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

This matter concerned an appeal by Forever Family Day Care Pty Ltd against decisions made by the Secretary of the Department of Education to impose sanctions, including the cancellation of its approval as an approved child care service. The dispute arose from allegations that the applicant had breached the conditions of its provider approval under the family assistance law. Specifically, the regulator alleged that the applicant had falsely reported that educators were continuing to provide care when they were overseas, that children were receiving care when they were overseas, and that educators were exceeding the maximum permissible educator-to-child ratios.

The court was required to determine whether the applicant had breached the conditions of its approval as alleged by the respondent, and if so, whether the sanctions imposed were appropriate. The legal issues centred on the interpretation and application of the *A New Tax System (Family Assistance) (Administration) Act 1999* (Cth) (the old Administration Act) and the conditions of provider approval, particularly concerning the accuracy of information provided to the respondent regarding educators' locations, children's attendance, and staff-to-child ratios.

The court reasoned that the applicant's practice of reporting overseas educators as continuing to provide care, while in fact engaging relief educators without notifying the respondent, constituted a contravention. This practice misled the respondent about the identity and qualifications of those actually providing care. While the applicant asserted that it conducted necessary checks on relief educators and that no financial impropriety occurred, the court found that the applicant ought to have known its procedure was irregular and risked contravention due to the inaccurate reports. The court also considered the factors relevant to sanction decisions as outlined in Clause 4 of the Breach Determination, which mandated consideration of the severity and frequency of non-compliance, and whether such non-compliance threatened child health or welfare. The court found that the applicant's failure to notify the respondent of relief educators was serious, as it deprived the respondent of the opportunity to assess their qualifications.