ERC v Office of the Children's Guardian

[2022] NSWCATAD 53

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

ERC v Office of the Children’s Guardian [2022] NSWCATAD 53

Hearing dates:

16 November 2021

Date of orders:

18 February 2022

Decision date:

18 February 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

E Bishop, Senior Member
L Porter, General Member

Decision:

(1) The decision of the Children’s Guardian made on 29 April 2021 to cancel a Working with Children Clearance is set aside.

(2) The Children’s Guardian is to grant ERC a Working with Children Check Clearance forthwith.

Catchwords:

ADMINISTRATIVE LAW — child protection — working with children — risk assessment — cancellation of clearance — charges of assaulting child dismissed by court — review under s 27 Child Protection (Working with Children) Act 2012 (NSW) — whether applicant poses risk to safety of children — 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), s 63

Child Protection (Working with Children) Act 2012 (NSW), ss 3, 4, 15, 23, 27(2), 30, Sch 1

Civil and Administrative Tribunal Act 2013 (NSW), s 64

Crimes Act 1900 (NSW), s 61

Cases Cited:

BKE v Office of Children's Guardian [2015] NSWSC 523

Commission for Children and Young People v V (2002) 56 NSWLR 476; [2002] NSWSC 949

Commissioner for Children and Young People v FZ [2011] NSWCA 111

Control Investments Pty Ltd and Australian Broadcasting Tribunal (No 2), Re (1981) 3 ALD 88

CRG v Children’s Guardian [2017] NSWCATAD 295

CXZ v Children’s Guardian [2020] NSWCA 338

DAI v Children’s Guardian [2017] NSWCATAD 308

Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [2012] VSCA 143

VQB v The Secretary to the Department of Justice [2013] VCAT 789

Category:

Principal judgment

Parties:

ERC (Applicant)
Office of the Children’s Guardian (Respondent)

Representation:

Counsel:
D Allen (Applicant)
VA Hartstein (Respondent)

Solicitors:
Proctor and Associates (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s):

2021/00149095

Publication restriction:

Pursuant to order of the Tribunal dated 17 June 2021, there is to be no publication of any information that identifies or is likely to lead to the identification of any person mentioned in the proceedings or documentation.

reasons for decision

1. The applicant seeks a review of a decision of the respondent to cancel a Working with Children Check Clearance (“WWCCC”) which had originally been granted to her in January 2017.

2. On 30 May 2020, the applicant was charged with common assault allegedly committed on 9 March 2020 on her partner’s foster child (“AA”).

3. The respondent became aware of the charge against the applicant (which related to allegations of ‘serious assault’). The respondent conducted a risk assessment and placed an interim bar on her WWCCC because of that charge.

4. On 29 May 2021, as a result of the risk assessment, the respondent determined the applicant posed a risk to the safety of children and cancelled her WWCCC (“the Decision”).

5. On 1 June 2021, the charge against the applicant was dismissed in the Local Court by Magistrate Toose.

Issues

6. The main issue for determination is whether the applicant poses a real and appreciable risk to the safety of children.

7. If we are satisfied that the applicant does not pose a real and appreciable risk to the safety of children, we then need to consider:

1. whether a reasonable person would allow the applicant to have direct, unsupervised contact with their children; and

2. whether it is in the public interest to grant the applicant a WWCCC.

8. For the reasons set out below, we are satisfied that the applicant does not present a real and appreciable risk to children. We have also decided that a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in child-related work, and that it is in the public interest to make such an order.

Background

9. To ensure that a child under 18 years is not identified the Tribunal made an order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (“the NCAT ACT”) to restrict publication of any information that will identify the applicant, any victims, witnesses or evidence either given or received in the Tribunal hearing or referred to in the material before the Tribunal, which is likely to identify those persons.

10. The applicant, who is referred to in these proceedings as “ERC”, is 43 years old. She is a hospital assistant and has been working in the same employment for over 17 years with NSW Health at a hospital in Western Sydney Local Health District.

11. ERC has two biological children: a son, aged 11 (“BB”) and a daughter aged 3 (“CC”). ERC has a partner, “ERX”, who is the biological father to CC.

12. From 2013, two boys “AA” and “DD” were placed into foster placement with ERX and his wife. In 2015, ERX’s wife died.

13. Sometime later, ERC and ERX commenced a relationship and on 24 January 2017, ERC applied for a WWCCC as a parent volunteer. ERC commenced living with ERX, together with AA, BB and DD in about mid 2017.

14. At the date of the hearing, AA was aged 9 and DD was 10 years old.

15. AA, BB and DD have attended before and after school care at a childcare centre (“the Centre”) which CC attends while ERC and ERX work.

16. The documents filed with the Tribunal pursuant s 58 of the Administrative Decisions Review Act 1997 (NSW) (“ADR Act”) disclose that in March 2017, the Centre notified the New South Wales Department of Communities and Justice (“DCJ”) of a complaint by DD, to the effect that ERX was using excessive discipline such as hitting both AA and DD with a wooden spoon and belt.

17. On 30 June 2017, the Centre notified another complaint in respect of DD that ERX used excessive discipline when picking up DD from the Centre. In particular, it is noted the allegation was of “manhandling including grabbing [DD] tightly in the neck area” (an area of potential serious injury).

18. DD’s caseworker noted that DD had behavioural issues which his school and the Centre also reported.

19. In September 2017, DD’s placement broke down and he commenced living with his biological grandmother. The s 58 documents disclose that AA did not wish to move out of the placement and so he continued to live with ERX and ERC (together with BB). AA continued to spend each weekend with his brother DD either at his grandmother’s home or at the home of ERX.

20. There were no further complaints recorded in the s 58 documents in respect of AA or DD until the alleged offence in 2020.

Trigger Offence

21. The respondent relied on the alleged offence, as set out in the Police Facts Sheet, to determine to undertake a risk assessment.

22. The police facts stated that at 7am on 9 March 2020, whilst dropping AA, BB and CC, at the Centre, ERC was allegedly observed and overheard by staff to yell at AA who stated, “you didn’t have to choke me”. AA was allegedly observed by staff to have red marks on his neck, which were photographed. AA disclosed to staff that ERC had placed her hands around his neck, and he felt like he was being lifted off the ground and was going to blank out.

23. On 11 March 2020, AA was reviewed at Nepean Hospital, who found no evidence of strangulation or any injury despite numerous tests. AA was removed permanently from his foster placement with ERX and commenced living with his biological grandparents and brother DD.

24. DCJ investigated the alleged offence. On the basis of legal advice, both ERC and BB, who witnessed the alleged incident, were not interviewed by the DCJ. AA disclosed that ERC had never strangled him before but purportedly BB told AA that ERC had strangled BB when he would not pick up puppy poo. The DCJ determined that, “on the balance of probabilities, ‘excessive discipline’ and ‘physical abuse – actual’ was caused to [AA by ERC].”

25. The incident was investigated by a Police Detective from the Child Abuse Unit (“the Detective”). He interviewed AA. Each of the staff members (“Carer A”, “Carer B” and “Carer C”) gave statements to the Detective. A transcript of the interview with AA was before us.

26. On 30 May 2020, ERC was charged with common assault under s 61 of the Crimes Act 1900 (NSW). ERC declined to be interviewed on the advice of her lawyer.

27. The NSW Police applied for and obtained an Apprehended Violence Order (AVO) on behalf of AA against ERC.

28. The Detective also interviewed BB in September 2020 and a transcript of his interview was before us.

29. On 3 June 2020, ERC was notified of the risk assessment to be conducted and ERC was provided an opportunity to submit material relevant to the assessment.

30. On 3 March 2021, the respondent notified ERC that it proposed to cancel her WWCCC and gave ERC another opportunity to provide any information for the respondent’s consideration. ERC provided numerous references to the respondent.

31. Ultimately, on 29 May 2021, the respondent decided to cancel ERC’s WWCCC on the basis that it was satisfied she posed a risk to the safety of children.

32. In the Decision, the respondent acknowledged that it placed weight on the findings made by DCJ following its investigation (paragraph 26 of the Decision). The respondent noted that “the investigation was thorough, and the findings were based on the veracity of the complainant’s interview and multiple consistent disclosures to childcare staff, medical professionals and caseworkers; photographic evidence; and interviews with witnesses to the incident.”

33. The respondent also relied on an allegation that had been made in respect of ERC in May 2018 (“2018 incident”). The allegation was to the effect that a person reported witnessing ERC holding AA against a car in a shopping centre carpark with her left hand around his throat and using her right hand, slapped him on the head 4 or 5 times. The report noted that the slaps were loud enough for the witness to hear from where they were standing and that AA was struck around the cheeks and ears and was distressed crying out “Stop it Mum”. The witness reported the incident to the police who subsequently attended the carpark and interviewed ERC, AA and BB.

34. The Decision acknowledges that the 2018 incident was not substantiated but the respondent was of the view that it was concerning due to its context and similarity to the alleged offence in 2020. The respondent stated its “presence, in addition to the available evidence regarding the current allegations, the Children’s Guardian is satisfied to make a finding on the balance of probabilities that the conduct occurred as alleged.”

35. We note that the Decision was issued prior to the determination of the criminal proceeding.

36. The criminal proceedings were heard in the Local Court before Magistrate Toose on 21 April 2021 and 1 June 2021. The interviews were played and AA, BB, the three staff members and the Detective were cross-examined. ERC gave evidence in her defence and was cross-examined. The charge was ultimately dismissed.

Relevant law and legal principles

Jurisdiction

37. There is no dispute that the Tribunal has jurisdiction to review the decision of the respondent that is the subject of this application. In reviewing that decision the Tribunal must determine the correct and preferable decision having regard to the material before us and the applicable law: s 63(1) ADR Act.

38. Under s 63(2) ADR Act all the functions of the respondent are conferred on the Tribunal. By sub-s (3) the Tribunal may decide to affirm, vary or set aside the decision, and if it decides to set aside the decision, may substitute its own decision or remit the matter for reconsideration.

Working with children regime

39. The jurisdiction of the Tribunal under Part 4 the Child Protection (Working with Children) Act 2012 (NSW) (“the Act”), is protective and not punitive in nature: Commissioner for Children and Young People v FZ [2011] NSWCA 111 at [61] (Young JA).

40. The object of the Act is to protect children, by preventing disqualified persons, or persons without clearances, from engaging 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.

41. The paramount consideration in the operation of the Act, is the “safety, welfare and well-being of children and, in particular, protecting them from child abuse”: s 4.

42. If the respondent becomes aware that the holder of a WWCCC is subject to a risk assessment (see s 15 of the Act), the respondent must carry out a risk assessment to determine whether a person is a “risk to the safety of children”. Schedule 1 to the Act provides a range of trigger offences and findings which require a risk assessment to be conducted.

43. Section 23 of the Act constrains the respondent from allowing a WWCCC to remain in place if, following a risk assessment the Children’s Guardian it is satisfied that the person poses a risk to the safety of children.

23 Cancellation of clearances

(1) The Children's Guardian must cancel the working with children check clearance of a person if the Children's Guardian becomes aware that the person is a disqualified person or the Children's Guardian is satisfied that the person poses a risk to the safety of children.

44. A person who has had a WWCCC cancelled may apply to the Tribunal for administrative review of the decision: s 27(2) of the Act. This is a merits review and not a review in which ERC must demonstrate that the respondent was wrong: Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88.

Assessment of risk

45. An assessment of risk requires the Tribunal to determine “whether, in all the circumstances, there is a real and appreciable risk that is greater than the risk of any adult preying on the child” as opposed to a “fanciful or theoretical risk”: Commission for Children and Young People v V (2002) 56 NSWLR 476; [2002] NSWSC 949 at [42].

46. This assessment depends upon a number of things including the seriousness of the allegations, the strength of any evidentiary support for the allegations, and the relevance of the conduct the subject of the allegations to the risk to the safety of children if the WWCCC is not cancelled: CXZ v Children’s Guardian [2020] NSWCA 338 (“CXZ”) at [53] (Simpson AJA).

47. In BKE v Office of Children's Guardian [2015] NSWSC 523 (“BKE”), Beech-Jones J at [33] stated as follows:

“… Thus in such cases it may be that [the Tribunal] can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, [the Tribunal] 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.”

48. In CXZ, the New South Wales Court of Appeal affirmed the decision of Beech-Jones J in BKE regarding what to consider when assessing risk. The Court of Appeal rejected the proposition that a three-step process was required for an assessment of risk, describing it instead as being a “single process” under which the Tribunal is required to making findings with respect to allegations of past conduct: see at [7] (Basten JA); at [54 (Simpson AJA)].

49. Simpson AJA (at [57]) described the Tribunal’s task in making an assessment as follows:

“…The task of the Tribunal is, to expand on what Beech-Jones J said in BKE, to determine, even if it is unable to be satisfied one way or the other as to the truth of all or any of the allegations, whether, by reason of the possibility that the alleged conduct occurred, the applicant poses a risk to the safety of children. If so, the Tribunal must refuse to grant a clearance. Of course, in that process the Tribunal will give consideration to the strength of the evidence supporting the allegations and will, inevitably, reach conclusions about the truth or falsity of some. If it finds any allegation to be without foundation it will discard it from further consideration. If it is satisfied that the allegation is well founded, it will assign to it such weight as it sees fit, in the consideration (inter alia) of the circumstances listed in s 30. It is the allegations between those two extremes, those that are neither proved nor disproved, that the Tribunal must address in determining whether the applicant for a clearance poses a risk to children.”

Other considerations

50. In determining an application, the Tribunal must consider the matters in s 30 of the Act.

51. Further, under s 30(1A) of the Act, the Tribunal may not make an order which enables a person to work with children unless also satisfied that:

(a)   A reasonable person would allow his or her child to have direct contact with the affected person that was not 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.

Reasonable person test

52. The reasonable person test was considered in VQB v The Secretary to the Department of Justice [2013] VCAT 789 at [36] where it was said that the test requires:

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

53. This approach was endorsed in CRG v Children’s Guardian [2017] NSWCATAD 295 at [85] and DAI v Children’s Guardian [2017] NSWCATAD 308 at [90].

Public interest test

54. In Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [2012] VSCA 143 at [24]-[26] the Victorian Court of Appeal considered the meaning of the term “public interest” in the context of the equivalent provision in the Victorian Act. In those paragraphs the Victorian Court of Appeal said:

“[24] As French CJ, Gummow and Crennan JJ stated in ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51 at [20]; (2009) 240 CLR 140:

‘The term “in the public interest” is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question.

[25] In the present instance, the Act itself plainly identifies the primary public interest to which it is addressed. The main purpose of the Act is stated to be to assist in ‘protecting children from sexual or physical harm’. The Act does this by ‘ensuring that people who work with, or care for [children] have their suitability to do so checked by a government body’.

[26] The Act grants an administrative discretion to the Tribunal which requires the Tribunal, once the discretion has been enlivened by a finding that there is no unjustifiable risk, to consider for itself whether the giving of a notice will be in the public interest.”

The hearing and evidence

55. ERC filed:

1. Application for Review dated 26 May 2021;

2. A statutory declaration of ERC dated 27 July 2021;

3. NSW Police Summary Brief of Evidence which included the police fact sheet; transcripts of the Detective’s interviews with AA and BB; the Detective’s statement; statements from Carer A, Carer B and Carer C; and two photographs taken of AA after the alleged incident;

1. Penrith Local Court file including exhibits tendered to the Court;

2. Transcript of the Local Court proceedings on 21 April 2021 and 1 June 2021;

3. Written submissions.

56. The respondent filed:

1. s 58 documents on 6 July 2021 which included numerous documents including a risk assessment worksheet; various documents provided by the DCJ including various assessments and records of complaints and investigations; correspondence with Wesley Mission; correspondence with DCJ; 9 character references which had been provided by ERC during the risk assessment process including one from “Referee KC” dated 11 March 2021 and “Referee BM” dated 11 March 2021; three employer references including “Employer Referee KM” dated 25 June 2020; “Employer Referee BG” dated 18 March 2021; Employer Reference verifications; and various emails between NSW Health and the respondent;

2. Further documents being NSW Police Force Bail Report and History of Apprehended Violence Orders;

3. Wesley Dalmar Child Protection Incident Report dated 22 September 2021 (“Wesley Report”).

4. Written Submissions.

57. The hearing was conducted via AVL. Counsel for each of the respective parties made oral submissions and ERC (the only witness in the proceeding) was cross-examined.

Applicant’s submissions

58. ERC’s case was to the effect that we should be satisfied that the alleged offence in 2020 did not occur.

59. We were invited to find that the allegations could be positively proven to be false by the respondent’s Decision (at [14]) as the marker. As noted above, the Decision states that it was based on “the veracity of [AA’s] interview and multiple consistent disclosures to childcare staff, medical professionals and caseworkers; photographic evidence; and interviews with the witnesses to the incident.”

60. However,

1. AA gave inconsistent versions;

2. The information in the s 58 documents was that a paediatrician found no marks or other physical evidence of choking;

3. The photographic evidence was not consistent with the allegation; and

4. The only witnesses to the alleged event were ERC (who was not interviewed) and her son BB who was interviewed by police and denied the incident.

61. Counsel for ERC contended that “careful and kind cross-examination” (in the criminal proceeding) revealed that AA had a motivation to make a false allegation against ERC. That motivation was to be removed from the placement and to live with his biological family. This was supported by BB’s evidence in the criminal proceeding which included that AA wanted to live with his brother DD and that AA put his own hand around his neck to choke himself.

62. Further, AA acknowledged during his cross-examination in the criminal proceeding, that he was 55 kilograms at the time, was wearing a backpack and that ERC lifted him by the neck about five centimetres off the ground. However, as the Magistrate observed, ERC is a slight lady.

63. The Detective investigating the alleged offence accepted in his evidence in the criminal proceeding that he would have expected to see bruising if the allegation had occurred.

64. These, it was said by counsel for ERC, pointed to the conclusion that it was implausible that the offence occurred.

Respondent’s submissions

65. The respondent submitted that in the criminal proceedings,

1. AA maintained his story on every issue. This is despite the respondent noting that the Magistrate observed that AA provided multiple versions of the incident to Police and the court which were not consistent.

2. The childcare staff gave evidence in cross-examination that was consistent with their statements to the police.

66. The respondent contended that after considering all of the evidence it would be open for us to be positively satisfied on the balance of probabilities that the alleged offence occurred. However, it is unnecessary for us to make that finding in circumstances where the possibility that the alleged conduct may have occurred cannot be dismissed.

67. It was contended that there is a risk the alleged offence occurred and having regard to the existence of the 2018 allegation, we should find that ERC is a real and appreciable risk to the safety of children. If we are not satisfied ERC poses such risk, we should not be satisfied that the “reasonable person” test and “public interest” in s 30(1A) of the Act is met.

Criminal proceeding

68. We had the benefit of reading the full transcript of the criminal proceedings heard on 21 April 2021 and 1 June 2021.

69. Both AA, BB and the three childcare workers gave evidence for the police case and were cross-examined.

70. At the end of the evidence the Magistrate found a prima facie case against ERC. That is, considering the Crown case at its highest, she found ERC had a case to answer.

71. ERC subsequently gave evidence and was cross examined.

72. Her Honour provided a considered analysis of the evidence. As the respondent made their adverse assessment of ERC primarily based on the alleged assault which has now been considered in the Local Court, we will set out the main observations and findings made by the Magistrate as to the evidence, particularly as her Honour had the opportunity to observe the witnesses give evidence and be cross-examined during the two day hearing.

“[Carer A] said that she was inside the centre, she had arrived a bit late herself, but prior to 7am, and the doors were locked. She said it is not unusual for there to be families waiting to get in, and that day was no different. She said she heard shouting and yelling in the car park but did not know who it was. [Carer B] was also inside the centre, and also heard some yelling in the car park, again, did not know who it was. It obviously was not enough for anybody to make due inquiry, and [Carer C], who was another more senior childcare worker in the premises who was in another part of it, did not give any evidence of hearing yelling in the car park at all.

…

Carer B gave evidence that AA arrived in the room and he was really upset and then went on to talk about him crying in hysterics … She described ERC as angry, and she said that they were arguing outside because AA was swinging around an umbrella, and she had asked him not to. She had taken it from him and then they took a while to come in from the car park. Carer B said she first saw AA that day when he was walking through the door into the classroom. She believed that ERC was carrying CC at the time … She said she could tell ERC was angry and talked about body language, but did not really give any description. She did say that she heard ERC telling AA to be good and that he said ‘You don’t have to choke me’, and that ERC did say ‘I didn’t’, and then left.

Carer A said that she does not recall whether ERC was carrying CC into the room or not, because her focus was on AA who was crying; and that when he came in crying he sat down with BB next to him. She said that ERC then said to her that Paul had been a fucking nuisance, or fucking stupid with the umbrella, but in any event gave an expletive laden comment that certainly was not the evidence of Carer B, who seems to have been in close proximity. In any event, she remained firm that that was said.

The clear evidence is that they were more junior than Carer C, and they then referred to matter to Carer C who greets with Carer A. The first thing that Carer C says that AA says to her is ‘She’s not allowed to hurt me, I’m a foster child‘, … There is no issue that Carer C takes photos of CC. One is the front of his face that is unremarkable, the other is a red mark to one side of his neck. Carer A is of the view that that looks like a finger print, but then she has also given evidence there were other marks on his neck, to which there is no corroborative evidence.

There is absolutely no medical evidence whatsoever as to what the mark may or may not be, and no ambulance or medical attention occurred. It is quite clear the staff are adhering to a strict regime whereby the have written down their statements on the iPads. They have then sent them to a more senior manager and these are the ones ultimately sent to the police, and they have each made a statement to the police. They are mandatory reporters, obviously FACS were informed, and the police became involved via that route. There is no issue that when ERC was ultimately spoken to by the police in relation to the matter and interviewed at the end of May, and this appears in the police statement, that she is taken by surprise at being charged with an offence.

In relation to matter, it seems to be that it is Carer C that asks AA as to what happened, and he tells her that he was playing with the umbrella and that ERC ripped it out of his hands and ‘yelled at me, and said, “You’re going straight to bed after dinner tonight”.’…He said that she put her hand on the back and squeezed the back of his neck and he demonstrated it to her… he certainly made no mention of being lifted off the ground at this stage. In his police statement he does give varying different versions, and again different versions to the Court.

In relation to what he says to police …

‘I was swinging the umbrella and ERC told me to stop. That’s my stepmum. ERC told me to stop and I stopped. She stole the umbrella off me by the cover and she broke it and then I kicked my brother, BB. I was going inside, BB had CC, and I asked ERC if I could stay outside a bit, and she just grabbed me by the neck and choked me, and then I started crying inside cause she choked me, and that’s it.’

Later,… he says ‘I kicked BB, and after I had a little cry’; so he starts crying before he is choked there. ‘I kicked BB and started to cry when I was inside’, he then changes it to. This is in answer to question 151 ‘She gave CC to BB so she could grab me by the back and front, and lifted me up into the thing.’ He later tells the Court that the thing is the actual childcare room that they end up in. ‘She grabbed me by the back of the shirt, that she grabbed me like that and picked me up.’ He said ‘I tried to kick her to put me down but she wouldn’t let me go.’

Of course, none of this was ever told the Carer C, who appears to be the first person to whom he has given a version of actual events. He indicated that then it was for five seconds, and then said ‘After that we went into the real building’, notwithstanding he has talked about being carried ‘into the thing’, which he identified as the room.

He says … that it is Carer C that tells him you cannot touch because I am a foster kid, she is not allowed to touch foster kids, that it is illegal; rather than Carer C saying it is what he proffered to her. It is interesting that he raises the issue of DD at that point, and … that he felt like he was going to pass out. He certainly never told that to any of the childcare workers, and it is quite clear, given their duty to report things, that had he indicated such a degree of distress, that they clearly would have got medical attention for him, and that did not occur.

It is quite clear also that he went off to school that day and went back in the afternoon. They were ultimately picked up from school, and part from telling his foster mother that some photos were taken, nothing more was said until he was then removed by FACS three days later.

His answer at p 214 that he ‘Hurted, she picked me up and when we went inside it hurted, my neck really hurted.’ Again, he did not tell that to any of the childcare workers, particularly Carer C, who took great detail. It is noted that in relation to the transcript of the proceedings, he agreed that he said then that ERC – and this appears in his cross-examination, that ERC took the child CC inside and then came back out, and then he was choked by her; and then agreed later that she had the child in her hands, and of course then there is the other version, that he said that she gave the child to BB. BB denied ever having the child and BB says, as the version of ERC, is that when he is refusing to go into the childcare centre he is choking himself, with his hands around his neck making choking noises, and that then is all that occurred.

It is quite clear he is a very solid child at 55 kilos, and it was quite clear that ERC is a very small, slight build indeed. It is difficult to imagine how she would have lifted him up at all, that is for the five seconds that he says, and he has alternated from one hand to two hands, and to lifting up in the air, giving a range of versions of events that seemed to grow with seriousness in relation to the allegations.

In relation to the matter it is quite clear that ERC denies choking him. She agrees that was very angry. She is obviously trying to get the children in, she is trying to get to work. They have had this altercation about the umbrella, which may have been out of proportion, really, to the event occurred, but he has obviously kicked BB for whatever reason. He says that BB laughed at him, BB may well have. There is some issue in the evidence previously that he was told he was going to go to bed without any dinner, but that is not exactly what he told Carer C, where he said to her immediately that he was going to have to go to be [sic] straight after dinner. So again he continues to increasingly put ERC in a poor light and a poor light from a parenting point of view.

Whilst she denies yelling it is quite clear that any raised voices, and they were the only ones that appear to be having some altercation, must have been the noise that was heard from inside. However, it is quite clear that none of the childcare workers see it, there is no CCTV footage, and for reasons best known to the prosecution the other parents that were supposedly outside with them, they seem not to have been sought out or questioned, but in any event, the son, and I accept that as a biological child, BB would not want to get his mother into trouble, however, he was straightforward insofar as what he says he observed, and it would seem to me, given the ever-changing version of the child AA as to being touched on the back of the neck, lifted up then by both hands on the front of the neck; then alternatively ERC having the umbrella and the child, then perhaps not having the child, and then perhaps we do not know what happened to the umbrella but he somehow ended up with it. There seems to be way too many versions of events to be able to ascertain what actually occurred.”

73. In addition to the observations of the Magistrate, we note the Detective gave evidence of the investigation. He agreed there did not appear to be any medical intervention or reports, neither was there any evidence of trauma around the neck (such as bruising) which he accepted would be expected given the assertions by AA.

74. Ultimately her Honour concluded:

“I find there was some argument outside concerning the umbrella. He has clearly refused to go in. He is upset, he clearly wants to be with his brother [DD], because he talks in glowing terms about his life with that when the police interview him to begin with; and that has certainly been a motive that was put to him as making this up, to the achieve a result which he did in fact achieve; and that is to be reunited with his biological family, which is where he is.

This is what [BB] says was the endeavour, because he says that in his perception [DD], the brother who had gone back to the biological family, was receiving all the attention, and he wanted to be part of that. Not unreasonable, however not unusual for a child to make up a story, no doubt, because there is evidence that he has previously made up some tales and this event seems to be growing in relation to its versions, depending on how many times he is asked to give a version of events.

Whilst it is not incumbent upon someone to have a motive to make something up, it appears that it was suggested and it is there, and that is the only comment I make about it. However, it is quite clear that on looking at the evidence before the Court there are way too many versions that do not seem to be consistent, and I would have thought that if he had been lifted up by two hands and into the air for some five seconds there would be significant injury and significant need for medical attention. None of that was obvious to the carers, who were clearly paying close attention to him, and I believe that this was added in order to gild the lily in relation to the version of events. This of course casts doubt on the credibility of the complainant as a whole, and I believe it would be unsafe to support a conviction.

Accordingly, I am not satisfied beyond reasonable doubt and the charge before the Court is dismissed.”

75. Having reviewed all of the material, we accept the findings made by the learned Magistrate as particularly persuasive. The Magistrate was in the best position to fully assess the quality and reliability of witnesses in relation to the criminal charge which we have considered and on which we place particular weight.

ERC’s evidence

76. ERC has consistently (in her criminal proceedings and in her evidence before us) denied that the alleged offence in 2020 ever occurred. ERC denied that she tried to choke AA or that she swore at him.

77. ERC also denied the allegation put to her in cross-examination that she strangled BB previously when he did not pick up puppy poo.

78. ERC also denied the conduct surrounding the 2018 incident. The s 58 documents contain various documents including Wesley Dalmar incident report dated 1 June 2018. When ERC was questioned by caseworkers about the allegation that she held AA against the car with her left hand around his throat and using her right hand to slap him roughly 4-5 times, she shook her head and said “I didn’t even touch AA”. ERC explained “I parked at Nepean Square. The boys got out and started chasing each other around the car park. I was trying to get CC out of the car and she was crying. I was by myself with the kids. I said ‘BB come here now’. They were still running around. I said again ‘BB come here’. I pushed him against the car. I didn’t touch AA.”

79. In the Wesley Dalmar Incident report of 1 June 2018, ERC is also recorded as saying “I wouldn’t hurt my kids, no way. I was just protecting my kid from getting hit by a car. How could I live with myself if something had happened to him? [BB] has never done anything like that before. I asked him why he was doing this. He said “[AA] was chasing me,” and AA said, “BB was chasing me.”

80. ERC is further recorded as saying: “It scared me a lot. I had a massive talk with them about safety and how they needed to not run around in the carpark so they are not hit by a car or taken by a stranger. I couldn’t live with myself if something happened to them.”

81. ERC’s explanation given to the DCJ and police at the time (as recorded in the s 58 documents) was consistent with the evidence she gave in this proceeding. It was also consistent with the version of events given by AA to the caseworker who interviewed him at the time (also recorded in the s 58 documents).

82. ERC candidly conceded in cross-examination that on occasion, she gets angry and frustrated with her children and that she sometimes yells at her children.

83. Despite the rigorous cross-examination by counsel for the respondent on the matters which had previously been dealt with in cross-examination in the criminal proceedings, we found ERC to be a reliable and truthful witness.

84. The cross-examination did not reveal any matter which in our view would count against ERC.

Our findings

85. We have considered the oral and documentary evidence before us including the evidence of ERC and the findings of Magistrate Toose.

86. On the basis of the evidence, we are not satisfied that the alleged offence occurred.

87. We have formed our view having considered all of the material before us and find, on the balance of probabilities, that ERC does not pose a risk to the safety of children.

Section 30(1) considerations

88. In determining this application, the Tribunal must consider the factors set out in s 30(1) of the Act.

(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

89. The matter that caused an assessment and the cancellation of her WWCCC was the charge against the applicant for common assault against AA in 2020.

90. Although the charge against ERC of common assault was serious, she has always denied it and the charges were dismissed in the Local Court.

91. As discussed above, subsequent to the respondent’s assessment and determination in this matter, the criminal proceedings have been concluded and we have set out above the learned Magistrate’s findings and conclusions.

92. The learned Magistrate expressed doubt about the reliability of AA’s evidence given the substantial inconsistencies in his versions of events; noted that AA wanted to portray ERC in a negative light and had a history of telling tales; that BB was straightforward in what he observed; and that BB gave evidence at AA wanted to live with his biological family. The Magistrate was not satisfied that this charge met the requisite standard to prove an offence occurred.

93. As expressed at above, we are not satisfied, on the balance of probabilities, that the alleged offence occurred.

94. We also note that DD made a similar complaint in June 2018 except that it was ERX that was alleged to have grabbed DD around the neck when collecting him from the Centre. This complaint was made just a few months before DD went to live with his biological grandparents. We do not make any findings about this (and no party addressed us about the record of this event as revealed in the s 58 documents) but we observe that it may give context to the AA’s version of events and the learned Magistrate’s observations about AA telling tales and wanting to live with his biological grandparents.

95. In relation to the 2018 incident, ERC has consistently denied the allegation. The evidence before us is that the police interviewed ERC and AA in relation to this incident and made a decision that the allegation could not be substantiated. While CCTV footage was not available where the incident occurred, footage was available in the area where the children and ERC entered the shops directly after the alleged incident occurred and the footage did not show that any child was in distress.

96. When the DCJ investigated the 2018 incident, AA told his case worker ERC did not hurt him and had never hurt him. Rather he and BB got in trouble from ERC for running in the carpark by pointing her finger at them while she lectured them about safety in carparks.

97. As noted above, we found ERC to be a reliable and truthful witness and we accept her evidence.

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

98. The alleged offence occurred on 9 March 2020. On the evidence before us, there has been no conduct of concern by ERC since this time.

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

99. ERC was 41 at the time of the alleged offence.

(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

100. AA was 8 years old at the time of the alleged offence and the foster child of ERC’s partner, ERX. AA had lived with ERX since he was two years old and was dependent on ERX and ERC for care.

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

101. ERC is 33 years older than AA.

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

102. As ERC lived with AA, she was aware that he was a child.

(g)  the person’s present age

103. ERC is 43 years of age.

(h)  the seriousness of the person’s criminal history and the conduct of the person since the matters occurred

104. ERC does not have a criminal record or a criminal history subsequent to the alleged offence.

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

105. We also note that AA has resided permanently with his biological grandparents and brother since 12 March 2020.

106. There is no risk assessment report from a psychologist before the Tribunal. We also note there is no medical evidence before us in relation to the alleged offence in 2020.

107. In the Wesley Report, a non-adverse finding has been made in the final risk assessment conducted by Wesley Dalmar.

108. As noted above, ERC provided numerous employer and character references during the risk assessment process. The references overwhelmingly described ERC as a pleasant, caring person with a history of kind and nurturing care of her children, those of her extended family and friends and of supporting her elderly parents. The personal references express their utmost confidence in ERC’s ability to care for children and entrust their own children with her.

109. We note the respondent’s submission that little weight should be given to these references for the reason that they did not disclose knowledge of the alleged offence.

110. We do not accept that submission concerning the Referee BM, Referee KC and Employer Referee KM. This is for the following reasons:

1. The materials before us reveal that Referee BM was present with ERC as a support person when she was arrested on 30 May 2020. It can be inferred from her presence, that she was aware of the allegations against ERC. Further, in her reference she states “With the knowledge I have of this pending charge against [ERC], I still have no reservations with leaving my disabled children with her as I have seen her with her own children and others. She is a soft and dedicated mother who would never hurt or harm any human being let along [sic] a child.”

2. Referee KC was present at the hearing as a support person to ERC. We infer from her presence at the hearing, that she was fully aware of all of the allegations against ERC. Referee KC stated that she has known ERC all her life; that ERC is an honest, hardworking, and caring mother who is committed to her children; that ERC is an active and involved parent; a well-loved aunt and member of extended family; that ERC has cared for Referee KC’s children when they were younger and that she had no hesitation leaving her children in ERC’s care.

3. Employer Referee KM was ERC’s supervisor at NSW Health. The s 58 documents reveal that ERC was interviewed by her employer in June 2020 in relation to the allegations against her and was aware of the criminal proceedings and that her WWCCC had been cancelled. A risk assessment process was undertaken by NSW Health to ensure that ERC was not allocated to work in any areas of the hospital where children were on the wards. ERC also gave evidence that her employer required her to have a WWCCC to work in those areas. NSW Health subsequently endorsed and verified the references given by Employer Referee KS, Employer Referee BG and another referee from her employment at NSW Health, Referee TS. There is no evidence that any complaint has ever been made in ERC’s conduct in her employment over 17 years.

111. As we are not satisfied the alleged offence occurred and having regard to the glowing character references for ERC particularly from those with knowledge of the alleged offence and current proceedings, we consider it unlikely it will occur in the future.

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

112. The AVO that was previously in place was withdrawn on 1 June 2021 at the request of the prosecutor. There are no other orders of which the Tribunal is aware.

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

113. We have already set out above the evidence given by ERC in this proceeding.

114. We have also referred to the glowing character references provided for ERC which support a positive finding concerning ERC’s application.

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

115. Not applicable.

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

116. There are no other matters the respondent has raised as relevant.

Section 30(1A) Considerations and findings

117. Having regard to the material before us, we are satisfied that a reasonable person with knowledge of all the facts and circumstances, would allow his or her child to have direct contact with ERC whilst unsupervised by another person.

118. In this regard, the reasonable person would:

1. note the circumstances surrounding the allege offence in 2020 including that AA gave inconsistent versions and wanted to live with his biological family;

2. have regard to the 2018 incident noting it was denied by ERC and the alleged victim and ultimately unsubstantiated by DCJ and police; and

3. have regard to the references from ERC’s employer, friends and family, particularly those with knowledge of the alleged offence and these proceedings.

119. We are also satisfied, having regard to the subject matter, scope and purpose of the Act to protect children from child abuse, that it is in the public interest to make the orders sought by ERC.

Orders

1. The decision of the Children’s Guardian made on 29 April 2021 to cancel a Working with Children Clearance is set aside.

2. The Children’s Guardian is to grant ERC a Working with Children Check Clearance 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: 18 February 2022