CITATION: L & D Woodside v Minister for Community Services [1999] NSWADT 1 DIVISION: Community Services APPLICANT: Dorothy Woodside Lynette Woodside RESPONDENT: Minister for Community Services FILE NUMBER: 249 HEARING DATES: 15/09/97; 19/09/97; 20/11/97; 28/01/98; 29/01/98; 30/01/98 SUBMISSIONS CLOSED: 11/12/98 DATE OF DECISION: 9 February 1999 Nancy Hennessy - Deputy President BEFORE: Lynn Houlahan - Member Clarita Norman - Member PRIMARY LEGISLATION: Children (Care and Protection) Act 1987 APPLICATION: - Application for review of decision to impose conditions on licence for child care service MATTER FOR DECISION: Principal matter Applicant: W K Gilbertson of King Cain, solicitors REPRESENTATION: Respondent: M O'Brien, counsel, instructed by Crown Solicitors Office ORDERS: Minister's decision to impose conditions on licence affirmed. Background to the appeal 1 This is an appeal by Dorothy Woodside and Lynette Woodside against a decision of a delegate of the Director General of the Department of Community Services (the Department) to impose conditions on the licence of Kelso Kindy. Kelso Kindy is a privately owned child care centre which opened in January 1994 and was owned and run at that stage by Delma Field and Lynn Woodside. In July 1995, Dorothy Woodside, Lynn Woodside's sister in law, commenced working at the centre in the office. On 3 October 1995, Dorothy Woodside purchased an interest in the business from Delma Field. From that time Lynn Woodside took over the administration of the centre and Dorothy Woodside worked directly with the children, along with other staff. 2 On 20 February 1996, the Department received a series of "notifications" concerning the conduct of Dorothy Woodside towards the children at the centre. The Department investigated three of these allegations but in each case, abuse was "not substantiated." This means that, in the view of officers of the Department, it would have been extremely difficult, if not impossible, to prove the allegations. However the Department referred the notifications to the Police Child Mistreatment Unit in Bathurst for their consideration pursuant to section 22(7)(b) of the Children (Care and Protection) Act 1987. 3 On 23 April 1996 the Department received a further notification which related to alleged sexual abuse by Dorothy Woodside on a child who attended Kelso Kindy. A Departmental officer, Michael Lynch, investigated and confirmed this allegation. At that time, Ros Mordue from the Department issued a verbal direction to Lynn Woodside that Dorothy Woodside be stood down from her normal duties. The matter was also referred to the police who, after some investigation, decided not to lay any charges. 4 On 4 December, 1996 the police informed the Department that two charges had been laid against Dorothy Woodside in relation to the assault of two children. These charges concerned an incident where Dorothy Woodside was alleged to have thrown a child, T, onto a sofa and another incident where she was alleged to have forced a piece of orange into the mouth of a child, D. Dorothy Woodside pleaded not guilty to these charges. 5 On 13 March 1997 the Department forwarded a "Notice of Intention to impose further condition on Licence" to Lynn and Dorothy Woodside as the licensees of Kelso Kindy. The notice said that the licence would be amended in 28 days to prevent Dorothy Woodside from being at the service when children are present. The reason for the 28 day delay is to give licensees an opportunity to put any arguments to the Department about the conditions before they come into effect. The Department took no further action pending the completion of the police investigation. The appellants gave evidence which criticised the Department's conduct during this period. The issues which arose are discussed at the conclusion of this decision under the heading "Observations and Recommendations". 6 On 12 June 1997, the Local Court found Dorothy Woodside guilty of two counts of common assault against the children T and D. She was placed on a good behaviour bond for a period of 12 months with a recognisance of $1,000.00 in relation to the first charge and a fine of $1,000.00 and an order to pay court costs in relation to the second charge. 7 On 12 August 1997, a delegate of the Minister for Community Services served a notice on Dorothy and Lynette Woodside advising them that their licence had been amended by imposing further conditions effective from 18 August 1997. These conditions were as follows: That Dorothy Woodside absent herself from the service at all times at which children are present. That Dorothy Woodside absent herself from the service half an hour before and half an hour after the hours of operation. 8 The grounds for the imposition of these conditions were that: "It is considered that children attending the service may be exposed to an unacceptable risk of abuse whilst the said Dorothy Woodside is also in attendance at the service." 9 The particulars given were: "It has been confirmed that convictions have been recorded against Ms Dorothy Woodside on 12 June 1997 on two counts of assault." 10 The appellants received that notification on 19 August 1997 and lodged an appeal with the Tribunal on the same day. The hearing took place over six days on 15 and 19 September 1997, 20 November 1997 and 28, 29 and 30 January 1998. Pursuant to s 56 of the Community Services (Complaints, Appeals and Monitoring) Act 1993 the Tribunal, with the consent of both parties, decided that the hearing should be conducted in the absence of the public. Leave was granted to both parties to be represented by a barrister or solicitor. 11 Dorothy Woodside appealed to the District Court against the criminal convictions. The Tribunal agreed not to finalise its reasons until the outcome of that appeal was known. On 27 November 1998, the District Court found the two assault allegations proven beyond reasonable doubt. However, under s 556A of the Crimes Act 1900 (NSW) the Court did not proceed to a conviction but conditionally discharged Dorothy Woodside on a two year good behaviour bond. The Court also ordered that she may not seek employment in the pre-school industry for two years. Issues and legislation 12 Can the Tribunal deal with the appeal? On 1 January 1999, the Community Services Appeals Tribunal (CSAT) was abolished and a new Community Services Division of the Administrative Decisions Tribunal (ADT) was established. The effect of Schedule 5, Clause 14 of the Administrative Decisions Tribunal Act 1997 (ADT Act) is that where a matter has been heard but not determined before the abolition of the CSAT, the persons hearing the matter are to determine the matter sitting as the ADT. But the matter is to be determined under the old legislation, that is, as if the amending legislation had not been enacted (Schedule 5, Clause 19 ADT Act). 13 Under s 40(1)(a) of the Community Services (Complaints, Appeals and Monitoring) Act 1993 (CAMA) a person may make an appeal to the Tribunal "on any ground expressly provided for by the community welfare legislation." The relevant ground in relation to this appeal is specified in section 112(1)(a)(iii) of the Children (Care and Protection) Act 1987, that is "a decision of the Minister or the Director-General, as the case may be to impose a condition on a licence or authority." 14 Lynette and Dorothy Woodside are no longer the licensees of Kelso Kindy. During the course of the hearing the kindergarten was sold. This means that the Department's decision to impose conditions on the licence no longer has any practical significance for either Dorothy or Lynn Woodside. Even so, Dorothy Woodside told the Tribunal that she wanted to continue with the appeal in an effort to clear her name. The Tribunal does have the power to review a decision in these circumstances and given the significant legal and personal issues involved we have decided to do so. (PW Adams Pty Limited v Australian Fisheries Management 39 ALD 339; Re Gowing and Civil Aviation Authority 22 ALD 207.) 15 What is the scope of the Tribunal's powers? The Tribunal has to consider all the material available to it and determine what the correct and preferable decision is. The Tribunal's role is to 'stand in the shoes of the decision maker'. The appellants submitted that because the District Court exercised its discretion under s 556A of the Crimes Act 1900 to decline to convict Dorothy Woodside, the basis for the imposition of the conditions on the licence no longer exists. The Tribunal does not accept this argument. We are not restricted to a consideration of the reasons the Minister gave for imposing the conditions. Our decision must be based on all the relevant evidence including: · evidence about the allegations which were considered by the District Court; · the fact that the District Court found the allegations to be proved; · evidence about the allegations which were not the subject of criminal proceedings including those relating to sexual abuse; and · evidence which was not available to the Department at the time it made its decision. 16 The Tribunal has the same functions as the Minister to impose, revoke or vary any condition of a licence (CAMA s 47(2)). After hearing an appeal the Tribunal may: · affirm the decision appealed against; · vary the decision; · set aside the decision and make a decision in substitution for the decision; or · require the Minister to reconsider the decision in accordance with the directions of the Tribunal. 17 In addition the Tribunal may make recommendations to the Minister. 18 What is the effect of the criminal conviction on the Tribunal's decision? There is no statutory obligation on the Minister to remove a person from contact with children if he or she is found guilty of a criminal offence even if that offence relates to children at the centre. In other words, being convicted of this kind of criminal offence does not automatically disqualify a person from holding a licence or being in direct contact with children. But there are several references to criminal convictions in the Children (Care and Protection) Act 1987 and the Centre Based and Mobile Child Care Services Regulation (No 2) 1996 (the Regulations) which are designed to ensure that people whose criminal record indicates that they would pose an unacceptable risk to children should not work with or continue to work with children. (See, for example, Cl 8, 9, 11, 112(2)(j) and 24(1)(j) of the Regulations.) 19 Does the Tribunal have to accept the findings of the Court? The Local Court and the District Court have found, beyond reasonable doubt, that Dorothy Woodside assaulted two children at the centre. The Court found each element of the offence proven, that is that she: · acted in a hostile manner and without lawful cause · intentionally and without consent · applied force or violence to T as alleged in the first charge and D as alleged in the second charge. 20 The offence does not require proof of actual bodily harm. Despite this finding, the Tribunal does not have to accept the facts on which the convictions were based if material is presented (and accepted) which challenges those facts. Merits review cases at the federal level have held that ". . . where the exercise of the power is not founded on a criminal conviction, then even if the conviction be relevant, a challenge may be made to the essential facts on which it was based." (Saffron v FCT (No 2) (1991) 102 ALR 19; Ridley v Secretary, DSS (1993) 29 ALD 726 at 731). The Tribunal heard from more witnesses and had access to more documents than the Local Court or the District Court. The Tribunal is entitled to take this evidence into account in determining whether or not it agrees with their findings. 21 Findings and standard of proof. Evidence was given of several incidents involving Dorothy Woodside and children at the centre. On the basis of the decision of the Full Court of the Family Court in M v M (In the Marriage of PM and KM (1988) 12 F.L.R 249 at 257) the Tribunal can find in respect of each allegation, that: · the allegation is proved; or · the allegation is not proved; or · there is insufficient evidence to determine whether the allegation is proved or not. 22 In relation to any such finding the appropriate standard of proof is that set out by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336. In that case Dixon J said (at p 362) "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences." 23 What test should be applied to determine whether the conditions should have been imposed on the licence? Once the Tribunal has made its findings of fact, the test to be applied is whether there would have been an "unacceptable risk" of abuse to the children at the centre if Dorothy Woodside had continued to work there. Our task is analogous to the making of a decision as to whether access to a child should take place where there have been allegations of abuse by the parent seeking access. The relevant principles in this situation were enunciated by the High Court In the Marriage of M and M 166 CLR 69. The High Court decided in that case that where an 'unacceptable risk' to the child would exist if an access order was made, then an access order should not be made. 24 The standard of proof for the "unacceptable risk" test is the ordinary civil standard, that is "on the balance of probabilities." (McDonnell v Minister for Community Services & Anor (19.5/97 Admin Law Div, Supreme Court of NSW, unreported, per Windeyer J, p 8.) The evidence 25 Dorothy Woodside's background. Dorothy Woodside gave evidence of her qualifications as a primary school teacher, full time since 1982 . She has worked in one and two teacher schools and other primary schools. She subsequently completed a 30 hour in service course relating to pre-school children. She has not experienced any "problems" until these incidents. She also submitted a number of references from former supervisors and colleagues which attested to her good character. None of this material was challenged by the Department and the Tribunal accepts that Dorothy Woodside was held in high regard in her professional life. In addition, several parents of children at the centre wrote letters supporting her. 26 The sofa incident. The allegation was that on 17 October 1995 Dorothy Woodside picked up a child, T aged 4 years and threw him onto a sofa. This was one of the two allegations of assault found proven by the District Court. 27 Rhonda Martin was employed at the kindergarten as a child care worker from 1994 until 1 March 1996. In her statement to the police dated 23 June, 1996 she said: "In early October, 1995 the centre was to be visited by Terry Neal from the Department of Community Services at Orange for their day care licence. On that day we were all in the one room with the children and Dorothy came in and she saw T aged four years, push another child and Dorothy said to T "We don't do that' or words to that effect. She grabbed him by the shoulder when she said this. T tried to kick her and he started to bawl and scream and Dorothy pushed him backwards with both hands from the shoulders. T became angry and went back at her and Dorothy grabbed him by the ankles and picked him up by the legs and threw him backwards onto a foam couch. T was crying and hysterical at the time. Later that afternoon after Terry Neal had left Dorothy said to me "Just as well DOCs didn't walk in ten minutes earlier otherwise we would not have got our licence." 28 Mrs Martin gave the same version of events to the Local Court and the Tribunal except that in her oral evidence to the Tribunal she said that Dorothy Woodside "picked him up by the ankles and pushed him onto the sofa." In her evidence to the District Court she apparently used the words "flung him around and onto the little sofa bed." 29 Mrs Martin stated that the incident occurred just after rest time which finishes at 1.30 pm in the Koala Room (the room for the younger children). On further questioning she stated that it "would have been around 2.30, I guess about an hour after the children were up and about 15 minutes before Mr Neal arrived." She said she recorded this and other incidents in an exercise book. The Tribunal did not have access to this book as it was with the court documents. She also said she spoke to Lynn Woodside about this and other incidents. 30 The documents obtained by the Tribunal included statements from Meg Jones, a child care worker at the kindergarten from 1994 to December 1995. Unfortunately Ms Jones was not available to give evidence to the Tribunal because she was about to have a baby. She produced a medical certificate to this effect. In these circumstances the respondents sought to rely on the transcript of her evidence in the criminal proceedings in the Local Court. The Tribunal agreed. Ms Jones also gave evidence in the District Court proceedings. 31 In her evidence to the Local Court, Meg Jones said: "She (Mrs Dorothy Woodside) bent down and grabbed him by the ankles which made him fall back as she picked him, he fell back, fell, then fell onto his bottom and then onto his back onto the sofa and started to cry. . . She threw him on the sofa." 32 The substance of this evidence was repeated in the District Court. In particular, Ms Jones told the District Court that "What I saw - she swung around and T . . . she used some force to, like to throw, like she didn't place him onto the sofa she had force with her arms and she threw him onto the small sofa lounge." As to the time when this occurred Ms Jones said that it was in the afternoon "Approximately 2 o'clockish. The children had been up a little while." 33 On being notified of this and other incidents in February 1996, the Department commenced an investigation. T, who was four years old, was interviewed by a Departmental officer on 18 March 1996, some five months after the incident was alleged to have occurred. He said that he could not remember ever having been picked up by the ankles and thrown onto a couch. T's mother told the Department that she had no concerns about the care of T while he attended Kelso Kindy. T has never told her he had been mistreated in any way. 34 Dorothy Woodside, when interviewed by the Department on 20 March 1996, said "I have to tell you that I have never picked up a child and thrown that child onto a bed." Ms Woodside repeated this denial to the Tribunal. The only recollection Dorothy Woodside has of interacting with T on that day was soon after the 1.30 pm session when Meg Jones brought T to the back door of the Kangaroo Room (the room for the older children) for "time out". She recalls talking to him and then returning to her office. Dorothy Woodside also recalls saying to Rhonda Martin at the end of the day when T was yelling and shouting, "I'm glad he wasn't doing that when DOCS was here." 35 Lynne Woodside said in her evidence to the Tribunal that on 17 October she remembers that Dorothy Woodside was with her in the office eating lunch when Dorothy left the office and went to the Kangaroo Room because T was yelling out. She said Dorothy came straight back in after a couple of minutes. Lynn Woodside did not observe any incident involving T on that day. She said that Terry Neal came to the centre at between 2.15 and 2.30. 36 Nicole Clayton worked at the Kelso Kindy for three years until the end of 1997. She said that at 2 pm on 17 October all the children including T were outside. She did not see any incident involving T. She gave evidence to the Tribunal that there was a sofa which had a ripped cover. She said that "when Dorothy bought into the centre in October 1995, it was put up, put on the hot water heater in the little room. It was out of use until the beginning of 1996." She agreed in cross examination that there were two sofas and she didn't know where the other sofa was. 37 Delma Field, a former owner of the centre, gave evidence that the sofa that had been in the Koala Room had been put into a storeroom by the Dorothy Woodside soon after she commenced working there because it was damaged. She also said she had received a phone call from Rhonda Martin on 13 November 1995 during which Rhonda had told her about an incident which had occurred on the day of Terry Neal's visit to the kindergarten. Mrs Field said that Mrs Martin told her that Dorothy Woodside had thrown T onto a stretcher bed. Mrs Field said that she expressed surprise that T had not been injured. Mrs Field suggested that after this conversation Mrs Martin changed her story and said that T had been thrown onto a sofa bed. When this was put to Mrs Martin she agreed that the conversation had taken place but denied that she told Mrs Field that a stretcher was involved. 38 The appellants tendered an Incident/Injury Record for 17 October 1996 (the day Terry Neal visited the centre) which stated that "2 pm: Child V Slipped off bike - knocked scab off old sore TLC cleaned arm - applied non-stick dressing and band-aid. Signed Rhonda Martin." 39 Child D. D, a child with a developmental disability, was nearly 4 years old in December 1995. Dorothy Woodside described D as "very difficult." She said he was at a "much lower developmental stage than the rest of the children" and was "messy with his toileting arrangements" and "frustrated because he couldn't communicate." She said that every time they had food there was an "incident" - spreading food over other children. Sometimes he was aggressively violent. At other times, friendly. He would push the other children who were frightened of him. Dorothy Woodside said that she had experience as a support teacher for children with learning difficulties for one year but she has no specialist training in that area. 40 The orange incident. This was the second of the two allegations found to be proven by the District Court. Rhonda Martin made a statement to the police dated 23 June 1996 which stated, in part, that: "On the 8 December 1995 I saw Dorothy try to force D to eat a piece of orange. D only liked banana and Dorothy stood behind him and pulled his head back against her and forced the fruit into his mouth with her hand. D screamed and gagged and was fighting her and crying and she said 'You will eat this fruit. You will eat this fruit.' D struggled and spat out the fruit." 41 She gave a similar version to the Local Court and to the Tribunal. She told the Tribunal that Dorothy Woodside had one hand on D's forehead. "Dorothy picked up a piece of orange and said, we will eat this fruit and tried to force it down . . . into his mouth. The orange was actually on his face. She said, 'You will eat this orange . . .' her hand was over his mouth. He was coughing, crying." When questioned by the Tribunal Rhonda Martin conceded that she could not be positive that "the orange was on the child's mouth." 42 Meg Jones confirmed in her statement to the police on 23 June 1996, that she saw the same incident. "I also saw Dorothy force a piece of fruit down D's throat. She grabbed D's head and pulled his head back with one hand and forced a piece of orange into his mouth. D screamed and coughed and Dorothy walked away. At the time Rhonda Martin and I were both in the room." In her oral evidence to the Local Court Ms Jones said that ". . . she got a piece of orange and she stuffed it in his mouth and said "you will eat this. . . I looked at Rhonda and I shook my head." Again in the District Court proceedings, Ms Jones said "When I looked over Dorothy was standing behind D and she had a piece of orange and she was putting it in D's mouth and he was crying and screaming and gagging." 43 Dorothy Woodside said in evidence that she recalls the incident. There was a plate of mixed fruit on the table at which D and two other children were sitting. She said Mrs Martin had left the room to talk to Ms Jones. Ms Woodside said she was giving out the drinks when another child called out, "Look at D". "I turned around and D had orange on his hands and orange on his face and orange on the table." Mrs Woodside told the Tribunal that the children stopped talking to see what she would do. "I mean it was a real moment . . every child stopped talking and looked at me . . . I still had three cups in my hand. I walked from the table I was at, changed hands . . . went over to the table and I didn't say anything about him playing with the food, because I didn't feel that was necessary, what I decided to do was to show everybody in the room and D that the purpose of the fruit is to eat it and I picked up a piece of orange and I held it . . if you want to eat some oranges or you want to eat . . . I said . . . if you want to eat, eat it properly. And he went . . . screaming out and shaking his head like this . . put that piece of fruit in the scrap bowl . . another piece of orange and I said the same thing . . . I was reinforcing what I was saying." Then, [Mrs Martin] came through the kitchen door . . . she went back in calling out to Meg that I was choking him or something . . . which was ridiculous because he didn't have any fruit in his mouth at all . . . D was really bewildered at this time because he didn't know what was going to happen . . . he was in a . . . situation . . . " 44 Dorothy Woodside denied that D had fruit in his mouth during the incident. 45 During an interview with Departmental officers on 20 March 1996, Dorothy Woodside said "I could not have forced orange in D's mouth because I had cups in the other hand. Rhonda was supposed to be in the room but had gone into the kitchen where Meg was making herself a cup of coffee. I heard Rhonda say as she went into the kitchen, 'she's trying to choke him' and when they both came out they were saying, 'poor D, let us get the orange off your face.' You could not force D to do anything, he's quite a strong little boy. . . . I did not force orange into D's mouth." 46 Mrs Martin said that in late November or early December 1995 she spoke to Dorothy about the problems at the centre. "She called me into her office one lunch time and she said, 'I believe you are unhappy with the changes that are being made in the centre.' I said, 'I am not unhappy with the changes being made. If I didn't like the changes I would not work here. I am unhappy with the way you are treating the children. I don't like the way the sleep routine has been changed because the children are unsettled and unhappy. I am unhappy with the way you are treating some to the children.' She said, 'Oh yes, the incident with D the other day, you only thought you saw what I did.' I did not say anything because I did not want to get into an argument. She then said, 'If you are ever unhappy with anything I do, I want you to talk to me not anybody else.' I did not reply and left the room." 47 Dorothy Woodside also told Departmental officers on 20 March 1996 that she spoke to Rhonda Martin the week after the "orange incident". In her statement to the Tribunal (undated) Dorothy Woodside said "Our concern at the time was that Rhonda may have been saying things to parents causing them or their children alarm. We wanted her to stop talking outside the centre and tell us about any problems she perceived." 48 When investigating this incident Departmental officers spoke to D's mother who said "D hates oranges, he does not like the texture." D's mother said Dorothy supported her through D's bad behaviours." She gave evidence to the Local Court that "D seems to be quite attached to her (Dorothy Woodside) it seems to be rather a good relationship." In oral evidence to the Tribunal she said that "He seemed to like her. He'd go out there and give her a cuddle." 49 The hand dryer incident. A further allegation made to the Department was that Dorothy Woodside dragged D to the bathroom to wash his hands and forced him to dry them under the electric hand dryer knowing he was petrified of the dryer. In her statement to the police dated 23 June 1996 Rhonda Martin said: "On the 24th November 1995 I recall another incident with child D aged 4 years. D is intellectually delayed and he has a fear of the electric hand dryers in the bathroom. All the staff were aware of this problem. We had an agreement with each other that we would use paper towels rather than frighten him. On this day D did not want to go to the bathroom to wash his hands and Dorothy grabbed him by the hand and dragged him into the bathroom. He was screaming and Dorothy forced his hands under the tap. She stood behind him and held his hands under the tap and then she spun him around to the dryer which was behind her and held his hands under the dryer until they were dry. D was struggling and trying to get away from Dorothy but she held him there." 50 In her oral evidence to the Tribunal Rhonda Martin said that D was petrified of hand dryers and would scream when near them. She said that it was agreed by the staff that they would use paper towel to dry his hands. 51 In Meg Jones' statement of 23 June 1996 she said: "I saw Dorothy, it was . . . towards the end of 1995. It was in the afternoon and she took D to the bathroom and washed his hands and then she took him to the hand dryer. D was screaming and she dragged him to the dryer and held his hands under the dryer. D was screaming at the top of his lungs and Dorothy held his hands under the dryer until they were dry. She held them under the dryer for about 1 minute." 52 The appellants tendered a time sheet which showed that Meg Jones worked from 8.15 to 2.00 pm on 24 November 1995. They tendered another document which was a letter from a prospective employer which requested Ms Jones to attend a job interview at 2.45 pm on that day. 53 In her evidence to the Tribunal Dorothy Woodside said that on this particular day D had squashed banana all over his hands. She told the Tribunal that she said: "Come with me . . I'm not sure . . took him with my hand around his wrist . . hold his hand . . he didn't want to go . . he wasn't resisting . . I took him to the bathroom and he walked with me but he screamed . . . but that wasn't unusual . . . I had one hand around the wrist and one hand on the tap . . . but he washed his hands himself . . . I wanted to get back into the room . . . I put my hand on his shoulder . . under the dryer to start with . . . he put his hands under the dryer . . ." 54 Dorothy Woodside said that she had taken D to the bathroom and used the hand dryer before and to her mind there was no problem. She said that she did not know anything about an agreement between the staff not to use the hand-dryer with D. 55 Lynn Woodside said in oral evidence that she saw D spreading the banana all over the table and she saw Dorothy take him by the wrist but she did not see what happened in the bathroom. Lynn Woodside was not aware that D had any fear of the hand dryer. 56 Nicole Clayton told the Tribunal that "I was not aware nor did I receive any instruction from any member of staff that D was scared of hand dryers." Dianne Sams, a casual employee at the kindergarten from June 95 to February 96 said in her statement dated 31 October 1997, that Meg Jones had told her that: "D is scared of the hand dryers. We let him use paper towels to dry his hands instead of the hand dryers." 57 As part of its investigation of this incident, Departmental officers spoke to D's mother on 18 March 1996. D was not interviewed because of his developmental delay. D's mother said D used to have a fear of hand-dryers, though it was not something that particularly concerned her. When she found out about the incident she said ". . when it came out I remember that he did have a fear of hand dryers at MacDonalds or anywhere. . ." She said that Dorothy Woodside helped her son quite a bit . . . and was supportive of her. 58 Joanne Lavis was employed to assist D one morning a week at the kindergarten from the end of 1995 and during 1996. She said that, "I knew D was not being treated cruelly or threatened in any way. Dorothy was very professional and actually had a very good relationship with D and D had a very positive response to Dorothy and would often be affectionate to Dorothy." In relation to hand washing, she said "you would have to persuade him to come to the washbasin and then you might have to physically do it yourself or you might have to actually grab his hands and do it for him, you couldn't just say D go and wash your hands, because he just wouldn't do it." In relation to hand dryers Ms Lavis never saw D being fearful of the hand dryers, "if anything it was too good, he thought it was a game." Ms Lavis said Dorothy Woodside treated D "firmly . . certainly nothing to be alarmed about." 59 Sexual assault allegations. On 23 April, 1996, the Department received a notification in relation to possible sexual abuse against L, a 4 year old child attending Kelso Kindy. L's mother gave evidence to the Tribunal that sometime around 24 March 1996 L had told her that Dorothy stuck a pin in her. She went to Dr Gilroy and told her what L had said. 60 Dr Gilroy gave evidence that when she interviewed L on 23 April 1996 she seemed relaxed and happy. When asked, L told Dr Gilroy that she liked Kelso Kindy and Dorothy Woodside. She did not disclose any allegation of sexual or other abuse to Dr Gilroy at that time. Dr Gilroy found no physical evidence of sexual assault or interference although she did not examine L internally. L showed no distress when she looked at and touched her genital area. Dr Gilroy produced her notes of a consultation with L's mother on the 23 April 1996. The notes said, "Mother upset - daughter L said that the teacher put something in her according to mother; L didn't want to go to kindy." She also said she had spoken to a locum who had seen L on 12 January 1996. He told her that there was a previous history of L inserting something into her vagina. This was recorded in his notes of that visit. 61 This notification was investigated by Michael Lynch, the Manager of the Parkes Cluster. Mr Lynch interviewed L with her mother present on 2 May 1996 and made a note of that interview soon after it took place. The following is an extract from the notes of that interview: Q: Did something bad happen to you at Kindy? A: Yes. Q: What happened to you? A: Someone put things in my fanny Q: What did they put in your fanny? A: A coin and a pin Q: (showing her a 20c piece )Was it as big as this? A: It was smaller than that Q: What was the pin like? A: It had pink top on it Q: Where is your fanny A: Pointed to her vaginal area and to the crutch of one of the dolls Q: What do you use that for? A: Wee wee Q: Who did this to you? A: Dorothy Q: Where is Dorothy? A: At Kindy Q: How many times did she do this to you A: (holding up two fingers) two times Q: When does she do this to you? A: When she takes me to the toilet. 62 Mr Lynch wrote in his statement to the Tribunal that "After the interview, I prepared a report confirming the allegations of abuse." 63 Cross-examination of Mr Lynch revealed that he believed that "children of that age tell the truth." He did not agree that the question he asked L, "did something bad happen to you at Kindy" could be suggestive of a particular response. Mr Lynch said that L used the word "coin" to describe what Dorothy put in her "fanny". Mr Gilbertson suggested that coin may not be a word that a four year old child would generally use. Mr Lynch did not comment on that suggestion. Mr Lynch agreed that he had not spoken about the incident to L's mother or to the doctor who notified the Department of the incident. He did not check to see if there was any relevant medical history. He did not inspect the kindergarten or speak to anyone else about the allegations before confirming them. 64 On the same day, 2 May 1996 Mr Lynch visited the centre and spoke to Lynn Woodside. Mr Lynch told Ms Woodside that the allegations were confirmed and that they could either go to the Supreme Court or sign a document agreeing that Dorothy no longer work at the Kindy. No such document was ever prepared or signed. 65 The matter was referred to the police who conducted an interview with L in which she made similar disclosures. The police also obtained statements from other people involved including L's mother and Lynn Woodside. The Department asked Dr Michael Ryan to comment on the police statements. In a letter to the Department dated 23 September 1996, he expressed a view, solely on the basis of the paperwork he was given, "that there appears to (be) sufficient concern that Laura has been sexually assaulted while at preschool, whether there is sufficient evidence to prove the case in the criminal court is another story." 66 Dorothy Woodside gave evidence to the Tribunal that the incident referred to by L did not happen. Neither party led any expert evidence about how investigations of alleged sexual abuse involving pre-school children should be conducted. In these circumstances the Tribunal has relied on the literature in this area, and in particular on publications by Margery Kennedy, coordinator of Social Work Services with the Child Protection Team at the Prince of Wales Children's Hospital. In her submission to the Royal Commission into the NSW Police Service, Ms Kennedy emphasised the importance of obtaining a psycho-social and psycho-sexual history about the child and caregivers before any attempt is made to interview the child. She also strongly recommends interviewing everyone involved in the allegation. Ms Kennedy wrote in an article prepared for the Second Multi-Disciplinary Conference for Professionals Working in the Area of Child Abuse, that the Child Protection Team at Prince of Wales Children's Hospital is willing to assist in investigations when the allegation of abuse concerns a child under five years of age. Typically such an assessment will involve a multi-disciplinary team which includes a social worker and a doctor. The social worker will engage the child in three to five sessions. Because the contamination of children's evidence is so common, Ms Kennedy recommends that only the most experienced and professional people should conduct interviews with children. These people understand the dangers of biased, coercive, repetitive or age inappropriate questions. 67 Other incidents. There were several other incidents notified to the Department which were not investigated. The Tribunal decided to include consideration of these incidents in its deliberations because they are part of the overall circumstances and are relevant to whether or not the condition should have been placed on the licence. 68 When asked to describe Dorothy Woodside's day to day treatment of the children Rhonda Martin told the Tribunal that: "Every day children grabbed, squeezed, sat down forcefully . . . I hadn't seen anyone else handle the children in that manner. Children being sat down firmly, being pushed onto beds, being yelled at to "be quiet" and "stop crying" by Dorothy Woodside . . it was more than a raised voice . . every day there was an interaction and I was concerned that her behaviour was harsh and inappropriate." 69 Mrs Martin said she spoke to Lynn Woodside on 13 November 1995 and 8 February 1996 about her concerns. Mrs Martin elaborated on a number of specific incidents in her statement to the police dated 23 June 1996. The details of some of these incidents are as follows: 70 a) "On 13 November 1995 Dorothy was in the big room. It was after rest time and I saw Dorothy grab the arms of three of the children. One was D, T and the other one was a little boy, I can't remember his name. The boys were being rowdy and she grabbed them by both arms and held them in front of her and just squeezed their arms really firmly. D and T cried when she did this. I later had a look at the children's arms and I could see red marks on their arms." 71 Dorothy Woodside told the Tribunal that she did not know anything about this alleged incident. 72 b) "On 16 November 1995 . . . I saw Dorothy squeeze the arms of child A in the same way. She took her by both arms and just held them and squeezed hard. She said 'stop crying, your mother will be here soon.'" 73 Dorothy Woodside said that this incident didn't occur and in any case A was in the older children's room whereas Mrs Martin worked in the other room with the younger children. 74 c) "On 7th December 1995 I saw Dorothy pull K's hair. Dorothy had been brushing it and K went to walk away and Dorothy grabbed her hair and pulled her back saying, 'I haven't finished brushing your hair.' K cried when she pulled her back by the hair." 75 Meg Jones said in her statement to the police that she also saw the same thing happen. Dorothy Woodside said that this incident did not happen. 76 d) "On 23rd January 1996 the centre re-opened and I saw Dorothy squeeze the arm of D for running inside. She took him by both arms and squeezed him. I saw him flinch and say, 'Don't'". 77 The appellants tendered a sign on sheet for the parents which showed that there was no entry for D on that day. 78 e) "The next day the 24 January, I again saw Dorothy grab E by the arms and squeeze again and she then pushed him backwards onto the floor onto his bottom. She yelled at him 'We don't run inside.' E cried when she said this." 79 Dorothy Woodside told the Tribunal "I never pushed E." 80 f) "On 5th February 1996 Dorothy tried to make G put his hat in his locker. He said 'No.' Dorothy yelled at him and squeezed his arms and pushed him to go and get his hat. He cried and she continued to yell at him." 81 Dorothy Woodside told the Tribunal, "It didn't happen." 82 g) "Two days later on 7th February G wouldn't wash his hands and Dorothy grabbed him by the hand and dragged him into the bathroom and forced him to wash his hands. She was very forceful with him and he was screaming and crying. She stood behind him and held his hands under the tap." 83 Dorothy Woodside told the Tribunal that this incident did not happen. 84 h) "On Wednesday, the 22nd February a new child, Z had started and was happy until group time. I left the room for a short time and as I came back Z was being sat firmly on the floor and squeezed on the arms by Dorothy. This child cried for the next hour." 85 The appellants tendered a sign on sheet for 22 February 1996 which does shows that no-one signed the attendance book for Z on that day. 86 Meg Jones also made a statement to the police about some of the same, and other, incidents. For example, she stated that 87 i) "A couple of weeks after Dorothy started she was in my room with T, who was aged 4 years. T was crying and I looked over and saw Dorothy had hold of T's arm and she had hold of it tight. T pulled away and came over to me and she was still crying and said something to me. I looked at her left arm and I saw a red mark above the elbow." Dorothy Woodside told the Tribunal that this incident did not occur. 88 Dianne Sams was employed at Kelso Kindy as an untrained child care assistance from August 1995 to February 1996. She wrote a letter to the Department on 28 February 1996 saying, in part: 89 j) "On Wednesday 7 February 1996 S was playing in the sand pit and she threw sand at another child. The child cried which drew Mrs D Woodside's attention. She grabbed S by the arms and stood her up and spoke to her in a very harsh manner which distressed the child grately (sic)." In oral evidence Ms Sams said "S had flicked sand at another child and the child called out and we went over . . . Dorothy bent down and just pulled her up out of the sand pit and stood her in front of the sand box and told her that you don't flick sand." 90 The appellants tendered a sign on sheet for 7 February which indicated that S was not signed in or out on that date. Ms Sams said, "I may have got my dates mixed up." "I saw the incident, I may have got the date wrong, but I definitely saw the incident." "I was told that that was the child's name. I had never encountered that child before." 91 k) "On Thursday 22 February 1996 it was rest time. D was making a noise. Mrs D Woodside came over and pushed his shoulders onto the bed and crossed his little arms and spoke to him in a very firm and harsh manner." 92 The appellants tendered a sign on sheet for 22 February which showed that D was not signed in or out on that day. Under cross examination Ms Sams agreed that the centre's records indicate she worked only on 7, 19 and 21 February 1996. 93 The Department also received letters from at least five parents who were dissatisfied with Dorothy Woodside's treatment of their child. The appellants submit that "of the statements provided there were only five in number when there were children from over 100 families attending the kindergarten at the time." 94 Other evidence. There was other evidence of a more general nature which provides a fuller picture of Dorothy Woodside and her interactions with the children at the centre. Dorothy Woodside said that when she started at the centre "I was probably still in primary school mode. I was being used as a disciplinarian. I would be stern." She said she had a discussion with Lynn when Lynn told her that she thought she was too much in primary school mode. She said her tone of voice changed at the end of 1995 and in 1996 when she started with 2 year olds. 95 Lynn Woodside was asked by the Department on 12 March 1996 whether there was anything about Dorothy's care of the children that worried her. She replied that, "I did notice Dorothy spoke harshly to the children, but I put it down to her adjustment to looking after littlies instead of primary children." She said in oral evidence that "I noticed that Dorothy spoke quite loudly and sharply to children at times for example, calling sharply 'Don't run.' I spoke to her and told her that her tone of voice was not appropriate for young children." When asked if she thought Dorothy used more force with the children than was necessary, Lynn said "Yes, at times I cringed but I thought that was Dorothy's style - authoritarian. I have seen her put children down . . . stand behind them and push on their shoulders to sit down. If I thought that the children were at risk I would have done something." 96 In Meg Jones' statement of 23 June 1996 she said, "I first noticed that Dorothy was screaming at the children. I could hear her from my room. She would yell at them in a loud voice saying things like 'Sit down. Stop running around. Don't do this. Don't climb on there.' She was yelling at the children all the time and I was concerned and I would go to see what was happening." She also said, "I decided that I could no longer put up with Dorothy's behaviour and I commenced to look for another job. I left the centre in December 1995." 97 In her statement to the police dated 21 June 1996, Nicole Clayton said, "I saw Dorothy speak to the children and stand over them and speak to them in their face, I think it was intimidating for the children." Ms Clayton has subsequently lodged a complaint with the ombudsman's office in relation to this statement which she says is not correct. 98 Paula Daley, a parent of a child at the centre who has qualifications and experience in child care, also gave evidence. She said that she invited Meg Jones, Nicole Clayton and Rhonda Martin to dinner at the end of 1995 to thank them for looking after her son. Rhonda was not able to attend. She said that "Nicole told me that Dorothy pushed and pulled the children. Nicole also said words to the effect of: "Somebody is going to get hurt." Ms Daley understood this to mean that a child might suffer an accidental injury. However Nicole Clayton said in her statement that "In the time that I have worked at the kindergarten I have seen nothing to indicate incidents with children being at risk with Dorothy Woodside. I saw and heard much to indicate that Rhonda Martin disliked Dorothy Woodside and was tyring to undermine Mrs Woodside's position at the Kindergarten. It was a matter of concern and I remember having dinner at one stage with a Paula Daley when I said 'Someone is going to get hurt.' I was at this stage referring to Rhonda Martin's behaviour and actions." 99 Karen Edwards attended as a student at Kelso Kindy from 19 January to 8 March 1996. Her supervisor was Dorothy Woodside. In a statement to Bathurst police dated 24 June 1996 she said, "I noticed Dorothy would speak to the children in a raised voice. In some of the classes I would have the children sit down, I noticed that Dorothy would sit them down, physically by placing her hands on them and pushing them down so that they sat on the floor. . . I drew this to the attention of my supervisor at university as to my concerns about the appropriateness of Dorothy's behaviour towards the children." In her statement to the Tribunal dated 20 November 1997 Ms Edwards said that "I said in my police statement that I saw children pushed but what I meant was put. At the time I saw the Police I was upset in making a Statement and I said words that didn't really say what I really meant." 100 Tracey Simpson, lecturer in Early Childhood Education at Charles Sturt University, Bathurst gave evidence to the Tribunal. She said in her statement dated 18 November 1997 that, "I visited Kelso Kindergarten approximately four times over a six week period commencing in February 1996. I went to the Kindy to observe one of my final semester students, Karen Edwards. During my visits to Kelso Kindy, I observed conduct of Dorothy Woodside which I considered inappropriate for a person working with young children. For example, the tone of voice which Dorothy sometimes used seemed to me to be too harsh for young children. . . I also found some of her physical handling of the children inappropriate. For example she would sometimes put her hands on the children's shoulders to push them to sit down. . . . Based on my observations of Dorothy at Kelso Kindy, I can say that I had concerns that her behaviour was inappropriate towards children of a young age group. However I never observed any conduct of Dorothy's which caused me so much concern as to warrant notifying the Department of Community Services." Ms Simpson confirmed this view in her oral evidence when she said her tone was "harsh and might be appropriate for primary school. . . uncomfortable . . . she used that tone rather than interact with the children . . it was not the kind of relationship I would expect." 101 Motivation of Mrs Martin. The appellants questioned Mrs Martin's credibility by attempting to establish that she was interested in buying into the kindergarten and that she was annoyed when Dorothy Woodside became the owner. Dorothy Woodside agreed in cross-examination that she believes that Mrs Martin had a grudge against her. 102 Rhonda Martin said in evidence that "I had no axe to grind with Lynne or anybody else . . ." She told the Tribunal that when Dorothy Woodside came to the centre we thought "she was the greatest thing that ever came to Kelso Kindy." She denied ever having seriously considered buying into the kindergarten but agreed that she had had a couple of "tongue in cheek" conversations. During one conversation with Lynn Woodside she asked 'What sort of money are we looking at' and she said 'oh about 50' and I said '50 what?' Mrs Martin said "I never went to the bank, I never asked anyone for money and I never seriously considered purchasing the property." 103 John Clayton, Nicole Clayton's father, said in his statement that, "During 1995 Rhonda broached the subject to me on several occasions in relation to going into partnership in the Kelso Kindy Centre because it would be a good investment having Rhonda and my daughter Nicole running the centre. The first occasion would have been in the middle of 1995 and then another occasion that I distinctly remember was when Rhonda, John, my wife and myself were at a dinner in late 1995 at the Panorama Hotel in Durham Street Bathurst. As I was never interested in the business the conversation lapsed due to lack of interest on my behalf." Mr Clayton's oral evidence confirmed the content of this statement. 104 Rhonda Martin's husband, John Martin, gave evidence that his wife had never discussed purchasing the kindergarten with him. He said that "Rhonda came home at one time and told me that the kindergarten was up for sale. She said there were people looking at it but she never suggested she would buy it." Mr Martin did not recall any conversation with Mr Clayton over dinner about purchasing the kindergarten. 105 In her statement of 19 November 1997 Nicole Clayton stated that in 1995 the staff were aware that Mrs Delma Field was seeking to sell her interest in the Kindergarten. Mrs Rhonda Martin was interested in buying the centre and discussed it with me. Amongst other things she said to me on one occasion "I've spoken to Julie-Anne & Charlie Maher." "I've approached the Grabhams but they're not interested. If I am going to buy it I will do it myself." In oral evidence Nicole Clayton said that there was an obvious tension between Rhonda Martin and Dorothy Woodside and that Rhonda wanted to purchase a share of the centre. Discussion of evidence and findings of fact 106 The sofa incident. Rhonda Martin and Meg Jones both said they witnessed this incident. They gave similar, consistent evidence of what happened. Mrs Martin made a note of the incident shortly afterwards and spoke about it to Lynn Woodside. She also rang Delma Field about this and other incidents a few weeks later to ask her what she should do. 107 According to Dorothy Woodside the incident did not occur. Nicole Clayton could not recall any incident of involving T occurring on that day. In support of this the appellants led evidence that the only notable interaction Dorothy Woodside had with T on that day was outside the Kangaroo Room where he had been brought for "time out." The fact that Dorothy Woodside left the office to attend to T in the Kangaroo Room is confirmed by Lynn Woodside's evidence. According to Nicole Clayton and Delma Field, the sofa bed was not in the Koala Room on 17 October 1995. When questioned 5 months later, T could not recall the incident. There was also evidence that the children were outside at 2 pm (injury report involving child V) Mrs Martin had said that the incident occurred at about 2.30 pm. 108 The Tribunal is satisfied that the allegations are proved to the Briginshaw standard. There were two eye witnesses to the incident who have given a consistent version of the event. The Tribunal found Mrs Martin to be a credible witness who did her best to give an honest account of the events she witnessed. She was genuinely upset and concerned by Dorothy Woodside's treatment of the children. Mrs Martin recorded the incident in an exercise book shortly after it occurred and spoke to Lynn Woodside about it. She also rang Delma Field a few weeks later to tell her of her concerns about this and other incidents and to ask for her advice. This behaviour is all consistent with someone who has witnessed an incident which has raised genuine concerns about the welfare of the children. 109 However, there is no doubt that Mrs Martin's motivations in reporting these incidents were influenced to some extent by the deterioration of her relationship with Lynn and Dorothy Woodside towards the end of 1995 and the beginning of 1996. In addition, the evidence establishes that she would have liked to have played a more significant role in the running of the kindergarten. The Tribunal accepts that Mrs Martin did consider the idea of purchasing the kindergarten. She had conversations with Nicole Clayton and her father about it but never approached the bank or raised the possibility with her husband. But the Tribunal does not believe that Mrs Martin concocted the incident with T or any other event out of spite or malice towards Dorothy Woodside. Her behaviour after the event is consistent with her version of what occurred. 110 Although the Tribunal did not have the benefit of hearing evidence directly from Meg Jones the transcript of her evidence in the Local and District Courts corroborates Mrs Martin's account. She expressly said that Dorothy Woodside used force in throwing T onto the sofa. 111 Dorothy Woodside denied the incident occurred and it may be that she has no recollection of it. Generally Dorothy Woodside was very precise and definite about incidents she said had occurred or not occurred, however when her recollection is in direct contradiction to that of Mrs Martin and Mrs Jones, the Tribunal prefers their evidence. 112 The Tribunal finds that the sofa was in the Koala Room at the time of this incident. The evidence that it was not can be explained either by the fact that there were two sofas at the kindergarten or by the fact that the witnesses did not have a precise recollection about when the sofa was moved. The incident occurred on 17 October 1995, just over two weeks after Dorothy Woodside bought into the centre. It may have been put up shortly after this date. 113 Neither of the eye witnesses could recollect the exact time of this incident. Mrs Martin said 2.30 pm and Ms Jones said around 2 pm. The fact that Mrs Martin apparently attended to a child who had fallen off a bike outside at 2 pm does not preclude the incident with T occurring inside after 2 pm. 114 We do not accept Mrs Field's contention that Mrs Martin changed her story from a stretcher to a sofa after speaking with her. Mrs Field may well have gained the impression that Mrs Martin was referring to a stretcher bed without Mrs Martin using those words. 115 When interviewed by the Department, T could not recall ever being thrown onto a sofa bed. Furthermore, T's mother had no complaints about the care T was given at Kelso Kindy. Given that the interview with T occurred some five months after the event was alleged to have occurred, the Tribunal does not attach much weight to this evidence. The Tribunal accepts her evidence of T's mother but she was not at the kindergarten when the alleged event is said to have occurred. 116 The orange incident. There was no dispute that an incident took place, however the main area of conflict is whether Dorothy Woodside forced the orange into D's mouth while saying "you will eat this fruit" or merely held it in front of his mouth while she instructed him on how to eat oranges. The Tribunal prefers the first version for a number of reasons. Firstly, it was witnessed by two people, Mrs Martin and Ms Jones. Secondly, both witnesses reacted instantly to what was happening; Mrs Martin by turning to Ms Jones and saying "she's choking him" and Ms Jones by looking at Rhonda and shaking her head. Mrs Martin also recorded the incident in an exercise book. These factors convince the Tribunal, to the required standard, that some force was involved in putting the orange in D's mouth despite the fact that when questioned by the Tribunal Mrs Martin said that she could not be positive that the orange was on D's mouth. We think this response reflects Mrs Martin's caution in attempting to recollect in detail an event which occurred nearly two years previously. Her immediate response to the incident, the fact that she recorded it in an exercise book and the consistent evidence she gave to the police, the Local Court and the District Court outweigh the significance of this admission. 117 The Tribunal accepts that Dorothy Woodside generally had a good relationship with D as attested to by Joanne Lavis, Nicole Clayton and D's mother. However this does not put into sufficient doubt the allegations that were made by the two eye-witnesses. 118 The hand dryer incident. There is no dispute that Dorothy Woodside sometimes took D to the bathroom to wash and dry his hands and that she did so on 24 November 1995. Rhonda Martin witnessed this incident. Meg Jones also said that she witnessed an incident "towards the end of 1995." The appellants submitted that since D was squashing banana prior to the incident it must have occurred around "fruit time" which was 3 o'clock. The time records at the centre and correspondence from a prospective employer, showed that Meg Jones left at 2 pm on 24 November to attend a job interview. There are at least two possible explanations for this conflict. Either Meg Jones made up the whole story or she is recalling a different incident to the one which occurred on 24 November. Having not had the benefit of seeing Meg Jones give evidence, the Tribunal is not prepared to conclude that she was lying about this incident. Consequently the Tribunal accepts that Meg Jones may not have seen the particular incident referred to and does not rely on her evidence in relation to this allegation. 119 The issue in relation to this incident is whether Dorothy Woodside held D's hands under the dryer knowing that he was fearful of it. Secondly, if she did not know of his fear, did she use unreasonable force to make him wash and dry his hands? The Tribunal accepts that Dorothy Woodside did not know of D's fear of the dryers. There was no evidence that anyone had ever told her of this fear or that it was recorded anywhere in the kindergarten's files. The fact that other staff members and D's mother were aware of the fear does not mean that Dorothy Woodside knew of it. In addition Lynn Woodside said she did not know of D's fear. The Tribunal finds that Dorothy Woodside did use some force to take D to the bathroom, to wash his hands and to dry them under the dryer but that she did not know that D was fearful of the dryer. 120 Sexual assault allegations. Although these allegations were confirmed by the Department after an investigation, the Tribunal was not impressed by the way the Department investigated the matter. The cross examination of Michael Lynch, who conducted the investigation, revealed several weaknesses. 121 Firstly, the notification was confirmed on the basis of one interview with the child. Margery Kennedy's publications highlight the point that all relevant background information should be gathered before an assessment is made. No attempt was made to talk to Dr Gilroy, the person who notified the complaint. The investigation proceeded on the basis that L had disclosed the abuse to Dr Gilroy whereas in fact Dr Gilroy told the Department that L's mother told her that Dorothy stuck a pin in her. L did not tell her anything. The investigation did not include any review of the doctor's notes which would have revealed that there was no physical evidence of interference (although no internal examination was conducted.) The notes, or an interview with Dr Gilroy, would also have revealed that L was not distressed when Dr Gilroy examined her genital area which she said was unusual if the child had been sexually abused. The doctor gave further evidence of a conversation with a locum who had recorded a previous history of L inserting foreign objects into her vagina. The Department made no attempt to interview this doctor or to seek an explanation of this note. 122 The premises at the kindergarten were not inspected, nor was Dorothy Woodside interviewed. According to Margery Kennedy, while it is not necessary to interview the accused in order to form an opinion, such an interview may provide additional relevant information, alternative explanations and insight into the relationship between the child and the accused. 123 In our view, the confirmation of a serious allegation of sexual assault on the basis of a single interview with the child concerned and informal conversations with her mother, was not justifiable. There were numerous other sources of information which should have been investigated before coming to any definite conclusion about these allegations. 124 The police investigation did involve re-interviewing L and obtaining a formal statement from L's mother. While these statements corroborated earlier disclosures, the police made a decision not to prosecute. The Tribunal had no evidence of their reasoning in coming to this decision. In the absence of a thorough assessment of all the circumstances of these allegations, the Tribunal is not convinced that the allegations are proven to the Briginshaw standard. 125 Other incidents. Several incidents were reported by Mrs Martin, Ms Jones and Ms Sams in relation to Dorothy Woodside's interaction with the children. Each incident is denied by Dorothy Woodside. In relation to at least four of these incidents the appellants tendered evidence which supported a finding that the child in question (or the child care worker) was not present on the nominated date. This is explained, in Mrs Sams case, by her saying that she must have got the dates mixed up because she distinctly recalls the incident. 126 In the cases where there was evidence that the child or the staff member was not present on the particular day (incidents d), h), j) and k)) the Tribunal is not satisfied, to the Briginshaw standard that these incidents occurred. But in relation to the other incidents the Tribunal accepts the evidence of Mrs Martin and Ms Jones that these incidents took place as recorded. It may well be that Dorothy Woodside genuinely has no recollection of these incidents, but they were recorded by Mrs Martin and Ms Jones. They are also consistent with the evidence of Lynne Woodside, Karen Edwards, Tracey Simpson. For example Lynne Woodside gave evidence that Dorothy spoke quite loudly and harshly to the children and that she saw her "stand behind them and push on their shoulder to sit down." Tracey Simpson said she observed her using a harsh voice and putting her hands on their shoulders to make them sit down. Karen Edwards also gave evidence to this effect. 127 Dorothy Woodside conceded that she had a stern tone of voice but did not admit that she ever held children forcefully or made them sit down by pushing on their shoulders. The evidence of almost every witness, including her own partner Mrs Lynn Woodside, contradicts these denials. Application of law and decision 128 Having made a number of findings we must now consider whether, on the balance of probabilities, the presence of Mrs Dorothy Woodside posed an unacceptable risk of abuse to the children at the kindergarten. 129 The findings that the Tribunal has made include that Mrs Dorothy Woodside: · threw a child T onto a low sofa; · pushed an orange into the mouth of a child, D; · used force to hold the hands of a child D under a hand-dryer; · engaged in several incidents of squeezing children's arms, some where "red marks" were observed; · pushed various children on the shoulders to make them sit down; · pulled a child, K's hair; and · frequently used a loud and harsh tone of voice. 130 The Tribunal accepts that workers involved with pre-school children need to touch them, for example: to assist them in performing some tasks (such as washing or drying their hands); to restrain them temporarily if they are in danger of hurting themselves or other children; or to comfort them when they are distressed. But there is a point when physical touching becomes a form of punishment or abuse. "Punishment" has been defined as "the use of physical force against a child by an older person in a position of authority or power over the child as a means of punishing the child for unacceptable behaviour" however, "not all uses of physical force qualify as punishment. The intention may be to stop certain behaviour rather than inflict pain." Commonwealth Department of Human Services and Health under the auspices of the National Child Protection Council Discussion Paper Legal and Social Aspects of the Physical Punishment of Children May 1995, p 3, 4) 131 According to the NSW Child Protection Council, the consequences for children of physical punishment are that: · it adversely impacts on the relationship between children and care givers; · it causes pain and humiliation; · it condones violence as an acceptable method of dealing with problems and reinforces stereotypical patterns of femininity and masculinity; · it often escalates in intensity; · it may lead to further unintended injury; and · it may cause permanent physical disability and even kill children. (NSW Child Protection Council, "Physical Punishment of Children" p 2) 132 The Tribunal is satisfied that in the majority of her interactions with children, Dorothy Woodside was not punishing or abusing the children in a way which posed or would pose an unacceptable risk. Speaking in a raised or harsh voice, pushing the children on the shoulders to sit them down and assisting D (and other children) to wash and dry their hands (albeit with some force) do not, in the Tribunal's view, constitute punishment or abuse. The evidence of Tracey Simpson is particularly helpful to the Tribunal. While she observed Dorothy Woodside using an inappropriate tone of voice and pushing the children to make them sit down, she did not consider any of the behaviours to constitute abuse. 133 The Tribunal has found that Dorothy Woodside "squeezed the arms" of several children. This was generally done to stop them from doing something and gain their attention. We are satisfied that in squeezing the children's arms Dorothy Woodside inflicted some temporary pain, as evidenced by the red marks observed by Mrs Martin and Ms Jones. This kind of conduct does, in the Tribunal's view, amount to "punishment", albeit in a mild form. Similarly the findings that Dorothy Woodside pulled K's hair falls into a similar category. Although neither of the parties led any evidence as to the effects of mild punishment of this kind on the children, the Tribunal is satisfied on the basis of the literature that ". . . physical punishment can be physically and emotionally harmful, especially if it is severe, frequent and not accompanied by any explanation. There is no evidence that mild and infrequent physical punishment does any harm, beyond the danger of accidental injury and the possibility of escalation." (Commonwealth Department of Human Services and Health under the auspices of the National Child Protection Council Discussion Paper Legal and Social Aspects of the Physical Punishment of Children May 1995, p 110) 134 For these reasons the Tribunal is satisfied that the conduct of Dorothy Woodside, as described above, while inappropriate for pre-school children, does not place the children at an unacceptable risk of abuse. 135 The Tribunal is more concerned about the two incidents involving T and D which resulted in criminal convictions. These two incidents involved a degree of force which amounts to abuse of these children. In relation to the incident involving T, considerable force was used to throw him onto the couch. Furthermore such an action could easily have led to an accidental injury. In relation to the orange incident, D was "gagging" and "coughing" and would have been humiliated and upset by Dorothy Woodside's actions. 136 While these incidents may not have been typical of the way Dorothy Woodside related to the children, they are enough to pose an unacceptable risk to the children at the centre. Consequently, based on all the evidence, the Tribunal affirms the Department's decision to place the conditions on the licence of Kelso Kindy. Costs. 137 In its written submissions the respondent made an application for costs. Under s 66 of the Community Services (Complaints, Appeals and Monitoring) Act 1993, the Tribunal has the power to award costs. However the normal rule that "costs follow the event" does not apply and it is only in rare circumstances that costs are awarded. The respondent did not put any arguments to the Tribunal as to why an order for costs is justified in the circumstances of this case and is not aware of any such arguments. Consequently there is no order for costs. Observations and Recommendations 138 Appellant's criticisms. The appellants criticised the Department's handling of this matter on a number of counts. Part of the Tribunal's function is to make recommendations to the Department in relation to administration and other matters, which are justified on the basis of the evidence. Each of the appellant's criticisms will be dealt with in turn. 139 Advice to Mrs Martin. The appellant's were critical of the fact that Mrs Martin approached staff and some parents to write to the Department with their complaints. Mrs Martin maintained that Departmental representatives asked her to do this. The Departmental minutes of a conversation with Rhonda Martin, Ros Mordue and Terry Neal (both from the Department) on 5 March 1996 record that "We explained to her that we would need her concerns and those of others put in writing. She was prepared to do this and said she would speak to other staff and parents." Ms Mordue gave evidence that "It wasn't a matter of asking her to do things like that; she actually made a statement that she knew parents who would support her so she initiated that." However Ms Mordue agreed, in hindsight, that Departmental officers should not have encouraged Mrs Martin to approach other parents and staff for letters. 140 On the basis of this evidence, the Tribunal recommends that, in general, notifiers not be encouraged to approach other potential witnesses to furnish statements to the Department. Instead they should be asked to suggest to other people who may have information of value to the Department to contact the Department with that information. In this way the notifier is not compromised in his or her dealings with these people and the Department will benefit from a more objective investigation process. 141 Action taken by the Department subsequent to the notifications. The appellants were highly critical of the action taken by the Department subsequent to the notifications in March 1996. In the letter to the Tribunal enclosing the appeal form, Dorothy Woodside stated that a licence review was conducted by the Department on 31 July, 1996 with full knowledge of the allegations of assault. No conditions were imposed on the licence at that time. On 27 September 1996, Ros Mordue wrote to Lyn Woodside letting her know the outcome of the review conducted on 31 July. There was no mention in that letter of any action that the Department intended to take as a result of the allegations of sexual abuse. On 21 November, 1996 the appellants notified the Director General of the Department that a criminal charge had been made against Dorothy Woodside. The letter was sent to head office in Sydney and the Departmental representatives say that they were never advised of this correspondence. 142 The Department's report to the Tribunal states that they received advice from the police on 4 December 1996 that charges had been laid against Mrs Dorothy Woodside in relation to the allegations of abuse received on 20 February 1996. The report says that: "Following receipt of the information regarding the charges laid against Mrs Woodside, advice was sought from Departmental Legal Officers and on 13 March 1997, a letter indicating "notice of Intention to Impose a Further Condition on Licence" was sent to the co-owners of Kelso Kindy. On 8 August 1997 written confirmation was received from the New South Wales Attorney General's Department that convictions were recorded against Mrs Dorothy Woodside on both counts on 12 June 1997. On 14 August 1997, a letter stating "Notice to Impose Further Conditions on Licence" was posted to the co-owners of Kelso Kindy, Mrs Lynette Woodside and Mrs Dorothy Woodside." 143 On 19 March, 1997 a Notice of Intention to Impose Further Condition on Licence was forwarded to the appellants. On 12 June, 1997 the matter was heard in Bathurst Local Court. On 12 August, 1997 a Notice to Impose Further Conditions on Licence was sent to the appellants. 144 The chronology of events shows that the Department failed to take any action to impose any conditions on the licence following their investigation of the allegations in March 1996. The officers concerned waited until a conviction had been recorded before issuing the final notice. This occurred some 18 months after the Department had investigated the allegations. The appellants submitted that it was inequitable and unjust to impose the condition at that stage. Dorothy Woodside said that she has been working directly with the children throughout this period and that no complaints were received from children or parents during that time. It should be noted, however, that a notification of sexual abuse was made during that time. 145 There is no doubt, on the basis of the evidence, that the Department's decision to impose the conditions on the licence was a result of the criminal convictions. Prior to that time they were apparently satisfied, on the basis of their investigations and inspections, that Dorothy Woodside did not pose an unacceptable risk to the safety or welfare of the children. (However there was disquiet, at least on the part of Ros Mordue, in relation to the allegations of sexual abuse.) Once the Local Court found that Dorothy Woodside assaulted two children at the kindergarten, the Department imposed the conditions on the licence. The Tribunal does not think that the Department can be criticised for taking the action at that stage. While their view had been that there was no unacceptable risk to the children, they were willing to accept the findings of the Court that two children had been assaulted and that, logically, other children were then at risk. It would have been more surprising if they had ignored these findings. 146 Sexual abuse allegations. After the complaint of sexual abuse was received and investigated Ros Mordue instructed Lynn Woodside to suspend Dorothy Woodside. The allegations of sexual abuse were investigated by Michael Lynch and confirmed on 2 May 1996. They were then referred to Bathurst Police Station. Six weeks later, on 5 June 1996, Lynn and Dorothy wrote to the Department advising that no reason had been given for the suspension and that unless a valid reason was given within 7 days, they would revert to their previous staffing arrangements. Margaret King, the Manager of the Bathurst Lithgow Cluster wrote back on 14 June advising that the police are still investigating this matter and saying that "This Department highly recommends to you that Mrs Dorothy Woodside vacate herself from the premises until the investigation has been completed." Dorothy and Lynn Woodside wrote back saying "You give no details of when the investigation is to be completed or why Mrs D Woodside should vacate the premises. . . without detailed information as to the reasons why and for how long we cannot see how we can accept the recommendation." Margaret King then wrote back on 20 June saying that she was unable to provide them with any further information and that the Department was doing all it could to expedite the matter. Mrs Dorothy Woodside returned to work shortly afterwards. 147 Ros Mordue gave evidence that she was concerned that the Department did not prevent Dorothy Woodside from having access to the children for the entire period from 23 April 1996 (when the allegation was made) until August 1997. She sent a memo to the Area Manager, Diana Dalley to this effect on 17 March 1997. Her main concern was that the Department did not act quickly and decisively after confirming the allegation of sexual abuse. Ms Mordue and Ms Ryan, Assistant Manager of Child and Family Services at Bathurst, both gave evidence that they were advised by Legal Branch that they can only recommend that a person undergoing a criminal investigation not have contact with children during that time. 148 Leaving to one side the flaws in the investigation of the sexual abuse allegations, it is clearly undesirable in some cases for a person to continue working in direct contact with children when allegations of sexual abuse against them are being investigated. A Discussion Paper produced by the Legislative Review Unit of the Department entitled "Children's Services: A Legal Framework" states that: "The Act contains no power by which an alleged perpetrator who is a licensee or authorised supervisor or other member of staff can be excluded from a children's service during an investigation into allegations of abuse or neglect." (p 31) This situation has now been rectified by the enactment of s 216 of the Children and Young Persons (Care and Protection) Act 1998 which gives the Director General the power to issue a 28 day exclusion notice if she is of the opinion that the continued presence of the person on the premises would constitute an unacceptable risk to the safety, welfare or well-being of a child or children. (This Act has not yet been proclaimed.) Once an investigation has been completed and the allegation confirmed, there does not appear to be anything in the existing legislation to preclude the Department from imposing conditions on the licence. There was no satisfactory explanation given to the Tribunal as to why this was not done in the circumstances of this case. 149 However, the Tribunal is far more concerned about the conduct of the investigation in relation to the child abuse allegations. To confirm an allegation on the basis of a single interview with a four year old child and informal conversations with her mother, is not best practice. The Tribunal echoes the views of Ms Kennedy expressed in her submission to the Police Royal Commission, that "accurate assessment of child sexual abuse complaints is a matter of great importance in that there are serious consequences for children, their families, the professional community and the public when assessments are poorly handled or misdiagnosed." In addition, the practice of the Department in seeking an opinion "on the papers" from doctors such as Michael Ryan, is not very useful and may be counter productive if definitive views are given based on scant information and no first hand involvement with the case. In such a critical area it is important to obtain opinions from those who have been able to undertake an assessment as part of a team, having seen the parties and reviewed all the evidence in consultation with other team members. 150 Referral to police of incident involving children T and D. The appellants were critical of the fact that the incident involving the children T and D, while not substantiated by Department, was nevertheless referred to police. Ms Ryan told the Tribunal that where allegations are not confirmed they are not sent to the police whereas where they are confirmed, they are automatically reported to the police. No-one who gave evidence on behalf of the Department could explain why these allegations were referred to the police in this particular case. In general, if a comprehensive and thorough investigation is carried out and the allegations are not confirmed, the matter should not be sent to the police, despite the fact that there is a discretion to do so under section 22(7)(b) of the Children (Care and Protection) Act 1983. The Department's decision to refer the matter in this case remains a mystery. I HEREBY CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF THE ADMINISTRATIVE DECISIONS TRIBUNAL. REGISTRAR DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.