Gray v Coffs Harbour Family Day Care Scheme (No.2)

[2006] NSWADT 176

CITATION:	Gray v Coffs Harbour Family Day Care Scheme (No.2) [2006] NSWADT 176 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	Community Services Division
PARTIES:	APPLICANT Rhonda Gray RESPONDENT Coffs Harbour Family Day Care Scheme
FILE NUMBER:	054050
HEARING DATES:	6/03/2006-7/03/2006 and 3/05/2006
SUBMISSIONS CLOSED:	05/03/2006
DATE OF DECISION:	06/14/2006
BEFORE:	Britton A - Judicial Member; Dobell D - Non Judicial Member; Groth D - Non Judicial Member
CATCHWORDS:	Child care provider registration - cancellation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Children and Young Persons (Care and Protection) Act 1998 Children's Services Regulation 2004
CASES CITED:	Allesch v Maunz (2000) 203 CLR 172 Briginshaw v Briginshaw (1938) 60 CLR 336 GG v Minister for Community Services [2002] NSWCA 247 Gray v Coffs Harbour Family Day Care Scheme (CSD) [2005] NSWADTAP 50 M v M (1988) 166 CLR 69 McDonald v Guardianship Administration Board [1993] 1 VR 521 (SupCtVic, Appeal Div) Suzanne Frugtniet v Administrative Decisions Tribunal (Appeal Panel) & Anor; Brian Frugtniet v Administrative Decisions Tribunal (Appeal Panel) & Anor [2005] NSWCA 257
REPRESENTATION:	APPLICANT A Tibby, barrister RESPONDENT S Campbell, solicitor
ORDERS:	1.The Respondent’s decision to de-register the Applicant is revoked; 2.In substitution of that decision, the Applicant is be reinstated on the register of family day care carers required to be maintained by the Respondent under cl. 100 of the Children’s Services Regulation 2004

Section 126 provides

(1A) This section applies only to the following:


(a) proceedings in the Community Services Division of the Tribunal,

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,

(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.


(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,


whether before or after the proceedings are disposed of.

Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.

(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.

(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

1 Rhonda Gray applied to the Administrative Decisions Tribunal for review of the decision made by the Coffs Harbour Family Day Care to terminate her registration as a family day care carer. The Respondent is a licensee of a family day care children’s service and Ms Gray was a family day care carer with this service. The stated reason for the Respondent’s decision is the finding by the Department of Community Services that Ms Gray had smacked children in her care. That allegation is strenuously denied.

Jurisdiction

2 The decision to remove Ms Gray’s name from the Respondent’s register is reviewable by the Tribunal: s 38(1) of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) and cl. 123A of the Children’s Services Regulation 2004 (the 2004 Regulation). (See Gray v Coffs Harbour Family Day Care Scheme (CSD) [2005] NSWADTAP 50.)

Background

3 Before Ms Gray was registered with the Respondent as a family day care carer (a carer) in 2002, she had held various positions of trust including that of a private childcare provider. The Respondent received no complaints about Ms Gray in the two and a half years she had been registered except for the disclosures made by two children from different families in December 2004. Each child separately claimed to DoCS, in interview, that Ms Gray had smacked them on the bottom with a wooden spoon.

4 Ms Gray gives children notice Ms Gray cared for sisters, Child 1 and Child 2, on a continuous basis from 2000, initially under a private arrangement, and, from August 2002, as a carer registered with the Respondent’s scheme. The girls’ parents operated a restaurant and worked very long hours. The girls were often in care seven days a week. Ms Gray cared for the girls for 40, and on occasion, up to 100 hours a week. For much of the period the girls were with Ms Gray they were also cared for by Angela Kirkwood, also a registered carer with Coffs Harbour Family Day Care.

5 The girls often stayed with Ms Gray for extended periods. Ms Gray had taken them on holidays and organised birthday parties and outings for them.

6 On 7 November 2004, Ms Gray gave the girls’ mother, Mrs A, two weeks notice. She said that she terminated the arrangement for two reasons. First, Child 1’s alleged propensity to tell “lies” and, second, Ms A’s apparent dissatisfaction with the fee arrangements. Ms Gray charged marginally higher fees than Ms Kirkwood.

7 According to Ms Gray, when she returned from an overseas trip in August 2004 she had become increasingly aware that the older girl, Child 1 was “making up” stories. She cited as an example Child 1’s claim that Ms Kirkwood allowed her to do craft “all the time” which on enquiry she found not to be true. She claimed that she was worried that these “lies” about relatively trivial matters might escalate in the future. She was especially concerned that a baseless allegation might be made about her adult son who suffered from autism and lived with her. No such allegation has ever been made.

8 Before the girls left her care, Ms Gray reported her concerns about Child 1’s “stories” to the Respondent’s Child Development Officer, Natalie Darlington. She also told Helma Greguric, who took over the care of the girls.

9 Reaction of Girls Ms Gray claims that the girls seemed to be upset when told they were to leave her care. She said Child 1 asked whether they would still be able to go away with her on holidays and when told that they would not she seemed angry. According to Ms Gray she told Child 1,

The reason I’m giving you up is because of your lies, you tell lies and try to get me into trouble. I can’t trust you. When I finish caring for you it doesn’t mean you will stay at home with mum. You will go to another carer.
10 Ms Gray claimed that Child 1 had told her on a number of occasions that she wanted to spend more time with her mother. In her opinion, Child 1 seemed upset by being away from her mother for as long as she was. Carers Rhonda Heynes and Angela Kirkwood told the Tribunal that they shared that opinion.

11 The last day the girls were in Ms Gray’s care was 21 November 2004.

12 Disclosure by Child 1 On or about 6 December 2004, Natalie Darlington notified the Respondent’s manager, Inge Gosch, that Ms Greguric had reported overhearing Child 1 tell two other children, “Rhonda had hit her”.

13 In an Unusual Occurrence Form (a pro forma notification form required to be completed by the Respondent’s carers when ‘unusual events’ occurred) dated 7 December 2004, Ms Gosch wrote,

“I contacted Helma [Greguric] to confirm her conversation. Because [Child1 and Child 2] had been cared for by Rhonda Heyne before they were relocated to Rhonda Gray we need to establish which Rhonda the girls were talking about. I asked Helma whether she was comfortable to find about who had smacked the girls and why. I asked her to choose a casual moment and how she would broach the subject. Helma felt comfortable to talk to both children and as soon as had the information she would call me.”

Friday 10 December 2004

“Helma informs me as follows: She had spoken to the two girls separately. Both [Child1 and Child 2] stated that Rhonda Gray had smacked them. She also smacked them with a wooden spoon when they are really naughty. [Child 2] had been smacked when she took too long eating her dinner. [Child 2] was also smacked when she used naughty words. Both [Child 1 and Child 2] said that they get smacked when they used naughty words. They expressed that they never wanted to go back there…”

14 (Rhonda Heynes was suspended by the Respondent for a brief period in 2002 following an allegation, found to be substantiated, that she had hit a very difficult child with a wooden spoon.)

15 On 8 December, Ms Kirkwood notified Ms Gosch that she had seen a bruise on Child 1’s back. In a form of the same date, Ms Kirkwood wrote, “… I noticed a medium type bruise on [Child 1’s] back towards the bottom…[Child 1] told me mum has hit her lots of times because she wanted to finish watching television but they were running late for school”.

16 It is not in issue that Mrs A smacked her daughters.

17 On 10 December, Ms Gosch notified Ms Gray that a serious allegation had been made against her. At a meeting held that day, Ms Gosch told Ms Gray that it had been alleged that she had smacked both girls with a wooden spoon for “…using naughty language and [Child 2] for eating too slow”. Ms Gray strongly denied those allegations.

18 Investigation by DoCS On 14 December, Ms Gosch notified DoCS of the disclosure made by Child 1. DoCS officers Brad Hart and Deborah Cornale were appointed to investigate the allegation. Mr Hart and Ms Cornale interviewed Ms Gray, Child 1 and Child 2, and two brothers from another family who we will refer to in these reasons as Child 3 and Child 4.

19 Interview with Child 1 and Child 2 The girls were interviewed on 17 December. They were interviewed separately in the presence of their mother whose command of English was limited. Mr Hart made a hand-written record of interview which he later typed up with the assistance of Ms Cornale. Copies of the hand-written and typed record of interview were tendered in these proceedings. Ms Cornale said in evidence that the records did not purport to be a verbatim transcript but, in her view, represented a fair representation of what was said.

20 At the date of interview Child 1 was seven and Child 2 five years of age.

21 In answer to a question about what she liked and did not like about her carers, Child 1 is recorded to have said, “Like about Rhonda-Shopping. Don’t like – keeps smacking us”. She is also is recorded to have said:

She was smacked when “secrets, when we cry”.

Rhonda hit her with “wooden spoon on the bottom, on top of clothes”.

“Don’t know” when Rhonda last hit her.

She told no one about being hit. “Kept forgetting to tell mum, felt sad when Rhonda smacked. Every kid that’s naughty except babies.”

[Rhonda] smacks other children [Child 3, Child 4 and my sister] and me.]

No one else had smacked her with a spoon. “My mum smacks me on the arm [with spoon]. My mum smacks me on the arm.”

22 [Child 2] is recorded to have said that her mother and father hit her on the bottom with their hands; her mother did so a lot; she did not like it; her parents were the only people who smacked her.

23 Interview with Ms Gray Mr Hart and Ms Cornale interviewed Ms Gray after interviewing the girls. The handwritten and typed versions of the record of interview were tendered in these proceedings.

24 Ms Gray is recorded to have denied hitting or smacking any of the children in her care. She said she just “raised her voice”. She said the girls never swore or used naughty words. She said that she didn’t have to discipline them a lot.

25 The typed record of interview records Ms Gray as saying in answer to the question, “Do you use the wooden spoon as a threat?”

“Used to love cooking barbeques, chips. No never a threat.”
26 In these proceedings Ms Gray claimed not to have used those words but rather that she used the spoon to cook cakes and chocolate crackles with the children.

27 She said that she told the interviewing officers that she did not have a “normal wooden spoon” but a spatula with a burn mark on the handle which she showed to them. This does not appear on the record of interview but is not disputed. A drawing of the spatula made by Mr Hart was attached to the record of interview (Exhibit A 10, p 266).

28 There are a number of discrepancies between the handwritten and typed records of interview. For example, in the handwritten version Ms Gray is quoted as saying Child 1 would not make up “stories’ while the handwritten version records a number examples of Child 1’s stories.

29 At interview, Ms Gray was asked to and gave the names of other children who were or had been in her care. They included Child 3 and Child 4.

30 Interview with Child 3 and Child 4 Brothers, Child 3 and Child 4, were cared for by Ms Gray from 2002 until mid-2004 when they were taken out of Ms Gray’s care because their grandmother had migrated from China and took over their care. Child 1, 2, 3 and 4 had been in the care of Ms Gray at the same time. Before that, all four children had been cared for by Rhonda Heynes.

31 On 21 December 2004, Child 4, then aged eight, was interviewed by Ms Cornale. Mr Hart again acted as scribe. Handwritten and typed records of interview were tendered in these proceedings.

32 According to Ms Cornale, Child 4 declined the opportunity to have a support person with him during the interview.

33 The following extract is taken from the typed record of interview:

Q: If you were naughty did she [Rhonda] put you in time out chair, lay on bed or lie down or something.

A: Smack with wooden spoon.

Q: Whereabouts?

A: On the bottom.

Q: Smack anywhere else with wooden spoon. Did she say anything?

A: I forgot.

Q: Did Rhonda ever smack with anything else. How many times can you remember?

Child 4 shrugs shoulders

Q: Anyone else get hit by Rhonda with spoon?

A: [Child 1].

Q: Did [Child 1] get hit a lot with wooden spoon?

A: Yes

Q: Did [Child3 ] get hit?

A: Sometimes.

Q: Tell me what it felt like.

A: Can’t remember.

Q: Last time Rhonda hit you do you remember?

A: Don’t know.

Q: Do you know what the wooden spoon looked like?

A: Yes goes like that and that ([Child 4] drew picture of spoon)

Q: Where was it?

A: In the cooking drawer.

Q: Is this the only wooden spoon, different ones?

A: No

Q: Did she do cooking with you?

A: No

Q: See it anywhere else?

A: No

34 Child 4 was asked to draw the offending wooden spoon. A copy of that drawing was attached to the record of the interview. The depicted spoon showed a small round “regular” spoon.

35 The interview with Child 3, then aged six, did not proceed as Ms Cornale and Mr Hart concluded that his command of English was poor and he had not reached appropriate development milestones.

36 Findings by DoCS After interviewing the girls and Ms Gray, Ms Cornale and Mr Hart met with their supervisor, Barbara Beddle, and decided further information should be obtained. After the interviews with the Child 3 and 4 were completed, the three met again and it was agreed that the evidence was sufficient to substantiate the allegation against Ms Gray.

37 By letter dated 21 December 2004, Ms Cornale wrote to the Respondent advising, “The Department completed a secondary risk assessment and in the course of its investigation had received two separate disclosures in relation to a number of children in the care of Rhonda Gray, being physically disciplined with a wooden spoon on the bottom.” She advised that the information about these disclosures would be recorded on the KIDS system “ending our investigation as the children are now considered to be safe from harm due to their alterative care arrangements”.

38 On 12 January 2005, Ms Beddle wrote to the Respondent and advised that DoCS had completed its investigation into the allegations that Ms Gray had “physically disciplined children she had cared for in her capacity as a Family Day Carer”. She advised that the allegation that Ms Gray had physically disciplined children with a wooden spoon on the bottom had been substantiated.

39 None of the 13 other children who were in Ms Gray’s care in November 2004 were interviewed by DoCS in the course of its investigation. Neither were the parents of the four children,nor their teachers, current or former carers.

40 Discussions between the girls and Ms Kirkwood Ms Kirkwood testified that throughout the period she had the care of the girls, September 2003 to date, they had not once said to her that Ms Gray had hit or physically abused them. She said that they always spoke warmly about Ms Gray. In contrast, she claimed they had said negative things about other carers, including Ms Greguric.

41 According to Ms Kirkwood, in late December 2004 Child 2 told her she saw Ms Gray at the shopping centre and asked why she didn’t go to “Rhonda’s” anymore. Ms Kirkwood said she explained that Ms Gray had given notice and gave this further account of the conversation:

Child 1: Was she [Ms Gray] angry with me and [my sister]?

AK: No I’m sure she is not.

Child 1: Yes she is.

AK: You tell me why you think Rhonda is sad with you?

Child 1: I can’t tell you why because I am not allowed to.

42 Discussions between the children and their parents The parents of the girls, Mr and Mrs A, gave evidence in these proceedings, as did the father of the boys, Mr B. All testified that none of their children had ever alleged having been hit, smacked or in any way physically abused by Ms Gray.

43 According to Mr A, sometime after the DoCS’ interview he asked Child 1whether she had ever been hit by Ms Gray but she would not answer.

44 Contact between the four children As noted, Ms Gray cared for all four children throughout the period 2002-2004. Before that the children had been with the same carer, Rhonda Heynes. The families were friendly and socialised on occasion. Child 2 and Child 4 attended the same school and were in the same year but not the same class.

45 There is no direct evidence that Child 2 and Child 4 discussed Ms Gray at any time during or before the DoCS’ investigation.

46 Ms Gray’s Answer to the Allegations Ms Gray has consistently denied that she has ever hit, smacked or physically abused child in her care. She admitted to having smacked her grandchildren on occasion but never while other children were in her care.

47 Ms Gray denied hitting or using a wooden spoon to discipline or threaten any child in her care. She also denied having in her possession at the relevant time a “standard wooden spoon”. She agreed it was possible that the first time she used the term “spatula” as opposed to “wooden spoon” was in the interview with DoCS on 17 December 2004.

48 Ms Gray told the Tribunal that she had a running joke with one grandson about the ‘talking wooden spoon’. Ms Gray claimed the game went as follows: she would ask the grandson to clean his teeth; he proceeded to pretend to ignore her; she would then say, ‘Well, you can’t hear me, you might be able to hear my talking wooden spoon’. She said she recalled one evening when the girls were at her place playing this game with her grandson. She said all the children were running through the house laughing and Child 2 was saying, “Do me, do me”. That account is broadly consistent with a note taken by Ms Gosch of her meeting with Ms Gray on 13 December 2004 (Exhibit R 2 Attachment F).

49 Character Evidence Tendered in these proceedings were a large number of references provided by parents whose children had been cared for by Ms Gray. The majority had children in Ms Gray’s care at the time the allegations were made. All stated that they found Ms Gray to be a warm and loving carer and had heard no negative reports about her from their children. A significant proportion went on to expressly state that Ms Gray had never subjected their child, or to their knowledge, any other child, to physical abuse.

50 Conduct after suspension By letter dated 14 December 2004, the Respondent notifed Ms Gray that she been suspended as a carer. On 21 December the Respondent’s committee of management met and decided to de-register Ms Gray. Ms Gray was given written advice of that decision by letter dated 13 January 2005.

51 For a short period after being suspended Ms Gray, continued to care for a couple of children who had been placed with her by the respondent. She claimed that she did so to help out parents who were unable to find alternative care and that she took no payment for her services.

Findings and Conclusions

52 In conducting this review, the Tribunal ‘stands in the shoes’ of the administrator, the Coffs Harbour Family Day Care Scheme and is required to make the ‘correct and preferable decision’ having regard to the material then before it (Tribunal Act, s 63). This includes not only the material available to the Respondent at the time the original decision was made (Suzanne Frugtniet v Administrative Decisions Tribunal (Appeal Panel) & Anor; Brian Frugtniet v Administrative Decisions Tribunal (Appeal Panel) & Anor [2005] NSWCA 257 at [45]) but any material that postdates that decision (YG & GG v Minister for Community Services [2002] NSWCA 247 at [25]). The review is to be conducted “without any presumption as to the correctness of the decision”: McDonald v Guardianship Administration Board [1993] 1 VR 521 at 530 (SupCtVic, Appeal Div). In making its decision, the Tribunal is instructed to observe the principles enunciated in s 9 of the Children and Young Persons (Care and Protection) Act 1998 (the 1998 Act) which include that the safety, welfare and well-being of the child or young person must be the paramount consideration. Section 201 of the Act sets out the objects of that part of the legislation, which deals with children’s services. They are:

(a) to ensure the safety, welfare and well-being of children in children’s services, and

(b) to promote certain standards for those services, and

(c) to ensure, as far as possible, that all persons working in children’s services are suitable for such work.

53 Section 202 provides that the provision of children’s services should be based on the following principles:
(a) the paramount consideration in the provision of children’s services is the best interests of children,

(b) children should receive services that meet their individual needs (including the needs of children with a disability) and enhance their physical, emotional, cognitive, social and cultural development,

(c) parents have both a right and a responsibility to be involved in the making of decisions by a children’s service in so far as those decisions affect their children.

Procedural Fairness

54 Before dealing with the substantive issues, we digress to deal with the allegation raised on behalf of Ms Gray, namely, that the Respondent’s decision-making process was seriously flawed and, as a consequence, she was denied procedural fairness. Among other things, Counsel for Ms Gray pointed to the alleged failure of the Respondent to allow her to answer the allegation concerning the second child, Child 4, and put her case before the Committee meeting where the decision to deregister her was made. In addition, it was argued that a critical decision maker, Inge Gosch, should have disqualified herself from the decision-making process as there existed a reasonable apprehension that she might not bring an impartial mind to that decision.

55 The Tribunal, in exercising its jurisdiction to review reviewable decisions such as the decision to deregister Ms Gray, undertakes a full de novo review. The power to conduct its review must be exercised “regardless of error” in the decision reached by the original maker. (See Allesch v Maunz (2000) 203 CLR 172 p 180. It is uncontroversial that where a decision-maker fails to provide procedural fairness to a person whose interests are affected the decision may be set aside or suspended pending the correction of the default. However, it is not necessary in the context of merits review to establish error before review can proceed.

56 As these proceedings are de novo, however, there is little purpose in pursuing what may or may not have been a failure on the part of the Respondent to afford Mrs Gray procedural fairness in making its decision. It is the task of this Tribunal, notwithstanding the previous history, to attempt to find the correct and preferable decision, not to engage in an investigation of what may or may not have been an administrative error on the part of the Respondent. To undertake such a task would be to divert the Tribunal from its proper course.

Onus of proof

57 Where the welfare of children is concerned, for obvious reasons the law is highly protective. In M v M (1988) 166 CLR 69, a well-known decision of the High Court in relation to the Family Law jurisdiction, the Court considered the question of how courts should treat the competing the interests of children who are alleged to be at risk of abuse from their parents (and, by analogy, their carers) and those accused of perpetrating such abuse. It said (at 75-76):

In proceedings under Part VII of the [Family Law Act] in relation to a child, the court is enjoined to 'regard the welfare of the child as the paramount consideration' (s 60D). ... The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.

...[T]he resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were not more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance probabilities.

In considering the allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof ...".

58 The Court then referred to the well-known dicta of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362, quoted above, before continuing. In that case Dixon J said:
Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.'
59 The Court continued:
[These] remarks have direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, 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. ...

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 assessing the magnitude of the risk.

60 The Court then discussed various ways in which the courts have attempted to describe the magnitude of risk. It concluded:
To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
61 Clearly where allegations of a serious nature are made against a person they must be proven to the Briginshaw standard and yet, in protective jurisdictions, there must be no “unacceptable risk” to the vulnerable and defenceless potential (or actual) victims. Here, as is so often the case where there are competing public interests, or competing private and public interests, a balance must be struck. And, as is also very often the case, the precise point of balance is not always easily found. Where that balance or, the ‘tipping point’, is to be found will depend on the specific circumstances. It is impossible to be prescriptive and this case is no exception.

62 Where the evidence one way or the other is powerful, finding the preferable decision will generally not cause great difficulty. It is where the evidence is equivocal or ambiguous or finely balanced that the exercise will cause anxiety and disquiet in the decision-maker (or the Tribunal as the case may be). Nevertheless, this responsibility may not be shirked even when the degree of anxiety is high as it will often be when children may be at risk.

63 In our view, however, when considering the onus of proof, the competition or conflict between the principles enunciated in M and in Briginshaw may be more apparent than real. If there is evidence that comfortably satisfies the decision maker that there is an “unacceptable risk” of harm to a child placed in the care of a person (parent or otherwise) it seems to us that this would be a sufficient basis upon which the Respondent or a party in its position might reasonably have revoked the licence of a carer in the position of the applicant. Here an “unacceptable risk” would need to real or material, not merely speculative or remote.

64 Mere allegations do not amount to sufficient evidence of an “unacceptable risk”. As the High Court observed in M, such allegations are easily made but difficult to refute. The potential for injustice to an accused or suspect is high, particularly given the stigma that attaches to those who are known or thought to have harmed children. The protective legislation governing this area requires the welfare of children to be given paramount consideration. It does not sweep aside all other considerations. The paramountcy of the interests of children will rarely if ever justify a complete disregard of the interests of persons accused or suspected of having maltreated them where those accusations or suspicions have not been proven or at least subjected to stringent testing.

65 At the time of the investigation into the alleged incidents, the three children interviewed were aged eight, seven and five. The difficulties of assessing the evidence of children are well-known and much researched. This is no place for a lengthy recital of that research and of the law’s long consideration of it. Suffice it to say that no one has yet developed an infallible test of the truthfulness and reliability of the evidence of young children. No aspersions are cast upon the children who gave evidence in this matter nor the investigators whose integrity and fairness in undertaking their inquiries was abundantly apparent. It is an observation about human nature and childhood in particular. These difficulties ensure that proof of maltreatment of young children is often a very difficult task.

66 However, before a decision-maker in the position of the Respondent may take the drastic action which it took, it is required to be comfortably satisfied on the balance of probabilities that the allegations had been made out and that there was an “unacceptable risk” of harm children who might be placed in the care of the Applicant.

Findings of fact

67 The great difficulty in determining the facts of the matter, as far as that is possible, is that while the allegations of hitting with a wooden spoon are, on their face plain enough, it is necessary to consider the truthfulness and reliability of the accounts given by the children. The Respondent submits that the Tribunal ought be satisfied that the children are both truthful and reliable or, at the very least, that the Tribunal could be left in a position of such uncertainty that it would consider that there is an “unacceptable risk” to the children. This then justifies the decision to revoke Ms Gray’s licence even if the evidence may fall short of proof of the allegations. It is asserted on Ms Gray’s behalf that there is a considerable body of evidence suggesting that the children’s accounts are not reliable.

68 Before considering the issue of the credibility of the evidence of the various witnesses, however, there are certain matters that are not in dispute. Ms Gray was candid in her admission that she possessed a wooden spatula and that she used it as a “talking stick”. It is also clear that the children, Child 1 and Child 2, were left in care for very long hours because their parents worked extremely hard in their restaurant. Finally, there was uncontested evidence that the parents (or at least the mother) of the girls used corporal punishment upon them for (presumably) corrective purposes. On one occasion at least, a bruise reportedly inflicted by her mother was observed on the buttocks of one of the girls.

69 The evidence against Ms Gray, in our view, suffers from a number of shortcomings. The first is that it was not until after Ms Gray decided to terminate her relationship with the girls that the allegations against her ever came to life. One of the stated reasons for deciding to terminate her care of the children was that she was unhappy about the propensity on the part of one of the children to “tell lies”. If that allegation had been made after a complaint against her it would necessarily have had to be regarded with great caution. As it came before a counter-allegation was made against her, the complaint by Ms Gray has much more force than it might otherwise have had.

70 The children were separated from their parents for very lengthy periods of time, sometimes up to 100 hours per week, due to the demands placed (or self-imposed) upon their parents by the business. There is a suggestion that the allegation of hitting may have been made by one of the children to manipulate her parents into caring for her rather than leaving her with a carer. It is very difficult to assess this argument or suggestion but it accords with commonsense and human experience that many young children prefer to be with their parents than with persons to whom they are not so closely attached. Evidence that supports this argument came not only from Ms Gray but also from Ms Heynes and Ms Kirkwood who both gave it as their opinions that Child 1 wanted more time with her mother (and therefore less time in care).

71 Although the Respondent’s case has always been that it was Ms Rhonda Gray who hit the children, an ambiguity in the evidence is that there was another Rhonda, Ms Heynes, who also was involved in the care of the children at some stages. No allegations have been made against her but neither has there been any investigation making it clear-cut that she was not the “Rhonda” referred to by Child 1 when overheard by Ms Greguric on or about 6 December.

72 It is also worth noting that the comments of 6 December passed from Child 1, who was overheard by Ms Greguric, to Ms Darlington to Ms Gosch. Apart from the fact that the story was third-hand hearsay by the time it got to Ms Gosch, it seems that Ms Greguric herself may have received only an incomplete account of what Child 1 was claiming. The reliability of such evidence must be questionable.

73 There are also questions to be asked about the reliability of the evidence taken in the course of the investigation. For example, when Ms Gray was asked about the wooden spoon, the investigators recorded that she told them that she used it for cooking barbecues and chips. Ms Gray said in her evidence that she never used the spatula for this purpose but for cooking cakes and chocolate crackles. A minor point perhaps but possibly illustrative of some degree of unreliability in the records kept by the investigators. Further, according to Ms Gray she told the investigators that she did not keep a wooden spoon but had a spatula with a burn mark on it. This was not recorded by them. Again, while it is probably impossible to record every detail of an interview of this type it would be reasonable we think to expect that this comment would have been noted. As it was not, it raises a question whether anything else of significance was left out of the record of interview. There were also, as has been noted above, a few discrepancies between the hand-written and typed records of interview. This is probably relatively insignificant because it would be reasonable to suppose that the hand-written version, being contemporaneous, was the more accurate. Nevertheless, a shadow of doubt about the reliability of the investigators’ records has been cast by these mistakes.

74 The major point the Respondent has in its favour is that Child 1’s allegations were apparently corroborated by Child 4. Nevertheless, while that makes the evidence troubling, it is also troubling that the descriptions elicited by the investigators from Child 4 appear to suffer, at least in part, from both lack of specificity and leading of the witness. For example, in relation to the first point, Child 4 was asked to describe what it felt like to be hit with the wooden spoon. He was unable to recall, even in the most general of terms, when he had last been hit with it. He could also not say what it was like to be hit with a wooden spoon. This is somewhat perplexing if he had been. If he had been hurt, it seems unlikely that this would have slipped his memory yet he drew a complete blank on that score.

75 In relation to leading of the witness, Ms Cornale asked, among other questions, “Did Child 1 get hit a lot with wooden spoon?” (emphasis added) and “Did Child 3 get hit?” We, of course, appreciate that it is very difficult to interview witnesses, let alone young child witnesses, without sometimes leading them to a topic. That may be acceptable, but to suggest to a child that an alleged victim had been hit “a lot” or the names of other possible victims crosses the threshold of unacceptability in our view. Further, it undermines the reliability of the evidence obtained.

76 It is very difficult to assess the reliability of the children who gave evidence but, while we do not propose to make any findings that any deliberate untruths were told by anyone of them, we have some hesitation in accepting their versions as the unvarnished truth.

77 This is especially so because Ms Gray appeared to us to be an impressive witness. That impression was buttressed by the array of character evidence she presented. Apart from the evidence apparently corroborative of the Child 1’s allegations, there is nothing of significance to suggest that hitting was carried out by Ms Gray. The evidence from others that she is highly regarded by parents and other carers is a powerful testament to her character. Character evidence goes to the questions of propensity to behave (or not behave) in a certain fashion and to the question of credibility. When placed in the balance to be weighed with the other evidence it militates strongly against a finding by the Respondent that Ms Gray was violent towards the children, used a wooden spoon as an instrument of punishment or threat and that she was and remains an unacceptable risk to children placed in her care.

78 In our experience, parents with children in care are often in a heightened state of alertness to any suggestion of abuse or mistreatment of their children. The possibility of maltreatment is one of the matters highest in the minds of parents seeking care for their children. It seems highly improbable that if Ms Gray had used a wooden spoon to strike children “a lot” that no reports would have emerged during the two and a half years or so that she was registered as a carer. While it is necessarily impossible to state categorically that Ms Gray never hit a child with a wooden spoon, or threatened to, or that she poses no risk at all to children, it appears to us to be a remote risk. Certainly, in our opinion, the evidence against her falls well short of that required to comfortably satisfy us on the balance of probabilities that the allegations against her are made out or that she poses an unacceptable risk to children.

79 For these reasons we have decided that Ms Gray’s name should immediately be restored to the register.

Ms Gray’s Conduct after Suspension

80 The Respondent argued that the Tribunal ought also take into account Ms Gray’s conduct after being suspended, namely her actions in contacting the Mr and Mrs A while the investigations were on foot and her decision to continue to care for a number of children who had been previously referred to her by the Respondent.

81 A carer against whom an allegation of abuse has been made has an obligation to assist in that investigation and at the very least have no further dealing with the child or their family until the matter is resolved. Ms Gray’s decision to initiate contact with Mrs and Mrs A while the investigation was underway was misguided and had the potential to undermine the integrity of the investigation.

82 Ms Gray’s decision to continue to care for some of the children who had been referred to her by the Respondent, after her suspension, even in a voluntary capacity, was also in our opinion ill-advised.

83 In our view, this conduct of itself would not warrant Ms Gray’s removal from the Register. They are, however, serious matters about which Ms Gray should be counselled. We recommend that the Respondent review its policy and procedures and take steps to inform carers of their rights and obligations when an investigation is initiated and/or a decision is made to suspend them from the Register.

Decision

1. The Respondent’s decision to deregister the Applicant is revoked.

2. In substitution of that decision, the Applicant’s name is be reinstated on the register of family day care carers required to be maintained by the Respondent under cl. 100 of the Children’s Services Regulation 2004.

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