Famous Kids Family Day Care Pty Ltd v Secretary, Department of Education - [2023] NSWCATAD 10

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Famous Kids Family Day Care Pty Ltd v Secretary, Department of Education [2023] NSWCATAD 10
Hearing dates: 6-8 September 2021, 12 November 2021; final submissions due 7 March 2022; Tribunal reconstituted 23 May 2022
Date of orders: 9 January 2023
Decision date: 09 January 2023
Jurisdiction: Administrative and Equal Opportunity Division
Before: Dr J Lucy, Senior Member
S Davison, General Member
Decision:
The decision of the respondent to cancel the applicant’s provider approval is confirmed.

Catchwords:
ADMINISTRATIVE LAW – Child protection - Children (Education and Care Services) National Law -Cancellation of provider approval – Whether applicant and its director are fit and proper persons to be involved in the provision of an education and care service – Whether applicant has breached a condition of the provider approval – Whether cancellation decision should be confirmed as a matter of discretion

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Children (Education and Care Services) National Law (NSW)
Children (Education and Care Services National Law Application) Act 2010 (NSW)
Education and Care Services National Regulations (NSW)

Cases Cited:
3 Angels Family Day Care Pty Ltd v Secretary, Department of Education [2017] NSWCATAD 265
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41
CTG v NSW Department of Education, Early Childhood and Care Directorate [2017] NSWCATAD 60
DBU v Secretary, Department of Education [2017] NSWCATAD 257
DPW v Secretary, Department of Education [2018] NSWCATAD 257
Hughes & Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127
Jessica Education Centre Pty Ltd v Secretary, Department of Education [2020] NSWCATAD 99
Kids Belong Family Daycare Pty Ltd v Department of Education [2021] NSWCATAD 112
Secretary, Department of Education v Early Childhood Education Australia Pty Ltd [2021] NSWCATAP 397
Secretary, NSW Department of Education v Gabriel’s Family Day Care Pty Ltd [2021] NSWCATAP 263
Tanyous v Secretary, Department of Education [2018] NSWCATAD 197

Texts Cited:
None cited

Category: Principal judgment
Parties: Famous Kids Family Day Care Pty Ltd (Applicant)
Secretary, Department of Education (Respondent)
Representation:
Counsel: A Howell and G Diggins (Applicant)
T Epstein (Respondent)
Solicitors: Mayek Legal (Applicant)
Crown Solicitor (Respondent)

File Number(s): 2021/130955
Publication restriction: The disclosure of the name of any child mentioned in these proceedings or referred to in the material lodged in these proceedings is prohibited, pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).

REASONS FOR DECISION

Famous Kids Family Day Care (Famous Kids) was an approved provider which operated a family day care service and engaged nearly sixty educators. Famous Kids has one director, Ms Phebe Manassah, who was the only person with management of its family day care service.
Compliance visits to the head office of Famous Kids and to some of the premises of its educators were conducted by authorised officers of the NSW Department of Education (the Department) in 2020 during which a large number of non-compliances were identified. Subsequently, officers assessed Ms Manassah’s understanding of the Children (Education and Care Services) National Law (NSW) (National Law) and the Education and Care Services National Regulations (NSW) (the National Regulations) in an interview, and found it to be inadequate.
The respondent (the Secretary) decided to cancel Famous Kids’ provider approval on the basis that Ms Manassah was not a fit and proper person to be involved in the provision of an education and care service. This was said to be because Ms Manassah had an insufficient knowledge and understanding of the National Law and National Regulations to enable her to meet her obligations as a person with management or control of an education and care service.
When Famous Kids sought review of that decision by the Tribunal, the Secretary relied on additional grounds to support cancellation, being that Famous Kids was not a fit and proper person to be involved in the provision of an education and care service and that Famous Kids had breached a condition of its provider approval.
We have found that neither Ms Manassah nor Famous Kids is a fit and proper person to be involved in the provision of an education and care service. We have also found that Famous Kids breached a condition of its provider approval, being the condition requiring it to comply with the National Law. We consider that cancellation is the correct and preferable decision, and accordingly have confirmed the Secretary’s decision to cancel Famous Kids’ provider approval.

Background

Famous Kids was granted a provider approval on 21 November 2013. The service approval was initially granted to Ms Phebe Manassah, the sole director of Famous Kids, but was transferred to Famous Kids on 24 January 2014.
On 28 November 2014, Ms Manassah became a nominated supervisor for Famous Kids. A nominated supervisor is, relevantly, an individual who is nominated by the approved provider of an education and care service under Part 3 of the National Law to be a nominated supervisor of that service and who has provided written consent to that nomination (National Law, s 5(1)).
Between July 2014 and November 2020, representatives of the Secretary issued Famous Kids with six non-compliance letters, one show cause notice, two compliance notices and one compliance direction. On two occasions (in 2015 and in 2016) a representative of the Secretary decided that the issues raised on the Secretary’s behalf had been satisfactorily addressed.
In March 2017, Famous Kids received its First Full Assessment and Rating against the National Quality Standard. It was rated as “Working Towards NQS” for most standards, but in relation to the standard “each child is protected” it was rated as “Significant Improvement Required.”
On 19 June 2017, a delegate of the Secretary sent Famous Kids a show cause notice, giving it notice that the Secretary intended to cancel its provider approval. The notice relied upon failures to comply with the National Law in various specified respects.
Famous Kids responded to that notice. As part of its response, Famous Kids relied upon a report it had obtained from an external consultant, Vertex Consulting and Compliance Group (“Vertex”). Vertex’s report states that the purpose of its review “…was to identify gaps in [Famous Kids’] operational management, governance system, risk management and make recommendations that it’s [sic] management can implement to close any identified gaps.”
Famous Kids stated in the response to the show cause notice that it had undertaken to adopt the recommendations in Vertex’s report including by:

implementing more frequent and regular unannounced visits to educators;

implementing stricter and more focused appraisals to ensure coordinators are ensuing proper and detailed visits; and

establishing a compliance committee including an independent member (compliance consultant) to ensure bi-monthly compliance checks on the progress of the newly implemented policies and their effectiveness.

Having taken into account Famous Kids’ response to the show cause notice, the Secretary decided not to cancel its provider approval, but placed the service on a program for future monitoring.
Another National Quality Assessment occurred in November 2017 and Famous Kids was given an overall rating of working towards National Quality Standards.
On 31 July 2020, authorised officers under the National Law conducted compliance visits to the principal office of Famous Kids and the residences of some educators. At that time, Famous Kids had 59 educators registered.
On 13 August 2020, a delegate of the Secretary wrote to Famous Kids, stating that the authorised officers had identified four areas of non-compliance with the National Law and the National Regulations. These were failure to comply with the conditions of its service approval, in particular by having a ratio of less than one coordinator to every 15 educators (National Law, s 51(8)), failure to have a child protection policy (National Regulations, cl 168), failure to have a policy and procedure for monitoring, support and supervision of family day care educators, including how the service will manage educators at remote locations (National Regulations, cl 169(2)(d)) and deficiencies in enrolment records (National Law, s 175).
The delegate invited Famous Kids, in the letter of 13 August 2020, to inform the delegate of the action it had taken to fix the identified areas of non-compliance.
Famous Kids provided a response on 27 August 2020, disputing some alleged non-compliances, describing some corrective action taken and providing additional evidence.
On 15 September 2020, authorised officers conducted a compliance visit to the principal office of Famous Kids. The authorised officers indicated to Ms Manassah that the non-compliances had not been rectified and gave Famous Kids an extension of time, to 22 September 2020, to provide evidence of rectification.
Famous Kids provided a response on 22 September 2020, with additional evidence.
On 4 November 2020, a delegate of the Secretary sent Famous Kids a compliance notice. The notice stated that the delegate was satisfied that Famous Kids had not complied with s 175 of the National Law and cl 160(3)(i), 161(1)(a)(ii) and 102(4)(e)(i) of the National Regulations. The delegate required Ms Manassah to take certain steps to comply with regulations 102 and 161, by 18 November 2020, pursuant to s 177 of the National Law.
Ms Manassah responded to the notice on behalf of Famous Kids on 18 November 2020. The delegate then “closed the matter.”
On 19 and 20 November 2020, authorised officers conducted assessment and rating visits at Famous Kids’ principal office and seven educator residences, identifying 197 areas of non-compliance with the National Law and National Regulations. Famous Kids had 51 educators registered at that time.
On the morning of 20 November 2020, representatives of the Secretary spoke to representatives of Famous Kids and advised that the regulator had “immediate concerns” and could issue “immediate suspension.” They discussed the option of voluntary suspension.
On the same day, Famous Kids requested voluntary suspension of its provider approval from 20 November 2020 to 20 May 2021. The reason given for the suspension application on the relevant form was “Taking a break for a while.” The application was approved by the Secretary on the same day.
On 20 November 2020, Ms Manassah wrote to the parents of children attending the service to advise that the service had gone into voluntary suspension for 6 months.
On 26 November 2020, the Secretary requested Ms Manassah to provide documentation to confirm the fitness and propriety of all persons of management or control of Famous Kids. Ms Manassah was the only person with management or control of Famous Kids.
Ms Manassah provided the documents requested (including a completed declaration of fitness and propriety, a copy of her working with children check clearance and a copy of her national criminal history check).
On 21 December 2020, Ms Manassah was interviewed by officers of the Department of Education to assess her fitness and propriety via an audio-visual link. She was informed of the interview and of its purpose of assessing her fitness and propriety in advance. The focus of the assessment was upon Ms Manassah’s knowledge and understanding of the National Law and National Regulations. One interviewer assessed Ms Manassah as achieving a score of 13/22 (or 59%) and the other assessed her as achieving a score of 15/22 (68%).
On 6 and 7 January 2021, Famous Kids provided further information in relation to the assessment undertaken on 19 and 20 November 2020.
On 18 January 2021, the Secretary’s delegate, Ms Tracey Sell, issued a show cause notice to Famous Kids under s 78 of the National Law, stating that the Secretary intended to cancel Famous Kids’ provider approval and inviting a response. The proposed basis for cancellation was that Ms Sell was satisfied that the person with management or control for Famous Kids, Phebe Manassah, was not a fit and proper person to be involved in the provision of an education and care service, within s 31 of the National Law.
On 25 January 2021, Famous Kids was given its rating outcomes from an assessment of its service’s practices against the National Quality Standard. The Department of Education gave Famous Kids an “overall rating” of “significant improvement required”. That is the lowest of five possible ratings. Famous Kids received that rating for the standards “each child is protected,” “the design of the facilities is appropriate for the operation of a service” and “governance supports the operation of a quality service.”
Famous Kids responded to the show cause notice on 17 February 2021, arguing that the termination of its provider approval was not the correct and preferable decision, and that the Secretary should be satisfied that Ms Manassah was a fit and proper person to be involved in the provision of an education and care service.
Famous Kids included as part of its response to the show cause notice a second report it had obtained from Vertex in 2021. The report states that the purpose of Vertex’s review “…was to identify gaps in the leadership and management of the service that contributes to quality environment for children’s learning and development.” Vertex made several recommendations in this report. These included that Ms Manassah allocate one to two hours per month to review all rules and regulations to ensure that the service is up to date with legislative changes. The 2021 Vertex report stated that Famous Kids had failed to implement all of the recommendations in the 2017 Vertex report.
The Secretary’s delegate decided on 13 April 2021 to cancel Famous Kids’ provider approval, with effect from 27 April 2021 (the Cancellation Decision), on the basis proposed in the show cause notice.
On 11 May 2021, Famous Kids applied to the Tribunal for a review of the Cancellation Decision.

Hearing and reconstitution

A hearing was held in this matter on 6, 7 and 8 September 2021 and 12 November 2021, by audio-visual link, before the Tribunal constituted by two members, a senior (legal) member of the Tribunal and Member Davison. The parties requested an opportunity to make submissions about the Appeal Panel’s decision in Secretary, Department of Education v Early Childhood Education Australia Pty Ltd [2021] NSWCATAP 397, which was handed down after the hearing. The Tribunal made directions for further submissions to be provided, the last of which were to be filed and served by 7 March 2022.
After the final date for submissions, the senior member who had presided at the hearing became unavailable to continue dealing with the matter. The Registrar invited submissions from the parties with respect to a proposal to reconstitute the Tribunal. The parties consented to the reconstitution. On 23 May 2022, the President reconstituted the Tribunal with the current members, pursuant to s 52 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
A transcript of the hearing was provided to the parties and to the Tribunal members.
On 29 June 2022, a directions hearing was held before the new senior member, Dr Lucy. The parties agreed that the matter could be determined by Dr Lucy reading the transcript and other documentary material lodged with the Tribunal and conferring with Member Davison. Neither party requested a further hearing of the matter.

Relevant law

The National Law is applied as a law in New South Wales by s 4 of the Children (Education and Care Services National Law Application) Act 2010 (NSW) (the Application Act).
The National Law establishes a National Quality Framework for the delivery of education and care services to children (National Law, s 3(1)). The National Quality Framework comprises the National Law, the National Regulations, the National Quality Standard prescribed by the National Regulations and the prescribed rating system (National Law, s 5(1)).
The objectives of the national education and care services quality framework include:

to ensure the safety, health and wellbeing of children attending education and care services;

to improve the educational and developmental outcomes for children attending education and care services;

to promote continuous improvement in the provision of quality education and care services (National Law, s 3(2)(a)-(c)).

The guiding principles of the national education and care services quality framework include that the rights and best interests of the child are paramount and that best practice is expected in the provision of education and care services (National Law, s 3(3)(a) and (f)).
The Secretary of the Department is declared to be the “Regulatory Authority” for New South Wales for the purposes of the National Law (Application Act, s 9).
Famous Kids is a family day care service. The term “family day care service” means an education and care service that is delivered through the use of two or more educators to provide education and care to children and operates from two or more residences (National Law, s 5(1)). An “education and care service” is any service providing or intended to provide education and care on a regular basis to children under 13 years of age, with certain exceptions which are not relevant (National Law, s 5(1)).
It is an offence to provide an education and care service unless the person is an approved provider in respect of that service (National Law, s 103(1)(a)). An “approved provider” is “a person who holds a provider approval” (National Law, s 5(1)).
Applications for provider approvals are the subject of Division 1 of Part 2 of the National Law (ss 10-20). There are fit and proper person requirements for applicants for a provider approval. Section 12(1) and (2) of the National Law provides:

(1) An applicant who is an individual must satisfy the Regulatory Authority that the applicant is a fit and proper person to be involved in the provision of an education and care service.
(2) If the applicant is not an individual, the applicant must satisfy the Regulatory Authority that—
(a) each person who will be a person with management or control of an education and care service to be operated by the applicant is a fit and proper person to be involved in the provision of an education and care service; and
(b) the applicant is a fit and proper person to be involved in the provision of an education and care service.

A person with management or control, in relation to an education and care service, means, if the provider or intended provider of the service is a body corporate, an officer of the body corporate within the meaning of the Corporations Act 2001 (Cth) who is responsible for managing the delivery of the education and care service (National Law, s 5).
The Regulatory Authority (being the Secretary) must not grant a provider approval unless the Authority is satisfied as to the matters in s 12 of the National Law (National Law, s 15(2)).
The Regulatory Authority is required to have regard to certain matters when determining whether a person is a fit and proper person under Division 1 of Part 2 of the National Law (National Law, s 13(1)). These include the person’s history of compliance with the National Law (National Law, s 13(1)(a)(i)). There are also specified matters to which the Regulatory Authority may choose to have regard when making that determination (National Law, s 13(2)).

A provider approval is subject to the condition that the approved provider must comply with the National Law (National Law, s 19(2)).
If the Secretary is satisfied that an education and care service is not complying with any provision of the National Law, the Secretary may give the approved provider a notice (a compliance notice) requiring the approved provider to take the steps specified in the notice to comply with that provision (National Law, s 177(1), (2)).
If the Secretary is considering the cancellation of a provider approval, the Secretary must first give the approved provider a show cause notice stating that the Secretary intends to cancel the provider approval, the reasons for the proposed cancellation and that the approved provider may, within 30 days after the notice is given, give the Secretary a written response to the proposed cancellation (National Law, s 32).
The Secretary may cancel a provider approval on various grounds, including:

if satisfied that the approved provider or a person with management or control of an education and care service operated by the approved provider is not a fit and proper person to be involved in the provision of an education and care service (National Law, s 31(a)); and

if the approved provider has breached a condition of the provider approval (National Law, s 31(e)).

A person who is the subject of a reviewable decision for external review may apply to the relevant tribunal or court for a review of the decision (National Law, s 193(1)). A “reviewable decision for external review” includes a decision to cancel a provider approval under s 33 of the National Law (National Law, s 193(b)(ii)). The Tribunal is the “relevant tribunal or court” for the purposes of Part 8 of the National Law (in which s 193 is located) (Application Act, s 8).
The review of the Cancellation Decision forms part of the Tribunal’s general jurisdiction (NCAT Act, s 29; DBU v Secretary, Department of Education [2017] NSWCATAD 257 at [22]). The Tribunal’s role, when reviewing the decision, is to determine the correct and preferable decision on the material before it (DBU v Secretary, Department of Education [2017] NSWCATAD 257 at [26]).

Non-disclosure order

On the first day of the hearing, counsel for the Secretary sought an order prohibiting the disclosure of the names of children referred to in the proceedings and their dates of birth. That order was not opposed. It is desirable to make that order to protect the privacy of those children. Such an order is in their best interests, and is supported by s 3(a) of the National Law.
Accordingly, the Tribunal made an order that the disclosure of the name of any child mentioned in these proceedings or referred to in the material lodged in these proceedings is prohibited, pursuant to s 64(1)(a) of the NCAT Act. By operation of s 64(4) of that Act, for the purposes of s 64, 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.

Parties’ positions

The Secretary submitted in her written submissions that the Tribunal should affirm the Cancellation Decision on two grounds, being:

That the applicant is not a fit and proper person, having regard to its history of non-compliance and Ms Manassah’s lack of an appropriate level of knowledge and understanding of her obligations and Famous Kids’ obligations under the National Law and the National Regulations; and

That Famous Kids has breached a condition of the provider approval through its non-compliance with the National Law and the National Regulations.

Despite the way the Secretary framed its case in the introduction to its written submissions, it conducted its case on the basis that neither Ms Manassah nor Famous Kids is a fit and proper person and that an adverse finding in respect of either of them would be sufficient for the Tribunal to confirm the cancellation decision (see National Law, s 31(a)).
The Secretary submitted that the regulatory scheme under the National Law and the National Regulations is highly detailed and prescriptive, reflecting a deliberate choice by Parliament to pursue a particular regulatory approach. It followed that the National Law calls for strict compliance by those who are required to apply it (3 Angels Family Day Care Pty Ltd v Secretary, Department of Education [2017] NSWCATAD 265 at [22]; CTG v NSW Department of Education, Early Childhood and Care Directorate [2017] NSWCATAD 60 at [45]; DPW v Secretary, Department of Education [2018] NSWCATAD 257 at [29]).
We accept that submission. The high level of detail and prescription in the National Law and National Regulations requires a high degree of vigilance and appropriate systems by approved providers in order to successfully comply with the obligations the legislation imposes.
Famous Kids maintained that Ms Manassah is a fit and proper person to be involved in the provision of an education and care service. It objected to the Secretary raising the issue of its own fitness and propriety, saying this was a late expansion of the Secretary’s case, but maintained that it was also a fit and proper person to be involved in the provision of an education and care service.
Famous Kids’ position was that a decision not to cancel its provider approval should be substituted for the Cancellation Decision, under s 193(3)(c) of the National Law, and that the Tribunal should impose certain conditions upon its provider approval.

Briginshaw approach to fact-finding

Famous Kids submitted, in closing oral submissions, that to find that someone is not a fit and proper person is a finding of particular seriousness and one which should not be arrived at lightly. It submitted that the Tribunal needed to be satisfied of an absence of fitness and propriety to the Briginshaw standard, relying upon Secretary, NSW Department of Education v Gabriel’s Family Day Care Pty Ltd [2021] NSWCATAP 263 (the reference being to Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34).
The Appeal Panel in Secretary, NSW Department of Education v Gabriel’s Family Day Care Pty Ltd [2021] NSWCATAP 263 reviewed the authorities concerning the obligation of the Tribunal to apply the principle from Briginshaw that when considering a serious allegation it must be reasonably or comfortably satisfied of the relevant fact, such reasonable satisfaction not to be produced by inexact proofs, indefinite testimony, or indirect inferences (at 361-362). Consistently with the Appeal Panel’s reasoning (at [123]-[126]), authorities such as Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 establish that Briginshaw does not apply directly to the Tribunal’s decision-making as it is not bound by the rules of evidence. However, Briginshaw reflects a general approach to fact-finding which is applicable to the Tribunal. Thus, the Tribunal may take into account the seriousness of the factual allegations against a provider such as Famous Kids when forming a state of satisfaction as to whether those allegations are established (at [129]).
We agree that the allegation that a person is not a fit and proper person to be involved in the provision of an education and care service is serious. As to Famous Kids’ fitness and propriety, it is the Secretary’s case (as it was in Gabriel’s Family Day Care) that “the conduct of [the approved provider] involved a systemic failure to carry out its oversight type obligations designed to avoid harm to children” and the consequence, being cancellation of provider approval, is also grave (Gabriel’s Family Day Care at [129]). As to Ms Manassah’s fitness and propriety, the Secretary alleged that she lacks the knowledge and understanding to perform the management role she has undertaken for about seven years, with the serious consequence that she would not be able to continue in that role. Accordingly, we have adopted the Briginshaw approach to our fact-finding as to fitness and propriety.

Is Ms Manassah a fit and proper person?

The ground relied upon by the Secretary’s delegate for the proposed cancellation of Famous Kids’ provider approval, in the show cause notice of 18 January 2021, was that Ms Manassah was not a fit and proper person to be involved in the provision of an education and care service.
The Secretary relied, in the show cause notice, upon the results of the interview conducted with Ms Manassah, which it summarised as follows:

Insufficient understanding of obligations as a person with management or control;

Insufficient knowledge on how to notify the Secretary of a serious incident or complaint;

Failure to acknowledge regular outings that are specific to family day care services (in particular, a limited understanding of the legislation as it relates to excursions);

Insufficient knowledge of approved providers’ responsibilities in relation to medical conditions;

Not using the National Law and National Regulations to inform her answers, even though they were accessible.

Matters to be taken into account when determining whether Ms Manassah is a fit and proper person include the matters set out in s 13 of the National Law, some of which are mandatory considerations and some of which are discretionary. These include Ms Manassah’s history of compliance with the National Law, whether she has a working with children check clearance (both mandatory considerations), and whether she has the management capability to operate an education and care service in accordance with the National Law (a discretionary consideration). The Tribunal’s consideration of Ms Manassah’s fitness and propriety is not limited to consideration of the matters identified in s 13; it may also consider other relevant matters (see s 13(3)). As Famous Kids has acknowledged, a person’s knowledge and understanding of the National Law and the National Regulations is relevant to the person’s fitness and propriety to be involved in the provision of an education and care service.
The concept of “fitness” has three components, honesty, knowledge and ability (Hughes & Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127 at 156-157; Tanyous v Secretary, Department of Education [2018] NSWCATAD 197 at [31]). The expression “fit and proper person” takes its meaning from its context, from the activities in which the person is or will be engaged, and the ends to be served by those activities (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380).
It is important to note that the matters in s 13 are to be taken into account in determining whether a person is a fit and proper person under Division 1 of Part 2 of the National Law (National Law, s 13(1), our emphasis). That is, those matters are to be taken into account when determining whether an applicant for a provider approval, and any person with management or control of an education and care service to be operated by an applicant who is not an individual, is a fit and proper person to be involved in the provision of an education and care service.
Each of those persons has a significant role in providing, operating or managing a service. An approved provider may only apply for a service approval if it will be the operator of the service or responsible for managing staff members and nominated supervisors of that service (National Law, s 43(2)). A person with management or control of an education and care service is, by definition, a person who is responsible for managing the delivery of the service (National Law, s 5).
As the Secretary submitted, the National Law and National Regulations make detailed prescription in respect of matters relevant to the establishment and operation of a day care service and it is a condition of a provider approval that an approved provider must comply with both (s 19(2)). An approved provider has a particular responsibility in this regard as family day care services are operated pursuant to a co-regulatory model, in which approved providers are responsible for regulating, in a supervisory sense, the educators they engage (Kids Belong Family Daycare Pty Ltd v Department of Education [2021] NSWCATAD 112 at [18]).
That context is significant when assessing whether a person is a fit and proper person to be involved in the provision of an education and care service under s 12 of the National Law. The circumstance that the Regulatory Authority is entitled to consider “whether the person has the management capability to operate an education and care service in accordance with this Law” indicates that the legislature intended a person’s fitness and propriety to be considered in the context of the application for a provider approval. The test of whether “the applicant is a fit and proper person to be involved in the provision of an education and care service” (National Law, s 12(1)) is to be approached in the context where that involvement is to be as an approved provider or manager. The word “provision” picks up the word “provider” in “provider approval” and, we consider, refers to the operation or management of the service and offering the service to others.
The words “the provision” are used in a different sense here than they are in s 182, which provides that the Regulatory Authority may give a prohibition notice to a person who is in any way involved in the provision of an approved education and care service if it considers that there may be an unacceptable risk of harm to a child or children (National Law, s 182(1), our emphasis). The legislature expressly gave an expanded meaning to the words “a person involved in the provision of an approved education and care service” for the purpose of that section to include employees, educators and volunteers (National Law, s 182(2)). We consider that the word “provision” is used in a more restrictive sense in s 12(1), which focuses upon the person’s fitness and propriety to provide and/or operate an approved education and care service as an approved provider or manager.
Famous Kids accepted that a person’s knowledge and understanding of the National Law and the obligations it imposes on an approved provider are relevant to an assessment of whether a person is a fit and proper person to be involved in the provision of an education and care service. However, it said that whether a person was fit and proper involved a value judgment.
Famous Kids submitted that other mandatory factors should be given weight when assessing fitness and propriety. These were that Ms Manassah has never personally found to have failed to comply with the National Law, that she has no criminal history, that she has a current working with children check clearance and that she is not bankrupt (see National Law, s 13(1)). It also said that the Tribunal should give weight to discretionary matters set out in s 13(2), noting that Ms Manassah has no medical condition that may cause her to be incapable of being responsible for providing an education and care service, that her financial circumstances do not significantly limit her capacity to meet her obligations in providing the service, and that no action had been taken against her under the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth).
Famous Kids also pointed to Ms Manassah’s extensive training as a childhood education, to her significant experience in the delivery of education and care to children and to her qualifications including a diploma of early childhood education and care. It said that the single “zoom” interview conducted by Departmental officers, not in Ms Manassah’s native language, involving 15 questions and lasting approximately an hour, is not a sound foundation for a conclusion that Ms Manassah is not a fit and proper person to be involved in the provision of an education and care service.
There is no dispute that some of the s 13 matters tend to support the conclusion that Ms Manassah is a fit and proper person to be involved in the provision of an education and care service (for example, there is no adverse decision concerning a licence or authorisation granted to her under any relevant law, she has never been bankrupt, she does not have a criminal history and she provided evidence of a current working with children check: s 13(1)(b)-(d)). However, the key issues raised by the Secretary are whether Ms Manassah has an adequate knowledge and understanding of the National Law and the National Regulations and whether Ms Manassah has a history of non-compliance with the National Law and National Regulations within s 13(1)(a).

Ms Manassah’s compliance with the National Law

It was not entirely clear whether the Secretary relied upon alleged contraventions of the National Law and National Regulations, as identified during November 2020 visits to Famous Kids, as evidence of Ms Manassah’s history of non-compliance with the National Law within s 13(1)(a) of the National Law (as well as evidence of Famous Kids’ non-compliance). As Famous Kids submitted, Ms Manassah has never been found not to have complied with the National Law. There is a question as to whether a manager’s “history of compliance with” the National Law within s 13(1)(a) of the National Law includes the approved provider’s history of compliance, where the manager has a supervisory role. We do not consider that it does. The ordinary meaning of the words do not go so far. On the other hand, a manager’s history of managing an education and care service may be relevant to whether the manager “has the management capability to operate an education and care service in accordance with” the National Law (National Law, s 13(2)(c)).
In these circumstances, Ms Manassah’s history of compliance with the National Law does not indicate that she is not fit and proper to be involved in the provision of an education and care service.

Ms Manassah’s knowledge and understanding

The Secretary relied upon a range of matters in support of the contention that Ms Manassah has an inadequate knowledge and understanding of the National Law. One of these was her responses to questions posed to her in the assessment which took place on 21 December 2020 and her score which was assessed as being 64%. The Secretary also submitted that Famous Kids’ history of non-compliance with the National Law and National Regulations arose at least in part due to Ms Manassah’s inadequate knowledge of her role and obligations as a person with management or control.

Departmental assessment

Mr Diggins, for Famous Kids, submitted that the interview conducted on 21 December 2020 does not provide a reliable indication of whether Ms Manassah is a fit and proper person to be involved in the provision of the education and care service. The marking rubric for the questions asked in the interview allowed a score of 0, 1 or 2 (effectively zero, 50% or 100%). The Secretary’s delegate, Ms Sell, accepted in cross examination that, for some questions, correct identification of two out of three matters asked for by the question would result in a score of 1, and agreed that some responses deserved a higher mark than one of the markers had given them. Mr Diggins submitted that the marking rubric did not allow for a nuanced assessment and also that the circumstance that English is Ms Manassah’s second language could have affected the result.
In our view, the interview with Ms Manassah which was conducted on 21 December 2020, and the scores she was given using the Department’s marking rubric, provide some evidence of her knowledge and understanding of the National Law and the National Regulations. However, that evidence needs to be treated with some caution. The need for caution arises from a number of circumstances, as identified by the applicant. First, the interview was conducted for about an hour over an audio-visual link. That is a relatively short period of time to test a person’s knowledge and understanding and the medium can, at times, reduce the capacity to understand visual or verbal cues. Second, English is Ms Manassah’s second language and, whilst the assessors attempted to accommodate this to some degree, she may not always have fully understood the questions. Third, there are limitations in the scoring system the Department used (with scores of only zero, one or two available) which mean that the test is a fairly blunt instrument for assessing knowledge and understanding. Fourth, Ms Sell conceded that for at least one question Ms Manassah should have received a higher mark.

The Department’s assessment of Ms Manassah’s knowledge of the National Law and National Regulations and her average score of 64% indicate that she has some knowledge and understanding of both, but not a great command of them. One of the assessors commented that Ms Manassah’s:

“understanding of the laws and regulations are very basic and it did not seem that she has conceptual understanding of the content. When asked what a specific regulation ‘means’ she struggled to relate it to any real world context.”

We agree that Ms Manassah’s responses reflect a limited conceptual understanding of the National Law. This is particularly concerning given the guiding principle that best practice is expected in the provision of education and care services (National Law, s 3(f)). Ms Manassah acknowledged in her reply evidence that the answers she gave to the questions asked of her should have provided more detail and should have provided more reference to the National Law and National Regulations. She also acknowledged that her answers did not convey an adequate understanding of the National Law and National Regulations. She stated that, if permitted to operate again, she would ensure that her knowledge of both is far more comprehensive and that she would study on a monthly basis to review her obligations.
It is commendable that Ms Manassah has expressed a commitment to improve her understanding of the National Law and National Regulations. However, the question of whether she is a fit and proper person to be involved in the provision of an education and care service turns upon the evidence of her fitness and propriety before the Tribunal at the time the decision is made. The Tribunal cannot speculate about what she might learn about the National Law and National Regulations in the future.
Ms Sell’s evidence is that the “Department expects approved providers of FDCs to achieve an average score of 90% in interviews of this nature” and that an “approved provider who scores below 70% is considered to pose a high risk.” Ms Sell did not identify the person or persons in the Department who had formed those views, what the expectation was based upon or upon what basis it was determined that a score below 70% was indicative of a high risk. Further, Ms Sell conceded in cross examination that Ms Manassah was not the approved provider but rather that she was a person with management or control of an education and care service. The Tribunal notes, however, that Ms Manassah’s score is below the standard which officers of the regulator expect of persons in a management role and that they consider it to be indicative of a risk to children’s safety.
Ms Manassah’s knowledge, as relevant to the question of whether she is a fit and proper person to be involved in the provision of an education and care service, is not limited to her knowledge of the National Law and National Regulations, although that is a very significant aspect of it. Also relevant is her knowledge of early childhood education and the childcare sector more generally. Ms Manassah was awarded a diploma of early childhood education and care on 28 May 2014 and a Certificate III in Children’s Services in 2012 by the Future Academy Pty Ltd. She has various other certificates in relation to short courses she has completed relevant to early childhood education and care. Ms Manassah also completed a two-year Pre-School Teachers In-Service Training Course in Kenya in December 2002. Ms Manassah was a pre-school educator for ten years in Kenya and from 2011 to 2013 worked as an educator and coordinator with Amazing Kids Family Day Care in Sydney, providing family day care services and supervising educators. We are satisfied that she has a significant amount of experience in early childhood education and qualifications beyond those which are required for her role.
We have taken those qualifications and that experience into account. Nevertheless, fitness to be involved in the provision of an education and care service requires knowledge and understanding of the National Law and National Regulations. A lack of adequate knowledge may make a person unfit for such involvement, notwithstanding other experience and qualifications the person may have in early childhood education and care.
As the Secretary submitted, Ms Manassah’s degree of knowledge and understanding of the National Law and National Regulations may also be assessed from her interactions with the regulator and her history of management of Famous Kids.
On 20 November 2020, Ms Manassah had a conversation with authorised officers, following assessment and rating visits conducted that day and the day before. At the beginning of the conversation, she agreed that Famous Kids had “issues”. When asked about the risk assessment forms which are required to be completed for transporting children, Ms Manassah responded: “Which forms? Enrolment forms? We have a form for drop-off.” Although it was not determinative, the answer suggested that she had an inadequate understanding of the approved provider’s obligation to ensure a risk assessment is carried out before a parent’s authorisation is sought to transport a child or to take the child on an excursion and to ensure that a child is not transported without a written authorisation from a parent or similar stating specified matters (National Regulations, regulations 100, 102, 102B(1), 102D(1), (4)). That is consistent with the comment of an assessor on 21 December 2020 that Ms Manassah continually mentioned the need for risk assessments but did not express an understanding of what is involved. The other assessor also commented on that date that her understanding of excursions and regular outings as outlined in the regulations was not clear.
In response to a question asked of her on 20 November 2020 about ensuring that glass and windows in educators’ homes met safety standards, Ms Manassah responded: “I think everything is a mess, but from today we will do something.” Those responses are not indicative of a sound understanding of the National Law and National Regulations, nor of management capability to operate an education and care service in accordance with the National Law (National Law, s 13(2)(c)).
One of the matters raised by the Secretary’s delegate in the show cause notice in support of the view that Ms Manassah was not a fit and proper person was that she was unable to explain how to implement the National Law and National Regulations to support the management of the service. That recognises that the knowledge and understanding of the National Law and National Regulations required to make a person fit to be involved in the provision of an education and care service is not merely academic, it is also practical. It includes an understanding of how to apply and implement the provisions of the National Law so as to achieve the objectives of the national education and care services quality framework.
Ms Manassah has managed Famous Kids since it commenced operations in 2014. She confirmed, in cross examination, that she is the only person with management and control of Famous Kids and its only director. She described herself as the “Educational Leader, being the person centrally responsible for the operation, management and control of the service, and most responsible for the day-to-day control of the business.”
The Department raised compliance issues with Famous Kids in July 2014, August 2014, October 2014, August 2016, October 2016, June 2017, October 2017, May 2018, August 2020 and November 2020. In Ms Manassah’s history of managing Famous Kids, she has taken steps to address some identified non-compliances, some of which have resulted in the Department “closing” an issue, but those steps have been inadequate to ensure Famous Kids’ long-term compliance with the National Law. One of the main issues has been inadequate supervision of educators. In her affidavit, Ms Manassah acknowledged that she “could have done more to do proper checks complaint [sic] with the National Law and Regulations” and provided an assurance that, if Famous Kids were allowed to operate again, she “would do things differently, making sure that we are complaint [sic].”
We accept the Secretary’s submission that Famous Kids’ history of non-compliance with the National Law and National Regulations, which is dealt with in more detail below, has arisen at least in part as a result of Ms Manassah’s inadequate knowledge and understanding of her role as a person with management or control of the service. She is the person principally responsible for ensuring that Famous Kids complies with its obligations. Ms Manassah has failed to ensure that Famous Kids is compliant and has often demonstrated a lack of appreciation of the importance of the role of Famous Kids in effectively supervising educators and of its compliance with record-keeping and other requirements.
An incident in 2017 on which the Secretary relies is particularly indicative of a lack of fitness and propriety on Ms Manassah’s part to be involved in the provision of an education and care service. On 6 September 2017, the Secretary informed Famous Kids that it would be conducting an assessment and rating visit on 24 and 25 October 2017. On 20 September 2017, in response to a request for information from the Department, Famous Kids informed the Department that it had fourteen educators registered. The Commonwealth Government provided information to the Department indicating that Famous Kids was claiming Child Care Benefit payments for 59 educators.
Ms Manassah explained in her first affidavit:

“When the Department had contacted us to advise that they would be conducting a compliance check and wanted to know the number of educators we had, we informed them that we had only fourteen (14) educators. This was true because we had over 40 educators resign when we informed them that the Department would be conducting compliance checks. Most of the resignations issued notices on 11 September 2017 to take effect within two weeks. …
The educators were still paid however as resignations were to take effect within two weeks, on or by 25 September 2017. Many educators however came back to Famous Kids around the first week of October 2017.
When I informed them that they must do compliance checks, they resigned again and that was the reason their claims were reflected between 24 and 25 October 2017. This was a failure on the side of Famous Kids. We could have done better with our internal control processes to ensure that educators acted appropriately.”

Ms Manassah annexed to her affidavit “educator cease forms” apparently provided by twelve educators between 8 September 2017 and 12 September 2017, all stating that they were giving two weeks’ notice to start from 11 September 2017 and end on 24 September 2017 (including the notice dated 12 September 2017). The educators ticked the box that they were “taking a leave or a holiday” or the box indicating that the resignation was for “personal reason/ family matters.” Ms Manassah also annexed “educator cease forms” given by sixteen educators, mostly dated between 18 and 23 October 2017, all stating that they were giving two weeks’ notice to start from 23 October 2017 and to end on 5 November 2017.
None of these notices justified Ms Manassah informing the regulator that she had only fourteen educators as at 20 September 2017. As at that date, the educators who had given notice starting on 11 September 2017 were still serving their notice period and their resignation had not yet taken effect.
Ms Manassah’s explanation for the discrepancy between the fourteen educators she reported and the 59 educators for whom childcare benefits were claimed in her second affidavit was as follows:

“When the Department had contacted us to advise that they would be conducting a compliance check and wanted to know the number of educators we had, we informed them that we had only 14 educators. This was true because we had over 40 educators resign when we informed them that the Department would be conducting compliance checks. I was concerned that these many educators resigned but I could not stop them from resigning. Although some of the educators were later re-hired, it was after they went through the same process of recruitment and gave assurance that they would not just resign in the future.”

There is no documentary evidence of any recruitment process or of the educators’ assurances being given.
The Secretary’s counsel had the following exchange with Ms Manassah about the incident:

“So what happened when the department told us that its assessment, that it is having assessment, and we called a meeting for the educators and we told them but they hear about when their assessment, assessment and getting this done in, so some they did make calls, they don’t want to work and some they sign two week notice so it happened on that time and we report it, we report it and then we did the report and deal with that.
Q. So when these educators were told that compliance checks were going to be carried out they either resigned or gave you two weeks’ notice, is that correct?
A. Yes.
Q. But then your evidence in your affidavit is that many of those educators then came back to Famous Kids in about the first week of October, 2017, didn’t they?
A. Yeah, after two week notice and then the assessment and they can finish and then they come back again and sign up.
Q. Okay?
A. And sign up for week.
Q. At that point in time when they came back Famous Kids re-hired them as educators?
A. Yes.
Q. Did it cause you any concern that they had resigned prior to the compliance visits, the assessment visits?
A. They give me two weeks’ notice and is in there, in the regulation you have to give two weeks’ notice if you leave, if you don’t want to work anymore so I received those two weeks’ notice and then after that if you want to come back you can come back because they want to work so they come back.
Q. Did it concern you though that they had resigned and before the department was conducting this assessment check and then they wanted to come back afterwards, did that cause you any concern?
A. In their opinion they do that but for me I don’t know, I know but they do that, they give two weeks’ notice and then they come back again.
Q. Did you find out whether they had any particular concerns about the department conducting assessment visits at their residences?
A. I don’t know why they did that.
Q. Did you conduct checks at their homes again before re-hiring them?
A. Yes, I did.
Q. And did the department come and check, did you tell the department that you had re-hired them so that they could come and re-perform the assessment regime?
A. No.”

The incident tends to show that Ms Manassah lacks fitness and propriety to be involved in the provision of an education and care service. She has not explained why she informed the educators of the prospective compliance check by the Department, or why she called a meeting to discuss it. Whilst there is no prohibition on her doing so, the notification alerted educators to the regulator’s upcoming visit, thus potentially allowing them to conceal any non-compliances.
In circumstances where Famous Kids was acting as a co-regulator, in its capacity as an approved provider, it is very troubling that Ms Manassah did not inform the Department of the mass resignation of forty educators, upon those educators being alerted to the fact that the Department was going to conduct a compliance check. It is even more concerning that Ms Manassah re-hired those educators, and failed to inform the Department of this. As we understand Ms Manassah’s evidence, in substance the educators continued to care for children with no interruption, notwithstanding that each resigned and was subsequently re-hired. That would appear, on its face, to be a strategy to avoid the Department’s compliance checks.
Ms Manassah annexed to her affidavit multiple resignation forms signed by educators in September and October 2017. There are some unusual features of the resignation notices which warranted further investigation. All of the first batch of resignation notices stated that the two weeks’ notice period was to start and end on the same date, even though notice was apparently given on different dates. The same thing occurred with the second batch of resignation notices. That is strongly suggestive of some kind of collusion. It was not put to Ms Manassah in cross examination that she had encouraged the educators all to resign at the same time and we do not make any finding to that effect. However, the circumstances were sufficiently unusual to have prompted some further investigation on Ms Manassah’s part, in her supervisory and managerial role.
Ms Manassah was complicit in the educators’ mass resignation and re-employment to the extent that she decided to re-employ them without questioning them about the reasons for their resignation, and failed to inform the Department of what had occurred. That is inconsistent with the objectives of the national education and care services quality framework to ensure the safety, health and wellbeing of children attending education and care services and to promote continuous improvement in the provision of quality education and care services (National Law, s 3(2)(a) and (c)). It is not action which advances the guiding principle that the rights and best interests of the child are paramount and that best practice is expected in the provision of education and care services (National Law, s 3(3)(a) and (f)).
Officers of the Department issued Famous Kids with a compliance notice on 1 May 2018. The compliance notice identified that Famous Kids had breached s 295(1) of the National Law. Section 295 provides:

“(1) A person must not give the Regulatory Authority or an authorised officer under this Law any information or document that the person knows is false or misleading in a material particular.
Penalty:
$6000, in the case of an individual.
$30 000, in any other case.

(2) Subsection (1) does not apply in respect of the giving of a document, if the person when giving the document—
(a) informs the Regulatory Authority or authorised officer, to the best of the person’s ability, how it is false or misleading; and
(b) gives the correct information to the Regulatory Authority or authorised officer if the person has, or can reasonably obtain, the correct information.”

The compliance notice referred to Famous Kids informing it that it had 14 educators registered on 20 September 2017 and Ms Manassah and coordinators confirming during the assessment and rating visit between 24 and 25 October 2017 that they had 14 educators registered with the service.
Famous Kids provided a detailed response to the compliance notice. It stated that some educators left because they were anxious about the “assessment and rating by the authorised officers”. In its response, Famous Kids explained: “If the service had added the ceasing educators in the list, it would have confused the process during the selection of educators for the visit.” Famous Kids’ explanation continued: “It is because of the behaviours of educators that forced the service to submit inconsistent/conflicting information to the authorised officers and data to the Commonwealth Government Department of Education… The provider doesn’t have power to control an educator who wants to cease care with service.”
Famous Kids did not provide evidence of more than twelve resignation forms for educators in September 2017. Thus, even if those educators were not included in the list of educators registered with Famous Kids (as they should have been), no records have been produced to verify that forty educators had resigned, as claimed. Further, it is strange that Ms Manassah maintained in October during the compliance visit that Famous Kids still had only fourteen educators. There is evidence of sixteen educators resigning at this time, but they were still serving their notice period. No documentary evidence has been provided to support Ms Manassah’s claim that the service had only fourteen educators during the compliance visit in October 2017. The suggestion that Famous Kids was “forced” by the educators to mislead authorised officers is indicative of a failure to take responsibility for the conduct.

Ms Manassah stated in her first affidavit: “I admit the issuing of this Compliance Notice was due to Famous Kids’ failure to communicate effectively with the Department and properly inform the Department of the number of the educators we had on our books at the time.” The admission is well made, but there is nothing in the affidavit which indicates that Ms Manassah is cognisant of the seriousness of this breach, which involves not merely ineffective but rather dishonest and/or misleading communications with the regulator.
We find that both Famous Kids and Ms Manassah breached s 295(1) of the National Law by giving the Secretary or an authorised officer under this Law information (on about 24 or 25 October 2017) and a document (on about 20 September 2017) that each knew to be false or misleading in a material particular. That is, each gave the Secretary information about the number of educators registered with the service which each knew to be incorrect.
Famous Kids claimed Child Care Benefit from the Commonwealth government for 58-59 educators on the same dates (24 and 25 October 2017). That is, it was receiving remuneration from the Commonwealth in respect of a large number of educators at the same time as it concealed this from the State regulator. The misleading responses about the numbers of educators Famous Kids had may have affected other matters of compliance, such as having the required coordinator to educator ratios (see regulation 123A, which commenced on 1 October 2017).
This incident, and Ms Manassah’s role in it, weigh strongly in favour of the conclusion that Ms Manassah is not a fit and proper person to be involved in the provision of an education and care service. Lack of transparency with the regulator is particularly serious in a regulatory environment in which the approved provider has a co-regulatory role.
Taking into account all of the evidence, we do not consider that Ms Manassah is a fit and proper person to be involved in the provision of an education and care service. We find that she does not have an adequate knowledge and understanding of the National Law and National Regulations to be fit to be involved in providing such a service. We also find, consistently with her admission, that she provided false or misleading information to the regulator in September and October 2017. We have come to this conclusion taking into account the seriousness of those findings.
We are also inclined to the view that Ms Manassah lacks the management capability to operate an education and care service in accordance with the National Law (National Law, s 13(2)(c)). However, as the Secretary did not expressly rely upon this in her submissions, we have not relied upon this factor in reaching the conclusion that Ms Manassah is not a fit and proper person to be involved in the provision of an education and care service.
Whilst that conclusion provides a sufficient basis to affirm the cancellation decision (National Law, s 31(a)), we have also considered whether Famous Kids is a fit and proper person (National Law, s 31(a)) and whether it has breached a condition of the provider approval (National Law, s 31(e)). Both of these matters were fully argued and they are also relevant to the exercise of our discretion as to the appropriate orders to make.

Is Famous Kids a fit and proper person?

The Secretary did not rely upon Famous Kids’ lack of fitness and propriety as a ground for cancellation in its show cause or the notice of cancellation. However, we do not consider that reliance upon that ground before the Tribunal is, as was submitted for Famous Kids, a late expansion of the respondent’s case. As there were no pleadings, the first opportunity the respondent had to put her case was in submissions, where she raised this ground. Further, the main matter relied upon by the Secretary in relation to Famous Kids’ fitness and propriety was its history of non-compliance. Much of this was addressed by Famous Kids in two affidavits of Ms Manassah.
Famous Kids identified the prejudice which arose as being that it was not in a position to lead evidence about the alleged historical non-compliances by it. We are not persuaded that this is the case. Famous Kids had already filed an affidavit of Ms Manassah going to this issue when the respondent filed her submissions, and it also filed evidence and submissions after that date which dealt with those alleged historical non-compliances.
We are satisfied that Famous Kids had ample opportunity to respond to this ground and was not prejudiced by it. Further, we have had regard to the guiding principle of the national education and care services quality framework that the rights and best interests of the child are paramount (National Law, s 3(3)). We consider that the rights and best interests of children are best served by the Tribunal considering whether the applicant is a fit and proper person to be involved in the provision of an education and care service.
For these reasons, the Secretary is entitled to rely upon this ground and the Tribunal may consider it consistent with its obligation to provide Famous Kids with procedural fairness.

Famous Kids’ compliance with the National Law

A mandatory consideration when determining whether a person is fit and proper is the person’s history of compliance with the National Law, by operation of s 13(1)(a) of the National Law. The “proper construction of s 13(1)(a) is that it requires the decision-maker to take into account the history of a person’s compliance with the National Law both as determined by a court and as demonstrated on the evidence before the Secretary or, on review, before the Tribunal” (Secretary, Department of Education v Early Childhood Education Australia Pty Ltd [2021] NSWCATAP 397 at [91]).
The Secretary relied primarily on the contraventions of the National Law and National Regulations which were identified in the November 2020 visits in terms of Famous Kids’ history of non-compliance. However, the Secretary also relied upon earlier non-compliances and what she said was a pattern of non-compliance.
Famous Kids submitted that the words “history of compliance” in s 13(1) of the National Law referred to non-compliances prior to the instances giving rise to these proceedings (relying upon Jessica Education Centre Pty Ltd v Secretary, Department of Education [2020] NSWCATAD 99 at [47]). This construction is not supported by the approach taken by the Appeal Panel in Secretary, Department of Education v Early Childhood Education Australia Pty Ltd [2021] NSWCATAP 397 (see especially at [93]). Nor do those words, on their ordinary meaning, necessarily exclude recent compliance history; they are apt to include a person’s whole history of compliance. There is no reason we can see why the legislature would have chosen to exclude recent compliance (or lack thereof) from an assessment of fitness and propriety. If we are wrong about this, however, we consider that a person’s recent compliance with the National Law is still a matter we can take into account in our discretion (see National Law, s 13(3)).
When considering Famous Kids’ level of compliance in 2020, we have taken into account the impact of the COVID-19 pandemic. This was not, however, a factor upon which counsel for Famous Kids placed a lot of emphasis. Furthermore, the history of compliance by Famous Kids with the National Law and National Regulations indicates a pattern of non-compliance which precedes the pandemic.

Child protection and mandatory reporting requirements

Departmental officers have identified failures on the part of Famous Kids to ensure that supervisors and educators are aware of their child protection obligations since 2014.
In August 2014, an authorised officer considered that Famous Kids had failed to ensure the nominated supervisor and educators are advised of the current child protection law and their obligations under that law, contrary to regulation 84 of the National Regulations. The officer stated that both of the relevant educators were asked about their understanding of the child protection law and responsibilities and neither was aware of their responsibilities.
Regulation 84 provides now and provided in August 2014:

84 Awareness of child protection law
The approved provider of an education and care service must ensure that nominated supervisors and staff members at the service who work with children are advised of—
(a) the existence and application of the current child protection law; and
(b) any obligations that they may have under that law.
Penalty: $1000.

The term “child protection law” means Chapters 1–10 and 13–17 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (Application Act, s 7). Those chapters contain a provision imposing mandatory reporting obligations upon persons providing children’s services to children (including family day care educators) where the person has reasonable grounds to suspect that a child is at risk of significant harm (Children and Young Persons (Care and Protection) Act 1998 (NSW), s 27).
Famous Kids’ response to the August 2014 compliance notice, signed by Ms Manassah, was that the nominated supervisor and educators were given one day training after the authorised officer’s visit. Famous Kids did not deny that, at the time of the authorised officer’s visit, it had not complied with regulation 84. Ms Manassah referred to the August 2014 assessment in her second affidavit and stated that both educators were apparently not able to adequately describe their responsibilities. She did not indicate that Famous Kids had advised them of those obligations, but rather stated that as “corrective action” the educators had received a Child Protection Refresher Training Course. As evidence of this, she referred to a certificate which was in the materials before the Tribunal, but that certificate concerned Ms Manassah’s own training in 2020 and did not support her claim.
We find, on the basis of the evidence referred to above and taking the Briginshaw approach to fact-finding, that Famous Kids was non-compliant with regulation 84 in August 2014.
In March 2017, Famous Kids was assessed against the National Quality Standard by the assessment officer, Kristy Gillard, following an assessment visit on 17 and 18 January 2017. In relation to Standard 2.3, “Each child is protected,” Famous Kids was given the lowest rating of “Significant Improvement Required.” The assessor recorded that elements of the standard were not met in relation to taking steps to manage risks to protect children from hazards, planning to effectively manage incidents and emergencies, and advising nominated supervisor, educators and staff members of the existence of child protection law and any relevant obligations.
The assessor commented:

“While educators engage in adequate supervision of children, plans to effectively manage incidents and emergencies are unclear and do not meet regulatory requirements. Moreover, a significant risk to children is posed with various hazards in educator homes and concerns educators are not aware of their roles and responsibilities regarding children at risk.”

The assessor considered there to be evidence that practices and procedures posed an unacceptable risk to the safety, health and wellbeing of a child or children being educated and cared for by the service in a variety of areas.
The “National Quality Standard” is set out in Schedule 1 to the National Regulations (see National Law, s 5 and National Regulations, cl 8). It comprises seven quality areas with standards relevant to each area. There are five rating levels (National Law, s 134; National Regulations, cl 57). The lowest is “significant improvement required” and the second lowest is “working towards National Quality Standard” (National Regulations, cl 57). Regulations 59 and 60 of the National Regulations provide:

59 Significant Improvement Required
(1) A Significant Improvement Required rating may be given for a quality area stated in the National Quality Standard if the education and care service does not meet that quality area or a relevant regulation for that quality area in a way that the Regulatory Authority is satisfied constitutes a significant risk to the safety, health or wellbeing of any child or children being educated and cared for by the service.
(2) If an education and care service has a Significant Improvement Required rating for any quality area stated in the National Quality Standard, the overall rating of the service is to be Significant Improvement Required.
60 Working Towards National Quality Standard
(1) A Working Towards National Quality Standard rating may be given for a quality area stated in the National Quality Standard if the education and care service does not meet a standard in that quality area or a relevant regulation for that quality area but is not rated as Significant Improvement Required.
(2) If an education and care service has a Working Towards National Quality Standard rating for any quality area stated in the National Quality Standard but does not have a Significant Improvement Required rating for any quality area, the overall rating of the service is to be Working Towards National Quality Standard.

On 19 June 2017, Famous Kids was sent a show cause notice, proposing cancellation of its provider approval. The notice identified a range of breaches identified in the visit which took place on 17 and 18 January 2017. These included non-compliance with regulation 84. It was stated that two named educators were not aware of their child protection obligations and the path they would follow to report any concerns. Famous Kids’ response to the show cause notice did not deal expressly with this alleged breach and did not deny it occurred.
In her affidavit evidence, Ms Manassah did not deny that Famous Kids had failed to comply with regulation 84 in January 2017 and did not provide any evidence of having advised the educators of the existence and application of the current child protection law and their obligations under that law. Rather, she stated that the service took the allegations very seriously and afterwards ensured that training was delivered to the educators. Again, as evidence of this, she referred to the certificate issued to herself in September 2020, which of course does not substantiate her claim about educator training in 2017.
We find, on the basis of the evidence referred to above and taking the Briginshaw approach to fact-finding, that Famous Kids was non-compliant with regulation 84 in January 2017.
In August 2020, an authorised officer notified Famous Kids of a breach of regulation 168 of the National Regulations which the officer had identified during a compliance visit on 31 July 2020. Regulation 168(1) requires the approved provider to ensure that the service has in place policies and procedures including in relation to child protection. When an authorised officer requested to sight current policies and procedures on 31 July 2020, Ms Manassah provided the authorised officer with a booklet containing the service’s policies and procedures but it did not include a child protection policy. There were no details about child protection in the service’s “providing a child safe environment” policy. Ms Manassah informed the officers that the service did not have a child protection policy.
In Famous Kids’ response to the alleged breach, it claimed that the policy was there in the policy booklet at the time of the authorised officer’s visit but that it had now been updated “to the current standard.” Ms Manassah repeated this explanation in her affidavit, but did not explain why the authorised officers could not find the child protection policy in the booklet at the time, why (if the policy existed) it was out of date and why she told the officers that Famous Kids did not have a child protection policy.
Ms Manassah also maintained when cross examined that Famous Kids had a child protection policy at the time of the visit but said it was “incomplete” (something she had not said before). When asked whether she told the Departmental officers that Famous Kids did not have such a policy, Ms Manassah said she could not remember. Ms Manassah then changed her evidence and said: “But it was there, she’s looking for it and when I try to get the books the policy and procedures I didn’t get it quickly. That why I say is not in the books.” The following exchange ensued:

“Q. Ms Manasa at the time you were asked this question and you responded that the Service did not have a child protection policy you were not aware of Famous Kids Child Protection Policy were you?
A. I’m aware of it but I tried to look it in the books but I didn’t find it.
Q. Why did you tell the officers that there wasn’t one then?
A. Because I didn’t get the page of it.
Q. You didn’t know the page of it, well I suggest that you just didn’t know that it was there?
A. It was there.”

Ms Manassah did not dispute in her affidavit that she had said the service did not have a child protection policy. She did not dispute this the first time she was asked in cross examination, saying only that she could not remember. Ultimately, she accepted that she had told the authorised officers there was no child protection policy but maintained that she actually knew that Famous Kids did have a policy which she could not find. We consider that Ms Manassah’s belated explanation for the absence of a child protection policy at the inspection is not credible and that she could not find any child protection policy at the visit on 31 July 2020 because either it did not exist or she was not aware of its existence. The non-existence of a child protection policy is consistent with the circumstance that the “Providing a Child Safe Environment” policy did not mention child protection.
We find, on the basis of the evidence referred to above and taking the Briginshaw approach to fact-finding, that Famous Kids was non-compliant with regulation 168 of the National Regulations on 31 July 2020. If we are wrong about this, and Famous Kids did have a child protection policy which it did not produce, then we consider that it had not complied with its obligation under regulation 170 to take reasonable steps to ensure that nominated supervisors and staff members of, and family day care educators engaged by or registered with, the service follow the policies and procedures required under regulation 168. It follows logically that in order to follow a policy required under regulation 168, the nominated supervisors in question needed to be aware of that policy.
On 25 January 2021, in its assessment against the National Quality Standard, Famous Kids was given the rating of “significant improvement required” for the standard “each child is protected.” The assessment officer, Gemma Anderson, commented:

“Processes and procedures to ensure each child is protected are not occurring at the service. Children are consistently leaving the educators residences without appropriate authorisations. Authorisations for educators to transport children and take children on routine outings and excursions are not consistently documented and the inadequate supervision of children places them at significant risk. Whilst training was delivered to educators in English with regards to child protection, most of the educator’s [sic] do not confidently speak or understand English and through conversations between officers and educators, it is evidence they unaware of the process to follow with regards to child protection concerns. Emergency evacuation rehearsals are not completed by every educator within regulatory requirements and risk assessments to identify potential emergencies relevant to each service have not yet been completed. Emergency and evacuation floorplans are consistently inaccurate, not located in the correct positions and do not include written instructions. Lockdown scenarios are not understood or practiced. [sic]”

Physical environment of the service

Section 167 of the National Law provides that an approved provider must ensure that every reasonable precaution is taken to protect children being educated and cared for by the service from harm and from any hazard likely to cause injury.
Regulation 103 of the National Regulations provides that an approved provider must ensure that the education and care service premises and all equipment and furniture used in providing the education and care service are safe, clean and in good repair.
Regulation 117 of the National Regulations provides that an approved provider must ensure that any glazed area of a residence or approved family day care venue of the service complies with regulation 117(2) if the area is accessible to children and is at a specified height. Regulation 117(2) requires the glazed area to be glazed with safety glass, if the Building Code of Australia requires this or, in any other case, treated with a product that prevents glass from shattering if broken or guarded by barriers that prevent a child from striking or falling against the glass.
On 15 August 2014, when an authorised officer attended educators’ homes, she identified a significant number of hazards at both educators’ homes, in breach of s 167 of the National Law. This included broken glass and chemicals stored within reach of children.
Famous Kids did not dispute that the breaches had occurred at the time and responded that all appropriate action was taken “because it’s our duty of care to make sure that our educators comply with the National Law to protect children.” In her affidavit, Ms Manassah did not dispute the breaches and indicated that, at one educator’s home, twelve of the sixteen harms and hazards were rectified and the remaining four were reported to the landlord, and the educator was advised to move “because her current residence was old and not ideal.” This raises the question as to why the home was initially approved when Famous Kids started operating only months earlier.
It is plain from the extent of the breaches that Famous Kids had not taken every reasonable precaution to protect children in the educators’ homes from harm and from any hazard likely to cause injury in August 2014.
We find, on the basis of the evidence discussed above, and taking the Briginshaw approach to fact-finding, that Famous Kids was non-compliant with s 167 of the National Law on 15 August 2014.
In June 2017, the show cause notice identified that Famous Kids had breached regulation 103 when authorised officers conducted an assessment on 17 and 18 January 2017. In the assessment and rating visit, authorised officers found hazards at three educators’ homes.
In its response to the show cause notice, Famous Kids said that it had performed due diligence on all breaches identified and that it had “issued warning notices to the educators who have been involved in monitoring visit non-compliances and placed them on a watchlist.” Ms Manassah did not dispute that the breaches had occurred in her affidavit.
We find, on the basis of the evidence discussed above, and taking the Briginshaw approach to fact-finding, that Famous Kids was non-compliant with regulation 103 of the National Regulations in January 2017. It had failed to ensure that the educators’ premises and all equipment and furniture used in providing the service are safe, clean and in good repair.
On 1 May 2018, Famous Kids was sent a compliance notice which identified breaches of regulation 103 at two educators’ homes at an assessment and rating visit conducted on 24 October 2017.
In its response to the compliance notice, Famous Kids did not dispute the breaches but explained how they had been rectified. Ms Manassah accepted in her affidavit that the breaches had occurred. She also stated that “for future prevention, home safety checks were conducted regularly and I emphasised with our coordinators that part of their responsibility in their monthly visits was to ensure the educators [sic] residence continued to provide a safe environment for children.”
We find, on the basis of the evidence discussed above, and taking the Briginshaw approach to fact-finding, that Famous Kids was non-compliant with regulation 103 of the National Regulations in October 2017. It had failed to ensure that the educators’ premises and all equipment and furniture used in providing the service are safe, clean and in good repair.
At the November 2020 inspection, the authorised officers identified about fifty contraventions relating to the safety, cleanliness and good repair of the physical environment of the service. Ms Sell’s evidence was that, although the individual breaches of the National Law and National Regulations may not be serious, the number of breaches is significant. In her opinion, it demonstrates a pattern of failing to ensure that children are protected from harm and hazard, failing to ensure that the residences are safe, clean and in good repair, and a failure to ensure that the children are provided with developmentally appropriate resources. We accept that opinion.
The breaches identified included the following:

At Educator A’s home, various bottles of chemicals were on the floor in a laundry room accessible to children (in breach of s 167 of the National Law) and a balcony area on the sixth level of an apartment building accessible to children had a broken lock and was unlocked and accessible at all times (also in breach of s 167). Educator A explained that he did not have the key to lock it;

At Educator B’s home, a gas hot water system with exposed accessible metal copper piping and overflow pipe was in reach of children in the outdoor play space in breach of s 167 of the National Law;

At Educators C’s residence, a broken swing set was available for children. While two children were swinging on the swings, the leg of swing set unhinged and slipped out of the socket and the swing set fell back against the fence;

At Educator D’s residence, the educator was not aware that glass in the family day care space needed to be safety glass or protected. There were floor to ceiling sliding glass doors and glass doors on the shower in the bathroom used by children. He confirmed that he had not asked a glazier to check the glass in the family day care area, and the authorised officer found a breach of regulation 117. There were no child locks on the fridge, where medicine was stored at children’s height. There were also a number of unsafe items of furniture, such as a large flat screen TV not secured to the wall, power points without child safe covers and multiple items of furniture with sharp corners at child height. That was in breach of section 167;

At Educator E’s residence, there was a gap between the Colorbond fence and retaining wall in the backyard of around 20cm posing a potential finger entrapment, in breach of regulation 103. In addition, an accessible drawer contained small items including keys, beads and rings, and an accessible laundry area had drawers and cupboards containing electrical cords, scissors, toilet cleaning chemicals and small bead necklaces, in breach of section 167.

In her affidavit, Ms Manassah did not deny that these breaches had occurred and appeared to accept that they had occurred, setting them out in summary form and referring to them as “breaches.” She also stated that, with respect to the breaches identified between 19-20 November 2020, she accepted that such breaches should be taken seriously.
In its written submissions filed before the hearing, Famous Kids did not take issue with the contraventions as found, but rather submitted that, at the time of Ms Manassah’s interview in December 2020, the contraventions were not, absent more, considered by the regulator to warrant taking the step of cancelling Famous Kids’ provider approval. It noted that Ms Manassah had recognised that Famous Kids’ deficiencies arose from a failure of its governance and monitoring systems and that it had engaged Vertex to examine and advise on those systems. Famous Kids submitted that, having accepted the need for improvement, and having made extensive efforts to improve its compliance with the National Law by hiring an external consultant and developing rectification steps, Famous Kids’ provider approval should not be cancelled.
In his closing oral submissions, counsel for Famous Kids, Mr Diggins, pointed out that only about 18% of the educators were assessed during the November assessment visits. He submitted that this was not a sufficient basis to demonstrate a pattern or a systemic problem. He also submitted that breaches such as those identified by the assessors are the sort of things which can be dealt with by the lower level enforcement measures.
Famous Kids did not dispute that the breaches at Educator A’s residence had occurred. However, Mr Diggins submitted in closing that leaving out cleaning products was “a low level thing posing a minor risk capable of being immediately rectified and can be corrected by, using the Department’s language, a minor adjustment.” We do not agree. Chemicals pose a significant risk to children, even if it is relatively easy to put them away. Had a child consumed the chemicals, the result could have been catastrophic.
Ms Manassah said in cross examination that Educator A had told her that the key was lost and for that he had to break the lock. She said on the day the coordinator visited that had not been a problem. This is not something which was included in Ms Manassah’s affidavit and there is no direct evidence of this from Educator A or the coordinator. As Ms Manassah accepted in cross examination, she did not provide to the Tribunal copies of any of the safety check lists relating to Educator A. It is difficult to accept this evidence in circumstances where there is no independent corroboration of it and the Secretary’s counsel did not have an opportunity to cross examine the educator or the coordinator about it.
Even if what Ms Manassah said is accepted, s 167 requires the approved provider to ensure that every reasonable precaution is taken to protect children being educated and cared for by the service from harm and from any hazard likely to cause injury. The broken lock posed a significant risk. There is no evidence that any precaution was taken to protect children against that risk. In those circumstances, we find that Famous Kids contravened s 167 of the National Law.
In cross examination of Ms Sell, Mr Diggins questioned her about the significance of some of the alleged contraventions and whether they in fact gave rise to a lack of safety. Ms Sell accepted, in relation to Educator B, that photographs demonstrated that the risk posed by the gas hot water system with exposed accessible metal copper piping and overflow pipe had been identified and was mitigated to some degree by fencing, a sign and some padding. Ms Sell accepted that there was a “small mitigation of the risk.”
We accept that Educator B had made some attempt to mitigate the risk posed by the gas hot water system. However, the photographic evidence demonstrates that an adult hand (shown in one of the photographs) could fit through the holes in the fence surrounding the gas hot water system. The warning sign may not be capable of being read by a toddler or young child. The hazard remained.
Mr Diggins submitted that leaving cleaning products out (as Educator A had done) or a fence coming away from the hot water pipe, “[t]hose things shouldn’t be like that, but one has to recognise in a setting the significance of it, that these things can happen.” The National Law and National Regulations are designed to ensure that such things do not happen. The circumstance that many such things did happen at the premises of Famous Kids educators suggests that Famous Kids was not carrying out its supervisory responsibilities effectively.
Famous Kids did not dispute that the breach in relation to the broken swing set at Educator C’s premises occurred. We have viewed photographic evidence of the broken swing set and we are satisfied that the breach occurred.
In relation to the alleged breach of regulation 117 by Educator D, Mr Diggins suggested to Ms Sell that the situation with the glass in Educator’s D’s home was that we did not know whether the glass complied or not. Ms Sell disagreed that there had not been a breach, emphasizing that the educator was not aware that the glass had to be protected. It was submitted by Ms Epstein for the Secretary that there was a breach of regulation 117, because the approved provider cannot ensure that glass is compliant if the approved provider and the educators themselves do not know. Mr Diggins submitted that there was an insufficient basis for comfortable satisfaction that that breach was made out.
Regulation 117(1), which required an approved provider to ensure that any glazed area of a residence or approved family day care venue of the service complies with regulation 117(2), requires the approved provider to take steps to ensure that the glazed area is compliant. Those steps may reveal that the glazed area is compliant and that nothing further needs to be done. However, it is not an answer to an alleged breach of regulation 117 to say that the glazed area may or may not be compliant. The very purpose of regulation 117 is that the approved provider has to ensure that any glazed area is compliant so as to remove any potential hazard to children.
We find that the breach in relation to the non-compliance with regulation 117 at Educator D’s residence is established.
Famous Kids did not dispute that a breach of s 167 of the National Law occurred in relation to the medicine accessible in Educator’s D’s fridge, the power points without safe covers on, the TV not secured to the wall or the furniture with sharp corners in Educator D’s residence. We are satisfied that this breach occurred.
Famous Kids disputed that a child’s fingers could be entrapped in the gap between the fence at Educator E’s residence. Ms Sell, when asked about the photographic evidence of that gap, could not identify the risk of entrapment of a child’s fingers. We find that this alleged breach of regulation 103 of the National Regulations is not established.
Famous Kids did not dispute that the drawer at Educator E’s residence containing small items, and an accessible laundry area in which items such as scissors and toilet cleaning chemicals were accessible, gave rise to a breach of section 167. There is photographic evidence to support the Secretary’s claim that these breaches occurred and we find that they did.
We find, on the basis of the evidence discussed above and in the documents before the Tribunal, and taking the Briginshaw approach to fact-finding, that Famous Kids was non-compliant with regulations 103 and 117 of the National Regulations and section 167 of the National Law in the circumstances discussed above.
There are a number of other alleged breaches of section 167 and regulation 103 which we have not dealt with.

Other alleged breaches

The Secretary contended that there was a large number of other contraventions of the National Law and National Regulations by Famous Kids, as identified in November 2020. An aide memoire provided to the Tribunal identified a total of 213 contraventions. Some of these were in areas not discussed above, including emergency procedures and sleep and rest breaches. We do not need to consider each of these alleged contraventions to reach the conclusion we have reached that Famous Kids is not a fit and proper person to be involved in the provision of an education and care service within s 12(2)(b) of the National Law.

Conclusion about fitness and propriety of Famous Kids

Famous Kids’ history of compliance with the National Law, as set out above, is indicative of a lack of fitness and propriety to be involved in the provision of an education and care service.
As is apparent from our reasons above, there are many instances where the regulator has identified breaches on the part of Famous Kids, and the breaches have later been repeated. This is generally a result of Famous Kids failing to take appropriate action to ensure that the breaches did not recur, and failing to be proactive in ensuring compliance with the National Law.
To reiterate, Famous Kids failed to comply with its obligation to advise educators of their obligations under child protection law in 2014 and 2017. Several educators and a coordinator were unaware of those obligations in 2020. Our view is that Famous Kids had not complied with that obligation before September 2020 and the evidence that it was compliant in November 2020 is weak. Even if it was compliant with its child protection obligations in November 2020 (and we have not found that it was not compliant at that time), it failed to ensure that educators understood their child protection obligations. This put children at risk or, at the very least, constituted a failure to ensure the safety, health and wellbeing of children attending the services.
Famous Kids breached regulation 116 in 2016 by not assessing educators’ residences at least annually. It was again in breach of regulation 116 in November 2020. Its claims that all educators were visited monthly were not supported by the documentary evidence. It is plain that Famous Kids could have taken reasonable steps, which it did not take, to ensure compliance with regulation 116.
Compliance with regulation 116 is important as it is designed to address any risks to children’s health and safety at each educator’s residence. The approved provider is required to consider matters such as the existence of any water hazards and the risk posed by animals at the residence. Failure to comply with regulation 116 potentially puts children’s safety, health and wellbeing at risk.
Famous Kids failed to comply with the requirement in regulation 153 to keep a register containing prescribed information about educators in July 2014, October 2014 and November 2020. The purpose of this register is to keep a record of important information about educators, including about their first aid training and working with children checks, which provides a means for both the approved provider and the Secretary to monitor and check compliance. The failure to keep a register which complied with regulation 153 was unexplained. Given that Famous Kids was alerted to its non-compliance with this regulation in 2014, the continued failure to comply in 2020 was even more serious. It is consistent with a lax attitude towards compliance.
Famous Kids also failed to comply with the requirements concerning risk assessments and authorisations for excursions in 2016, 2017 and 2020. The breaches in 2020 were significant, with a large number of educators found to be transporting children to and from school and on excursions without having conducted the required risk assessments and without having obtained the relevant authorisations from parents. Many educators were unaware of their obligations in this respect. Those failures reflect a lack of supervision and support of educators on the part of Famous Kids. As Ms Manassah acknowledged, she could have done more “to do proper checks complaint [sic] with the National Law and Regulations.” There is little evidence to indicate that Famous Kids had taken steps to ensure compliance in this area, notwithstanding the findings of non-compliance in 2016 and 2017.
Famous Kids was in breach of section 167 of the National Law and/or regulation 103 of the National Regulations in respect of physical hazards and lack of safety at educators’ homes on 15 August 2014, 17 and 18 January 2017 and 24 October 2017. A large number of breaches of those provisions was identified in the November 2020 assessment visits, as well as breaches of regulation 117. The extent of the breaches was, in our view, due to Famous Kids’ failure to adequately inspect, supervise and support its educators and to put in place adequate systems to proactively ensure compliance with the National Law and National Regulations.

We take into account Famous Kids’ failure to implement all the recommendations of the 2017 Vertex Report, a report it relied upon to oppose cancellation of its provider approval in 2017. Despite stating that it would adopt all of those recommendations, it failed to do so.
The 2017 Vertex Report identified that management and coordination staff “need to understand and implement strict accountability measures in the operations of the organisation to ensure individual staff can be held accountable for any shortcomings in following the processes, keeping documents and displaying all the necessary information in the office.” Vertex found that Famous Kids needed “strategic and operational guidance in the areas of governance and capability” and needed to develop “stringent internal controls that would ensure business operations are compliant with relevant laws.” One of the problems Vertex identified was that, whilst Famous Kids visited educators’ premises, the visits were rarely unannounced and were also infrequent.
In its 2017 report, Vertex made the following comments about Famous Kids conducting primarily announced visits to educators:

“Given the visits are usually announced, it gives Educators the time to prepare for the visit and ‘hide’ any potential misconduct they are involved in. The Service Provider noted, that when the FDC announce the visit, often Educators request extension of an alternative time. Therefore, the infrequent and announced only home visits can potentially lead to educators being involved in a misconduct and getting away with it, with or without colluding with parents.”

The Vertex report noted that management of Famous Kids had agreed to implement recommendations for more unannounced visits to educators by coordinators, for rotating coordinators who check on educators (so that different persons check on educators at different times), and for management to randomly visit educators themselves. The Vertex Report, whilst undated, set a due date for implementing those recommendations of 31 August 2017.
It is apparent, from that report and from the Department’s show cause notice on 19 June 2017, that Famous Kids was not adequately ensuring compliance with the National Law at that time.
Ms Manassah gave evidence that Famous Kids “implemented some of these recommendations” but acknowledged that it could have done “better to implement the recommendations.” In particular, Famous Kids did not make sure that an external party conducted a regular review of the governance system or the internal controls designed to manage coordinators and to identify risks to children. Ms Manassah also accepted that “Famous Kids could have put in place more stringent measures and internal controls for management of coordinators and educators” in accordance with the 2017 Vertex Report. As indicated above, the 2021 Vertex report confirmed that Famous Kids had failed to implement recommendations in the 2017 Vertex report.
The failure of Ms Manassah and Famous Kids to take all reasonable steps to ensure compliance with the National Law, in circumstances where they have undertaken to take those steps, is indicative of a lack of recognition of the importance of compliance with the National Law. It constitutes a failure to acknowledge and give effect to the guiding principle that best practice is expected in the provision of education and care services (National Law, s 3(3)(f)).
We have also taken into account the incident in 2017 when Famous Kids provided misleading information to the Secretary about the number of educators it had registered. For the reasons given in relation to Ms Manassah, this is indicative of a lack of fitness and propriety on the part of Famous Kids to be involved in the provision of an education and care service. It is also part of the history of non-compliance by Famous Kids, constituting a failure to comply with section 295 of the National Law.
We consider that the history of compliance by Famous Kids with the National Law strongly indicates that it is not a fit and proper person to be involved in the provision of an education and care service.
For all of the reasons given above, we find that Famous Kids is not a fit and proper person to be involved in the provision of an education and care service.

Breach of condition of provider approval

The Secretary relies upon the contraventions identified in the November 2020 visits as constituting a breach of Famous Kids’ provider approval, namely the condition under s 19(2) requiring it to comply with the National Law and National Regulations. As the Appeal Panel has confirmed, s 31(e) of the National Law, which provides that the Secretary may cancel a provider approval if the approved provider has breached a condition of the provider approval, authorises cancellation if the approved provider has breached the condition imposed by s 19(2) of the National Law (Secretary, Department of Education v Early Childhood Education Australia Pty Ltd [2021] NSWCATAP 397 at [96]-[97]).
As we have found above, Famous Kids failed to comply with the National Law and National Regulations in November 2020 (or shortly before) in that it failed to comply with regulations 84, 99(1), 100(1), 102(1), 102B(1), 102D(1), 103, 116, 117, 153 and 163(1) of the National Regulations and ss 164A(1), 167 and 269(1)(a) of the National Law.
It follows that Famous Kids breached the condition in s 19(2) of the National Law requiring it to comply with the National Law and the National Regulations.

Correct and preferable decision

The Secretary’s position is that the Tribunal should confirm the cancellation decision. She formally submitted that the Appeal Panel erred in reaching the conclusion that the Tribunal is empowered to impose or amend the conditions of a provider approval in Secretary, Department of Education v Early Childhood Education Australia Pty Ltd [2021] NSWCATAP 397 at [99], but in any event opposed the imposition of conditions.
Famous Kids contended that the correct and preferable decision was for the Tribunal to impose conditions upon its provider approval. It submitted that permitting a business which has taken active steps to improve its operations and expressed a willingness to work with the regulator to further improve any concern about its operations would not undermine the National Law’s objective of promoting continuous improvement in the provision of quality education and care services. Rather, it said, the opposite is true. It proposed conditions to address the regulator’s concerns.
Given the conclusions we have reached that Famous Kids and Ms Manassah are not fit and proper persons to be involved in the provision of an education and care service, the correct and preferable decision is to confirm the decision to cancel Famous Kids’ provider approval. The fitness and propriety of the proposed provider and of each person with management or control of a proposed education and care service are matters of which the regulator must be satisfied before granting a provider approval.
Even if we are wrong in our conclusion that Famous Kids and Ms Manassah are not fit and proper persons to be involved in the provision of an education and care service, we nevertheless consider that the correct and preferable decision remains to confirm the cancellation decision. That is for a number of reasons:

A large number of contraventions have been identified by the regulator over a six year period on many different occasions;

Famous Kids has not taken adequate steps to address the non-compliances identified over a number of years, with the result that it has found to be non-compliant with the same or similar provisions on multiple occasions;

Famous Kids engaged an external consultant to assist it with compliance in 2017, but failed to fully implement its recommendations, despite its assurances that it would do so;

Famous Kids has provided inadequate monitoring and support of its educators over a long period of time;

Famous Kids was not transparent with, and positively misled, the regulator in 2017, by informing the regulator that it had far fewer educators than were in fact registered with it, and by failing to alert the regulator to the mass resignation and re-employment of a large number of educators in circumstances where that occurred at the time of a compliance check;

Famous Kids has not taken a proactive approach to ensuring compliance with the National Law;

Famous Kids has achieved the lowest rating against the National Quality Standards twice, most recently at around the time its provider approval was cancelled, including with respect to the standard that each child is protected;

The Tribunal cannot be confident that Ms Manassah would increase her knowledge of the National Law and the National Regulations, provide more oversight of educators and coordinators, or implement the recommendations of the second Vertex report, as she has undertaken to do, in circumstances where she has failed to make good on her assurances in the past.

For all of these reasons, we have decided to confirm the Secretary’s decision.

Orders

The decision of the respondent to cancel the applicant’s provider approval is confirmed.

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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: 09 January 2023

Medium Neutral Citation:	Famous Kids Family Day Care Pty Ltd v Secretary, Department of Education [2023] NSWCATAD 10
Hearing dates:	6-8 September 2021, 12 November 2021; final submissions due 7 March 2022; Tribunal reconstituted 23 May 2022
Date of orders:	9 January 2023
Decision date:	09 January 2023
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Lucy, Senior Member S Davison, General Member
Decision:	The decision of the respondent to cancel the applicant’s provider approval is confirmed.
Catchwords:	ADMINISTRATIVE LAW – Child protection - Children (Education and Care Services) National Law -Cancellation of provider approval – Whether applicant and its director are fit and proper persons to be involved in the provision of an education and care service – Whether applicant has breached a condition of the provider approval – Whether cancellation decision should be confirmed as a matter of discretion
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Children (Education and Care Services) National Law (NSW) Children (Education and Care Services National Law Application) Act 2010 (NSW) Education and Care Services National Regulations (NSW)
Cases Cited:	3 Angels Family Day Care Pty Ltd v Secretary, Department of Education [2017] NSWCATAD 265 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 CTG v NSW Department of Education, Early Childhood and Care Directorate [2017] NSWCATAD 60 DBU v Secretary, Department of Education [2017] NSWCATAD 257 DPW v Secretary, Department of Education [2018] NSWCATAD 257 Hughes & Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127 Jessica Education Centre Pty Ltd v Secretary, Department of Education [2020] NSWCATAD 99 Kids Belong Family Daycare Pty Ltd v Department of Education [2021] NSWCATAD 112 Secretary, Department of Education v Early Childhood Education Australia Pty Ltd [2021] NSWCATAP 397 Secretary, NSW Department of Education v Gabriel’s Family Day Care Pty Ltd [2021] NSWCATAP 263 Tanyous v Secretary, Department of Education [2018] NSWCATAD 197
Texts Cited:	None cited
Category:	Principal judgment
Parties:	Famous Kids Family Day Care Pty Ltd (Applicant) Secretary, Department of Education (Respondent)
Representation:	Counsel: A Howell and G Diggins (Applicant) T Epstein (Respondent) Solicitors: Mayek Legal (Applicant) Crown Solicitor (Respondent)
File Number(s):	2021/130955
Publication restriction:	The disclosure of the name of any child mentioned in these proceedings or referred to in the material lodged in these proceedings is prohibited, pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).