of conduct and concerns that the WS Act is trying to protect against. Given the evidence, Mr Patel should not be allowed to work with children; > > d) The material paints a picture of Mr Patel moving from one early learning centre to another to engage in predatory, sexualised, grooming behaviour concerning four-year-old girls. He did so despite being told not to do so, despite his education and despite what any reasonable person, let alone a professional early childhood teacher, would do in the same circumstances; > > e) Taking all of the material at its most favourable to Mr Patel (which the Tribunal should not), his conduct was, to be vernacular, creepy and unsettling. At its most agnostic, Mr Patel's conduct was a repudiation of the protective frameworks in place, particularly with respect to physical boundaries, a disregard of the needs and welfare of children, and a failure to learn the lessons of his previous employment at Kool Kidz. Nothing before the Tribunal ought to give the Tribunal any comfort that he would not act similarly in the future; and > > f) There is every reason to accept that Mr Patel's actions are a parent's worst nightmare. When a parent sends their child to daycare, they ought to be protected from predatory, targeted, sexualised grooming behaviour in a space where children should feel safe.

1. Mr Patel's conduct, to the extent that it is proven, is directly relevant to the provision of child-related work.
2. I first turn to the evidence of his conduct at Kool Kidz. To focus on relevant evidence, I first deal with the evidence to which I give no weight.
3. With CCTV footage not in evidence before VCAT, with no reasonable explanation as to why it was not provided, the descriptions of those who have seen the CCTV are given no weight. In any case, the descriptions are somewhat imprecise and not helpful. Further, the DET was not persuaded by the CCTV which it viewed.
4. The description of the allegations provided by the VIT in its Notice of Suspension adds nothing to the more direct evidence here and is given no weight. I note that Ms Fitzgerald unsuccessfully attempted to obtain any supportive materials from the VIT.
5. The Kool Kidz Investigation Report which was sent to the CCYP is given no weight. I accept the submissions for Mr Patel concerning its inadequacies.
6. The CCYP Kool Kidz Referral to the Secretary is given no weight. It lacks precision and explanation. It is not clear what the Kool Kidz Investigator' reported to the CCYP.
7. Negative comments about Mr Patel made in passing as recorded in some statements of people asked to give evidence, are given no weight.
8. I give the Psychosexual Assessment Report no weight. There is a fundamental defect of timing. As discussed below, the report does not encompass the second Where We Grow allegations. The results of the various tests administered can have no real meaning without the complete context of the allegations against Mr Patel.
9. Turning to the evidence which I do accept, I accept in the broad the written statements by Kool Kidz staff and management as to Mr Patel crossing boundaries when it comes to physical interaction with the four girls in question. The reports are broadly consistent. They paint a picture of staff trying to help a new staff member with respect to keeping within professional boundaries.
10. As the Secretary submitted, Mr Patel's claims of persecution must be rejected. I adopt but will not repeat the submissions as to the lack of credibility of his allegations against former colleagues and centre management.
11. Similarly, Mr Patel's evidence that Ms Barnes of DET said that parents denied that Mr Patel was unnecessarily touching students and that the parents said that Kool Kidz was forcing them to make accusations is an outlandish claim which can be given no weight.
12. That said, I find that there is no basis to conclude that Mr Patel was in these actions, seeking or achieving any form of sexual gratification.
13. In terms of the Briginshaw standard, I am comfortably satisfied that Mr Patel, a qualified but inexperienced early childhood educator, either did not understand or did not accept the boundaries in which he was to work and breached those boundaries.
14. Concerning Where We Grow, I accept the weight of evidence concerning the disciplinary issue, not determinative in this case, in that Mr Patel fell short of the standards expected of him. The substantiated finding by DET appears proportionate, effectively a warning allowing Mr Patel the opportunity to learn, improve his performance and move on.
15. Also concerning Where We Grow, I accept the evidence that Mr Patel inappropriately took photographs of children at the centre and emailed those photographs to himself.
16. Mr Patel's explanation for why he did this, to the extent that he gave an explanation, is not persuasive. He could provide no corroborating evidence that what he did was in order to somehow address shortcomings in the workplace systems. The staff that discovered what he had done were alarmed. Such was the gravity of his misconduct, he was immediately dismissed.
17. Concerning Mr Patel's other conduct at Where We Grow, the evidence set out in the Safe Space Report, noting some shortcomings in the evidence as recognised in the Report and as submitted on behalf of Mr Patel, and the careful considered analysis by Ms Fitzgerald, is sufficient to be comfortably satisfied that there is every reason to be highly concerned about Mr Patel's conduct.
18. However, I have not reached the comfortable satisfaction on the evidence before me required, to find that Mr Patel engaged in the misconduct which was found substantiated in the Safe Space Report.
19. The Safe Space Report is the product of an investigation by Ms Fitzgerald, including interviewing of witnesses, listening to audio and viewing CCTV. Whether or not Ms Fitzgerald was now a VCAT member, I would observe the Report is professional, with a sound legal basis, detailed and logical, displaying the judgement of a person with expertise in investigating matters related to child welfare.
20. That said, the weight I have given to the evidence within the Report, my principal focus rather than Ms Fitzgerald's analysis, is substantially diminished because Mr Patel has had no opportunity, at VCAT, to test the evidence against him.
21. As was submitted for Mr Patel, no witnesses were called to give evidence, including no witnesses employed by Kool Kidz and Where We Grow. There was no CCTV tendered in evidence. Neither were any audio recordings of interviews tendered.
22. The above observation is not intended as a criticism of the Secretary. It would have been clearly inappropriate to even think about further evidence from the children. It would have been highly regrettable to have called the parents of Child 1 and Child 2 to give evidence.
23. However, it may have been reasonable to call employee witnesses to give evidence at the Tribunal.

1. These observations make no criticism of the parents. Their approach to an appalling situation was commendable. From an objective point of view, some failings in their investigations, as noted by Ms Fitzgerald, are entirely understandable.
2. Likewise, no criticism is made of any of the staff at Where We Grow. Mr Patel had been dismissed before the allegations of sexual abuse were made.
3. This 'lack of finding' is not an exoneration of Mr Patel. While the Safe Space Report has weight, it does not have enough weight to cause me to form the required comfortable satisfaction.
4. Therefore, I have found that:

a) At Kool Kidz, Mr Patel transgressed boundaries with respect to sitting the four children on his lap and cuddling them, not that, with respect to his work at Kool Kids, he engaged in any form of sexualised conduct towards the children; > > b) At Where We Grow, Mr Patel breached boundaries by taking photographs of children and of a staff member and sending them to himself, in breach of his obligations; and > > c) At Where We Grow, Mr Patel fell short of his professional obligations in inappropriately disciplining the children for drawing on the wall.

5. To the extent of the findings against Mr Patel, but no further, this criterion weighs against him obtaining a WWC clearance.

Section 65(2)(b) - the period of time since Mr Patel engaged in the conduct

1. It is three years since the proven allegations of misconduct by Mr Patel. That is not a long time.

Section 65(2)(c) - in the case of an offence, whether a finding of guilt or a conviction was recorded for it or whether a charge for it is still pending

1. This criterion is irrelevant because Mr Patel has no criminal history and has not faced any criminal charges.

Section 65(2)(d) - in the case of an offence, the sentence imposed for it

Section 65(2)(e) - the ages of Mr Patel and of any victim at the time Mr Patel engaged, or allegedly engaged, in the conduct

1. Mr Patel was 30 at the time. The proven conduct was against very young children.

Section 65(2)(f) - whether or not the conduct has been decriminalised or has ceased to be subject to disciplinary charges since Mr Patel engaged in it

1. The relevant law and basis for allegations against Mr Patel has not changed.

Section 65(2)(g) - Mr Patel's behaviour since Mr Patel engaged, or allegedly engaged, in the conduct

1. It was submitted for Mr Patel that after the conduct was alleged and was publicised in the Herald Sun, he suffered significant backlash from the community. He took a break. He started legal proceedings against the Herald Sun which removed the publication. He has continued to engage in meaningful employment and has obtained permanent residence.
2. Accepting all of the above, does not meaningfully in terms of this criterion, and the proven conduct, meaningfully support providing Mr Patel with a WWC clearance.

Section 65(2)(h) - the likelihood of future threat to a child caused by Mr Patel

1. It was submitted for Mr Patel that though he does not wish to engage in childcare centre work any longer, in any case, he would not be able to obtain employment because his name has been 'terribly defamed'. The Herald Sun publication was online for a year. Any online search will refer to him as a sex offender. Mr Patel has two reasons for seeking to regain his WWC clearance.
2. First, this would be a form of exoneration. Second, it would help him to gain employment in the future, for example, if he needed a security licence, a taxi driver licence or wanted to work in construction on a school site. Not having a WWC clearance closes many doors.
3. It was submitted for Mr Patel that he poses no threat to children, as confirmed by the report from Ms Cidoni.
4. The Secretary's submission as to high future threat (my term) are set out above.
5. In my view, Mr Patel does pose a future threat to children if provided with a WWC clearance with the possibility that he could return to some form of child related work.
6. Concerning my above findings as to conduct, my principal concern is the taking of photographs of children, in the context of the Safe Space Report to which I return below.

Section 65(2)(i) - any information given by Mr Patel in, or in relation to, the application

1. The material provided by Mr Patel is largely described above. I turn to the additional information.
2. On 14 July 2023, Mr Patel underwent a psychosexual assessment, at the request of his lawyer, conducted by Ms Gina Cidoni.
3. Her 21 July 2023 Psychosexual Assessment Report summarised her qualifications:

I completed a tertiary degree in psychology and criminology at The University of Melbourne in 1991, followed by post-graduate study at Latrobe University in 1994. Additionally, I have undertaken clinical and forensic supervision. I am a registered psychologist with the Australian Health Practitioner Regulation Agency (AHPRA), and my Psychology Board of Australia Registration No. is PSY1121342. Furthermore, I have been a member of the Australian Psychological Society since 1994 and the Australian and New Zealand Association of Psychiatry, Psychology and Law.

For the past 28 years, I have partnered in private practice with Bernard J Healey, where the primary focus has been on forensic and clinical matters.

Throughout my career, I have gained extensive experience conducting various assessments, including evidentiary, family, personality, risk, and cognitive assessments. My work has involved collaboration with different courts, including the Criminal, Children's, and Family divisions, and providing services to organisations including WorkCover, TAC, tribunals, and other community organisations. I have given expert evidence in the High Court of Australia, the Supreme Court, Federal Court, Magistrates Court, the Children's Court, the Coroners Court of Victoria, the Victorian Civil and Administrative Tribunal (VCAT) and other tribunals.

1. Her report described a two-hour assessment, with Ms Cidoni provided with various documents, from the termination letter from Kool Kidz dated 8 September 2022, to the notice from the VIT continuing his suspension as an early childhood teacher dated 29 June 2023.
2. The Report addresses events encompassing the Kool Kidz allegations and the first Where We Grow allegations, resulting in Mr Patel's employment at Where We Grow being terminated.
3. Ms Cidoni summarises Mr Patel's report to her, consistent with his views put to VCAT.
4. Mr Patel underwent psychological testing. The Millon Clinical Multiaxial Inventory-IV (MCMI IV) results showed, 'no signs of clinical conditions, personal disorder, or anything untoward'. Based on the results of the Sexual Violence Risk-20R test, Mr Patel's 'overall risk of sexual recidivism was considered to be at the lowest percentile'. To avoid confusion, the terms 'sexual recidivism' seems to be a technicality, not with any sense of previous sexual misconduct.
5. Ms Cidoni concluded:

Based on the psychological testing conducted on Mr Patel, several risk factors were identified.

Mr Patel has been accused of serious allegations of misconduct while working as an early childhood educator. The allegations include inappropriate interactions with children, such as making inappropriate comments, hugging, touching, taking photographs, and other concerning behaviours. As a result, his registration as an early childhood teacher has been suspended on an interim basis.

Mr Patel denies the allegations and claims that he was wrongfully terminated from his employment due to biased and discriminatory allegations, including harassment and gender discrimination. He provided a detailed account of his experience, highlighting instances of unprofessional behaviour by management and mistreatment by certain staff members.

Mr Patel has no prior criminal record. However, the allegations against him have led to his suspension and the cancellation of his WWCC.

As part of the assessment, the MCMI IV was conducted, which indicated that there were no signs of clinical conditions or personality disorders in Mr Patel's profile.

Additionally, the SORAG and the SVR-20-R were used to assess his risk of sexual violence. The assessments rated Mr Patel as having a low overall risk of sexual recidivism.

1. The Secretary, correctly in my view, submitted that:

a) Ms Cidoni's report gives no assurance that Mr Patel will not pose a future threat of harm to a child. She considered there was 'no signs of clinical conditions, personality disorders or anything untoward', and that Mr Patel's 'overall risk of sexual recidivism' to be 'at the lowest percentile'; > > b) However, it was submitted that the report should not be given significant weight. It was based on incomplete information. The second Where We Grow allegations were apparently not put before Ms Cidoni, including that she was not provided with a copy of the Safe Space Report; > > c) Mr Patel has sought to explain a number of matters, including the use of his personal email account to send photographs of children to himself, and to explain further allegations as the result of communications between the Early Learning Centres. Those claims are not supported by the whole of the material before the Tribunal. Similarly, his allegations as to staff shortages, management practices and funding pressures, or his lack of experience or education in an early learning centre setting, do not excuse his conduct, or explain why the conduct continued after it had been raised with him by Kool Kidz; and > > d) The character references provided by Mr Patel have little weight. The referees make no mention of relevant allegations against Mr Patel at the times of the references. They in no way contradict the reports from staff concerned about Mr Patel's conduct. The majority of the referees only worked with Mr Patel for between four and six months. This is not a significant period of time to be able to provide reliable character evidence.

2. As stated above, in my view the critical deficiency in the report is that it makes no mention of the second Where We Grow allegations. There is no supplementary report provided to address that deficiency.
3. On the basis of the above accepted submissions, giving no weight to the psychosexual assessment report, I do not regard the information which Mr Patel has provided as of any great assistance toward him regaining a WWC clearance.

Section 65(2)(j) - any other matter that VCAT considers relevant

1. I return to the Safe Space Report, in the context of the proven conduct as described above.
2. In my view, the weight that should be given to the Report, even where that weight does not lead to a finding that the conduct substantiated in the report in fact occurred, is a matter that weighs against Mr Patel being given a WWC clearance.
3. While in a sense this approach involves using the Safe Space Report as evidence at two different points in the decision-making process, in a sense 'double dipping', the WS Act's regulation of the provision of WWC clearances, including in the criteria set out in section 65(2) permit such an approach.
4. The WS Act focuses on decision-making with the paramount concern being the safety of children. As has been regularly observed, the various tests involve substantial overlap in the relevant evidence and decision-making.

1. Considering the criteria as a whole, under section 108(1) of the WS Act, I have determined that it is appropriate to refuse to give Mr Patel a WWC clearance because:

a) He engaged in serious misconduct in taking photographs of children at Where We Grow and emailing them to himself; > > b) He breached boundaries with respect to the four children at Kool Kidz, with seemingly no insight and ability to change his behaviour when counselled by other staff and given a final warning; > > c) He breached boundaries with respect to discipline at Where We Grow, again with no indication of any insight into the shortcomings in his conduct; > > d) These breaches occurred a relatively short time ago; and > > e) The description of Mr Patel's conduct in the Safe Space Report is, while not sufficient to prove that the conduct occurred, reason to have significant concern about him regaining his WWC clearance.

1. Concerning section 108(2)(a), I am not satisfied that a reasonable person would allow their child to have direct contact with Mr Patel while he was engaged in any type of child-related work. Therefore, I am, under this test, required to determine that it is appropriate to refuse Mr Patel a WWC clearance.
2. I reach this view in the context of the guidance in the case law on this issue.
3. In VQB v The Secretary to the Department of Justice, [67] in 2013 VCAT said:

... The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all the matters that have been placed before me, giving an applicant for a positive assessment a right to be heard, as well as considering the material gathered by the secretary. A reasonable person would not approach the task with a closed mind, thinking that once a person has offended, he or she can never be redeemed. The reasonable person, however, would not put aside all scepticism and reasonable caution in this most difficult area in some over-optimistic attempt to facilitate rehabilitation.

1. Inn JGF v Secretary to the Department of Justice,[68] also in 2013, VCAT said:

A reasonable person will be acquainted with the truism I mentioned a few moments ago that there are no risk-free encounters in human life. A reasonable person would, in considering the situation of JGF, wish to equate himself or herself with a full range of material that has been placed before me including the character evidence, the history of his good character during his adult life and the expert opinions.

1. Given all of the allegations against Mr Patel and the findings against him in this case, the reasonable person as described in the relevant case law, which demands a person who is very well informed as to the circumstances of the case, open-minded and realistic as to the prospect of rehabilitation, would not allow their child to have direct contact with Mr Patel while he was engaged in any type of child-related work.
2. The reasonable person would take that view being particularly concerned about Mr Patel's conduct in photographing children and sending those photographs to his own email account and on understanding the content of the Safe Space Report.
3. Concerning the Kool Kidz allegations and the Where We Grow discipline issue, the reasonable person would be concerned about Mr Patel's seeming lack of observing appropriate boundaries with children, assuming the relevant conduct had no relationship to sexual arousal or gratification, and would look to evidence that Mr Patel had insight into his shortcomings and had taken steps to address them, that insight and those steps not in evidence at this time.

1. Given my findings as to concern as to Mr Patel's conduct, primarily taking the photographs, in context of the Safe Space Report, I am satisfied that his request for a WWC clearance must under section 108(2)(b) be refused, because I am not satisfied that his engagement in child -related work would not pose an unjustifiable risk to the safety of children.

1. As is usually the situation in these types of cases, there is much overlap between the four legal tests to be applied under section 108.
2. Concerning section 108(c), in my view it is not appropriate to give Mr Patel a WWC clearance because I am not satisfied it is in the public interest to do so.
3. The public interest here is a paramount necessity to protect children. In the circumstances of this case, that interest completely outweighs any personal interest that Mr Patel has in obtaining a WWC clearance, even if he only intends, and I have no reason to doubt him on this, to seek employment that is not child-related work.

1. With Mr Patel failing to satisfy any of the tests under section 108 of the WS Act, the Secretary's decision under review is affirmed.

[1] Report undated - date according to the Tribunal Book index.

1. [2] A 'relevant disciplinary or regulatory finding' includes a 'finding of a prescribed kind made by or on behalf of, or referred to the Secretary, by a disciplinary or regulatory entity.' Regulation 9 of the Worker Screening Regulations 2021 (Vic) prescribes such a finding as including 'a finding that a person has committed reportable conduct that is the subject of a notification by the CCYP under section 167D(1) of the Child Wellbeing and Safety Act 2005'.

[3] The dates of employment may not be entirely precise given conflicting evidence. However, any inaccuracy here is not material.

[5] The Code says that, 'Sitting on laps could be appropriate sometime, for example while reading a storybook to a small child in an open plan area'.

[6] TB 84 - Mr Patel reports it was less than six months and he started after his employment with Kool Kidz. TB 296, Ms Fitzgerald's phone call with the Director of Happy Hippo indicates the Director stated he was employed at Happy Hippo from June to December 2022, which seems to be incorrect.

[8] Termination letter dated 21 April 2023 (see TB 236).

[15] See letter signed by Mr Downing, dated 8 September 2022, authorising Ms Tierney at TB 273 and a statement in report that Ms Tierney was employed by Kool Kids Head Office.

[17] This statement was not in the Tribunal Book in these cases.

[18] This statement was not in the Tribunal Book in these cases.

[19] This CCTV footage was not tendered in these cases. In evidence Mr Patel stated he has never seen this CCTV footage.

[27] The evidence is that Police never visited Mr Patel.

[29] TB 18-20. This statement repeats a submission by Mr Patel to DET dated 3 October 2022 (TB 795).

[30] TB 65 - Some of this submission was repeated in a submission to the VIT, appealing the VIT's suspension of his early teacher registration, also providing the 10 references (see TB 163).

[53] This email is not in the Tribunal Book in these cases.

[60] The video was not provided to VCAT. A transcript of the video was included as an annexure to the Safe Space report.

[63] All redactions in the version in evidence at VCAT.

[65] See submissions dated 27 May 2025.

[67] [2013] VCAT 789.

[68] [2013] VCAT 1728.