Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DBF v Children's Guardian [2018] NSWCATAD 119 Hearing dates: 31 October 2017, 12 and 16 February 2018 Date of orders: 31 May 2018 Decision date: 31 May 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: C Grant, Senior Member E Hayes, General Member Decision: (1) The decision of the Children's Guardian to cancel the DBF's working with children check clearance is affirmed. Catchwords: ADMINISTRATIVE LAW – child protection – working with children check clearance – Applicant operating a family day care service - Allegation against Applicant's husband of physically assaulting a child placed in the service – obligation to act protectively towards children - whether Applicant poses a real and appreciable risk to the safety of children Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Child Protection (Prohibited Employment) Act 1998 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Commission for Children and Young People Act 1998 (NSW) Education and Care Services National Regulations 2006 (NSW). Cases Cited: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BHA v Children's Guardian [2014] NSWCATAD 161 BHA v Children's Guardian [2014] NWCATAD 161 Commission for Children and Young People v FZ [2011] NSWCA 111 BJB v Children's Guardian (No.2) [2014] NSWCATAD 164 BKE v Office of Children's Guardian & Anor [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR CHB v Children's Guardian (2016) NSWCATAD 214 CMA v Children's Guardian (2016) NSWCATAD 264 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V (2002) NSWSC 949 McDonald v Director General of Social Security (1984)1 FCR 354; Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 R v Commission for Children and Young People [2002] NSWlRComm 101 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No.2) (1981) 3 ALD 88 Category: Principal judgment Parties: DBF (Applicant) Children's Guardian (Respondent) Representation: Counsel: M Giacomo (Respondent) Solicitors: Care Legal (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 2017/000129369 Publication restriction: With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings including mandatory reporters or risk of harm reporters is prohibited. This order is made under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. REASONS FOR DECISION Overview 1. The applicant seeks administrative review of a decision of the respondent, the Children's Guardian to cancel her working with children check clearance (Clearance). The applicant is 41 years old and seeks to have her Clearance restored so she can continue working as a registered educator in her Family Day Care Centre. 2. On 28 March 2017, the respondent, through her delegate, determined to cancel the applicant's Clearance, as she was satisfied, after conducting a risk assessment, in accordance with a 14 of the Child Protection (Working with Children) Act 2012 (the Act), that the applicant posed a risk to the safety of children: s 23(1) of the Act. 3. The respondent was required to undertake a risk assessment, because it became aware of an adverse finding by a reporting body against DBF. DBF was a registered educator with a Local Council since July 2014 and had numerous children placed in her care. On 18 July 2016, a four-year-old child was allegedly assaulted by DBF's husband while in the care of DBF. On 3 August 2016, following an investigation, the Council FDC Manager decided to de-register DBF as an educator. This was based on findings by the Council that she had breached a number of regulations governing family day care providers. 4. On 28 April 2017, the applicant lodged this application for external review. 5. There is no dispute that the Tribunal has jurisdiction to review the decision of the respondent that is the subject of this application. The role of the Tribunal in reviewing that decision is to determine the correct and preferable decision having regard to the material before it and the applicable law: see Administrative Decisions Review Act 1997 (NSW), s 63(1). The orders the Tribunal can make on an application for review include an order to affirm the decision of the respondent, or an order to setting aside the decision of the respondent and in substitution thereof making another decision (in this case an order to grant a clearance): see Administrative Decisions Review Act, s 63(3) and the Act, ss 18(2) and (3)]. 6. In this application, the primary issue for the Tribunal to determine whether, as at the date of hearing, the Tribunal can be satisfied the applicant poses a real and appreciable risk to children if she were granted a clearance to work in child related-work: see the Act, s 30(1). 7. The respondent contends that its decision is the correct and preferable decision and should be affirmed. The applicant contends the respondent's decision was not the correct and preferable decision and should be set aside. 8. After consideration of all the evidence and material, the Tribunal has decided to affirm the decision of the Children's Guardian to cancel her Clearance. The reasons are set out below. 9. Due to the sensitive nature of these proceedings the Tribunal has made the order under s 64(1) of the Civil and Administrative Tribunal Act 2013 that the name of the Applicant, her husband, as well as the name of the child who was the subject of the allegation of assault, are not to be published without leave of the Tribunal. To give effect to this order, the pseudonym 'DBF' has been used for the Applicant's name. Applicable Law and Legal Principles 1. The object of the Act is to protect children by not permitting certain persons to engage in child-related work, and by requiring persons engaged in child related work to have working with children check clearances: s 3 of the Act. 2. The paramount consideration is the safety, welfare and well-being of children, in particular, protecting them from child abuse; s 4 of the Act. 3. The Children's Guardian will consider those matters set out in s 15(4) of the Act in making a risk assessment. The Children's Guardian must grant a clearance to a person who is subject to a risk assessment unless the Children's Guardian is satisfied that the person poses a risk to the safety of children; s 18(2) of the Act. 4. A person who has been refused a clearance may apply to the Tribunal for an administrative review of the decision: s 27(1) of the Act. The Applicant must fully disclose to the Tribunal any matters relevant to the application: s 27(4) of the Act. 5. In this administrative review, neither party bears the onus of proof. There is no presumption that DBF poses a risk to the safety of children as would be the case under s 28(7) of the Act if she was a disqualified person. See McDonald v Director General of Social Security (1984)1 FCR 354; 6 ALD 6. Woodward J there observed in relation to the Administrative Appeals Tribunal (at 356-357 (FCR): There is certainly no legal onus of proof arising from the fact that this is an "appeals" tribunal, because the AAT is required, in effect, by s 43 of the AAT Act, to put itself in the position of the administrator in carrying out its review and, in the light of the material before the AAT, (not the material before the administrator, Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577 at 589) make its own decision in place of the administrator's. 1. The burden of proof is the balance of probabilities. The decision of the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 establishes that there is some flexibility of decision making when applying the balance of probabilities test and this principle was affirmed by the High Court in Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 in which the High Court stated that: "the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to prove". 2. An application under s 27 is a merits review and not a review in which the Applicant must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No.2) (1981) 3 ALD 88. 3. The jurisdiction of the Tribunal under s 27 of the Act is protective of children and not punitive of an applicant: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111; R v Commission for Children and Young People [2002] NSWlRComm 101. 4. The issue for this Tribunal as required by s 18(2) of the Act is whether DBF, on the balance of probabilities, poses a risk to the safety of children. Young CJ in Commission for Children and Young People v V (2002) NSWSC 949 considered the test to be applied is: "...whether, in all the circumstances, there is a real and appreciable risk, in the sense of a risk that is greater than the risk of any adult preying on a child. One, however must link the word "risk" with the words that follow, namely, to the safety of children". 1. The Tribunal may not make an order on conditions, whether under ss 27 or 28 of the Act: BJB v Children's Guardian (No. 2) [2014] NSWCATAD 164 2. In determining this application, the Tribunal must first have regard to the factors set out in s 30(1) of the Act. If the Tribunal is considering making an order enabling an Applicant to work with children, the Tribunal must then consider the two-part test set out in s 30(1A) of the Act. Evidence before the Tribunal 1. The Applicant, DBF, filed a bundle of documents including two Statutory Declarations, emails and letters to the Council, FDC visit forms, and several references from parents who enrolled their children in DBF's FDC service. An expert report from Dr Lennings dated 15 July 2017 was filed on behalf of DBF. The solicitor for DBF also filed written submissions. 2. The Respondent, the Children's Guardian, filed a bundle of documents pursuant to s 58 of the Administrative Decisions Review Act 1997 (NSW). Counsel for the Children's Guardian also filed written submissions. 3. The Applicant, with the assistance of a Vietnamese interpreter gave oral evidence and was cross-examined. DBF's husband, also with the assistance of a Vietnamese interpreter, the Council FDC Manager, Ms Sportelli and Dr Lennings gave oral evidence and was cross-examined. Background and Investigations 1. DBF's husband, will be referred to as 'DBD' in these reasons. He is also the Applicant in the matter of DBD v Children's Guardian (2017/129405). As both matters were related it was determined by the Tribunal that they would be heard together. 2. DBF and DBD were both born in Vietnam. She arrived in Australia in 2005 and commenced a relationship with him and they had two children, now aged 8 and 12. English is DBF's second language. 3. In December 2013, DBF obtained a Certificate III in Children's services. On 1 May 2014, she was granted a Clearance. On 3 July 2014, DBF became a registered educator with the Council FDC Unit. From July 2014, DBF commenced her FDC service where children were placed in the service that operated from her premises. 4. DBF was supported by her husband, DBD. He had previously advised the Council that he would be looking after their two young sons on the same premises where DBF took care of the other children in the FDC service. He also had a clearance and was enrolled in an Early Childhood course. The Trigger Incident 1. It is alleged that on 18 July 2016, DBD assaulted a 4-year-old boy (referred to as 'MLT' in these reasons). At the time, MLT was being cared for by DBF as part of her FDC service. It is alleged that DBD assaulted MLT by striking him to the face and causing bruising. 2. The incident was not reported at the time by DBF to Council FDC staff. It came to the attention of the Council when MLT's aunt attended the Council office to report the incident on the following morning. The Council Record of Incident (Document QMF-FDC-227) recorded that the aunt attended the Council office at 11.20am on 19 July 2016. The aunt told the Manager that she had gone to DBF's home to collect MLT at about 3.20 p.m. on the 18 July 2016 and was told by DBF that MLT was sleeping so she left. The aunt told the Council FDC Manager that MLT's mother collected MLT later at 5:00 pm from DBF's premises and she asked DBF about the red mark on his cheek. DBF replied that her husband had "hit him" and it happened at lunchtime as the children had been naughty. 3. The aunt also said that MLT's mother could not attend Council to make the complaint as she was working but she knew the aunt was attending the Council office to make the complaint. MLT's aunt also provided the Council FDC Manager with four photographs taken of MLT after the incident on the 18 July 2016 showing marks on the child's face. The investigation 1. At about 12:00 p.m. on 19 July 2016, the Council FDC Child Development officer attended DBF's residence and took notes of her discussion with DBF. The notes record DBF saying words to the effect: * the child, MLT was in the playroom with DBF's husband. DBF was preparing food in the kitchen. DBD stayed in the room whilst DBF prepared food in the kitchen. * MLT was pulling pieces of a floor puzzle and hitting other children with them. DBD was telling him to stop but MLT would not stop. MLT started to hit DBD. * DBD yelled at MLT and then hit MLT on the left cheek. * no mark was visible on the child. MLT had lunch and went to sleep. MLT slept from 1:00 p.m. until 4:00 p.m. When MLT woke up DBF noticed a red mark on his cheek and she applied an ice-pack. * DBF said to DBD, "Why did you do that? He is only a child". DBD said sorry to DBF and the child. DBD also said to DBF that he did not understand why he could not control himself. * DBF said that she was honest with MLT's mother when she came to collect MLT that afternoon. 1. DBF signed the handwritten notes prepared by Ms Lazare. 2. At 2:15 p.m. on 19 July 2016, DBF was advised by the Council FDC Manager that her day care service would be closed pending an investigation. 3. At 11:27 p.m. on 19 July 2016, DBF emailed FDC Council staff members. The email was entitled 'Incident Report for [MLT] yesterday 18 July 2016'. The email read as follows: "I write this letter to report the incident in our family day care happened on 18/7/16. [MLT] attended our family day care on that date. [MLT] fought with other young and big children in the afternoon of that day, he took the mat and chopsticks to fight with children. At that time, I thought they were joking to each other and I was in the kitchen preparing food for the children and that time my husband sit there to play together. My husband got into the childcare room and asked them stop. However, [MLT] and other children have not stopped fighting and my husband decided to take the chopstick from [MLT] and other children to prevent accident for other kids and the stick and his hand accidently hit [MLT's] cheek. After that, my husband sorry to [MLT] and me. [MLT] still continued to eat and sleep normally. There was no mark on his face when he was eating til 1:00 p.m. he went to sleep. I did not see any marks on his face before [MLT] was sleeping. After [MLT] waked up at 4:00 p.m. I saw the red marks on his face and took the ice bag to cure him. For that incident I have reported to [MLT's] mum when she was there and my husband honestly reported to her without further detail of explanation why this happened and said there was his mistake. I was busy with [MLT] and his mum and other children yesterday 18 July 2016 so I think the good time to make a report today 19 July 2016 but you have come to my business. I have told you story but my talking language is not clear and can make you confused about the details of how and why the incident happened because of accent, shock and sadness. Therefore, please read this email as my official report to you. Please kindly be aware that I always fulfil all my paperwork of childcare on time. As conclusion I would like to inform that my husband has not intended to harm [MLT]. This is an accident and he honestly accepted his responsibility to [MLT's] mother about it. Secondly, [MLT's] health has not been significantly harmed. Thirdly, this unwanted incident has firstly happened in our business during my time of operation. For your consideration further, please be advised that all children's parents have been happy with my family day care and I love children very much as well as all children love me. Please let me to operate business again and I promise I will take all my best to care the children to avoid any incidents in future. Please also give your Incident Report plus with mine to send for insurance company on Thursday or Friday." 1. On 26 July 2016, a meeting was held between FDC Council staff and DBF. One of the staff members was Vietnamese speaking and was used during the interview to assist as an Interpreter. In relation to the allegations DBF said the following words to the effect: 1. "It was an accident… they were hit together, [MLT] hit another small kids, and another kid as well and maybe my husband say stop but he didn't stop, but maybe my husband take the chopstick from him, [MLT] and he said he stab… and he take the chopstick off him and it touch his face." 2. DBF was asked again why it was an accident and she replied: "So my husband say stop and he still doing that, and hit my husband and the child more so he tried to take that away and sound a little bit big voice and he cried, and he vomit…" "When he wake up from very long sleep I saw red marks and ice-pack I put for him." 1. DBF was asked what she told MLT's mother when she came to collect him: "I told mum, [MLT] today he hit another children and hit my husband too, he didn't listen, didn't listen and he fell and he… and my husband take him out and hit face like that (hand gestures) and say sorry to her about that happened. I didn't take care of him good." 1. DBF was asked about what DBD said to MLT's mother and said: "We say sorry both to her about what happened, didn't take care of him well because of my husband didn't do like that maybe another children stay like that, he still take the chopstick and he hit another one and hit my husband. Maybe if the child didn't take care, maybe they can do like that into another children. [MLT] is usually naughty boy and maybe some parent know how he is. He always hits another children, and take something to make another children cry." 1. DBF denied her husband saying that he was out of control. 2. DBF was asked whether she told MLT's mother not to tell anyone and not to make a big deal out of it. DBF denied saying this. 3. DBF agreed that she did not record the incident and did not call anyone from the Council FDC about the incident. DBF did not know why she did not call anyone. 4. In response to questions, DBF was not sure if she saw MLT holding one or two chopsticks at the time of the incident. 5. DBF was asked whether or not she saw MLT get hit. DBF responded: "Yes I didn't see hit because when I come he cried and holding one and has still tried to hit my husband and one small kids. I didn't see anything him smack like that." 1. On 26 July 2016, a meeting was held between Council FDC staff and DBD. In relation to the allegations, DBD answered several questions about what happened. His responses were consistent with the version of events set out in the email from DBF to Council emailed at 11.27pm on 19 July 2016. 2. On 28 July 2018, a meeting was held between MLT's mother and Council FDC staff including a support worker who was also a Vietnamese translator. MLT's mother said the following: 1. her sister collected MLT from DBF's home at 3:20 p.m. on 18 July 2016. Her sister was told by DBF that MLT was sleeping so she went away. 2. at 5:10 p.m. on 18 July 2016, she collected her son from DBF's home. She saw a red mark on his face and asked him what happened. MLT said: "Uncle hit me" and "Uncle whacked me". 1. at 6:00 p.m. on 18 July 2016, she took MLT to a Medical Centre. No doctor was there but the nurse put some ice on his cheek and told her to see the family doctor tomorrow. 2. she attended the family doctor with MLT the following day for treatment. She said, "The doctor say at the moment it did not affect anything but just keep an eye on it because the hand is up here (pointing to left cheek bone) and the finger maybe on the ear (pointing at her left ear). So keep an eye on it." 3. her sister telephoned DBF and DBF said that at the time she was very busy and the children were all hitting one another. The children were running around and not listening and then her husband was stressed and hit MLT. 4. at 7:30 p.m. on 18 July 2016, her sister sent by text to DBF two photographs of MLT's injuries with a message that said, "What happened here?" 5. DBF's whole family then came to her house and explained the same thing. DBD said: "I guess I am stressed too because I have no job and my back is sore and I don't know why I did that. I whacked him". 1. DBF told her that the children were playing 'hit and run'. DBF said that her husband was "out of control and just hit". 2. "When they visited they said they were sorry and that the husband could lose his job. They said that they never hit children but the husband said that when he hits my son he thinks it is his son." 3. DBF and DBD asked her, "Don't make anything big, so I say I don't call the Police". 4. When DBF's family day care was shut down on 19 July 2018 the family including DBD and their two children visited her home and waited outside from 5:00 or 6:00 pm and stayed there until 7:00 p.m. "…I don't want to meet after I call her I said I don't want to see you…" 5. when she collected MLT on 18 July 2016 from DBF's home she wanted to call the Police but she did not because she thought if she called the Police: "Maybe they will arrest him and the children will lose their father and husband, has two sons, because in my country I see plenty childcare hit the children". 1. on the evening of 18 July 2016, MLT woke up at midnight and cried. She said MLT never wakes up at night. MLT said to her that he would not be going to DBF's house anymore because "Uncle hit me". Council Decision 1. On 3 August 2016, DBF was informed by Council FDC Unit that the allegation that MLT was hit on the face by DBD on 18 July 2016 had been sustained. DBF was notified that, as a result of the allegation being sustained, it was determined that she was responsible for a number of breaches of Council policy and procedures, the Education and Care Services National Regulations, and Education and Care Services law, being failures to: 1. provide adequate supervision on 18 July 2016 by allowing an unauthorised person to supervise the children; 2. provide adequate first aid to the child on 18 July 2016; 3. report the incident to Council FDC Unit in accordance with the Council Family Day Care Educators Agreement; 4. complete an Incident Report; 5. remove her husband from the Family Day Care room where the children were present. 1. By letter dated 3 August 2016, DBF was advised that her Family Day Care service had been deregistered. 2. On 8 August 2016, the Council FDC Unit notified the NSW Ombudsman that the Unit had investigated an allegation that DBF's husband had hit a four-year-old child on the face, and that the allegation had been sustained. 3. On or about 15 August 2016, DBF registered with another FDC service ( ABC service) and commenced providing a FDC service from her premises. 4. On 30 August 2016, the Children's Guardian notified DBF that an interim bar was imposed on her clearance and she could no longer work as an educator for the ABC service. 5. On 28 March 2017, the Children's Guardian cancelled DBF's clearance, being satisfied that DBF posed a risk to the safety of children. They concluded: "The notification raises serious concerns about [DBF]'s failure to respond and act appropriately in a situation where a child in her care was physically assaulted by her husband. Information provided by [DBF] indicates an absence of insight into the seriousness of the impact of the abuse on the child and her failure to act protectively." Preliminary issues for determination 1. As DBF was not responsible for the trigger offence, the Tribunal determined that it would be useful to consider the following preliminary issues as they are relevant to whether DBF poses a risk to the safety of children and in addressing the issues set out in s 30(1) of the Act: 1. Did DBD cause the injury to MLT and if so, how was it caused? 2. Did DBF properly supervise MLT at the time of the incident? 3. Did DBF properly report the incident to the approved provider? Factual findings The nature of the injury and did DBD cause the injury and if so, how was it caused? 1. Both DBF and DBD agree that the four photographs in evidence identify the marks to MLT's left cheek after the incident, although they both stated the photographs were 'stronger' than they recall. There was no medical evidence about the injuries available to the Tribunal but the Council FDC Manager, Ms Sportelli told the Tribunal that she viewed the photographs on 19 July 2017 and observed "multiple bruising on the child's face" and acted immediately to investigate the matter. 2. The Tribunal finds that the photographs depicted an injury being redness and marks on the left cheek of MLT. 3. Both DBF and DBD agree that during the incident DBD's hand in some way touched the face of MLT. However, there is a dispute as to how the injury was caused. That is, the force of DBD's action, and whether DBD's action partly or fully caused the injury to MLT. This follows a number of inconsistent statements by DBF about the issue. That is, 1. at about 12pm on 19 July 2016 the Child Development Officer, Ms Lazare attended DBD's residence and took a statement from DBF. She told Ms Lazare that MLT had been hitting other children. DBD told the child to stop. MLT started hitting DBD. DBD yelled at MLT and hit MLT on the left cheek. DBF asked DBD why he did that, as [MLT] is only a child? 2. At 11.27pm on 19 July 2016 and after DBF had been advised her service would be closing, DBF sent an email to the Council staff stating that just before the incident the children were fighting with chopsticks. DBD told them to stop. The children would not stop. DBD decided to take a chopstick from MLT to prevent someone from being hit and the "stick and DBD's hand accidentally hit MLT's cheek". DBF told the Tribunal that she wrote the email in Vietnamese and her husband translated it to English before it was sent. DBF gave a similar statement to the Council staff when they interviewed her on 26 July 2016. 3. In cross examination, DBF denied that DBD had hit MLT. She agreed with her email of 19 July 2016. She also told the Tribunal that it was a 'soft touch, not a hard touch'. 1. The solicitor for DBF submitted that the Tribunal should accept the email written by DBF to Council staff on the evening of 19 July 2016 as to what is likely to have happened. That is, DBD acted protectively in taking the chopstick from MLT but in doing so, either the stick or his hand accidentally touched MLT's cheek. The solicitor submitted that the first statement made by DBD made to Council officer, Ms Lazare should be given little weight as it was made without an independent interpreter. It was also unfair as it was taken from DBF while she was working in her FDC service, caring for children. 2. Counsel for the respondent submitted that the Tribunal should accept the first statement made by DBF to the Council officer, Ms Lazare at 12pm on 19 July 2016 as to what is likely to have happened. That is, that MLT was hitting DBD and would not stop. DBD yelled at him and MLT started to cry and vomited and then DBD hit him on the left cheek. Counsel submitted that this was the most contemporaneous statement made approximately 24 hours after the incident and it was made without the knowledge that her FDC service was at risk of closing. This version is also consistent with the statement made by MLT's mother. She reported to Council staff that DBD had said to her when he visited her home on the evening of 18 July 2016, that he thought he was 'out of control' when he hit MLT. 3. Counsel for the respondent disputed that DBF required an interpreter. Despite English being her second language, she was proficient in English and this was demonstrated by the numerous courses she completed from 2013 relating to childcare and child protection. She was cross examined about how she completed these courses that were all in English. She told the Tribunal that when she did not understand something in English she would ask her husband. However, she agreed that some of the courses and exams she completed without her husband's assistance. Counsel also referred to the monthly meetings she had with her Child Development officer, Ms Lazare at her premises from 4 July 2014 to 27 June 2016. DBF was cross-examined about these meetings and agreed she discussed policies, procedures and any relevant issues with Ms Lazare. She also co-signed a FDC visit form with Ms Lazare that recorded their discussions at each visit. DBF agreed at no time did she request an interpreter during these meetings. She also agreed at no time during the registration process with the Council did she request an interpreter. 4. The Tribunal finds that DBD did hit MLT with some force and caused the injury depicted in the photographs. This is based on the nature and extent of the injury as shown in the photographs with redness and marking on MLT's red cheek. Such an injury is unlikely to be caused by a 'soft touch' as suggested by DBF. It is also based on the statement made by DBF to Ms Lazare at 12pm the following day in which she told Ms Lazare that her husband hit MLT on the left cheek. The Tribunal finds this statement is most likely the accurate statement of what happened. It is the most contemporaneous statement and there is also no reason for DBF to alter or sanitise what happened as she was not aware at that time that her service would be closed. The statement is also corroborated by the statement of MLT's mother who confirmed in a statement to Council that DBD told her that he thought he was 'out of control' when he hit MLT. 5. The Tribunal agrees with the respondent's submissions that DBF was proficient enough in English to accurately understand and respond to Ms Lazare in speaking about the incident on the 19 July 2016. This finding is based on DBF working with Council and operating a Council FDC for two years without the use of an interpreter. It is based on monthly meetings with Ms Lazare conducted in English for two years without any suggestion or request for an interpreter. It is also based on DBF completing numerous courses in English on childcare and child protection over this period, with and without the assistance of her husband. 6. During the course of the interview with Dr Lennings on the 12 July 2017, DBF and DBD suggested that the injury to MLT seen in the photos may have been caused at least in part, by a skin sensitivity due to a pre-existing condition of eczema or that MLT may have scratched himself in his sleep. However, there is no contemporaneous evidence of any such cause and therefore, the Tribunal finds that the contact with DBD's hand caused the injury to MLT's left cheek and there is no basis to find that another cause contributed to the injury. 7. The Tribunal makes no finding that DBD deliberately hit MLT but rather the more likely explanation is that he lost control of himself and it was an instinctive reaction to a likely stressful situation. Did DBF properly supervise the child at the time of the incident? 1. The Council made a finding that DBF failed to adequately supervise the children at the time of the incident. DBF disputed this finding. She said the incident involving MLT and DBD happened very quickly. She was in the kitchen preparing food while her husband was briefly playing with the children and at the same time he was caring for their own children. She stated that Council were aware that her husband would be present as he was a member of the household and caring for their own young children. He also had his own clearance and had enrolled in Early Childhood studies. When the incident occurred, she provided comfort and care to MLT. She could see no visible marks at that time. He went to sleep for three hours and upon him waking, she observed marks on his left cheek and applied an icepack. 2. The Tribunal makes no finding as to whether DBF was properly supervising MLT at the time of the incident. The incident happened very quickly. She was preparing food in the next room and told the Tribunal that she was observing the children. Her husband was in the room with the children and playing with them at the time. Without further evidence, the Tribunal makes no finding in relation to this matter. Did DBF report the incident to the approved provider, the Council? 1. The Council made a finding that DBF failed to properly report the incident involving an injury to a child to the Council. 2. DBF agreed she signed the Council Family Day Care Agreement on the 15 November 2015. The Agreement required her to comply with the obligations imposed on her by the Education and Care Services National Regulations 2006 (NSW). The obligations included the requirement to report the incident to the approved provider by completing an incident report within 24 hours of a child being involved in an incident, injury, trauma or illness. Counsel for the respondent also submitted this finding is supported by the statement MLT's mother made to Council staff that DBF and DBD discouraged her from making a complaint. She claimed they told her, "Don't make anything big, so I say I don't call the Police" 3. On 12 July 2017, DBD was interviewed by Dr Lennings, with the assistance of an interpreter. She told him she had not notified the Council of the incident as she was extremely busy and she had intended to make the notification but as she thought it was a minor issue she was intending to make the notification the following day. DBF gave evidence to the Tribunal that she was not aware of the 24-hour requirement to complete the incident report and only became aware of the requirement after the incident with MLT. She told the Tribunal that she believed her focus should be on the child rather than administrative requirements. She also agreed with Counsel that she and her husband had been unfairly treated by the Council for an administrative breach that was about a failure to complete forms within the prescribed timeline. In her evidence to the Tribunal she denied discouraging the mother to make a complaint or go to the police. 4. DBF stated that her email to the Council staff sent 11.27pm on 19 July 2016 should be taken as her formal notification to the Council of the incident with MLT. 5. The Tribunal finds that DBF failed to properly notify the Council in breach of the Regulations and her explanation in failing to do so was unsatisfactory given the paramount considerations of the safety and protection of children. That is, clearly DBF regarded the matter as serious. She applied an icepack to MLT's cheek at about 4pm following the incident. She received a message from MLT's mother saying "what happened here" attaching the four photographs of MLT's left cheek. DBF and her whole family travelled to MLT's home that same evening to apologise to the family and spent time with them. There is no other reason put forward by DBF as to why she did not notify the Council after the incident on the 18 July 2016 and in the morning of 19 July 2016 other than she was too busy. It is also a proper expectation of the approved provider that educators have the requisite knowledge about the proper procedure for reporting injuries and incidents involving children, particularly when DBF had been operating her service for 2 years. 6. Given DBF's failure to act without a reasonable explanation, the Tribunal could not be confident that Council FDC staff would have been notified of the incident had it not been for the direct complaint made by the Aunt to Council on the following day. 7. DBF's email of 19 July 2016 sent at 11.27pm was not in the proper form and was made after she met with Council staff about the incident and was advised her FDC service would be closing pending an investigation. 8. The evidence is now considered under each of the subheadings of ss 15(4) and 30(1) of the Act. Seriousness of any matters that caused the assessment in relation to the person 1. The assessment was caused by a notification from the Council after they made findings against DBF that she had failed to act protectively and appropriately in a situation where a child in her care had been 'physically assaulted' by her husband on the 18 July 2016. 2. The Tribunal finds that the trigger incident was a serious matter. The Tribunal found that DBD hit MLT's left cheek with some force causing an injury depicted in the photographs, being redness and marks on his left cheek. The mother of MLT, having collected MLT from DBF's home and upon viewing the photographs sent a mobile text on the same day saying, "what happened here". The child did not return to the FDC service the following day. These matters are consistent with the incident being a serious matter. 3. The Tribunal has also found that DBD failed to properly notify the Council of the trigger incident in breach of the Regulations and her explanation in failing to do so was unsatisfactory in the context of the safety and protection of children. The seriousness is also reflected in the fact that a four-year-old child was injured in the incident and was a child in her care at the time of the incident. The period of time since those offences or matters occurred and the conduct of the person since they occurred. 1. The conduct occurred some 2 years ago. a) The age of the person at the time of the offences or matters occurred. 1. DBF was 39 years old at the time of the incident. The age of each victim of any relevant offence or conduct at the time it occurred and any matters relating to the vulnerability of the victim. 1. The child MLT was 4 years old at the time of the incident. He was vulnerable because he was not in the care of his parent or guardian but in the care of DBF and dependent on her. The difference in age between the victim and the person and the relationship (if any) between the victim and the person. 1. DBD was approximately 35 years older than the child at the time of the incident. Whether the person knew, or could reasonably have known, that the victim was a child 1. DBF knew MLT was a child having cared for him in her FDC service. The person's present age 1. The present age of DBF is 41 years old. The seriousness of the person's total criminal record and the conduct of the person since the matters occurred. 1. DBF has no criminal record. There are no previous incidents of misconduct or any other adverse reports. The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition 1. The impact on a child of any repetition of an incident of the same type such as the trigger incident, would be traumatic for a child and could have lasting adverse psychological and emotional effects on the child. 2. Counsel for the respondent submitted there was a likelihood of DBF repeating the same type of conduct in the future. In her submission, the conduct of DBF suggested an unwillingness or inability on her part to act in a manner that was protective towards children where to do so was adverse to her own interests or those of her husband. She referred to following examples where DBF had not acted protectively towards children: * giving inconsistent accounts of the trigger incident, * discouraging MLT's mother to make a complaint, * failing to notify the Council of the injury to MLT within the required time, and * only two weeks after being de-registered as an educator by the Council, she opened another FDC service to operate from her home. 1. DBF filed a report from psychologist, Dr Lennings dated 15 July 2017. He interviewed her with the assistance of a Vietnamese interpreter and made a risk assessment. 2. Dr Lennings told the Tribunal that to some degree a risk assessment for DBF had little utility as DBF had no history of anti-social behaviour, no mental health issues and no other existing stress factors and the trigger incident in question was not a deliberate or intentional act. He stated that in relation to her failures to complete paperwork on time and to allow unauthorised persons to be present at the FDC he opined that there seemed little future risk of such behaviours occurring again. 3. Dr Lennings' report concluded: "The assessment I have undertaken reveals no necessary bar for [DBF] to respond protectively to children, or that she would ever seek to harm children. The question is that in the specific instance where her husband acted to protect one child against the other, was his response disproportionate and did her husband's behaviour constitute child abuse. If the Tribunal accepts [DBD]'s claim that his actions were not child abuse, but protective behaviour and the injury to [MLT] was accidental, then whilst [DBF] has acted in ways that breached her administrative requirements it does not seem that this reflects on [DBF]'s ability to be protective towards children. If the alternate finding is that [DBD] did perpetrate an act of child abuse, then it raises the issue as to sensitivity [DBF] had to her duties to protect a child when a family member was involved. However, even after considering the concern (should a finding of abuse be made) that [DBF] was negligent in appreciating the gravity of the situation because of the role of her husband. [DBF] appears to understand what she must do in the future to protect children. Such an understanding exists despite her continuing to believe that the specific incident remained an accident, and it is hard to see how she would fail to act protectively in any similar event". 1. Counsel for the respondent cross-examined Dr Lennings about whether it would cause him any disquiet or concern if the applicant lacked insight about her misconduct and denied or minimised her misconduct. Dr Lennings stated that these circumstances would warrant a risk assessment but the risk would still be low. He referred to studies about denial and minimisation not being related to risk. The Tribunal may have misunderstood this evidence but it seemed to the Tribunal to be contrary to common sense. That is, a person who lacked insight and denied or minimised their misconduct may present a similar risk of repeating their misconduct compared to another person who displayed insight and acceptance about their misconduct. 2. Dr Lennings was also asked whether he had any concerns about DBF's failure to disclose her de-registration to the new FDC provider when she had applied to become an educator two weeks after de-registration. Dr Lennings speculated that it may show her 'tenaciousness' to set up a new business. He also stated that in his opinion "DBF had learnt her lesson the hard way". Any information given in, or in relation to, the application. 1. DBF filed several personal references from parents who had enrolled their children in DBF's FDC service. They regularly attended her home and were supportive of DBF as their child's educator. They also expressed a willingness to send their children back to her care if she were to become registered again. j1) Any relevant information in relation to the person that was obtained under section 36A 1. There is no such information. Any other matters that the Children's Guardian considers necessary. 1. The respondent referred to the outcome of the police investigation into the allegations against DBD and DBF being that there was insufficient evidence to take criminal action against either of them. Consideration 1. The Tribunal accepts that DBF worked as an educator in her FDC service since June 2014 without any adverse reports, complaints or concerns raised by her FDC provider, the Council. Since 2013, she has completed numerous courses in child protection and early childhood studies including the completion of a child protection awareness training course in September 2016 and completed this course after she was de-registered. In her favour, she has also produced numerous references from parents who have previously used her FDC service and expressed their ongoing support for DBF and a willingness to send their children back to her care if she were to become registered again as an FDC educator. 2. The Tribunal also acknowledges that DBF did not hit the child but it was her husband who hit the child and this trigger incident ultimately caused the Council to act and investigate the matter. 3. However, of concern is the Tribunal finding that DBF failed to report to Council that a child in her care had been injured. Her explanation for this failure was unsatisfactory and did not give the Tribunal comfort that she understood the importance of reporting incidents and injuries involving children. Further, the Tribunal was not confident that DBF would have reported the incident had the matter not been reported to Council by the child's Aunt. 4. In the Tribunal's view, DBF appeared in her evidence to be at times, unresponsive, unclear and confusing. The Tribunal understands these impressions may in part, be explained by English being her second language and also, by her own cultural nuances and interpretations. However, despite these difficulties, it was also clear to the Tribunal that in her statements from the time of being advised that her FDC service would close and in her evidence, she attempted to minimise the trigger incident and absolve herself and her husband from responsibility of what had occurred. 5. DBF's statements about the actions of her husband changed from being inculpatory to exculpatory. At first saying her husband was responsible and that he hit the child on the left cheek. In her subsequent statements, she denied her husband had hit the child and instead, described him as being protective, or the injury being caused by a 'soft touch' of the hand or a chopstick or a skin irritation causing or contributing to the injury. 6. In evidence, DBF described her de-registration as an administration breach and not about the trigger incident where a child was injured. 7. Also of concern was DBF's failure to disclose her de-registration to the new FDC provider service. That is, on 3 August 2016 she was advised by Council that she was being de-registered as an educator following findings by Council that she had breached several regulations in relation to her care and protection of children. About 2 weeks later, she applied to a new service provider to again operate a FDC service from her premises but in the application process and thereafter, DBF did not disclose that she had been de-registered as an educator two weeks before. Her explanation in evidence was that she was not asked and therefore did not disclose. The Tribunal also finds it likely she did not feel the need to disclose as she did not believe she or her husband had done anything wrong. 8. It is possible that the new agency relied on DBF's current Clearance and did not ask the question about previous adverse findings. It is noted that the respondent did not impose an interim bar on DBF's Clearance until 30 August 2016. However, if this is the case then such practice is clearly flawed. The vetting, filtering and auditing processes used by governing agencies to assess applicant educators must always aim for full disclosure and accountability as the best practice for the safety of children. 9. In the context of the paramount considerations, the Tribunal finds her failure to disclose her previous de-registration to a new agency to be a serious matter. That is, she is not exonerated from her obligation to disclose past adverse findings involving children because she was not asked the question or because she believed she had done nothing wrong. Her current response to the Tribunal demonstrates a willingness or capacity on her part to hide matters or not disclose matters to others when to do so, may be contrary to her own interests or those of her husband. This means that, when placed in situations of trust with children, there is a risk she may conceal matters which she perceives to be contrary to her own interests, at the expense or potential expense of the children's interests or safety. 10. The Tribunal has considered very carefully all the factors in favour of DBF, however, on balance, having regard to the paramount consideration being the safety and well-being of children, the Tribunal is not satisfied that these outweigh the real and appreciable risk DBF poses to children that arises from her conduct since the trigger incident. This finding is made on the basis of her failure to report the incident to the Council. It is based on her inability or unwillingness to prioritise child protection matters as demonstrated by her minimisation of the trigger incident and her attempts to absolve herself and her husband from responsibility. This was also demonstrated in her failure to disclose the recent de-registration against her to the new FDC provider service as described above. 11. For these reasons, the Tribunal is satisfied that DBF poses a real and appreciable risk to the safety of children. 12. The Tribunal finds, therefore, that the correct and preferable decision is to affirm the decision of the Children's Guardian to cancel DBF's Clearance. 13. As the Tribunal is not considering making an order enabling DBF to work with children, there is no need to address the requirements of s 30(1A) of the Act. Orders 1. The decision of the Children's Guardian to cancel DBF's working with children check clearance is affirmed. ​ ********** ​ I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 May 2018