DVI v Children's Guardian

[2020] NSWCATAD 150

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DVI v Children’s Guardian [2020] NSWCATAD 150
Hearing dates:	24 – 25 February 2020
Date of orders:	11 June 2020
Decision date:	11 June 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C A Mulvey, Senior Member E Hayes, General Member
Decision:	(1)   Leave is granted for the filing of the application to 24 April 2019. (2)   The decision of the Children’s Guardian dated 18 March 2019 cancelling the applicant’s working with children check clearance is set aside. (3)   In substitution thereof, the respondent is to issue a WWCCC to DVI forthwith.
Catchwords:	ADMINISTRATIVE LAW – review under section 27 Child Protection (Working with Children) Act 2012 (NSW) child protection – working with children – risk to children whether risk real and appreciable – would a reasonable person allow unsupervised access to their own child in context of child related work
Legislation Cited:	Administrative Decisions Review Act 1997(NSW) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing) Procedure Act (NSW) 1999 Evidence Act 1995 (NSW) Working with Children Act 2005 (Vic)
Cases Cited:	AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BJB v Office of the Children's Guardian [2014] NSWCATAD 111 BKE v Office of the Children’s Guardian [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Children’s Guardian v CFW [2016] NSWSC 1406 Children’s Guardian v CKF [2017] NSWSC 893 Children’s Guardian v CXZ [2019] NSWSC 1083 CKF v Children’s Guardian [2017] NSWCATD 6 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v [2002] NSWSC 949; 56 NSWLR 476 CTM v Children’s Guardian [2016] NSWCATAD 280 CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 DAR v Children’s Guardian [2018] NSWSC 942 Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577 McDonald v Director General of Social Security (1984)1 FCR 354; 6 ALD 6 M v M [1988] HCA 68; 166 CLR 69 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] NSWIRComm 101 R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88. Smith v Commissioner of Police [2014] NSWCATAD 184 Tilley v Children’s Guardian [2017] NSWCA 174 ZZ v Secretary of the Department of Justice [2013] VSC 267
Category:	Principal judgment
Parties:	DVI (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: V Hartstein (Respondent)   Solicitors: Applicant (Self Representred) Crown Solicitor (Respondent)
File Number(s):	2019/00127341
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, her victims or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR DECISION

Introduction

1. The applicant seeks administrative review of a decision of the respondent cancelling her Working with Children Check Clearance (WWCCC), in that the respondent (the Office of the Children’s Guardian) following a risk assessment, formed the view that the applicant poses a real and appreciable risk to the safety of children and young persons.

2. The applicant is referred to as "DVI". DVI is the applicant's pseudonym used in these proceedings in conformity an order made pursuant to s64(1)(a) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act).

3. On 5 November 2015, DVI was granted a WWCCC under the Child Protection (Working with Children) Act 2012 (the Act). On 27 November 2017, the respondent was notified by the Department of Family and Community Services (“FACS”) (as it then was) that the applicant had been identified as a person causing harm to her ex-partner’s biological son (child A) in August 2017.

4. On 22 May 2018, the respondent notified DVI that an interim bar was being placed on her WWCCC and that the respondent was conducting a risk assessment in relation to the FACS notification.

5. On 19 February 2019, the respondent sent to DVI a Notice of Proposed Cancellation of WWCCC and invited DVI to provide further information which may be relevant to the risk assessment. Following this process, the respondent informed DVI on 18 March 2019, that having formed the view that DVI posed a real and appreciable risk to the safety of children her WWCCC was cancelled under s.23 of the Act.

6. On 24 April 2019, DVI made an application in this Tribunal for a review of the respondent’s decision to cancel her WWCCC .

7. DVI relies on her evidence which explains the circumstances pertaining to each of the allegations considered by the respondent in coming to the determination to cancel her WWCCC.

8. The issue for us to determine is whether, as at the date of hearing, we can be satisfied DVI poses a real and appreciable risk to the safety of children and whether we should grant her a WWCCC, or, affirm the decision of the respondent made on 18 March 2019.

9. After consideration of all the evidence, we decided to set aside the decision of the Children’s Guardian to refuse DVI a WWCCC and in substitution thereof, order that DVI be issue her a WWCCC. The reasons are set out below.

Jurisdiction of the Tribunal

10. There is no dispute that we have jurisdiction to review the decision of the respondent that is the subject of this application. In reviewing that decision we must determine the correct and preferable decision having regard to the material before us and the applicable law: see Administrative Decisions Review Act 1997 (NSW), s 63(1). Upon determining an application for review we may make orders that include an order to affirm the decision of the respondent, or an order to set 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).

Relevant Law and Legal principals

11. The jurisdiction of the Tribunal under Part 4 of Act is protective and not punitive in nature as set out by the Court when considering s 28 of that Act: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 at [34]; Commissioner for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]; R v Commission for Children and Young People [2002] NSWlRComm 101.

12. The purpose underlying the analysis of the evidence is to achieve that protective goal: see ss 3 and 4 of the Act.

“3 Object of Act

The object of this Act is to protect children:

(a)   by not permitting certain persons to engage in child-related work, and

(b)   by requiring persons engaged in child-related work to have working with children check clearances.

4 Safety, welfare and well-being of children to be paramount consideration

The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act.”

13. “Children” is defined under section 5(1) of the Act to mean “persons under the age of 18 years”.

14. When conducting a risk assessment, the respondent will consider the matters set out in s 15(4) of the Act. Section 18(2) of the Act requires the respondent to grant a WWCCC if the respondent is satisfied that the person does not pose a risk to the safety of children. However, where the respondent following a risk assessment is not so satisfied, the application for a WWCCC is to be refused or cancelled.

15. Section 5B of the Act defines risk to the safety of children as being “a real and appreciable risk to the safety of children”.

16. A person who has had a WWCCC cancelled, may apply to the Tribunal for administrative review of the decision: s.27 of the Act.

17. Section 27(2) provides:

“27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions

…

(2) A person whose clearance is cancelled by the Children's Guardian under section 23 may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person….”

18. The Notice of cancelling DVI’s WWCCC was issued on 18 March 2019. DVI’s application for administrative review was filed on 24 April 2019 which means it was filed out of time. This was not put at issue during the hearing. In the circumstances, we grant leave for the late filing of the application to 24 April 2019.

19. DVI must fully disclose to the Tribunal any matters relevant to the application; s 27(4) of the Act.

20. In this administrative review, neither party bears the onus of proof. There is no presumption that DVI 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.’

21. The burden of proof is the balance of probabilities test. 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”.

22. An application under s.27 of the Act is a merits review and not a review in which DVI must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No.2) (1981) 3 ALD 88.

23. The issue for us as required by s 18(2) of the Act is whether DVI, 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”.

24. As set out in paragraph 15 above, s 5B of the Act enshrines a definition of “risk to the safety of children” in similar terms to Young J in V.

25. In determining whether DVI does pose a risk to the safety of children, it is accepted that the risk must be a real and appreciable risk: see BYR v Children’s Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was); BKE v Office of the Children’s Guardian[2015] NSWSC 523 per Beech-Jones J esp at [26], [27].

26. In exercising our protective jurisdiction and considering the paramount principle in section 4 of the Act, the Tribunal in carrying out an assessment of whether DVI is a real and appreciable risk to the safety of children should err on the side of caution if there is a deficiency in information, or, if there is doubt created by the available material (BFB v Office of the Children’s Guardian [2014] NSWCATAD 111 at [119].

27. In BKE v Office of the Children’s Guardian [2015] NSWSC 523, her Honour Justice Beech-Jones referred to the issue of risk in the context of an application under section 28 of the Act as follows at [29], and [31]-[33]:

[29]   InCommissioner for Children and Young People v FZ [2001] NSWCA 111, Young JA (with whom Hodgson JA and Handley AJA agreed) expressed some concern about the reference toBriginshaw v Briginshaw [1938] HCA 34;  60 CLR 336 (“Briginshaw”) in the above passage fromIK(at [68]). I share her Honour’s misgivings.Briginshawwarns about the use of “inexact proofs” in the context of making serious findings of fact (at p 362 per Dixon J). It is difficult to envisage how it applies to a party seeking to disprove a negative assessment of the risk they pose to children in the future. Further, the principles inBriginshawwere enunciated in the context of civil proceedings in a court, not administrative review proceedings in a body that is not required to apply the rules of evidence (CAT Act, s 38(2); see [63]). It is not necessary to decide whether a failure by NCAT to have regard toBriginshaw’sadmonitions might give rise to an appeal on a “question of law”. It suffices to state that NCAT would be well advised to have regard to them if it was considering making a positive finding that an applicant sexually abused a child in circumstances where they were not convicted of doing so (seeR v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30;  50 CLR 228 at p 256 per Evatt J).

...

[31]   InM v Mthe High Court accepted that a positive finding that an allegation of sexual abuse is true should not be made “unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned inBriginshaw” (M v Mat p 76). The Court also stated (at p 77 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ):

“It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated inBriginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.

No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.”

[32]   The Court held that the relevant test was that access to a child by a parent will be denied if there exists “an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access” (M v Mat p 78).

[33]   The above passage fromM v Mcontemplates a court finding that a risk of abuse exists but that the possibility of it materialising can be mitigated by measures such as supervised access, with the result that the risk is not unacceptable and the parent is not denied access. As I have observed no such mechanism is proffered by theWorking with Children Act. It is not concerned with “unacceptable risks” but “real and appreciable” risks (Vsupra). Further, in cases such as this the onus is upon the plaintiff. However subject to those two matters and the caveat about the applicability ofBriginshawnoted in [29], the reasoning inM v Mis applicable to fact finding and the process of risk assessment that NCAT undertakes. Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.

28. For clarity the Court in M v M accepted that a positive finding that an allegation of sexual abuse is true should not be made ‘unless the Court is so satisfied according to the civil standard of proof, with regard to the factors mentioned in Briginshaw’ (M v M at page 76).

29. It is well established that a three step approach to assessing a risk under the Act has been endorsed by the High Court in M v M requiring the Tribunal to first decide whether or not it is satisfied on the balance of probabilities that an allegation is true (and, if it is so satisfied, then it proceeds to determine the case on the basis that it is true) or, if not, whether or not it has ‘no hesitation in rejecting the allegation is groundless’ (in which case it proceeds to determine the case on the basis that the allegation is untrue), Children’s Guardian v CFW (2016) NSWSC 1406 (at [14]).

30. The third step requires the Tribunal in reaching neither of the satisfactions set out above with respect to an allegation, is still obliged to consider questions of risk that may be indicated by all the facts, CFW at [15]. All the facts include the fact that an allegation has been made and facts relevant to assessing the weight of the allegation. Even if an allegation, or set of allegations, is not proven on the balance of probabilities, if ‘a lingering doubt or suspicion remains’ then this should count against the applicant, CFW at [16]. This has been taken to mean that if it is proven to an extent sufficient to give rise to a sufficiently large concern about the consequences if the allegation or set of allegations is true then a risk within the meaning of the Act will exist and the application for a clearance should be refused.

31. In Children’s Guardian v CKF (2017) NSWSC 893, Justice Davies agreed that the correct approach to risk is outlined by the High Court in M v M and the discussion referred to by Justice Beech-Jones extracted above.

32. In Office of the Children’s Guardian v CFW (2016) NSWSC 1406, Justice Harrison discussed how the Tribunal could consider events when the Tribunal had a lingering doubt or where suspicion remained. Justice Davies accepted there was a three step process and the only point of departure was whether doubt ‘counts against the defendant or is … simply a matter to be considered’.

28. The New South Wales Court of Appeal in Tilley v Children’s Guardian (2017) NSWCA 174 considered that a number of similar allegations, in different locations, and from apparently entirely independent complainants is material upon which the Children’s Guardian and the Tribunal are entitled to act, or more practically, may lend some weight to other risk factors.

29. We may not make an order on conditions, whether under s 27 or 28 of the Act: BJB v Children’s Guardian (No. 2) [2014] NSWCATAD 164.

30. In determining this review application, we must first have regard to the factors set out in s 30 of the Act. Those matters are:

30 Determination of applications and other matters

(1)   The Tribunal must consider the following in determining an application under this Part:

(a)   the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,

(b)   the period of time since those offences or matters occurred and the conduct of the person since they occurred,

(c)   the age of the person at the time the offences or matters occurred,

(d)   the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,

(e)   the difference in age between the victim and the person and the relationship (if any) between the victim and the person,

(f)   whether the person knew, or could reasonably have known, that the victim was a child,

(g)   the person’s present age,

(h)   the seriousness of the person’s total criminal record and the conduct of the person since the offences occurred,

(i)   the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition,

(i1)   any order of a court or tribunal that is in force in relation to the person,

(j)   any information given by the applicant in, or in relation to, the application,

(j1)   any relevant information in relation to the person that was obtained in accordance with section 36A,

(k)   any other matters that the Children’s Guardian considers necessary.

(1A)   The Tribunal may not make an order under this Part which has the effect of enabling a person (the "affected person") to work with children in accordance with this Act unless the Tribunal is satisfied that: 

(a)   a reasonable person would allow her or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and 

(b)   it is in the public interest to make the order.

(2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children’s Guardian under this Act relating to the applicant pending the determination of the matter.

36. In CTM v Children’s Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme (Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was considered by the Victorian Supreme Court in ZZ v Secretary, Department of Justice [2013] VSC 267, where it was held that the matters, as prescribed in s 30(1A), only need to be considered once the risk factors in s 30(1) have been considered and a determination is made in regard to risk.

Evidence

Documents

37. DVI filed the following written material:

• Application form 24 April 2019 (A1)

• Bundle filed 29.7.19 (A2)

• Statement CWB filed 16 August 2019 (A3)

• Statement DVI filed 16 August 2019 (A4)

• Bundle filed 23 January 2020 (A5)

• USB (A6)

• Annexures to written submission ‘ABC’ (A7)

38. The respondent filed the following written material

• Bundle 58 documents – 3 July 2019 (R1)

39. DVI was not represented. Her mother assisted DVI in the hearing as her agent absent objection. The respondent was represented by Counsel.

40. During the hearing, DVI gave oral evidence and was cross-examined by counsel for the respondent. DVI called a number of witnesses who were also cross-examined. Written submissions were relied upon by both DVI and the respondent. DVI and counsel for the respondent made final submissions.

The allegations which found the respondents decision to cancel DVI’s WWCCC.

41. DVI met the mother of child A in late 2015. To ensure the protection of people’s identity we have used a pseudonym and referred to the mother of child A as CWB.

42. When DVI met CWB she had two children, child A and child B, both of whom had been removed from her care due to her ex-partner’s violence. CWB was pregnant with her third child, child C. She had separated from her ex-partner. DVI and CWB formed a friendship and in November 2016 they moved into a four bedroom home located in western New South Wales. DVI and CWB were jointly named on a Lease Agreement. CWB continued to have contact visits with her two children, child A and child B. When born, child C resided with both DVI and CWB.

43. On 24 May 2017, child A and child B were restored to CWB’s care, having both been in foster care for 18 months.

44. On 11 August 2017, child A was attending a childcare centre during the day. Whilst changing child A’s nappy, staff at the childcare centre discovered scratches to his pubic bone and the base of his genitals, as well as bruising all over his penis and on the inside of his thigh. The child’s injuries were reported to the NSW Police Force and FACS.

45. It is these allegations which caused the respondent to cancel DVI’s WWCCC.

The alleged 11 August 2017 incident

46. A contact record of FACS called a risk of serious harm report (ROSH report) is referred to by the respondent [Exhibit R1, pages 138 to 150]. The record details a telephone call which was made to FACS on 11 August 2017. A person reported to FACS the following:

‘Caller stated child A has injuries. Caller stated that they have photographs. Caller stated they saw scratches to child A’s pubic bone and base of his genitals. Caller saw a lot of bruising to the same area, all over his penis, on the inside of the left thigh they saw almost a thumb print, a round bruise and a thumb print shaped bruise to the right side of child A’s penis. Caller stated the bruising goes all the way down to where the penis joins the pubic area.’

47. The note goes on to record [Exhibit R1, page 142]:

‘Caller stated the mother has said that in the past [child B] attacks child A and scratches him. Caller stated they have never seen any actions like this from [child B]. Caller stated she is quite withdrawn. (Deleted) disclosed this about a fortnight ago. (Deleted) has to lock Child A in his room every night to prevent [child B] attacking him.’ [Our emphasis]

48. The ROSH report details the caller’s view as to who allegedly perpetrated the assault [Exhibit R1, page 141 and page 142] as follows:

‘Caller is reporting that child A has disclosed that DVI has sexually abused him.

Caller stated that child A said ‘[anonymised] (caller thinks he meant DVI) hurt me’. Do you mean (deleted), child A said ‘No, mummy’s friend [anonymised].’

Caller stated they were informed by (deleted) was interviewed by case workers and (deleted) disclosed that the bruising to child A was caused by DVI.’

49. Child A’s injuries were reported to the NSW Police Force on 11 August 2017. In a COPS Report of that same date [Exhibit R1, page 629] the following is recorded:

‘… on Friday 11 August 2017, about 11.00 a.m. when he was having a nappy change, staff noticed that there was bruising and scratches to his genital area, (deleted) the child was taken to [deleted] Hospital to be examined. Dr ….. the Paediatrician at [deleted] Hospital stated that the injuries were significant and unexplained, as a result of this FACS assumed care of … and … FACS have a parenting order in relation to … and his sister (4 year old female) … (DOB …), and they have had it for nearly 3 years, and children have only been returned to their mother … (DOB ...) in the last few months. (Mother) … (deleted) is in a domestic relationship with DVI (37 years) … (deleted) and she has been for over a year.

…

During the interview with (2 year old male) … he identified his penis and his pee pee and that wee came out of it, he also disclosed that his pee pee was sore and said (DVI) when he was pointed to his penis, he did this on two occasions during the interview.’

50. On 17 August 2017 the examining Paediatrician made the following findings [Exhibit R1, pages 149 and 165]:

‘Child A presents with unexplained marks on and around penis with scratches on buttocks. The marks on the penis were non-tender. They appear to be bruises. Those on the shaft are approximately opposed, raising the possibility of a pinching issue. The perianal region looks congested and mildly erythematous, with no obvious trauma. These do not [sic] to be injuries (on the penis) which could happen by accident and remain unexplained.’ [our emphasis]

51. During the interview with case workers child B said that DVI and her mother yelled and hit each other [Exhibit R1, page 148].

52. On 5 October 2017 a second opinion was obtained by a Consultant Paediatrician at the Sydney Children’s Hospital Randwick [Exhibit R1, pages 326 to 329]. The Paediatrician was asked to provide an opinion on photographs of the injuries to child A as reported and a summary of the background provided to the expert. The Paediatrician did not examine child A and relied solely upon the history provided by FACS together with photographs. This is a significant factor for the reasons set out below.

53. The history relied upon by the Consultant Paediatrician was:

‘The history, in brief, is that of a 2 year old boy who presented to ED in [deleted] with bruising to the genitalia. He had gone to (deleted) the bruising was noticed around midday (deleted). He had been seen a week before at (deleted) with no injuries. (deleted) and he was then brought to ED to be seen for a medical examination.

He lives at home with his mother (deleted) and mother’s partner [DVI] and his two sisters (deleted) and child B (deleted).

(deleted) and [DVI] allege that the four year old sibling (deleted) [child B] has injured him in the middle of the night. There are reports of her exhibiting sexualised behaviour. There are no reports of child A waking up or wetting the bed or screaming and crying in the middle of the night. The bruising is in a sensitive area and I would expect the injury to be painful at the time. He is wearing nappies and is not yet toilet trained.

When Community Services asked him a direct question of who had hurt him he said [anonymised]. When the emergency doctor in [deleted] verified with him whether he meant [anonymised] (his sister) or [‘DVI’], his mum’s partner, he seemed to indicate [‘DVI’].

When he was examined on 11 August 2017 he was brought into hospital with his older sister and they were seen to be playing together.’ [our emphasis]

54. We note the expert placed limitations in providing his opinion including, the quality of the images - some are blurred and out of focus, child A was not examined and therefore the subtle signs of injury interpretation may be lost, such as whether the skin is broken or if there are subtle swelling. There was no colour chart or measurement scale present and the expert did not take the history from child A’s carers (DVI and CWB) and therefore subtle factors of the history will be lost. These limitations are significant for the reasons which are set out below.

55. The Consultant Paediatrician examined the photographs taken in July 2017 and August 2017. A summary of the injuries referred to in the report include:

• Petechial bruising to the pinna of the right ear in July 2017.

• Bruising to the glans and shaft and base of the penis as well as the public region in July 2017.

• Bruising to the shaft of the penis and abrasions to the pubic area in August 2017.

• Scratch abrasions to the head and face in August 2017.

56. The following opinion is provided:

‘Bruising to the Pinna

There are petechial in the scaphoid area of the ear. Petechiae and bruising to the ear are highly suggestive of inflicted injury, it is highly unlikely to be accidental. It is often caused by a blow to the head or the ear being pinched between two fingers.

Bruising to the Genitalia Region

These are mainly caused by blunt force trauma. The tip of the penis could have been caused by being pinched (compression force trauma) in the July pictures as there is a circular round purple bruise at the tip of the penis. There is fairly significant bruising in and around the genital area especially at the top of the right thigh as evidenced by these photographs including some scratch abrasions to the abdomen.

The pictures from August are more difficult to interpret due to poor quality but there is significant bruising to the shaft of the penis and abrasions in the pubic area which would have required more force than in normal handling of a child and no accidental mechanism has been offered.

It is highly unlikely that a four year old sibling would wake up in the middle of the night, go into child A’s room, take off his nappy and cause the degree of bruising to the genital area. I would have expected an adult to have woken up and realised the situation or for child A to go into his parents’ room and be upset. It is highly unlikely a four year old sibling would be able to continue to injure him before he ran away and given the extent of bruising as there would have been several impacts of trauma to this sensitive area and it would have caused significant pain and discomfort.

Conclusion

The injuries seen on child A on both July 2017 and (deleted) August 2017 are very concerning for inflicted injury and unlikely to have been caused by his sibling.’

57. FACS informed the respondent that it had received from Bathurst Joint Investigation Response Team (JIRT) the following in relation to the allegations against DVI:

‘The JIRT investigation has determined that both DVI (deleted) have caused harm to child A (deleted) and therefore they have been identified as persons causing harm with the following issues being substantiated:

1   Physically abused - on the balance of probabilities it is more likely than not that child A had been physically harmed by DVI and [CWB]. There is a current ongoing police investigation in regard to bruising to child A’s genitals and experts at CPU have stated the injuries are ‘very concerning for inflicted injury and unlikely to have been caused by his sibling’. These injuries occurred whilst child A was in the care of [CWB] and her partner (DVI). [Our emphasis]

2   Psychological harm suffered - on the balance of probabilities it is more likely than not that child A had been physically harmed by DVI and [CWB]. He has sustained physical injuries that must have caused him considerable pain resulting in trauma. [Our emphasis]

3   Risk of sexual harm - on the balance of probabilities it is more likely than not that child A is at risk of sexual harm. While it cannot be determined that injuries to child A’s genitals were sexually motivated injuries, it is reasonable to assess that child A’s genital area was targeted in an assault thus placing him at risk of sexual harm.’

The July 2017 incident

58. In the same ROSH report (Exhibit R1, page 141) the following is recorded:

‘Caller stated a couple of week [sic] ago child A had a swollen lip with a bruise and a bruise on his elbow. Caller stated this as not reported. Caller stated they had nothing to be suspicious of with this given he is a toddler and they often have injuries from falling over.’ [our emphasis]

Evidence of CWB

59. CWB gave evidence at the hearing and filed a statement (Exhibit A3). She said she met DVI in late 2015. About that time Child A and child B had been removed from her care due to her then partner’s violence. She left her partner in early 2016. Later in that year she shared accommodation with DVI up until about mid-August 2017. During this time she was pregnant with, and gave birth to her third child, child C.

60. In late March 2017, approximately 8 weeks before child A and child B were restored to her care, they were moved from their long term placement to new foster carers. During a contact visit at CWB’s home on 27 April 2017, she noticed injuries to child B that she believed were consistent with sexual abuse. CWB reported these to FACS but said no investigation was undertaken. She noticed deterioration in both child A and child B’s health and their behaviour, particularly with regard to child B who began wetting himself, using bad language and exhibiting sexualised and aggressive behaviour. She states that these behaviours continued to escalate after the children were restored to her care on 27 May 2017.

61. Child B was witnessed by CWB to violently hit, push and bite child A, sometimes grabbing his genital area. She said that she reported these behaviours to FACS case workers. Despite requests made to FACS for investigation of the suspected abuse, and a request for psychological help for child B’s trauma, no action was taken and no support was received at that time.

62. In an email to a solicitor [exhibit A2 page 4] CWB refers to a conversation she had with child B in relation to her vagina. CWB noticed on the 27th (we accept is 27 April 2017) that CWB noticed child B’s vagina was swollen. When asked what had happened, child B said that someone had hurt her ‘down there’ pointing to her vagina. She said, ‘a cow jumped on me and swished me’. On 28 April 2017, CWB said she reported this to the Anglicare case worker. She was told that the foster carer was asked if child B had been sexually abused. The foster carer said that she walked in on her [child B] ‘masturbating’. After child A and child B stayed with CWB for a short period of time they were returned to the same foster carers. At that time CWB said Child B was screaming and crying saying that she did not want to go back to the foster carers’ home.

63. On 30 April 2017, CWB involved police when she took child B to hospital. A copy of the Emergency Department Discharge Summary (pages 2 and 3 of Exhibit A2) records the admission date to the relevant hospital as being 29 April 2017 and not 30 April 2017. The purpose of the admission was to investigate possible sexual assault. CWB is noted to have told staff at the hospital that child B had admitted to her of being ‘touched in the private’. A police investigation was closed on 4 May 2017 with no further action to be taken.

64. In an email passing between the CWB and a legal adviser of 7 May 2017, CWB refers to a contact visit between herself and child A and child B. Child B lifted up child A’s shirt and showed CWB a red/purple mark on child A’s left shoulder. Child B said to CWB in a panicked tone ‘I didn’t bite him’. After some further questioning, child B said to CWB that her foster carer had hurt her. CWB reported this to an Anglicare case worker. When it came time for the children to return to the foster carers, child B cried and said she did not want to return. CWB expressed her concern about her children returning to the foster carers who she had been told had smacked her children. She says that she requested that they be placed with other carers. CWB said she made a report to the Children’s Helpline in relation to this incident.

65. On 9 May 2017, CWB complained to her local Member of Parliament in relation to concerns that her children were being abused and exposed to domestic violence whilst in care. DVI has included in [Exhibit A2] numerous emails passing between CWB, representatives of FACS and the local Member of Parliament in relation to these concerns. She also complained that FACS had refused to respond to, or investigate her complaints. The emails detail the change in child B’s behaviour as witnessed by CWB and complaints she made following conversations she had with her daughter and those observations.

66. Importantly, in an email of 10 July 2017, passing between the children’s mother and the office of the local Member of Parliament the following is recorded:

As you may recall, I have strongly suspected that my little girl [child B] was sexually abused whilst in the care of FACS. She has repeatedly told me that ‘a cow kept jumping on me and made me bleed.’ She has been very badly and at times, aggressively behaved and no amount of structure, discipline and routine that I put into her days has any significant effect.

There has been a traumatic incident overnight which has confirmed my suspicions. [Child B] went into her little brother’s room during the night, put her hand down his nappy and scratched him around the genital area. When pressed, she even told me how she did it. After further questioning she says it used to happen to her. When I asked her who did this to her, she said [anonymised]. I would have thought it was more like [anonymised] husband [anonymised] who child B would name but this is what she said. These are the carers in [anonymised] with whom the children were placed in March this year and to whom they will be returned even after there was strong suspicion of abuse.

It now transpires that FACS had been aware of the prior difficulties with these carers even whilst I was being told that there had not been any previous complaints - I had a visit from [anonymised] about 2 weeks ago and she said she was quite concerned for my children when she heard they were being placed in [anonymised] because, according to [anonymised], they were aware of problems of other children have had whilst in their care!

I have wanted [child B] to receive counselling but my doctor and FACS have insisted that she does not need it despite the Children’s Counselling Service telling me that she needs it urgently. However, as I need a referral from FACS and they won’t give one, I have not been able to access counselling services for her. I have been told ‘they just need time to settle in’. This clearly is not the case. [our emphasis]

67. We note in a FACS restoration care plan record (20 July 2017) the following is recorded under the heading ‘Current needs of the parent/care giver’:

[CWB] needs help with child B’s aggressive and sexualised behaviour as it is impacting child A negatively. [our emphasis]

68. Progress notes in the same report record:

Spoke to [CWB] on 11/7/17 and she expressed concern that [child B’s] aggressive and sexualised behaviour towards her siblings and in particular towards [child A] could be causing [child A] distress. The child’s mother has requested for [child B] to see a psychologist. [our emphasis]

69. The FACS record indicates that on 21 July 2017, a referral was made to the FACS psychologist in relation to the concerns CWB had about child B. The reports to FACS include a comment that CWB had indicated that the aggressive and sexualised behaviours of child B had been present for the last 4 months. At [page 31 of Exhibit A2] is the FACS psychologist referral form dated 7 May 2019. The reasons for referral include:

[Child B] has been displaying some concerning behaviours including choking her younger brother [child A], holding a plastic knife and threatening to stab him, threatening to cut his fingers off, holding him down and scratching him, hitting, kicking and punching him. She has been talking about death and has violent dreams including one in which her throat was slit. Current carer [anonymised], as well as previous carers, have commented that child B appears to have trouble managing her anger and sometimes has tantrums that are worse than they’ve ever seen from other children. [Child B] witnessed domestic violence as a young child and [anonymised] believes she may be acting out some of what she has seen.

70. CWB at paragraph 18 refers to an incident which occurred on 10 July 2019 at around 8.00 a.m. However, given the chronology it is likely that that date is a typographical error and should read 10 July 2017, which is consistent with her oral evidence. CWB said child A and child B were playing and fighting. She got up to see what was going on and went into their bedroom. At this time DVI had left the home and had gone to work at about 6.30 a.m. Child A came out of the bedroom looking in shock and said, ‘Oh mummy’, something he had not done before. CWB got the children dressed and when changing child A’s nappy she saw an injury being scratches and bruising to the genital area. The children’s mother said that she panicked and thought someone had broken in. When she asked child A what happened, who did this to you, he said ‘[anonymised] hurt me’. CWB said that this is the same phrase he had always used when child B hit, scratched or bit him. CWB asked child B whether she did this to child A. She initially shook her head but when she was asked again she ‘quietly nodded’. CWB reported this to a FACS case worker and again requested a referral to a psychologist, She believes that a referral was made on or about 11 July 2017 (which corresponds with the document found at page 35 of Exhibit A2 - dated 12 July 2017). CWB said she reported the incident to the police.

71. In an email from the FACS Case Worker to FACS Psychological Services (Exhibit A2, page 33) dated 11 July 2017 the following is recorded:

We would like to request a consultation, intake interview or referral for a four year old girl, [child B] … she is in OOHC but is currently being restored into the care of her mother after 18 months in foster care. Her mother, [CWB] said that [child B] has been grabbing her 2 year old brother’s ‘private parts’ 3 or 4 times since coming back into her care which was on the 25th of May 2017 and the last time aggressively. She also hits, pushes and bites her 2 younger siblings (6 months and 2 years old). Prior to being removed, [child B] was exposed to DV from which the father was incarcerated.

72. Similar records are included in documents of FACS concerning these allegations which include a referral for psychological treatment for child B dated 12 July 2017 [exhibit A2 page 35].

The 11 August 2017 Incident

73. On 11 August 2017, whilst changing child A’s nappy, CWB noticed a slight scratch to the right side of his penis and a fading bruise on the inner right thigh which he had acquired a couple of days ago. The bruise resulted from child A and child B playing in the backyard when child A reported that his sister hurt him. On the morning child A was dropped at day care. He appeared to be normal.

74. A significant injury was later reported to the police which was discovered by childcare workers whilst changing child A’s nappy at about midday. Later that day DVI and CWB were contacted by the police about this. CWB’s three children were removed from her care.

75. The injuries were not detected by CWB at 8.30 a.m. on that date when she changed her sons nappy. She says if she had of noticed an injury ‘I would have called my case worker, as I had done previously, and I would have informed the day care centre staff. I had already informed the staff of the earlier incidents, and this is noted in the Helpline report made on 11 August 2017.’ We accept that CWB would have done this given the history of complaints as set out above.

76. CWB said that the midday nappy change would have been the third change whilst child A was at day care. If the injury had been in existence at the time he was dropped off at the day care centre as alleged, she questions as to why it was not detected at the first nappy change, which, according to usual practice, was undertaken at about 8.45 a.m. The nappy changing record of the day care centre has never been produced, despite a subpoena being served. No explanation has been provided for the child care centre’s failure to produce the record. Indeed, it was submitted that the childcare centre had destroyed the record on 5 June 2019. We accept this submission given the email from the childcare centre dated 5 June 2019 stating that the record had been destroyed [Exhibit A2 page 76].

77. CWB gave evidence that the child care centre changed each child’s nappy when they were dropped off at the centre, and then, every 2 – 3 hours thereafter. The operational policy concerning nappy changes at the child care centre discloses that a nappy schedule is adopted in accordance with departmental guidelines. CWB was not cross-examined on this point. We accept her evidence as to the nappy changing schedule times. We find that it would be more likely than not that child care centre workers would have detected the injuries to child A’s genital area before the midday change if indeed they had conducted a nappy change before earlier in the day. A number of scenarios are possible. First, the nappy change policy was not adhered to and child A’s nappy change first occurred at midday. Second, the worker who changed the nappy prior to midday did not notice, or, did not report the injuries if they existed prior to him being dropped off at the centre. Third, the injuries were inflicted at some time after drop off at the centre and before the midday nappy change. Given the records have been destroyed it is difficult to make any specific finding. The most desirable finding would be that the nappy change policy was being adhered to, and, the child care workers would have immediately reported the injuries upon them being detected at midday. In that scenario, the Tribunal would find that DVI was not responsible for inflicting the alleged injuries on child A. However, given the scant evidence, we can not make a positive finding either way as to when the injuries were sustained.

78. On 8 February 2018, CWB was arrested and charged with two counts of failing to provide medical care to child A following his injuries on 10 July and 11 August 2017. CWB has been informed by a FACS Case Officer that the Department does not consider her to be a perpetrator of the injuries to child A. CWB also stated that she does not believe DVI hurt child A. She believes the evidence demonstrates that child B inflicted the injuries on child A and she had herself become a victim of abuse whilst in foster care.

79. CWB said that child A always referred to child B as [anonymised] or [anonymised]. She said that child A never called his sister by her full name [anonymised]. CWB said that child A has never referred to DVI as [anonymised] but always [DVI]. There was no evidence to the contrary and we accept CWB in this regard.

80. In cross-examination CWB denied she dragged her children by the arms from the kitchen. When asked whether she accepted that child B may have told her case workers this she agreed but said that child B sometimes lies about things. The issue of child B telling lies is consistent with a FACS case note made 11 June 2019 [Exhibit A2 page 157] where a carer [anonymised] was told by child B that she had lied to get child A in trouble. We accept CWB’s evidence in this regard.

81. When questioned about an incident where child A slipped in the shower and cut his eyelid, CWB said that this was an accident and it was not the fault of DVI. There is no evidence to the contrary and we accept her version of events.

82. CWB said that she believes the injuries caused to child A on 11 August 2017 resulted from child B putting her hand into child A’s nappy and scratching him. She described child A’s nappy as having a sticky tag around the side and elasticised legs on each side of the nappy and it being firm around the top. She said that after the July 2017 incident, child B showed her how she put her hand up the leg of the nappy and scratched child A’s penis. CWB said that she was never told by child B that she pinched child A’s penis nor that she scratched his buttocks. Despite the cross-examination as to child A’s injuries on 11 August 2017 and July 2017 being different, CWB said that child B hurts her brother in different ways and provided an example that in July he had an injury to his ear. We accept CWB’s evidence in this regard as it is supported by her various complaints to FACS, Anglicare care workers, the hospital and police as set out above.

83. Counsel for the respondent carefully traversed CWB’s evidence during cross-examination. However, in our minds, we accept CWB as a reliable and truthful witness.

DVI’s evidence

84. In November 2016, DVI secured a four bedroom home for which she signed a joint Lease Agreement with CWB. In April 2017, DVI said CWB observed during a contact visit ‘severe redness and injury’ to child B’s genital area. CWB convinced that child B had been sexually assaulted.

85. Soon thereafter, child A and child B were restored to the care of CWB. DVI noticed that the children behaved very badly and their behaviour was in stark contrast to when she first met them some months earlier. DVI worked most of the day during the week, however, in the evenings and at weekends she observed child B to be often aggressive towards child A and sometimes towards the baby, child C. DVI observed child B push and bite child A and on one occasion child B hit child C on the back of the head with a plastic mallet.

Child A’s Injuries

86. On 10 July 2017, DVI had left home for work at about 6.30 a.m. She received a telephone call from CWB about 8.00 a.m. and returned to the home. CWB said that she had found that child A’s genitals were scratched and bruised whilst changing his nappy. Child B ran away and tried to hide from DVI. DVI walked into child A’s bedroom where he and CWB were. Child A appeared to be very upset and DVI picked him up to try and console him. CWB asked child A who had hurt him and he replied [anonymised]. Over the next few weeks DVI noticed that child B had become more aggressive and child A often had scratches and bruises, including to his face.

87. On or around 31 July 2017, whilst helping child A shower he slipped and fell whereby he sustained a cut to his forehead. CWB took him to the hospital and DVI understood that the cut did not require any specific treatment. She said this was an accident. We accept her evidence.

88. In relation to the incident which occurred on 11 August 2017, DVI said that she dropped child A and child B at the day care centre where they each attend at about 8.45am. She described both children as being playful and happy when she walked into the centre and she gave them both a kiss and a cuddle and said goodbye.

89. At about 9.00 p.m. that evening FACS and police arrived at the home of DVI and CWB. The three children were removed from their care. Both DVI and CWB were told by the police that they were persons of interest concerning the injuries to child A.

90. On 14 August 2017, DVI voluntarily attended on the NSW Police and gave a statement. She was not arrested nor charged.

91. On or about 21 August 2017, DVI moved out of the home that she shared with CWB and the three children. She said she did not wish her presence to be an impediment for the children to be restored to CWB.

92. Child C was restored to CWB’s care on 31 August 2017. Consent orders were made in the Children’s Court with undertakings that she not have contact with DVI in any way. Those undertakings are said by DVI to have expired on 31 March 2018.

93. DVI was cross-examined. She said in July 2017 child B would wander around the home at night and play with her iPad. She would wake up child A early in the morning.

94. DVI was asked about the injuries to child A’s genital area which occurred in July 2017. She said that she did not hear anything during the night of the incident. DVI denied that she had been rough with any of the children and she denied that she dragged child A and B by the arm out of the kitchen.

95. Counsel for the respondent asked DVI whether she caused the injuries to child A, being bruising which could have been caused by pinching. She denied each of these allegations. DVI denied that child A called her [anonymised].

96. Despite a robust cross-examination, we find DVI to be a truthful and reliable witness.

Evidence of FACS Case Worker

97. A FACS Case Worker for the children was called to give evidence. The Case Worker has a Bachelor of Science and Psychology and Epidemiology. She was allocated as the Case Worker for the three children and CWB from September 2018 to November 2019. She said that she was a strong advocate for the restoration of CWB’s three children. Upon taking on the role of Case Worker she was charged with reviewing all of the case work records in relation to CWB and her three children.

98. The caseworker said FACS considered an unusual ‘appeal of its decision’ in early 2019, reviewing its decision to have CWB’s children placed into care. The purpose of that process was so that the children could be restored to CWB. On reviewing the case work file, the Case Worker and FACS formed a view that the documentation displayed a bias against CWB by previous case workers.

99. The Case Worker was referred to [page 665 of Exhibit R1] where the review undertaken in relation to the family’s dealings with FACS. It was put to the Case Worker that the review found that FACS only presented unfavourable information to the Court. The Case Worker said that a particular view or bias can operate so that it is transferred from one case work team to another or to other professionals and it can act against the mother, as it did in this case concerning CWB.

100. The Case Worker said that the photos she observed of the injuries to child A as referred to by the consultant paediatrician were different to the photos actually provided to him.

101. The Case Worker said, through her involvement with the family, child A referred to his sister as [anonymised]. She accepted the summary of facts and circumstances concerning the 11 August 2017 incident as contained in the Case Work Specialist Plan Consultation Record [Exhibit R1, page 644]. She said in answer to questions from Counsel for the respondent that she is unable to positively say whether DVI was a real risk of causing injury to children. She accepted that one of the reasons child C was restored to her mother was because DVI was no longer residing in the home. However, she said that from her review of the case work file she could find no documentation or evidence that would show that DVI hurt child A.

102. We find the Case Worker to be an honest and reliable witness to whose evidence we have given considerable weight. The biased approach taken by previous case workers has influenced the way in which CWB’s children have been processed through the care system. We accept that a balanced view of the risk and harm issues for each CWB’s the three children was not undertaken. This resulted in a negative view of the parenting ability of CWB being put before the Children’s Court. In particular, the Children’s Court was not provided with any evidence of child B’s challenging behaviours despite it being readily available which led to the children’s removal.

103. The findings by FACS having conducted a review of the conduct of past case workers places considerable doubt on the reliability of the various case worker file notes, how ROSH reports were considered and also the information and photographs provided to the consultant paediatrician relied upon by FACS in determining the cause and severity of injuries to child A. It also places doubt on the FACS view that DVI was involved in, or caused, the injuries to child A.

Evidence of similar injuries inflicted on child A after being removed from CWB’s care

104. It is important at this juncture to refer to parts of the evidence which demonstrate ongoing injuries inflicted on child A which are of a similar nature to the July and August 2017 injuries. The injuries we refer to were sustained after child A and child B were again removed from the care of CWB, and, at a time when DVI had no contact with the two children.

105. In an email dated 28 August 2017 passing between CWB and a FACS case worker [exhibit A2 page 42], CWB refers to further injuries she noticed to child A’s genital area which appeared to be three to four days old. The injuries are described as being scratches and injuries to his head and face. CWB asked child A who hurt him and he replied [anonymised]. We accept and find that child A is referring to his sister child B.

104. An email passing between CWB to NSW Police dated 25 September 2017 (Exhibit A2, page 83) records an incident during a contact visit between CWB and her children. CWB saw an injury to the left side of child A’s penis. She states in her email it looked like a scratch that might have happened 3 or 4 days prior to 25 September 2017. When she asked child A who hurt him be said [anonymised]. The email goes on to refer to alleged reports that carers had told a case worker that they were concerned about child B’s aggressive behaviour towards child A which the carers had observed had gotten worse over the last 2 weeks.

105. On 7 November 2017, an email was sent to FACS from the childcare service looking after child A as follows:

[Redacted] told me that this morning [redacted] was assisting child A to do a wee in the toilet. … [redacted] told me that after child A was finished [redacted] was assisting him to pull up his undies and pants and tuck his shirt back in when [redacted] hand brushed child A’s penis. When this happened child A immediately flinched and said to [redacted] ‘Don’t hurt me’ [redacted] then said to child A ‘I won’t hurt you’. [Redacted] then said, ‘Who has hurt you’ child A answered, ‘Mummy does’.

Section 30 (1) considerations

108. Section 30 of the Act sets out the factors that the Tribunal must consider in determining a review application. We shall consider each in turn.

(a) The seriousness of the offences to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar.

109. It is without doubt that the injuries sustained by child A are indeed serious. Each of those matters are referred to above.

(b) The period of time since those offences or matters occurred and the conduct of the person since they occurred.

110. The conduct which is alleged to have been perpetrated by DVI occurred in August 2017. There have been no reports of other incidences involving DVI that relate to assault or abuse on any other person or any other offence committed by her.

(c) The age of the person at the time the offences or matters occurred.

111. DVI was 37 years of age at the time the matters occurred.

(d) The age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim.

112. Child A was 2 years old at the time of the alleged incidents.

(e) The difference in age between the victim and the person and the relationship (if any) between the victim and the person.

113. The age difference between child A and DVI is approximately 35 years.

(f) Whether the person knew or could reasonably have known, that the victim was a child.

114. It is evident that DVI knew child A was a child. This is not in dispute.

(g) The person's present age.

115. At the time of the hearing DVI was 39 years old.

(h) The seriousness of the person's total criminal record and the conduct of the person since the offences occurred.

116. DVI’s criminal record consists of driving offences only:

117. 15 March 2002 driving unlicensed. Fined $100 and driving with mid-range PCA fined $300 disqualified for 6 months;

118. 10 April 2015 driving with low range PCA first offence dismissed s10 of the Crime Sentencing Procedure Act 1999.

(i) The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition.

119. DVI denies committing any assault on child A.

(i1) Any order of a court or a tribunal that is in force in relation to the person.

120. Not applicable.

(j) Any information given by the applicant in, or in relation to, the application.

121. We have taken into consideration the written submissions relied upon by DVI and her statement made 12 August 2019.

122. We have also considered the statement as set out above by CWB and the evidence given by the Case Worker.

123. At page 16 of Exhibit R1 DVI made a submission in response to the Notice of Proposed Cancellation of her WWCCC. She alleges the findings by FACS that she was a person causing harm are fabricated and dishonest. In particular she alleges that a Case Worker either knowingly used fabricated evidence, or fabricated evidence, in the proceedings in the Children’s Court, that was vital evidence withheld from the police and that FACS used evidence selectively and was biased and dishonest. DVI alleges that the information FACS provided to the Consultant Paediatrician for preparation of the expert report was absent a number of matters which could have changed the opinion and that the information the JIRT team received was critically flawed. We accept these submissions particularly given our findings concerning the evidence of the Case Worker.

124. DVI has consistently said the likelihood of the injuries sustained by child A were perpetrated by his sister child B. She relies on a history of challenging behaviours of child B to substantiate her submissions in this regard. We refer to our findings set out below in this regard.

125. (j1) Any relevant information in relation to the person that was obtained in accordance with section 36A.

126. Not applicable.

(k) Any other matters that the Children's Guardian considers necessary.

127. There are no other matters than those referred to above.

Findings as to the consultant paediatricians report

128. We have placed less weight on the finding of the consultant paediatrician’s findings that the likelihood of a child inflicting the injuries on child A as improbable or highly unlikely. The paediatrician did not examine child A. He did not obtain a history from either CWB or DVI and relied solely on the facts and circumstances as presented by FACS. Indeed, the background provided to the expert did not include a history of the July 2017 injuries and CWB’s version as to child B’s previous behaviours, except for a scant reference to ‘There are reports of her exhibiting sexualised behaviours’. We have serious doubt about the previous FACS case worker/s providing to the expert a balanced history given the findings of the FACS review.

129. The expert finds that it would be highly unlikely that a 4 year old sibling would wake up in the middle of the night and cause the injuries to a child without a parent or adult being alerted by the victim becoming upset. Similarly, that a 4 year old could continue to cause the injuries sustained by child A before he ran away. The expert does not provide, in our view, the basis for this conclusion and his reasoning for the same. In particular, the expert does not rule out child B being able to inflict the injuries on child A, which injuries he observed only by examining photographs. Given the evidence of the Case Worker, we also have concerns that the previous FACS workers may not have given accurate photographs of child A’s injuries.

130. The expert places limitations on the reliability of the photographs given to him to provide an opinion. The most persuasive limitation is the expert had no colour chart or measurement scale available to compare with the photographs. The photographs are also said to be of poor quality that has the propensity to leave signs of injury difficult to interpret.

131. Overall, the consultant paediatrician’s report must be considered with some caution.

Did DVI inflict the injuries to child A as alleged

132. The evidence concerning child B’s history of violence and aggressive behaviour, the bias of previous FACS case workers against CWB (and indirectly DVI) and the weight we attach to the consultant peadiatrician’s opinion, leads us to conclude that DVI did not inflict the injuries on child A in August 2017. In our minds, we find on the balance of probabilities that Child B was the most likely cause of his injuries. Child B has a history of aggressive behaviour towards her brother both before the August 2017 incident and after it. DVI, CWB, [anonymised] and FACS workers all witnessed and have reported various incidents of such behaviour by child B. We have accepted both CWB and DVI as reliable and truthful witnesses. CWB reported the change in child B’s behaviour before either of the July or August incidents. FACS psychologists had already started a referral process to treat child B’s behaviour in this regard before the August 2017 incident.

133. We find that child A has consistently referred to [anonymised] as the person who inflicted the injuries on him. He told the treating paediatrician this. He told his mother on numerous occasions that child B caused his injuries. We accept CWB and DVI’s evidence that child A referred to his sister as [anonymised] and never [anonymised]. We also find that there is no evidence that he called DVI by these names. We therefore do not accept as reliable evidence the reference by child A to DVI as being [anonymised] CWB’s friend which contained in the report of the 11 August 2017 injuries to FACS – [exhibit R1 page 141].

134. We are not satisfied on the balance of probabilities that the evidence enables a finding that that DVI was responsible for inflicting the alleged injured on child A. The more likely explanation for the cause of child A’s injuries is that they were probably caused by the hand of his sister, child B.

135. It must therefore follow that DVI is not a real and appreciable risk to the safety of children.

Section 30 (1A) consideration and findings

136. Given our finding we must consider the following further provisions.

137. The section provides:

(1A)   The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that:

(a)   a reasonable person would allow her or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and

(b)   it is in the public interest to make the order.

138. We have considered the decision of CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 which dealt with the ‘reasonable person test’. At paragraph 73 the Tribunal observed the following:

“73.   The case of CHB v Children’s Guardian  [2016] NSWCATAD 214 held that s.30(1A) assumes the reasonable person is acquainted with all the relevant facts of which the Tribunal is aware. The relevant facts would include the transcript of the 2012 criminal proceedings, the judgment of the Federal Circuit Court, the exclusion of any other complaints or allegations against CYY other than allegations made by AA and AB and the context of the ongoing acrimonious family law dispute between CYY and AA. It would also include her work record as a serving police officer from 2003 to 2013 and as a high school tutor from 2012 until recently and not being subject to any allegations or complaints of violence or inappropriate conduct. Based on the relevant facts the Tribunal is satisfied that a reasonable person would leave a child unsupervised in CYY’s care.”

139. DVI has a relatively unblemished criminal record, apart from minor driving offences which we attach little weight.

140. We are satisfied that, having all of the above information before them, a reasonable person would allow his or her child to have direct contact with DVI that was not directly supervised by another person while DVI was engaged in any child related work.

141. The Tribunal is also required to consider section 30 (1A) (b) that it is in the public interest to make the order. CYY also addressed this issue at paragraphs 74-75.

74.   The second part of the test of s.30(1A) is the public interest test. The Tribunal must consider the public interest in the context of s.4 of the Act, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, being the paramount considerations.

75.   The concept of public interest has been determined on the basis of giving priority to the broader interests of the community over private interests; see Smith v Commissioner of Police  [2014] NSWCATAD 184. The Tribunal also refers to ZZ v Secretary of the Department of Justice  [2013] VSC 267 where Justice Bell reviewed the authorities in relation to the public interest test and adopted the analysis that included consideration of factors such as the right of a person to engage in work and in the community affairs, and people with appropriate skills and experience having contact with children.

142. DVI has a genuine desire to work within the community which from time to time may involve her being in contact with children. To do so she may require a WWCCC. We find her desire to be a productive member of the community to be in the public interest.

Conclusion

143. For the reasons set out above, we reach the following conclusion.

144. The evidence and material received by the Tribunal establishes that DVI does not pose a risk to the safety and wellbeing of children.

145. It therefore follows that the correct and preferable decision is to set aside the decision made by the respondent and in substitution thereof, direct that a WWCCC be granted to DVI.

Orders

1. Leave is granted for the filing of the application to 24 April 2019.

2. The decision of the Children’s Guardian dated 18 March 2019 cancelling the applicant’s working with children check clearance is set aside.

3. In substitution thereof, the respondent is to issue a WWCCC to DVI forthwith.

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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

Decision last updated: 11 June 2020