The respondent submitted that the decisions to issue the applicant with the notices should be affirmed as the correct and preferable decisions. The respondent acknowledged that the allegations against the applicant are unproven, but determined on the balance of probabilities, that it was more likely than not that they were true.

Held, setting aside and substituting the decisions under review:

• The Tribunal finds that the likelihood of the allegations that the applicant had a sexual relationship with the client being true is very slim;
• The Tribunal finds some parts of the breach of professional boundaries allegations proven and some parts untrue. In the context of the workplace at the time, the Tribunal does not consider it inappropriate for the applicant to be communicating with the resident via telephone and outside of usual business hours or for her to have coffee with the resident at the facility. However, the Tribunal does find it a breach of professional boundaries that she communicated with an "x" in her text messages and she did not inform management of the resident's drug use;
• The Tribunal finds that the applicant did confront the resident about the relationship allegations;
• The Tribunal takes into account the DCP conduct but cannot make a finding about whether the conduct occurred;
• The Tribunal is not satisfied that the applicant poses an unacceptable risk to children or a real and appreciable risk of harm to people with disability;
• This is given the passing of time since the allegations, the very slim likelihood that the relationship allegation occurred, the applicant's acknowledgement of the breach of boundaries and the inappropriateness of confronting the resident, having regard to the DCP allegations, considering any possible harm to people with disability and children, and noting the applicant's conduct since the allegations and her insight.

Administrative Review - Disability Inclusion Act 2018 - Review of a decision by the Central Assessment Unit to issue a NDIS worker check exclusion - Real and appreciable risk of harm - Assessable information in making a determination

Administrative Review - Child Safety (Prohibited Persons) Act 2016 - Review of a decision by the Central Assessment Unit to issue a prohibition notice - Unacceptable risk to children - Assessable information in making a determination

Child Safety (Prohibited Person) Act 2016 ss 3, 4, 25, 26

Disability Inclusion Act 2018 ss 12, 18N, 18M, 18O

South Australian Civil & Administrative Tribunal Act 2013 s 37

GJC v Department if Human Services [2020] SACAT 38

GM v Department of Human Services [2024] SASC 23

Griggs v Department of Human Services [2023] SACAT 60

Marshall v Department of Human Services - Central Assessment Unit [2023] SACAT 83

This is an edited version of the Tribunal's decision pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013. The parties and participants of the proceedings have been de-identified in accordance with the Tribunal's anonymisation policy. Other facts and details that may lead to the identification of any person may have also been anonymised or omitted. These changes do not affect the Tribunal's decision or its reasons for decision.

Made under the South Australian Civil and Administrative Tribunal Act 2013 s 37(1)(c)(i)

1. This is the determination of an application to review a decision of the respondent to issue a:

(a) notice prohibiting the applicant from engaging in child-related work under the Child Safety (Prohibited Persons) Act 2016 (CSPP Act); and

(b) National Disability Insurance Scheme (NDIS) worker check exclusion under the Disability Inclusion Act 2018 (DI Act).

1. The matters for determination in this matter include:

(a) What is the role of the Tribunal?

(b) What, if anything, did the applicant do?

(c) Does the applicant pose an unacceptable risk of harm to children?

(d) Does the applicant pose a real and appreciable risk to people with disability?

(e) Should the applicant be permitted to work with children and people with disability?

1. I have considered all the material before me, including the s 35 Statement of Reasons, applicant's Outline of Submissions, dated 26 March 2025, respondent's Outline of Submissions, filed 15 April 2025, two character references both dated 21 March 2025, freedom of information request email chain, dated 21 March 2025, and submissions and evidence at the hearing.
2. For the reasons that follow, in my view, the correct and preferrable decision is to set aside the decisions of the respondent and substitute the Tribunal's own decisions being that the prohibition notice, and NDIS worker check exclusion should be set aside, and the applicant be permitted to work with children and people with disability.
3. The relevant assessable information, when appropriately weighted, does not lead to the conclusion that the applicant poses an unacceptable risk to children or a real and appreciable risk to people with disability.

What is the role of the Tribunal in these matters?

1. This proceeding is in the Tribunal's review jurisdiction. The Tribunal's task is to examine the decisions of the original decision-maker, giving appropriate weight to the original decisions and to consider material before the original decision-maker and any new material before the Tribunal. The Tribunal's role is to reach the correct and preferrable decision. The Tribunal's powers include to affirm, vary, or set aside the decisions under review and either substitute its own decisions or send the matter back to the Central Assessment Unit (CAU) for reconsideration.
2. Review proceedings are conducted with a minimum of formality. The Tribunal is not bound by the rules of evidence and may inform itself as it sees fit and must act according to equity, good conscience, and the substantial merits of the case without regard to legal technicalities and forms.
3. For the reasons articulated in GJC v Department of Human Services [2020] SACAT 38 as to assessments of the likelihood of future events, the standard of satisfaction for the decision-maker is not the balance of probabilities. It is a statutory standard which cannot be measured against or equated to the criminal or civil standards of satisfaction. The decision-maker is required to reach a standard of reasonable satisfaction as to the ultimate issue of whether a person poses an unacceptable risk to children or real and appreciable risk to people with disability. This must be based on careful weighting of information and a process of reasoning that is neither illogical nor irrational.
4. Importantly, when considering unproven allegations, an assessment of its likelihood of occurrence must be undertaken. If the past event is unproven some accommodation must be made for the possibility that it did not occur. If the conclusion is that it did not occur, then that is the end of the matter. It cannot be considered. If there is a possibility that the unproven allegations did occur then, although they may be taken into account, they cannot be given the same weight as a proven outcome, and the result must be applied to reach a determination of the extent to which that past event contributed to the finding of an appreciable risk: Marshall v Department of Human Services - Central Assessment Unit [2023] SACAT 83.

1. There is no dispute that the information relied upon by the respondent is "assessable information" within the meaning of the CSPP Act and DI Act. The assessable information relied upon in this case is:[1]

(a) Information obtained from the Department of Child Protection (DCP); and

(b) Information from the applicant's former employer, a Supported Residential Facility (SRF).

1. The following information is relied upon by the respondent in its finding that the applicant ought not be allowed to work with people with disability or children:[2]

(a) It is alleged that from late July 2018 until September 2018; while working as a support worker, the applicant formed a sexual relationship with a resident and engaged in sexual intercourse with him both onsite and at various locations that the applicant drove him. It is also alleged that on at least one occasion, the applicant provided alcohol to the resident despite knowing his history of alcohol and drug dependence (the Relationship Allegation);

(b) It is alleged that the relationship between the applicant and the resident was a breach of professional boundaries as evidenced by the applicant not informing management about text messages being received by the resident, continuous contact with the resident after hours whilst on holidays, frequently setting up coffee dates with him and hiding the resident's drug use and relationship from management (Breach of Professional Boundaries Allegation);

(c) Upon receipt of a confidential workplace letter disclosing an investigation into the applicant's conduct, the applicant immediately went to confront the resident and told him to retract the allegation and say that he was obsessed with her to the extent that she needed to delete her WhatsApp. The applicant also showed him the letter sent to her and told the resident "I told you not to tell anyone" (the Confrontation Allegation);

(d) In 2020 and 2021, notifications were made to DCP regarding the applicant's alleged emotional and physical abuse of her stepchildren, including allegations of slapping, pinching, yelling and swearing (the DCP Allegations).

1. All of the allegations against the applicant are unproven. There is no proven criminal law offences and, indeed, the applicant has not been charged with any offences. Therefore, when considering unproven allegations, an assessment of its likelihood of occurrence must be undertaken.
2. In relation to the Relationship Allegation and the Breach of Professional Boundaries Allegation, in my view, the quality of the assessable information is very low. There is no direct evidence from the resident whatsoever. There is no witness statement or affidavit from the resident. There are no independent witnesses. The allegation was never tested in a court. No charges were laid. The applicant was never approached by police. The applicant was not interviewed by police. There are no court documents. Having said that, I accept the submission from the respondent that the Courts are frequently presented with accounts which are uncorroborated, yet are frequently persuaded to find that the allegations are proven.[3] The only information about the allegations comes from workplace records presumably recording information said to them and from various text messages between the applicant and the resident. However, the workplace records are incomplete and obvious lines of inquiry were not pursued. For example, the resident said that he was seen with the applicant at the applicant's mother-in-law's residence with two of the applicant's friends. There is no record of the workplace speaking to the applicant's mother-in-law or attempting to speak to the applicant's friends. Therefore, although I do put weight on the records from the workplace, those records must still be seen in their context, being a summary of what was told to them and also being incomplete. There were no formal findings made as to the outcome of the investigation. I do place weight on the phone call logs and text messages in the Book of Documents between the applicant and the resident considering the applicant's evidence that the text message images are an accurate account of her messages to the resident and the phone call logs are accurate.
3. Phone call logs are at pages 176 to 203 of the Book of Documents. The call logs appear to depict length of phone calls between the applicant and the resident. Most of the calls are very short and below a few minutes other than one call that went for fourteen minutes and fifty five seconds on 18 July 2018[4] and one that went for nine minutes and thirty-four seconds on 23 July 2018.[5] In relation to the text messages, they are contained at pages 158 to 175 of the Book of Documents. Many of the text messages appear to be duplicates. The text messages all appear to be from the same day on 8 August 2018 and are summarised as follows:

(a) Text message from the resident to the applicant at 3.30am "I care for you so much [PBU] that I don't know what to do... I promise u I'll not run if all I can do with is you're [sic] friendship";[6]

(b) Text message from the resident to the applicant at 4.38am referring to the resident wanting to relapse;[7]

(c) Text message from the applicant to the resident at 5.57am, "Hey I was fast asleep I wasn't ignoring you just so you know";[8]

(d) Text message from the resident to the applicant at 5.58am, "I figured as much I'm sorry for harassing u..."[9]

(e) Text message from the applicant to the resident at 5.59am, "you weren't harassing me you were wide awake looking for someone to talk to";[10]

(f) Text message from the resident to the applicant at 6.41am, "Have [X] n [Y][11] found out???";[12]

(g) Text message from the applicant to the resident at 6.50am, "No no no x";[13]

(h) Text message from the resident to the applicant at 7.00am, "Call me if u want we're friends yeah lol. I'll call u up ... if all goes well at court ";[14]

(i) Text message from the applicant to the resident at 7.33am, "Coffee":[15]

(j) Text message from the resident to the applicant at 10.08am, "I can't handle this anxiety... Did u tell [X] I used last night... I'm ok if u did";[16]

(k) Text message from the applicant to the resident at 10.17am, "Nope I didn't";

(l) Text message from the resident to the applicant at 10.18am, "Thank u hugsx";

(m) Text message from the applicant to the resident at 10.51am, "Want to meet for coffee".[17]

1. Ms Rogers expressed some concern about the workplace records and noted that records said to be authored by different people had striking similarities and there was a possibility of collusion.[18] Ms Rogers submitted that the internal management at the SRF created the documents for a purpose to protect their own interest and I should be cautious in accepting the notes. For example, Ms Rogers noted that there is a retrospective note from SRF management referring to a meeting whereby they reminded the applicant about boundaries prior to her going overseas however they seemingly did not make a note of this meeting at the time.[19] The applicant gave evidence that this meeting never occurred. I agree that there are similarities in the notes created seemingly by different people. The respondent submitted that although there is similarity with the notes, both people were present at the meeting so it is understandable that there are similarities. Further, it is possible that the notes were prepared together given the seriousness of the matter and the importance of documenting things properly and noting that SRF management are not police officers and, presumably, not trained investigators. I cannot make a finding as to whether there was "collusion" or a finding that the workplace notes were created to protect the workplace particularly given that no witness from the SRF was called to give evidence. I do place weight on the workplace records but less weight given that they are recording information said to them (SRF management did not personally witness any conduct of concern), the notes are similar despite being said to have been authored by different people, some notes were not created contemporaneously, and the workplace investigation was not completed.
2. I do accept the submission of the applicant that the low quality of the assessable information is problematic in this case. For example, it is very unlikely that the workplace records were put to the resident to adopt, amend or otherwise.
3. The respondent acknowledged that the Relationship Allegation was unproven, but determined on the balance of probabilities, it was more likely than not that the allegations were true.[20] I disagree with this finding.
4. I cannot make a finding about whether the Relationship Allegation occurred due to the low quality of the assessable information before the Tribunal.
5. In my view, there is at least a significant possibility that the Relationship Allegation did not occur for the following reasons:

(a) The version of events from the resident has changed. Initially, the resident told a friend that he had sexual intercourse with the applicant in the lounge at the SRF.[21] He then told SRF management that he had sex with the applicant on multiple occasions (three or four times) but denied having sex with her on the premises.[22] He then later changed his version again to say to SRF management that he had not been honest, and they did have sex at the SRF.[23] The resident also initially claimed that they first had sex at a house where the applicant was house-sitting for a "friend".[24] Later, the version of events changed to them having sex at the applicant's mother-in-law's residence. The respondent submits that the resident may have not initially been truthful to SRF management about having sexual relations on site due to being fearful about being evicted. Even so, the resident was untruthful about the Relationship Allegation. I place significant weight on this changing of events and the resident's admission that he has not been honest about the allegations. The resident would have known whether he had sex with the applicant at the SRF or not. He admits that he was dishonest when he initially spoke to SRF management about the allegations. Inconsistency and dishonesty by the resident in relation to the Relationship Allegation raises significant doubt in my mind as to whether there was a sexual relationship particularly as the only evidence that a sexual relationship occurred is from the resident;

(b) The applicant is alleged to have engaged in high-risk brazen conduct onsite within a facility which housed many residents who may have detected that conduct at any time. The applicant is also alleged to have engaged in sexual intercourse with the resident at her mother-in-law's residence.[25] The brazen nature of the alleged conduct suggests that the resident's account is implausible.[26] Further, if the allegations were true, it is likely that the applicant's conduct would have been detected;

(c) There is evidence that the applicant knew of the resident having hepatitis C and the applicant was trying to become pregnant with her partner.[27] In these circumstances, the applicant submits that her having a sexual relationship with the resident, especially in circumstances whereby the resident claimed they did not use a condom,[28] is implausible as the applicant would not put her health or her partner's health at risk and nor would she risk any future pregnancy;[29]

(d) There is evidence that the applicant did raise with SRF management, prior to her going overseas, that the resident had feelings for her.[30] Further, the applicant, whilst on leave and overseas, took steps to arrange and meet with her manager to discuss her concerns about the resident contacting her overseas.[31] I consider it highly unlikely that the applicant would take steps to report the nature of her relationship with the resident as concerning prior to the allegations being raised if the allegations were true;

(e) The evidence is that the applicant had multiple "night shifts" at the SRF and her partner would be present at the SRF during these night shifts. I find it highly unlikely that the applicant would engage in any sexual conduct with a resident, particularly at the SRF, in these circumstances;

(f) The resident claimed that the applicant took him to her mothers-in-law's house, he stayed the night, the applicant "jumped" him and they had sex.[32] When asked about what he could recall of the home, he said the only way you can get to the balcony is through the house, and it has a duck on it that was broken.[33] The resident does not provide any detail whatsoever about the internal layout of the home. The applicant denies that a duck was ever broken on the balcony. In my view, if the Relationship Allegation were true, the resident would be able to provide some detail about the layout of the mother-in-law's home, which he did not. This suggests that the applicant's version of events (that she pointed out her mother-in-law's home to the resident as they drove past on the way to the chemist) is more likely to be true;

(g) When SRF management put to the applicant that she took the applicant to a friend's house after a fight, the applicant said "No, I wouldn't jeopardise my job and my relationship" and "I was staying at my mother-in-law's" and advised "you can call my mother-in-law right now to confirm".[34] If the allegations were true and the applicant took the resident to her mother-in-law's home, I find it improbable that the applicant would suggest to SRF management that they should call her mother-in-law;

(h) The resident's allegations should be seen in the context whereby, according to the applicant, the workplace had a lack of professional boundaries. In this context, the resident admits he started to develop feelings for the applicant and felt there was a spark between them;[35]

(i) The respondent appears to have put weight on the resident being "heartbroken." In fact, shortly after the allegations were raised, on 12 September 2018, the resident was no longer wanting to change residence and felt well supported. He said he wanted it all behind him now and was going to stay at his accommodation and look into getting back into work;[36]

(j) It appears that the resident made another allegation about another person (not the applicant) putting her hand on his thigh.[37] When the resident was questioned about this allegation, he replied "I felt uncomfortable her holding my hand in the car".[38] There is no evidence of the resident denying the allegation that he said a person put her hand on his thigh, however, when questioned, he appears to backtrack and change his version to "I felt uncomfortable her holding my hand in the car".[39] This evidence troubles me and I have concerns about the reliability and honesty of the resident;

(k) There is some text messages between the applicant and the resident including the use of "x" in the text messages and the applicant agreeing not to tell management about the resident's drug use. Having said that, the resident refers to a "friendship" in the text messages. If the allegations were true and the applicant and resident were engaging in a brazen sexual relationship at the facility, there is no reason why the text messages between them would not be equally as brazen and explicit;

(l) In relation to the allegation that the applicant provided the resident with alcohol on at least one occasion despite knowing his history of drug and alcohol abuse, the only information regarding this allegation comes from the resident. The resident claims that he and the applicant were on the applicant's mother-in-law's balcony and the applicant gave him wine and they shared two bottles of wines. Then, two of the applicant's friends turned up. The applicant spoke to them for a while and then the friends left. The applicant sent the resident to get two more bottles of wine.[40] I find it unlikely this occurred. First, the conduct allegedly occurred at the applicant's mother-in-law's address. I find it highly unlikely that the applicant would take the resident to her mother-in-law's property and provide him with alcohol, particularly in front of two friends. I also note there is evidence that the applicant connected the resident with her sister-in-law for AA meetings to support him quitting his drug and alcohol addiction.[41] It makes little sense for the applicant to be providing the resident with alcohol and, yet, linking him into drug and alcohol services. Further, if the Relationship Allegation were true, I find it unlikely that the applicant would link the resident to counselling sessions with her sister-in-law and risk the relationship becoming detected;

(m) There is evidence that the resident has previously been dishonest, including that the resident stole another resident's bike and sold it[42] and also reference to "offending behaviour";[43]

(n) The applicant vehemently denies the allegations;

(o) The applicant has no criminal history;

(p) The applicant has provided character references from persons suggesting she is a person of good character;

(q) No other complainant has made allegations against the applicant despite the applicant continuing to work in the industry for many years.

1. Although the Relationship Allegation is unproven and there were not criminal charges, this does not necessarily lead to the conclusion that the Relationship Allegation is untrue and, further, weight may still be placed on the Relationship Allegation. I note that there was some consideration of whether there could be a possible charge pursuant to s 51 of the Criminal Law Consolidation Act 1935,[44] namely sexual exploitation of a person with cognitive impairment[45] however ultimately this did not proceed as it was considered that, even if the conduct did occur, it was consensual and the resident was not under guardianship and the resident had capacity to make a decision about a consensual sexual relationship.[46]
2. I have considered the respondent's submission that the existence of text messages of a personal nature between the applicant are consistent with the allegation. In particularly, the use of the affection 'x' at the end of some identified text messages is consistent with a relationship that is closer than resident/support worker.[47] The applicant acknowledged that she did develop a friendship with the resident and she did use "x" in a text message to the resident. Ms Rogers submitted, and I accept, that the applicant tends to sign off her text messages with an "x" and it is a long bow to draw than an "x" equates to a forbidden sexual relationship.
3. I have also considered the respondent's submission that the resident complained to three different people about the relationship and, therefore, suggests there is more credibility to his account.[48] The respondent submits that the resident is unlikely to fabricate to three people. I have placed some weight on this submission however I do note that the resident's account to his friend was different to his account to SRF management.
4. I have considered the respondent's submission that the applicant was unable to produce WhatsApp messages and Facebook messages to support her claim that the resident was harassing her, however, I accept the applicant's evidence that she changed her telephone number as a result of the allegations and could not thereafter access her messages.
5. I find that the likelihood of the Relationship Allegation being true is very slim.
6. In relation to the Breach of Professional Boundaries Allegation, the concern from the respondent is that the applicant breached professional boundaries as evidenced by the applicant not informing management about text messages being received by the resident, continuous contact with the resident after hours whilst on holidays, frequently setting up coffee dates with him and hiding the resident's drug use and relationship from management.
7. I find some parts of the Breach of Professional Boundaries Allegation true and some parts untrue. The evidence is that staff had residents' telephone numbers and used phones to communicate. Further, as staff worked on overnight shifts, outside hours communication must be seen in this context. In this context, I do not consider the fact alone of telephone communication between the applicant and resident problematic. However, I do find that there was a blurring of boundaries and it was concerning that the applicant was failing to disclose his drug use to SRF management and using "x" in her text communication with him. Having said that, the Breach of Professional Boundaries Allegation must be seen in the context of the SRF at the time. The evidence from the applicant, given on oath to me at the hearing, is that working at the SRF was her first job in the disability sector. At the time, there were no policies or procedures in place relating to boundaries. It was common for staff and residents to have each other's numbers and communicate via text. Residents could obtain staff member's numbers from the staff room. It was also common for staff to spend their own money on items for residents and to take residents to various places, for example the chemist. I am reasonably satisfied that there were generally a lack of professional boundaries at the SRF. I make this finding based on the applicant's evidence, but also the following:

(a) It is clear that the SRF had the text messages between the applicant and the resident. Despite that, there is no business record expressing concern that the applicant and resident had each other's telephone number and were communicating via text message;

(b) There is a business record that the applicant purchased underwear for a resident as he had none. SRF management at the time "didn't think anything of this" as it is quite usual for the facility to purchase items for a client if they are lacking essential items and no funds;[49]

(c) There is a business record that the applicant took residents to the chemist and no red flags were raised at the time;[50]

(d) The applicant says that staff took their children and family members to work;[51]

(e) The applicant says that staff would smoke outside with residents and would provide cigarettes and cash to residents when they asked;[52]

(f) The applicant says one of the other staff members would take his clients to his house to help clean his house. He also took his client to fishing trips on his days off;[53]

(g) The applicant says that one SRF manager would attend the SRF on a Sunday morning when a market was on to take a resident with him. She also purchased phone credits and cigarettes for this resident;[54]

(h) After the incident, there is a business record that the SRF would be reviewing all policies and procedures and codes of conduct to ensure there are no gaps and to see what, if anything, needs to change. There is also a note that the SRF will be implementing a new training for all staff about appropriate boundaries.[55]

1. The applicant said she raised a concern with SRF management initially about a lack of boundaries and they informed her that the SRF was a "home environment".[56]
2. The applicant did not initially report phone communication to SRF management because this was common practice. However, there is evidence in the business records that the applicant did raise with SRF management, prior to her going overseas, that the resident had feelings for her.[57] Further, the applicant, whilst on leave and overseas, took steps to arrange and meet with her manager to discuss her concerns about the resident contacting her overseas.[58]
3. The applicant admitted that she did not tell SRF management about the resident's drug use. She explained she did not do so because the use was off site, but if it was onsite she would have reported the use.
4. In relation to "coffee dates", the only evidence for this is that the resident claims trips to the chemist were actually for coffee[59] and two text messages on 8 August 2018 between the applicant and the resident that refers to "coffee". The applicant gave evidence to me that when she asked the resident for coffee, she meant coffee on site at the premises during work hours to debrief on his court hearing that day.
5. The applicant said in evidence she only ever had coffee with residents during her work shifts at the residence. It was not a "date". It was not at a café outside the SRF. It was simply a cup of coffee at the SRF during her work hours. I accept the applicant's evidence in this regard. In this context, I do not consider having coffee with the resident at the facility to debrief about court problematic.
6. In terms of contact out of hours, this needs to be seen in the context whereby the applicant worked night shifts. Therefore, it was expected and within her job parameters that she would be having contact with residents out of hours. In relation to a concern that the applicant and resident were having lots of contact when she was overseas, it appears this was pursued by the resident. The resident admits that when the applicant was away, they had not had contact other than a phone call he made to her where she had answered the phone and upon discovering it was him said "I can't deal with your fucking shit right now" and hung up the phone.[60]
7. In summary, I find some parts of the Breach of Professional Boundaries Allegation proven and some parts untrue. In the context of the workplace at the time, I do not consider it inappropriate for the applicant to be communicating with the resident via telephone and outside of usual business hours (because her usual hours included overnight shifts). I also do not consider it inappropriate for her to have coffee with the resident at the facility to discuss his court appearance. However, I do find it a Breach of Professional Boundaries that she communicated with "x" in her text messages and that she did not inform management of his drug use.
8. In relation to the Confrontation Allegation, I find that that the applicant did confront the resident about the Sexual Relationship Allegation.
9. The applicant admitted in her evidence that she confronted the resident but stated that she did not show the resident the SRF's letter to her regarding the allegation. However, there is a business record that suggests that she did show the resident the letter.[61] I find that the applicant did show the resident the letter. However, I consider a reasonable explanation for the applicant's evidence that she did not show the resident the SRF's letter is the passage of time and the applicant not remembering that she showed the resident the letter.
10. The Confrontation Allegation is concerning particularly in light of the SRF's letter dated 7 September 2018 that clearly states, "All matters and information relating to this grievance are strictly confidential and you are directed not to discuss them with any other person without my express prior consent. Any failure by you to maintain confidentiality may lead to disciplinary action".[62]
11. However, I do not accept the resident's version of events that the applicant asked him to retract what he said and say he was obsessed with her and that she had to delete her WhatsApp and that she made a move to kiss him but her turned away.[63] The resident admits that the applicant was angry at him[64] so I find it unlikely in this context that she made a move to kiss him but he turned away. The applicant gave sworn evidence to me that she did confront the resident about the Relationship Allegation. She did so as she was very upset that she tried to help him and he made the allegation. She denies that she said "I told you not to tell anyone about us". She said she confronted him because the allegations were untrue and she wanted him to stop making false allegations.
12. I find it more likely that the applicant confronted him as she was angry about the allegations and did not want him to make untrue allegations about her.
13. The DCP Allegations are set out in detail in the s 35 materials and include:

(a) On 29 October 2020, an allegation that the applicant pinches her stepchild and grabs him on the arms if she is cross at him.[65] The DCP state that the "report does not give reasonable grounds to suspect harm or likelihood of harm or that the child is at significant risk at this stage";[66]

(b) On 29 June 2021, an allegation that the applicant asked her stepchild for some money and when he refused started threatening him and stating that she would hurt him. The applicant then dug her nails into his arms and sat on top of him so he could not breathe.[67] The applicant also started swearing at him and assaulting him and threatening violence.[68] There was also mention of previous occasions whereby the applicant had slapped him hard across his leg causing bruising and pinned him against a wall and that the applicant regularly threatens to harm him.[69] The child admits that he hates the applicant and wishes she would just go away and never come back.[70]

1. In relation to the DCP allegations, the respondent acknowledges that the notifications are limited to a relatively short period of time,[71]and that less weight ought to be placed on the allegations given there is a paucity of information and the complexities that arise with blended families.[72] The respondent also acknowledges that the notifications are assessed at the lower end of seriousness,[73] however, the following factors are noted:[74]

(a) The notifications were raised by separate credible notifiers;

(b) Very similar disclosures were made by the children at different points in time;

(c) Both children appeared distressed with discussing the issues.

1. I accept the submission of the respondent that the DCP Allegations are relevant and the respondent was entitled to take them into account and assess the evidence in its totality.[75]
2. Whilst I acknowledge that DCP records should generally be given greater weight, in this case, it is clear that the DCP records are merely reporting allegations made to DCP. I accept that information from a Government agency or regulatory agency and mandatory notifiers ought to be given more weight. I accept that the DCP records are likely to be an accurate reflection of what was said to DCP. However, it is clear that no DCP worker was present during the alleged conduct. Therefore, the DCP worker is simply recording what a third party is saying. In my view, there is a clear difference between a DCP worker that has witnessed concerning alleged conduct in which case high weighting would usually be put on that information because a DCP worker would seemingly have little reason to record false information versus a DCP worker that is simply recording allegations from a third party which is the case here. The fact is here, there is no independent witness and the information is uncorroborated. Therefore, although I do place weight on the DCP records, those records must be seen in their context being a summary of what was said to DCP.
3. I cannot make a definite finding as to whether the DCP Allegations occurred but do note:

(a) DCP did not proceed to investigate the allegations or make any applications to the Youth Court;

(b) The respondent provided the applicant with a working with children check in 2022 despite being aware of all of the DCP allegations;[76]

(c) The child claims that the applicant dug her nails into his arm and caused bruising yet there is no photographic, medical or other evidence supporting this claim;

(d) Separate from the applicant and her conduct, a close reading of the DCP material reveals complex family dynamics noting a family separation and a number of protection concerns relating to the children, including suicidal ideation, aggressive conduct by the child, sexualised conduct by the child and change in behaviour since parental separation;[77]

(e) The child has been clear in his hatred for the applicant and wishes she would just go away and never come back;[78]

(f) The applicant denies the allegations;

(g) The applicant states that she continues to have a good relationship with her former partner's children even after separating with their father, however, their biological mother does not like her and has told her children lies about her. The applicant says that the biological mother of the children told them the relationship broke up because of the applicant.[79] This is, she says, the context of the DCP allegations.[80]

1. The DCP allegations are unproven and, I cannot make a finding one way or the other whether the conduct did occur so I must allow some consideration for the possibility that the DCP conduct did not occur particularly in the context of the information being uncorroborated and there being no independent witness. Having said that, in my view, I can and should take the conduct into account.

What is the appropriate weight to be given to respondent's decisions?

1. I have considered the decisions of the respondent and placed weight on them, acknowledging that the respondent does have relevant expertise in determining whether a person should be permitted to work with children and with people with disability.
2. However, I do place less weight on those decisions given I have had the benefit of further material, including hearing evidence from the applicant.
3. Further, I do place less weight on the respondent's reasoning having regard to the following:

(a) The respondent claims that the resident was able to produce call logs and text messages which substantiated a personal relationship and phone contact after hours. Firstly, the applicant often worked 'after hours' in that she often commenced work at 3pm and worked an overnight shift. Therefore, the applicant was required, as part of her role, to communicate with residents outside usual business hours.[81] Further, the text messages refer to a "friendship";

(b) The respondent has put weight on a text message exchange whereby the resident asked the applicant "Have [other employees] found out???" and "?????". The applicant responded "No no no x" and "What the hell no they haven't." The resident responded "Ok sorry read too much into the piece of paper that read on 26th June is GOODBYE X." The respondent's reasons that there was an aspect of her relationship with the resident that the applicant was keeping secret from her colleagues and which, if found out, could have resulted in her leaving the organisation. However, there are further text messages on that same day that reveal that the resident is concerned that his drug use would be found out;

(c) The respondent found that the applicant's resignation from the SRF, namely, that she suffered a miscarriage "ingenuine" because she ought to have utilised sick leave[82] and the applicant was not aware that she was suffering a miscarriage until the afternoon on 10 September 2018.[83] The respondent states "Your submissions in this regard appear to be ingenuine and indicative of an unwillingness to accept responsibility for your conduct and the harm you caused to the resident".[84] In my view, the respondent's reasoning is factually inaccurate, highly insensitive and flawed. First, the applicant gave evidence that she was a contractor and did not have access to sick leave. Further, the applicant has provided medical evidence to support her claim that she was aware her pregnancy was not viable prior to the afternoon of 10 September 2018, including confirmation that she attended a medical appointment on 10 September 2018 at 1.00am.[85] The applicant resigned at 2.24am on 10 September 2018.[86] It is true that there is a medical record on 10 September 2018 at 1.58am referring to a pregnancy of uncertain viability[87] and discussion with patient that means pregnancy will not progress.[88] However, there is also a medical note on 8 September 2018 referring to a note to rule out an ectopic pregnancy.[89] The applicant gave evidence before me that she resigned due to an unviable pregnancy and she was unable to access sick leave as she was a casual worker. It is entirely understandable that a person would wish to resign from their role after finding out that they had an unviable pregnancy. In any event, even if the applicant did resign from her role, in part, due to the allegations, as acknowledged by the respondent, this does not necessarily indicate guilt on the applicant's part.[90] The respondent has erroneously placed weight on the applicant's reasons for resigning from her role in an insensitive and problematic way;

(d) The respondent placed weight on the resident being able to recall identifying characteristics of the applicant's mother-in-law's house.[91] In fact, the resident was only able to recall characteristics outside of the mother-in-law's premises which is more consistent with the applicant's version of events that she drove him past her mother-in-law's house rather than took him inside. If the resident's version of events were correct, namely that the applicant took him to her mother-in-law's house and they had sex in her house, presumably he would have been able to provide information about the internal layout of the house, which he did not;

(e) The respondent found that the applicant was "frequently setting up coffee dates" with the resident.[92] The only evidence for this is that the resident claimed trips to the chemist were actually for coffee[93] and two text messages on 8 August 2018 from the applicant and the resident and the applicant that refers to "coffee." The applicant gave evidence to me that when she asked the resident for coffee, she meant coffee on site at the premises. I accept her evidence in this regard;

(f) The respondent appears to have placed weight on the applicant's inconsistent explanations in relation to blocking on Facebook. The applicant claimed at a meeting that it takes 24 hours to unblock someone[94] however the respondent says this is untrue and unblocking someone on Facebook is instantaneous. However, the applicant's position, as supported by filed material is that once you unblock someone on Facebook there is then a period of time that must expire before you can then re-block them on Facebook.[95] The respondent further states that in her submissions, the applicant provided a different response for not unblocking him, namely that this would give him access to her information and she would not be able to block him again for 48 hours.[96] The respondent claims that the change in response raises concerns around credibility.[97] I do not consider that the timeframe difference is a key credibility issue. Further, I note that the respondent seems to put weight on very minor inconsistencies with the applicant's version of events but does not tackle in their decision-making process key inconsistencies with the resident's version of events, for example, whether he had sex with the applicant at the facility or not. Nor does the respondent consider in its decision-making the resident admitting being dishonest in relation to the allegations;

(g) The respondent found that there was no evidence provided by the applicant in relation to disproving the allegations.[98] This is incorrect. The applicant vehemently denied the allegations to the respondent. The applicant also provided an explanation as to why she did not provide telephone, WhatsApp and Facebook messages, namely, she changed her number shortly after the incident and did not have access to old accounts.

Whether the applicant poses an unacceptable risk of harm to children and a real and appreciable risk to people with disability and should be prohibited from working with children and excluded from working with people with disability?

1. The primary object of the CSPP Act is to minimise the risk to children posed by people who work with them. Further, s 3(3) of the CSPP Act states that the paramount consideration in respect of the administration, operation and enforcement of the CSPP Act must always be the best interests of children, having regard to their safety and protection.
2. Working with children checks are conducted by the CAU pursuant to s 25 of the CSPP Act to determine whether or not a person poses an unacceptable risk to children based on an assessment of assessable information in relation to a person against the prescribed risk assessment criteria: s 26(1) CSPP Act.
3. The prescribed risk assessment criteria are set out in the Working with Children Check Guidelines, July 2024 (the Guidelines) made pursuant to s 4 of the CSPP Act. Importantly, the Guidelines prescribe matters that are not to be taken into account in determining whether a person poses an unacceptable risk to children, including the impact of a prohibited outcome on a person, the role of the person the subject of the application, and lived experience.
4. The CSPP does not define the meaning of unacceptable risk. However, in GJC v Department of Human Services [2020] SACAT 38, Senior Member Rugless considered what constitutes an unacceptable risk to children. Senior Member Rugless said:

(a) The term 'unacceptable risk' as described in s 26(1) of the CSPP Act is that there is a risk that, if a person is allowed to work with children, this will not ensure the adequate protection of children;

(b) The task of the CAU (or, on review, of the Tribunal) must be to consider whether, having regard to the likelihood of the person behaving in a certain way in the future, and the behaviour that is likely to occur, the risks or consequences of that behaviour is so unacceptable that it is necessary in the interests of children to ensure that the person does not work with children;

(c) The Tribunal does not need to be satisfied that it is more likely than not that the concerning conduct will again eventuate, but merely that there is risk that if it does it will cause harm to children and that this is unacceptable;

(d) Where the possible future harm is serious then even a minimal chance or possibility that it will occur would usually be sufficient to regard that outcome, or risk to children, as unacceptable;

(e) Behaviour or conduct of adults that may result in the risk of future serious harm to children would include assessable information demonstrating (or giving rise to the reasonable suspicion of) past sexual abuse, physical abuse, emotional or psychological manipulation, intimidation or harassment, sexual violence or gross neglect of children or adults;

(f) The term 'unacceptable risk' requires an evaluation of the nature and degree of the risk to children and whether it is acceptable to allow it, i.e. a consideration of the likelihood of offending or conduct occurring in the future and the seriousness of the consequences if the conduct eventuates.

1. The Guidelines provide that when considering a working with children check, the CAU must consider the substance of assessable information and have regard to:

(a) The nature, gravity and circumstances of the information including criminal offences, child protection information and disciplinary or misconduct information and how this is relevant to children or child related work;

(b) The length of time that has passed since the event occurred;

(c) The vulnerability of the victim at the time of the event including the age of the victim, the age of the person at the time of the event, the age difference between the person and the victim and the person's relationship to the victim or position of authority over the victim at the time of the event;

(d) The person's criminal, child protection, disciplinary or misconduct and/or other relevant history, including whether there is a pattern of concerning conduct;

(e) The person's conduct since the event;

(f) All other relevant circumstances in respect of the information including the offending, child protection, disciplinary or misconduct and/or information or other relevant history, and the impact on their eligibility to be engaged in child related work.

1. The DI Act sets out various objects and principles including that there are safeguards in relation to the delivery of all supports and services for people with disability and that people with disability have the right to live free from neglect, abuse and exploitation.
2. If a person wishes to apply for a NDIS worker check clearance, the CAU's task (and the Tribunal's task standing in the shoes of the original decision-maker) is to conduct a risk assessment based on an evaluation of relevant information under s 18N of the DI Act. The risk assessment is an assessment and determination under s 18M(1) of the DI Act as to whether the person poses a risk of harm to people with disability.
3. Pursuant to s 18M(2) of the DI Act, a reference to "risk of harm to people with disability" is to be interpreted in accordance with the following principles:

(a) The risk of harm must be real and appreciable risk of harm;

(b) The risk of harm does not need to be likely or significant; and

(c) The risk of harm need not arise from recent events.

1. The word "harm" is defined in s 18M(3) of the DI Act to include:

(a) Any detrimental effect on a person's physical, psychological, emotional or financial wellbeing (personal harm); and

(b) Non-consensual or inappropriate conduct of a sexual nature with or towards a person (whether or not that conduct poses a risk of personal harm).

1. The term "real and appreciable risk of harm" is not defined in the DI Act. However, the meaning of that term in the context of Part 5A has been considered by the Tribunal in the matter of Griggs v Department of Human Services [2023] SACAT 60. In that case, Senior Member Ward found that the following principles are relevant for determining a review under the DI Act:

(a) The conduct of a NDIS worker check risk assessment is an administrative process in the nature of an inquiry about the applicant's past behaviour and the risks to people with disability that are likely to flow from that behaviour. The inquiry is entirely protective;

(b) The guiding principle (referred to as the paramount consideration in clause 15(a) of the Intergovernmental Agreement) is that people with disability have the right to live free from neglect, abuse and exploitation;

(c) A person will be found to pose an unacceptable risk of harm to people with disability if a risk assessment determines that there is a real and appreciable risk of harm to people with disability, which does not need to be a likely or significant risk of harm or arise from recent events;

(d) A "real and appreciable" risk of harm is a risk that is actual and perceptible and is more than theoretical, speculative, remote or fanciful. A risk that is fanciful, farfetched or theoretical, where the potential consequences are mild or insignificant, might be an acceptable risk. It is not required that there be no risk at all. This involves a "measuring or evaluative exercise as to the nature and extent of the risk" and "the seriousness of the consequences if the conduct eventuates";

(e) "Harm" includes any detrimental effect on a person's physical, psychological, emotional or financial wellbeing and non-consensual or inappropriate conduct of a sexual nature. This may include failing to respect the privacy, dignity, respect and safety of people with disability and making them feel uncomfortable and distressed;

(f) Consideration of the factors set out in s 18O of the Disability Inclusion Act is a critical part of the risk assessment. The ability of the CAU and the Tribunal to consider under s 18O such other matters as they consider appropriate allows consideration of matters relevant to the mitigation of risk;

(g) The sole focus of the decision-maker is the public interest in the protection of people with disability. There is no punitive aspect to the process and no focus on the impact that a NDIS worker check exclusion will have on the individual;

(h) "Unacceptable risk" or "real and appreciable risk" means that there is a risk that, if a person is allowed to work with people with disability, this will not ensure the adequate protection of people with disability and therefore this ought not to be allowed;

(i) The task is to consider whether, having regard to the likelihood of the person behaving in a certain way in the future, and the behaviour that is likely to occur, the risks or consequences of that behaviour are so unacceptable that it is necessary, in the interests of people with disability to ensure that the person does not work with people with disability;

(j) Where the possible future harm is serious then even a minimal chance or possibility that it will occur would usually be sufficient to regard that outcome or risk to be unacceptable; and

1. Pursuant to s 18O of the DI Act, in undertaking a risk assessment, the CAU was obliged to consider the following:

(a) The nature, gravity and circumstances of any offence, misconduct or other event that resulted in, or contributed to, the requirement for a risk assessment in relation to the person (a relevant event), and how it is relevant to NDIS work;

(b) The length of time that has passed since a relevant event occurred;

(c) The vulnerability of any victim of a relevant event at the time of the event and the person's relationship to the victim or position of authority over the victim at the time of the event;

(d) The person's criminal history, history of misconduct and other relevant history, including whether there is a pattern of concerning behaviour;

(e) The person's conduct since a relevant event;

(f) All other circumstances in respect of the person's criminal offending, misconduct and other relevant history and their impact on eligibility to be engaged in NDIS work;

(g) Such other matters as the CAU considers appropriate.

1. To aid in the determination of applications for NDIS worker clearances, the Minister has published pursuant to s 12(1)(b) of the DI Act the "NDIS Worker Check Guidelines" (NDIS Worker Check Guidelines). Supplementing these Guidelines is the NDIS Worker Check: Decision Making and Criminal History Procedural Framework (NDIS Worker Procedural Framework).
2. In line with the NDIS Worker Check Guidelines, the following matters should not be taken into consideration in conducting a risk assessment under Part 5A:

(a) The impact of an exclusion on the applicant. The rights of, or personal impact to, an applicant or a holder of a clearance should they be excluded following risk assessment are not relevant to determining whether they pose a risk of harm;

(b) The nature of the role of the applicant. NDIS worker check clearances are portable between roles, employers and jurisdictions. The stated role of the worker at the time of application is irrelevant and bears no weight on risk of harm;

(c) Value to the community. While it is acknowledged that some individuals, by virtue of their history, have valuable experience to share with vulnerable people, and that people can make significant changes in their lives, this is irrelevant for risk assessment. The role of the CAU is to assess whether, based on prior conduct, a person poses a risk of harm to people with disability. It is not to assess suitability for employment - this is an employer's responsibility.

1. In relation to the nature, gravity and circumstances of any allegation:

(a) I find that there is a very slim likelihood that the Relationship Allegation occurred. If it did occur, it is clearly a gross breach of trust and could cause substantial emotional harm to people with disability. The respondent rightly concedes there is no suggestion that the applicant would engage in a sexual relationship with children, but argues (and I accept) that if true the conduct is relevant to children as a breach of boundaries;

(b) Although I do find there was a breach of professional boundaries in the applicant using "x" in text messages with the resident and not disclosing off-site drug use to management, this needs to be seen in the context of an organisation that, as a whole, had poor boundaries. If this conduct were to occur in the future, there could be harm to children and people with disability. In my view, appropriate professional boundaries are key to keeping children and people with disability safe and a failure to adhere to appropriate professional boundaries could cause emotional harm to people with disability and children;

(c) The applicant did confront the resident about the allegation which was a very poor choice. I accept the respondent's reasoning that the conduct prioritised the applicant's wishes above the wellbeing of the resident and showed a lack of respect for the complaints and investigations process. Again, if this conduct were to occur in the future, it could harm children and people with disability by impacting any investigation relating to them;

(d) I cannot determine whether the DCP Allegation occurred but place less weight on those allegations given the complex family dynamic, the allegations are uncorroborated and there is no independent witness. If the conduct were to occur, it could cause emotional and physical harm to children and people with disability.

1. In terms of the length of time that has passed since the conduct, I note that the Relationship Allegation, Breach of Professional Boundaries Allegation and Confrontation Allegation occurred in 2018 and are seven years old so are not recent according to the guidelines. Further, the applicant has been working in the sector since that time seemingly without incident. I note that the DCP allegations are more recent having occurred in 2020 and 2021.
2. In relation to the vulnerability of any victim, clearly the resident is a vulnerable person with disability living in a SRF. There is evidence of harm to self,[99] psychosocial disability and neurological disability.[100] There is also evidence of a drug and alcohol abuse history. Further, no doubt, the applicant was in a position of power and authority over the resident at the time of the events. Further, in relation to the DCP allegations, the stepchildren are vulnerable, being children, with the applicant being in a position of authority. I also note that the applicant was an adult at the time of the alleged conduct.
3. It is relevant that the applicant has no criminal history, no other relevant misconduct and there is no suggestion of a pattern of concerning conduct.
4. In relation to the applicant's conduct since the allegations, I have considered:

(a) Her evidence that she has been working in the disability sector since 2021 without issue. The applicant said she has been working at a support service provider since 2021. The applicant's current employer provides services to vulnerable people. They have asked her to take unpaid leave until this matter has been concluded;

(b) Before her current role she was working as a centre director at a childcare centre and was in that position for two years[101] and there were no issues of concern;

(c) Character reference from her employer's head of People Advisory & Operations, dated 21 March 2025. The applicant's referee states that she is pleased to provide the applicant a character reference and understands the purpose of the reference in relation to these proceedings. The referee states that the applicant has been a valued member of the employer's staff and, throughout that time, the applicant has consistently demonstrated professionalism, reliability, and a genuine commitment to her role and the organisation's values. The referee states that the applicant commenced with her employer as a rostering officer in June 2020 and was quickly promoted to Team Leader in 2021 due to her outstanding performance and leadership potential. Recognising her continued contributions and ability to inspire and lead, the applicant was promoted to the position of Regional Service Delivery Manager in October 2024. The referee states, in addition to the applicant's role-based achievements, the applicant successfully completed the employer's Emerging Leadership Program in 2023, further enhancing her leadership capabilities and strategic thinking. The referee states this accomplishment reflects the applicant's dedication to personal and professional growth. The referee concludes that the applicant is a dependable and empathetic individual who fosters positive relationships with her team, clients and broader employer's community and that the applicant is an invaluable asset to her employer and a trusted leader within the team;

(d) Character reference from the State Manager of the applicant's current employer, dated 21 March 2025. The referee states that he understands the allegations against the applicant and appreciates the seriousness of the matter. The referee has known the applicant since November 2020 when she commenced employment with her current employer. The referee states he has had the opportunity to observe the applicant's conduct and professionalism firsthand and, at all times, the applicant has demonstrated a high level of integrity, honest and professionalism;

(e) There is no evidence of an escalation of alleged behaviour, no other complainant has made an allegation against the applicant, and the applicant has no criminal history;

(f) The applicant has undertaken professional development and understands policies and procedures and feels more capable of raising issues of concern with management;[102]

(g) On 14 July 2020, the applicant completed a 12 hour course teaching skills for providing initial help to a person who is developing a mental health problem or experiencing a mental health crisis;[103]

(h) Since working at the SRF, the applicant has completed a mental health first aid certificate, NDIS worker module, medication administration, one to one coaching through professional development and has read and understood policy and procedures at her current employment;[104]

(i) The applicant has provided proof of learning modules, including in;[105]

(i) 2020, workplace health and safety, supporting people to stay infection free, equality and diversity, discrimination and harassment;

(ii) 2021, allocations online - service delivery and rostering, online classroom, trauma-informed support, service delivery process and applications training, safe environment for children and young people - through their eyes;

(iii) 2022, unpacking award changes and working in voluntary out of home care services;

(iv) 2023, discrimination and harassment, anti-sexual harassment training, growth mindset, performance management, performance and development, understanding the voice to parliament, effective goal setting and effective and timely incident reporting.

1. The allegations, particularly the Relationship Allegation are serious. Therefore, I may still find that the applicant is an unacceptable risk to children and a real and appreciable risk to people with disability even though significant doubt attaches to the Relationship Allegation particularly noting that the paramount consideration must be the best interests of children, having regard to their safety and protection and that people with disability have the right to live free from neglect, abuse and exploitation. I accept that I do not need to be satisfied that it is likely that the applicant will cause future harm to find that she is an unacceptable risk of harm to children and a real and appreciable risk of harm to people with disability. The conduct may still be taken into account even though I have not made a positive finding about the conduct.[106] Further, I have found there was some breach of professional boundaries (particularly the use of 'x' in text messages to the resident and a failure to report drug use to management) and also that it was inappropriate for the applicant to confront the resident about the Relationship Allegation. I cannot make a finding about the DCP Allegation, but still place some weight on it in my assessment.
2. However, on balance, taking into account all of the evidence and weighting the assessable information, I have not been satisfied that the applicant poses an unacceptable risk to children or a real and appreciable risk of harm to people with disability. In my view, I must feel some persuasion that there is real and appreciable risk to people with disability and an unacceptable risk to children. I do not feel so persuaded in this case. Even though the risk of harm is serious should the applicant act as alleged in the future, in my view, the risk that the applicant will do so is so slim that I am not persuaded that there is an unacceptable risk of harm to children or a real and appreciable risk of harm to people with disability.
3. The risk in relation to children arises from the DCP Allegation and a concern that the applicant is someone who breaches professional boundaries and this could lead to emotional and physical harm to children. The respondent appropriately concedes that there is no suggestion that the applicant will engage in an intimate relationship with a child.
4. The risk in relation to people with disability is that the applicant could enter into a consensual sexual relationship with them, breach professional boundaries, confront them if an allegation is made and cause emotional harm.
5. The applicant gave sworn evidence before me that she would never provide her contact details to another client and nor would she ever confront another person should a further allegation be raised against her. I accept her evidence in this regard. The applicant vehemently denied the DCP Allegations and says she has ongoing and appropriate contact with her stepchildren.
6. I have placed significant weight on the applicant working in the disability sector since the incident and the fact that she has also worked at a childcare centre without any cause for concern. I have also placed weight on the glowing workplace references provided on her behalf suggesting she is professional and a person of integrity.
7. I have also placed weight on the applicant's insight in this case. For example, the applicant accepts that she could have taken firmer steps earlier in her contact with the resident to set boundaries and she regrets that she did not do so.[107] Further, she accepts that she must bear some responsibility for failing to set firmer boundaries.[108] However, I accept the submissions of the applicant that her failure to set firmer boundaries should be characterised as an error of judgement in the wider context of an organisation which advocated for flexible boundaries between staff and residents.[109] The applicant acknowledges now that it is inappropriate for a client to have her telephone number and she would not do so in the future. The applicant says now she knows how much of a risk it is to release personal information to clients and she has never given her details to a client since she finished her employment at the SRF.[110] The applicant also admitted in evidence before me that it was a very poor decision for her to have confronted the resident about the allegation and she would not do so in the future. The applicant has a greater understanding of professional boundaries now.
8. Working with children and people with disability is a privilege and not a right. Given the passing of time since the allegations, the very slim likelihood that the Relationship Allegation occurred, acknowledging there was a breach of boundaries, acknowledging that it was inappropriate for the applicant to confront the resident, having regard to the DCP allegations, considering any possible harm to people with disability and children, and noting the applicant's conduct since the allegation and her insight, I do not believe there is an unacceptable risk to children or a real and appreciable risk to people with disability.
9. A carefully weighted assessment of the totality of the information before the Tribunal, particularly the applicant's vehement denial of the Relationship Allegation (the most serious allegation), evidence of her good character and the poor quality of the information relied upon by the respondent at first instance, leads to the conclusion that she does not pose an unacceptable risk of harm to children and nor does she pose a real and appreciable risk to people with disability.[111]

1. The Tribunal sets aside the decisions under review and substitutes the Tribunal's own decisions being that the prohibition notice, and NDIS worker check exclusion should be set aside, and the applicant be permitted to work with children and people with disability.

[3] Respondent's Outline of Submissions, filed 15 April 2025, paragraph 41.

[11] "[X] and [Y]" are SRF Management.

[18] Book of Documents, pages 87, 90, 92 and 94.

[20] Respondent's Outline of Submissions, filed 15 April 2025, paragraph 22.

[25] Applicant's Outline of Submissions, dated 26 March 2025, paragraph 44.

[26] Applicant's Outline of Submissions, dated 26 March 2025, paragraph 44.

[31] Applicant's Outline of Submissions, dated 26 March 2025, paragraph 49.

[35] Book of Documents, pages 87 and 88.

[41] Book of Documents, pages 228 and 229.

[47] Respondent's Outline of Submissions, filed 15 April 2025, paragraph 142

[58] Applicant's Outline of Submissions, dated 26 March 2025, paragraph 49.

[65] Book of Documents, pages 73 and 74.

[75] Respondent's Outline of Submissions, filed 15 April 2025, paragraph 62.

[82] Applicant's Outline of Submissions, dated 26 March 2025, paragraph 53.

[85] Freedom of Information email chain between applicant and SA Health, dated December 2024.

[86] Book of Documents, pages 35 and 101.

[105] Book of Documents, pages 247 and 248.

[106] GM v Department of Human Services [2024] SASC 23.

[107] Applicant's Outline of Submissions, dated 26 March 2025, paragraph 49.

[108] Applicant's Outline of Submissions, dated 26 March 2025, paragraph 50.

[109] Applicant's Outline of Submissions, dated 26 March 2025, paragraph 50.

[111] Applicant's Outline of Submissions, dated 26 March 2025, paragraph 73.