VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
REVIEW AND REGULATION LIST	
vcat reference No. Z363/2021	
CATCHWORDS	
Review and Regulation List – Worker Screening Act 2020 sections 65(2); 108 – Category C application – Child Wellbeing and Safety Act 2005.

APPLICANT	Paul Kefford	
RESPONDENT	Secretary to the Department of Justice and Community Safety	
WHERE HELD	Melbourne	
BEFORE	H. Lambrick, Deputy President	
HEARING TYPE	Videoconference Hearing	
DATE OF HEARING	14 December 2021	
DATE OF ORDER	14 December 2021	
DATE OF WRITTEN REASONS	24 December 2021	
CITATION	Kefford v Secretary to the Department of Justice and Community Safety (Review and Regulation) [2021] VCAT 1567	

Order
1	The decision of the respondent to give the applicant a Working with Children exclusion under the Worker Screening Act 2020 is set aside and is substituted for a decision to give the applicant a Working with Children clearance.

H. Lambrick
Deputy President			

APPEARANCES:		
For Applicant 	Mr Kefford	
For Respondent	Mr Brnovic of counsel	

Reasons
1	For many years Mr Kefford, who is the applicant in these proceedings and was formerly engaged as a relief educator at a kindergarten and early childhood day care centre, played a robust game with children described in the proceedings as the tickle monster game. The game, as the name suggests, involved Mr Kefford playing the role of monster and tickling children, with the children either running back and forth to be chased and tickled or climbing over Mr Kefford to be tickled.
2	Over the years, Mr Kefford has played the game with his own and other people’s children. He has done so in the presence of other parents and his own family and friends. He regularly played the tickle monster game with children at the day care centre in the presence of other members of staff and parents. He did so without complaint from anyone.
3	However, in October 2020, Mr Kefford was stood down from his role at the day care centre pending an investigation into allegations that he touched two children in their genital area whilst playing the tickle monster game.
4	Mr Kefford was formally questioned by his employer, as well as officers from the Department of Education and Training and Victoria Police. Mr Kefford acknowledged that he may have inadvertently touched children in the manner described by them as they wriggled and squirmed in the course of the game. Mr Kefford however adamantly denies any suggestion that the touching was anything other than accidental during the rigour of the game.
5	Nevertheless, on 20 November 2020, a delegate of the Secretary to the Department of Education and Training, which is the Regulatory Authority of the Education and Care Services National Law Act 2010 (“the National Law”), made a decision to issue a prohibition notice under Division 3 of Part 7 of the National Law. The effect of this was that Mr Kefford was prohibited from providing education and care to children, being engaged as an educator staff member or volunteer at a day care centre and carrying out any activity relating to a day care centre.
6	Mr Kefford was consequently stood down from his role as an educator.
7	On 9 February 2021, the Commission for Children and Young People (“the Commission”) found the touching of both children was seriously negligent and constituted “sexual misconduct committed against a child” contrary to the Child Wellbeing and Safety Act 2005.
8	The Commission notified the Secretary to the Department of Justice and Community Safety (“the Secretary”) of its findings.
9	As a result of the notification, the Secretary was required to reassess Mr Kefford’s eligibility to hold a Working with Children (“WWC”) clearance under the Worker Screening Act 2020 (“the WSA”). 
10	The reassessment was a category C reassessment under section 86(1)(a) of the WSA. On 6 May 2021, the Secretary revoked Mr Kefford’s WWC clearance and gave him a WWC exclusion under section 91(1) of the WSA. This meant that Mr Kefford was prohibited from undertaking child-related work (including volunteer work).
11	Mr Kefford wishes to work with children in order to support his youngest child. He therefore applied to this Tribunal for a review of the decision of the Secretary to give him the WWC exclusion. 
12	The matter proceeded to hearing before me on 14 December 2021. It was not the first time that I had dealt with the relevant factual matrix.
13	On 30 November 2021, I made findings and delivered oral reasons for my decision in Tribunal file Z1028/2020 in which I granted Mr Kefford’s application to set aside the decision of the Department of Education and Training to issue the prohibition notice.
14	At that hearing, I heard evidence from Mr Kefford and read extensive and compelling character material provided by multiple people from various backgrounds in support of him.
15	I found that any touching by Mr Kefford near a child’s genital area or on a child’s skin that may have occurred was neither intentional nor inappropriately motivated. 
16	In these circumstances, I was completely satisfied that Mr Kefford posed no risk to children.
17	At the commencement of the current proceedings, I explained to Mr Brnovic who appeared as counsel for the Secretary that I had made the strong findings in respect of the proceedings in Tribunal file Z1028/2020.
18	Mr Brnovic indicated that the Secretary was already aware of those factual findings and the orders made by me. He nevertheless submitted that, because the statutory regimes were different, he was instructed to oppose this application in the context of the WSA and that he wished to cross-examine Mr Kefford for the purposes of the application before me. This was of course entirely appropriate and the hearing proceeded before me with Mr Kefford giving evidence and being cross-examined by Mr Brnovic.
19	Mr Kefford again gave articulate and thoughtful evidence, as he had in the earlier proceedings.
20	Mr Kefford accepted that the inadvertent sweeping touching of a child on the skin and/or near the genital area during the course of play may have occurred. 
21	He readily conceded that no inappropriate touching, inadvertent or otherwise, of a child is acceptable but explained that until these proceedings were initiated, he did not consider there was any chance of the tickle monster game being viewed as inappropriate. He emphasised that such play had taken place openly in front of numerous managers with a cumulative of hundreds of years of experience between them and parents who did not challenge the game. 
22	At the conclusion of Mr Kefford’s evidence, I indicated to the parties that I had not changed my factual findings and that I remained satisfied that any touching by Mr Kefford on or near a child’s genital area that may have occurred during the course of the tickle monster game was neither intentional nor inappropriately motivated. 
23	If anything, I was even more persuaded that my earlier findings were correct. 
24	I remained satisfied that Mr Kefford poses no risk to children at all. 
25	When children are squirming with horror and delight, there is of course the real possibility that they can inadvertently be touched on a “private” part of their body, either through clothes or if they are wearing shorts/skirts on their skin. I fully accepted Mr Kefford’s evidence that this is factually what occurred. 
26	Any allegation of behaviour directed against a child which is or could be construed as sexualised is of grave concern. Alarm bells sound and parents are naturally and appropriately concerned about the wellbeing of their children. I was however satisfied that any touching of the children that did occur was inadvertent innocent touching during the course of the tickle monster game. I am satisfied that any such touching was completely unintentional and inadvertent.
27	I am ever mindful that inappropriate touching of children during play raises real concerns about the potential for opportunistic touching of children disguised as play.
28	I am however completely satisfied that in regularly playing the raucous tickle monster game, Mr Kefford had no ulterior motive but played the game solely for the amusement and benefit of the children with whom he was playing the game and for no other reason. 
29	Having made these findings, I turn now to discuss those findings in the context of section 108 of the WSA which sets out this Tribunal’s jurisdiction in relation to category C reassessments. 
30	Section 108(1) of the WSA provides that, in a review of a decision to give a WWC exclusion in relation to a category C application, the Tribunal must determine whether in the particular circumstances it would be appropriate to refuse to give a WWC clearance having regard to any matters to which the Secretary must have regard under section 65(2) of the WSA.
Section 65(2)(a) – the nature and gravity of the conduct and its relevance to child-related work
31	As already discussed, the conduct for the purposes of the Child Wellbeing and Safety Act 2005 involved two allegations of sexual misconduct committed against a child, the allegations being that Mr Kefford had tickled one child’s penis and another child’s vagina. The evidence is unsurprisingly sparse given the ages of the children.
32	The matters came to be investigated when Child 1 was chatting with his father. Child 1, after being asked who he played with during the day, said:
[Child 2] and Paul.
Yes, we played the tickle game. Paul tickled me on my doodle.
33	Thereafter, Child 1 and his father spoke with members of the Knox Sexual Offences and Child Abuse Investigation Team unit of Victoria Police. The child, when asked where he had been touched, showed the upper inner thigh area of his leg close to his penis. 
34	The next day, the father and child were tickling and the child apparently tried to tickle the father’s penis through his pants which the father blocked, saying “we don’t tickle people on the doodle” to which the child responded “Paul does”.
35	The evidence does not go any further than this in relation to Child 1.
36	The parents of Child 2 were contacted by authorities. When asked questions about where Paul tickled her, Child 2 apparently pointed to her vagina area, but then failed to cooperate.
37	The parents of each of the children decided not to proceed to investigation or have the children take part in video recorded statements. No formal interview with either child has therefore taken place.
38	As discussed previously, Mr Kefford concedes that, during the course of a robust game, his hand may have quickly and inadvertently come into contact with the clothed genitalia of children. He conceded that it was not impossible that such contact may have occurred with other children on other occasions.
39	Mr Kefford answered police questions and explained that he had played the tickle game with the children. 
40	It is clear that when the first child asserted he had been touched, he did so directly to Mr Kefford and Mr Kefford immediately apologised and reinforced the instruction that such touching “a doodle” is impermissible. The evidence of Child 1’s father is that the child is literal. The responses of the child to investigators are literal responses. There is no suggestion that the child is lying and Mr Kefford has never contended that he did lie. The statements by the children with respect to the tickling game are all consistent with the explanation given by Mr Kefford.
41	Although there may be some minor inconsistencies about who was where when, his response has consistently been that during a fast-moving tickle monster game, children could have been inadvertently and in passing touched on or near their penis or vagina by him. 
42	Having heard the evidence of Mr Kefford and read his consistent responses to both the police and the Secretary, I accept the real plausibility of his answers.
43	I was positively satisfied that any touching of any child by Mr Kefford was transient and inadvertent in the course of a robust game. There is no suggestion in any of the material that touching happened other than in the context of the game being played. The game was played in the open. 
44	Mr Kefford has always given an innocent explanation. He continues to give an innocent explanation. I fully accept his innocent explanation.
45	Mr Kefford’s experienced colleagues were clearly aware of the game being played. Parents were also aware of the game being played.
46	Mr Kefford has now had to explain to the people around him why he has lost his job, been issued with a prohibition order and been given a WWC exclusion. Many people from different backgrounds and different contexts of knowing Mr Kefford were nevertheless prepared to write character references in support of him. All spoke in glowing terms about him, including his co-workers, friends, ex-wife and relatives. All considered it would be completely out of character for him to have abused the trust of children in the manner alleged. 
47	The Secretary contended that, on the day in question, Mr Kefford continued to play the game even after he became aware of the inadvertent touching of the first child. It was suggested he should have immediately stopped playing the game. Under cross-examination, Mr Kefford conceded that, with the benefit of hindsight, he probably should have. He however gave evidence that because the child did not seem at all bothered by the incident, he simply proceeded with his day.
48	The Secretary contended that, when Mr Kefford became aware that he had touched the child’s penis, he should not have continued the game. 
49	Mr Kefford gave evidence which I accepted that, when the boy mentioned to him that he had been touched, the exchange with the boy was a chatty one and the boy continued happily playing both the tickle and other games on the same day. In the circumstances, it was understandable that Mr Kefford thought that both he and the child knew there was nothing deliberate about the conduct and that the issue was over. 
50	Mr Kefford now accepts that he should have immediately reported the fact that the child alleged he was touched on the penis.
51	It was submitted by the Secretary that Mr Kefford disregarded the risk involved in playing the game and that this disregard is relevant to child-related work.
52	During the course of the hearing, I asked counsel for the Secretary whether it was the position of the Secretary that such games should never be played by carers of young children. I confessed to having myself frequently engaged in extremely vigorous tickle games with children. I confessed to having had children wriggle and move very quickly and violently in response to my tickles in the manner described by Mr Kefford.
53	The discussion that ensued was ultimately not in any way determinative of either matter but was an interesting one insofar as it demonstrated the complexities of taking an all or nothing or out of context approach to these types of interactions between children and adults.
54	Ultimately, the Secretary did not suggest that Mr Kefford either received sexual gratification or had sexualised intent.
55	The Secretary contended, however, that Mr Kefford made a deliberate and conscious decision to tickle and that he should have known when he was tickling the children that such contact could occur. The Secretary emphasised that Mr Kefford was an adult educator in a position of trust who put himself in a position of risk of touching the genitals of the children. It was contended that it was a departure from the standards expected and the need to always respect the bodies of children. 
56	I consider that Mr Kefford in his evidence displayed considerable insight and understanding of the nuances around this difficult question. He actively engaged in the discussion around concepts such as the potential for the game to be used in the wrong hands to groom children. I accept that Mr Kefford fully understands the potential, in the wrong hands, for the game to put children at risk. I accept that he no longer considers the game to be an appropriate one and that he will not play the game again.
57	I am satisfied that any touching that did take place was not sexualised in any way. 
Section 65(2)(b) – the period of time since the applicant engaged, or allegedly engaged, in the conduct
58	The conduct occurred between 14 October 2020 and 30 October 2020. Although it has only been a little over 12 months since the conduct took place, I am satisfied that Mr Kefford has fully reflected on his conduct.
59	I fully accept the evidence of Mr Kefford that this is a game, which for better or for worse, will never be repeated by him. 
Section 65(2)(c) – in the case of an offence, whether a finding of guilt or conviction was recorded for it or a charge for it is still pending 
60	Mr Kefford has never been charged with any criminal offence arising out of the reportable conduct.
Section 65(2)(d) – in the case of an offence, the sentence imposed for the offence
61	Mr Kefford has never been sentenced for any offence arising out of the reportable conduct.
Section 65(2)(e) – the ages of the applicant and of any victim at the time the applicant engaged, or allegedly engaged, in the conduct
62	At the time of the conduct, Mr Kefford was aged 55 and the children were each aged four. 
63	The Secretary emphasised the need for an adult to be ever mindful and guided by the physical control they have over a child. I am satisfied that Mr Kefford has fully reflected on this aspect of his conduct.
Section 65(2)(f) – whether or not the conduct has been decriminalised or has ceased to be subject to disciplinary charges since the applicant engaged, or allegedly engaged, in it
64	Mr Kefford has never been charged with a criminal offence arising from the conduct. 
65	Mr Kefford was however found to have engaged in reportable conduct. The reportable conduct was the catalyst for his eligibility to hold a WWC clearance to be reassessed.
66	Having examined the factual matrix, I have, as already discussed, reached my own conclusions in relation to the conduct.
Section 65(2)(g) – the applicant’s behaviour since the applicant engaged, or allegedly engaged, in the conduct
67	The Secretary properly conceded that it was open to me to view Mr Kefford’s response to the allegations and his general behaviour both before and after the conduct in a positive light when considering this provision of the WSA. 
68	Mr Kefford has answered all questions asked of him in relation to his conduct. He has consistently pleaded his innocence. He has opened himself up to cross-examination on two separate occasions before the Tribunal. He has obtained impressive character references from individuals who have been made fully aware of the allegations surrounding his conduct.
69	He has never been charged with any offence.
70	There have been no further issues of concern.
Section 65(2)(h) – the likelihood of a future threat to a child caused by the applicant
71	I agree with submissions made by the Secretary that, in reality, it is applicants who carry the persuasive burden of showing that they are not a threat to children rather than for the Secretary to show that they are. 
72	I also agree with the submissions of the Secretary that any chance of future threat, irrespective of its magnitude, is relevant for the purposes of section 65(2)(h) of the WSA. 
73	However, in this case, I have found for the reasons already articulated there to be no future threat caused by Mr Kefford.
74	I fully accept that Mr Kefford has resolved, given the personal consequences of the game to both his own wellbeing and his livelihood, and the potential risk to children connected with such a game, never to play the game again with any child. 
75	In these circumstances, even if minds were to differ as to the suitability of anyone playing the game, it is clear Mr Kefford will not himself play it again.
76	I am satisfied that Mr Kefford does not pose any future threat to children.
Section 65(2)(i) – any information given by the applicant in, or in relation to, the application
77	Mr Kefford provided a great many impressive character references. All spoke in glowing terms of his general reputation and the manner in which he generally conducts himself. Each attested to Mr Kefford’s strong value system.
78	I accepted from his own evidence and from the voluminous letters of support for him he is a person who not only aims to, but is, an example of how a man can and should behave. I accept that he strives to be a blueprint for how men in society can and should be. 
Section 65(2)(j) – any other matter that the VCAT considers relevant to the application
79	The Secretary emphasised the following passage from Maleckas (LKQ) v Secretary to the Department of Justice [2011] VSC 227 at [80] in relation to the equivalent provision under the Working with Children Act 2005:
Under s 13(2)(j) of the WWC Act, the VCAT is required to have regard to ‘any other matter that [the VCAT] considers relevant’. In my opinion, the questions of whether the plaintiff has insight into his offence, has accepted responsibility for the offence and has demonstrated remorse are relevant considerations under s 31(2)(j). As a matter of common sense, an offender who has no understanding that the offence of violence that he or she committed was wrong, may pose a greater risk to the safety of children than an offender who has shown insight and remorse in relation to such an offence.
80	I accept that Mr Kefford has taken total responsibility for his actions. Whilst he has been shattered by the consequences of playing the game, he has fully reflected on his conduct and vowed never to repeat it.
Conclusions under section 108(1) of the WSA
81	I am satisfied in the particular circumstances of this case that it would not be appropriate to refuse to give a WWC clearance having regard to any matters to which the Secretary must have regard under section 65(2) of the WSA.
82	Because I am not satisfied that the touching was in any way intentional or otherwise inappropriately motivated, and that in any event it is a game Mr Kefford no longer plays, it follows that I am not satisfied that he poses an unjustifiable risk to children. I am not satisfied that Mr Kefford poses any risk to children. There was no material other than the concerns identified around the tickle monster game upon which I could find that he does.
83	This does not however end the matter. Under section 108(2), this Tribunal must determine that it is appropriate to refuse to give a WWC clearance unless satisfied of the following matters.
Section 108(2)(a) – whether a reasonable person would allow their child to have direct contact with the applicant while the applicant was engaged in any type of child-related work
84	I am satisfied that the reasonable person, knowing the context in which the case arose and having heard the consistent explanation of Mr Kefford to police and again under cross-examination and the material provided by the Secretary, would be satisfied, as am I, that Mr Kefford poses no risk to children and should be permitted to have direct contact with their child while engaged in any type of child-related work.
85	The reasonable person would be satisfied that the touching was not in any way intentional or otherwise inappropriately motivated. The reasonable person would be satisfied that Mr Kefford has reflected on his conduct. Even if the reasonable person considered the game to have been an ill-advised game, the reasonable person would accept that the game is a game which Mr Kefford no longer plays with children. The reasonable person would be satisfied that Mr Kefford poses no risk to children and would consider him to have displayed complete insight into the concerns raised.
Section 108(2)(b) – whether the applicant’s engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children
86	I repeat my above comments.
87	Finally, even if I do not determine under subsection (1) or (2) that it would be appropriate to refuse to give a WWC clearance, under subsection (3) VCAT must determine that it is appropriate to refuse to give the clearance unless it is satisfied that it is in the public interest to give the clearance.
Section 108(3) – the public interest test
88	Mr Kefford wants to work with children in order to support his own child in their life endeavours.
89	The paramount consideration under the WSA is of course the protection of children. What this means is that the needs of an applicant in these types of proceedings is a secondary consideration.
90	Mr Kefford gave evidence that he has no intention to again work in childcare because he himself has been traumatised by the consequences of the conduct. I fully accept that he has been. He has been investigated; lost his job; had to endure two separate hearings before this Tribunal; and explain and re-explain his conduct to his numerous character references.
91	Having found that Mr Kefford poses no risk to children, I am satisfied that it is in the public interest for Mr Kefford to engage with children. He has children of his own with whom he wishes to actively engage. He should be permitted to do so.
Conclusion
92	It is for the reasons set out above that at the conclusion of the hearing I made the following order:
The decision of the respondent to give the applicant a Working with Children exclusion under the Worker Screening Act 2020 is set aside and is substituted for a decision to give the applicant a Working with Children clearance.

H. Lambrick
Deputy President