Chicho Family Day Care Pty Ltd and Secretary, Department of Education

This matter concerned an appeal by Chicho Family Day Care Pty Ltd against the cancellation of its approval as a child care service by the Secretary of the Department of Education. The dispute arose from allegations that Chicho had breached the regulatory framework governing child care services, specifically concerning the number of children an educator could care for, the reporting of sessions of care, and the provision of care by educators who were overseas. The appeal was heard by Dr Stewart Fenwick, Senior Member.

The primary legal issues before the Tribunal were whether Chicho had breached the operating conditions as alleged by the Secretary, and if so, what the appropriate sanction should be for those breaches. The Tribunal was required to consider the frequency and seriousness of any identified breaches, and whether those breaches threatened the health or welfare of any child in the care of the service, as stipulated by the Child Care Benefit (Breach of Conditions for Continued Approval) Determination 2017.

The Tribunal's reasoning focused on the application of the Breach Determination. It noted that Regulation 124 of the National Regulations sets limits on the number of children an educator can care for. While Chicho acknowledged certain breaches, it sought to distinguish them, arguing they were not a result of recklessness or negligence and that corrective measures had been implemented. However, the Breach Determination creates a presumption in favour of cancellation where contraventions involve repeated breaches of reporting obligations under section 219N of the Family Assistance Administration Act, or where false or inaccurate information is provided about whether care was actually provided. The Tribunal considered the financial impact of some breaches, such as the $19,407.23 overpayment due to child swapping breaches, and the specific circumstances of educators being overseas. The Tribunal found that the breaches, particularly those involving misreporting and the provision of care by educators overseas, fell within the categories where cancellation is the appropriate sanction, notwithstanding commitments to remedy or prevent future contraventions.

The Tribunal affirmed the decision to cancel Chicho Family Day Care Pty Ltd's approval as a child care service.