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

[2022] NSWCATAD 185

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Forever Family Day Care Pty Ltd v Secretary, Department of Education [2022] NSWCATAD 185

Hearing dates:

24 – 25 February 2022

Date of orders:

7 June 2022

Decision date:

07 June 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

D Jay, Senior Member
M E Bolt, General Member

Decision:

(1) The decision of the respondent on 15 October 2021 to cancel FFDC’s provider approval pursuant to s 31(f) of the National Law is confirmed.

(2) The application for review filed 21 October 2021 is dismissed.

Catchwords:

ADMINISTRATIVE LAW – (NSW) Children (Education and Care Services) National Law – Cancellation of provider approval – Approved provider did not operate any education and care service for more than 12 months – Childcare Services – Administrative review jurisdiction – What is the correct and preferable decision – Whether the Tribunal should uphold the decisions or substitute a decision – Correct and preferable decisions

Legislation Cited:

(NSW) Children (Education and Care Services) National Law) Application Act 2010 ss 3, 5(1), 31(f), 32, 33(1)(a)(i), 36, 192, 193 and 194

(Cth) A New Tax System (Family Assistance) (Administration) Act 1999 s 195

Cases Cited:

Forever Family Day Care Pty Ltd v Secretary, Department of Education [2021] NSWCATAD 318

Montessori Stars Pty Ltd v Secretary, Department of Education [2021] NSWCATAD 295

DBU v Secretary, Department of Education [2017] NSWCATAD 257

Briginshaw v Briginshaw (1938) 60 CLR 336

3 Angels Family Day Care Pty Ltd v Secretary, Department of Education [2017] NSWCATAD 265

Al Hamid (t/as Paradise for Children) v Secretary Department of Education [2018] NSWCATAD 74

Re Zarb and Comcare (1997) 48 ALD 718

Davids v Federal Commissioner of Taxation (2000) 171 ALR 654 at [65]

Mr Boat Pty Ltd v Federal Commissioner of Taxation (1986) 86 ATC 4689

Yaraka Holdings Pty Ltd v Gilijevic [2006] ACTCA 6

Long Life Family Daycare v Director-General, Education Directorate [2016] ACAT 69

CGT v NSW Department of Education, Early Childhood and care Directorate [2017] NSWCATAD 60

Texts Cited:

Macquarie Dictionary (2022 Online Ed)

Category:

Principal judgment

Parties:

Forever Family Day Care Pty Ltd (Applicant)
Secretary, Department of Education (Respondent)

Representation:

Counsel:
T Liu, (Applicant)

Solicitors:
Mills Oakley (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2021/00299046

Publication restriction:

None

REASONS FOR DECISION

1. The applicant is Forever Family Day Care Pty Ltd (FFDC). FFDC held a service approval to operate a family day care service as defined in s 5(1) of the (NSW) Children (Education and Care Services National Law Application) Act 2010 (the National Law).

2. On 15 October 2021 the delegate of the Secretary, Department of Education (the Secretary/Respondent) decided to cancel FFDC’s provider approval pursuant to s 33(1)(a)(i) of the National Law. The cancellation took effect on 29 October 2021.

3. On 21 October 2021 FFDC filed an application to review the cancellation decision and an application for a stay of the cancellation decision. The stay application was dismissed on 28 October 2021: Forever Family Day Care Pty Ltd v Secretary, Department of Education [2021] NSWCATAD 318.

4. By this application FFDC seeks orders that the Secretary’s decision be set aside and, in substitution, orders that there be no sanction against FFDC.

5. The scheme of the legislation is that the Civil and Administrative Tribunal is the relevant Tribunal to which an application may be made for external review of a decision of the Regulatory Authority under s 192(a) of the National Law. The powers given to the Tribunal are those in s 193 of the National Law being confirmation of a decision, amendment of the decision or substituting another decision of the Regulatory Authority. The National Law provides at s 194 that the Act which establishes this Tribunal is not limited by the National Law. The Tribunal is required to make the correct and preferable decision on the material before it: Montessori Stars Pty Ltd v Secretary, Department of Education [2021] NSWCATAD 295 at [27]; DBU v Secretary, Department of Education [2017] NSWCATAD 257.

6. The cancellation of a provider approval under s 33 of the National Law has the effect that all service approvals held by the person or entity that was the approved provider, are also cancelled: National Law s 36.

Background

7. Fatuma Omar is the sole director of FFDC and started operating a family day care service as a sole trader under the name “Forever Family Day Care” in 2011. The Secretary granted Ms Omar a provider approval and service approval under the National Law and she is identified as the person with management and control of FFDC.

8. On 31 May 2013, Ms Omar applied to transfer the service approval to FFDC. The transfer took effect from 1 July 2013. Since 2013, FFDC has operated a “family day care service” within the meaning of s 5 of the National Law. In late 2013 and early 2014 FFDC applied to transfer the service approval from FFDC to the person with management and control and then it was transferred back to FFDC. FFDC has held the service approval on and from 10 January 2014.

9. From 2013 to 2016, FFDC held an approval to administer the Commonwealth Child Care Benefit (CCB) under s 195 of (Cth) A New Tax System (Family Assistance) (Administration) Act 1999. The approval permitted FFDC to administer the Commonwealth childcare subsidy (the Childcare Subsidy) in operating its service.

10. The Commonwealth Department of Education and Training (the Department of Education) suspended and then cancelled FFDC’s approval to administer the Childcare Subsidy. The Notice of Suspension was given to FFDC on 27 September 2016.

11. On 30 June 2017, FFDC sought merits review of the Department of Education’s decision in the Administrative Appeals Tribunal (the AAT). On 6 September 2019, FFDC also sought merits review in the AAT of a further decision by the Department of Education to refuse its application to administer the new Childcare Subsidy. Hearings were conducted in late 2020 and at the time of hearing this matter the decision was reserved.

12. On 3 October 2017, FFDC applied to voluntarily suspend its service approval. The suspension was approved and took effect from 16 October 2017. The suspension ceased on 5 February 2018. On 28 March 2018, a further application to voluntarily suspend its service approval was lodged by FFDC. A delegate to the Secretary refused that application on the basis that the reasons to suspend the services (management team wanted to take a break) were not reasonable: see Letter from Delegate to the Secretary to Ms Omar dated 31 May 2018.

13. On 14 August 2018, FFDC again applied to voluntarily suspend its service approval on the basis that Ms Omar was unsure that she could adequately oversee the service due to the birth of her child. A delegate to the Secretary refused that application on 25 September 2018 on the basis that the request was not reasonable.

Monitoring and Compliance Visits

14. On 15 March 2019, authorised officers of the Secretary attempted to conduct a monitoring and compliance visit to FFDC’s principal office but Ms Omar advised the office was only open on Wednesdays, Thursdays and Sundays with some other occasional care. A subsequent monitoring and compliance assessment was conducted on 10 April 2019. Ms Omar was present. An education register showed two educators that provided education and care to three children being:

1. Maryan Omar cared for a YA and RI on Sundays from 10.00am to 2.00pm only;

2. Shukri Omar who provided education and care services to one HA on Wednesdays from 10.00am to 2.00pm.

15. That same day an authorised officer attempted to visit the residence of Shukri Omar in Fairfield. The officer was advised that the educator was not working that day as the child who was to be in her care was sick. Attempts to contact the child’s parents were unsuccessful.

16. On 14 April 2019 a visit was conducted by an authorised officer to the residence of Maryan Omar. A file note of the attendance was in the following terms:

1. An elderly gentleman answered the door and spoke to the officer through the fly screen and stated that Maryan was not working that day;

2. In a subsequent telephone discussion with Ms Omar she stated that the child did not attend for care as he had flu; and

3. A discussion with the mother of the child confirmed that her child was sick. Use of the care services was a “casual arrangement”: File noted dated 14 April 2019.

17. A visit to the principal office occurred on 29 April 2019. Ms Omar was not present at the time the officers attended. An attempt on the same day to visit Shukri Omar at her home, and to call her on her mobile phone, was not successful.

18. On 4 November 2020 authorised officers attended the principal office of FFDC to conduct a monitoring and compliance visit. Ms Omar was present. The file note of the authorised officer indicates a telephone discussion occurred (Ms Omar was away from the office at the time of the visit). An extract from the file note is in the following terms:

AO LD (Authorised Officer Louise Doolin) asked are there any children in care today, and if so which educator is providing care? Response; No children in care, they all finished.

AO LD asked when the children finished care: Response; I do not have the dates with me, but I can find them when I return.

AO LD asked when was their last day? Last week the week before? Response; No, No I can’t remember.

19. On 4 November 2020, authorised officers attempted to visit the residence of the educator Shukri Omar. No person answered the door and attempts to call her were not successful.

20. In response to a request for a register of educators, coordinators and educator assistants Ms Omar indicated that FFDC had engaged two educators, Shukri Omar and Maryan Omar – each having commenced on 5 February 2018.

21. On 3 February 2021 authorised officers attended the principal office of FFDC. An exchange occurred which is discussed further below. The tenor of the exchange was that Ms Omar signed a note which indicated that care had not been provided for children between 20 December 2019 and 3 February 2021. On the same day attempts to visit Shukri Omar at her home were unsuccessful.

Show Cause Notice and Cancellation

22. On 23 April 2021 the Secretary issued a Show Cause Notice regarding cancellation of FFDC’s Provider Approval relying on s 31(f) of the National Law.

23. On 7 June 2021 FFDC provided its response to the Show Cause Notice.

24. On 15 October 2021 the Secretary issued FFDC with a cancellation decision which took effect on 29 October 2021 (the Cancellation Decision).

25. As noted above, an application to stay the cancellation decision was refused by this Tribunal.

The Cancellation Decision

26. The Cancellation Decision is attached to the Show Cause Notice. The Cancellation Decision cancelled the provider approval and relied on s 31(f) of the National Law. The Cancellation Decision set out the attempts made by officers to conduct compliance and monitoring of the day care services provided by FFDC (summarised above). The Secretary cancelled the approval on the basis that FFDC had not operated any education and care service for a period of more than 12 months.

The Statutory Scheme

27. Section 3 of the National Law sets out the objectives and guiding principles as follows:

3   OBJECTIVES AND GUIDING PRINCIPLES

(1)   The objective of this Law is to establish a national education and care services quality framework for the delivery of education and care services to children.

(2)   The objectives of the national education and care services quality framework are—

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

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

(c)   to promote continuous improvement in the provision of quality education and care services;

(d)   to establish a system of national integration and shared responsibility between participating jurisdictions and the Commonwealth in the administration of the national education and care services quality framework;

(e)   to improve public knowledge, and access to information, about the quality of education and care services;

(f)   to reduce the regulatory and administrative burden for education and care services by enabling information to be shared between participating jurisdictions and the Commonwealth.

(3)   The guiding principles of the national education and care services quality framework are as follows—

(a)   that the rights and best interests of the child are paramount;

(b)   that children are successful, competent and capable learners;

(c)   that the principles of equity, inclusion and diversity underlie this Law;

(d)   that Australia's Aboriginal and Torres Strait Islander cultures are valued;

(e)   that the role of parents and families is respected and supported;

(f)   that best practice is expected in the provision of education and care services.

28. Section 5 of the National Law includes the following definition:

"education and care service" means any service providing or intended to provide education and care on a regular basis to children under 13 years of age other than--

(a)   a school providing full-time education to children, including children attending in the year before grade 1 but not including a preschool program delivered in a school or a preschool that is registered as a school; or

(b)   a preschool program delivered in a school if--

(i)   the program is delivered in a class or classes where a full-time education program is also being delivered to school children; and

(ii)   the program is being delivered to fewer than 6 children in the school; or

(c)   a personal arrangement; or

(d)   a service principally conducted to provide instruction in a particular activity; or

Example : Instruction in a particular activity could be instruction in sport, dance, music, culture or language or religious instruction.

(e)   a service providing education and care to patients in a hospital or patients of a medical or therapeutic care service; or

(f)   care provided under a child protection law of a participating jurisdiction; or

(g)   a prescribed class of disability service; or

(h)   a service of a prescribed class;

Example : Education and care services to which this Law applies include long day care services, family day care services, outside school hours services and preschool programs including those delivered in schools, unless expressly excluded.

…

"family day care educator" means an educator engaged by or registered with a family day care service to provide education and care for children in a residence or at an approved family day care venue;

"family day care residence" means a residence at which a family day care educator educates and cares for children as part of a family day care service;

"family day care service" means an education and care service that--

(a)   is delivered through the use of 2 or more educators to provide education and care to children; and

(b)   operates from 2 or more residences;

Note: A family day care service that is an approved family day care service may provide education and care to children from a family day care residence or an approved family day care venue.

29. Section 31 of the National Law sets out the six grounds that enliven the discretion to cancel a provider approval. It is not in dispute that the only ground relied on in the Cancellation Decision is s 31(f) which provides:

31 Grounds for cancellation of provider approval

The Regulatory Authority may cancel a provider approval if--

…

(f)   the approved provider has not operated any education and care service for a period of more than 12 months (including any period of suspension).

30. Section 32 of the National Law requires that a show cause notice must be given to the approved provider. Having provided a Show Cause Notice and any response provided the Regulatory Authority may choose to cancel the approval, suspend the provider approval for a prescribed period or decide not to cancel the provider approval.

Issues for Consideration

31. In its Written Submissions, FFDC identified the following issues for determination:

1. Whether or not the ground of cancellation under s 31(f) of the National Law applies because FFDC “has not operated any education and care service for a period of more than 12 months”. The respondent’s decision relies on the period between 20 December 2019 and 3 February 2021 (the Relevant Period) and asserts that “no education and care [was] being provided by Ms Maryan Omar or Ms Shukri Omar” during this period.

2. Whether, as a matter of discretion, cancellation of FFDC’s provider approval under s 33(1)(a)(i) or the National Law is the correct and preferable decision having regard to all the circumstances.

32. The Secretary responded to the framing of the questions in issue in the following terms:

The Respondent respectfully agrees that these are the matters in dispute between the parties. However, the Respondent notes that the question of whether s 31(f) of the National Law is enlivened involves disputed questions of both fact and law. There are therefore three questions that are in dispute between the parties:

(a)   Whether Maryan Omar and Shukri Omar looked after children at the times that FFDC alleged (the question of fact);

(b)   If so, whether that amounted to the provision of education and care service for the purposes of s 31(f) of the National law (the question of law); and

(c)   Whether, having regard to the answers to the questions of fact and law, the Cancellation Decision is the correct and preferable decision (the question of discretion).

33. We prefer the Secretary’s formulation of the questions in issue.

FFDC’s Evidence

34. Ms Omar swore affidavits dated 24 December 2021 and 21 February 2022. Her evidence, which we accepted, was to the following effect:

1. Ms Omar was born in Somalia and came to Australia aged 6. She completed High School and achieved a UAI of 82. She graduated from the University of Western Sydney in 2008 with a Bachelor of Business (Accounting) degree. She has obtained further education and training including certificates and diplomas in Children’s Services: Affidavit 24 December [137] – [138]. She is pursuing a Master’s Degree in Education at the University of New England.

2. She commenced trading as Forever Family Day Care as a sole trader on 11 July 2011 with two educators. The business quickly grew and by the end of 2011 she managed 42 educators providing care for 197 children. It was a mandatory requirement that her educators hold a Certificate III in Children’s Services.

3. In 2013 her approvals were transferred to FFDC. By 2016 FFDC managed 187 educators and provided care to 1471 children. She also employed 18 staff members.

4. FFDC was actively involved in community and cultural programs.

5. By 2021 FFDC was operating with two family daycare educators Maryan Omar and Shukri Omar who are Ms Omar’s sisters.

Ms Omar’s affidavit addresses the foundation on which the Cancellation Decision is based in her first affidavit including:

6. In respect of the Cancellation Decision Ms Omar states that FFDC relies on evidence that care was provided by two educators on 26 July 2020 and 12 August 2020.

7. Ms Omar met an authorised officer on 3 February 2021. She denies that she was ever asked whether children had been in her care since December 2019. He recollection is that she was asked if children were in her care that week and she said “No”.

8. If asked for details she would have produced the relevant records of attendance.

9. FFDC has “worked on updating FFDC’s Quality Improvement Plan in accordance with the National Quality Standard”: Affidavit 24 December [50]. FFDC retained a Consultant to updated versions of FFDC’s policy documents, business plan, parent handbook and Educator handbook.

10. In 2020 Ms Omar’s attentions were heavily focussed on the AAT proceedings.

35. The affidavit of 21 February 2022 goes mostly to the events of 3 February 2021. Ms Omar produced hard copies of educator files – which were photographed by the authorised officers: Affidavit sworn 21 February 2022 [14] – [19]. Ms Omar was asked about care provided by the educators and she confirmed no care was being provided that day or that week: Affidavit sworn 21 February 2022 [24]. Ms Omar did not recall being asked whether FFDC provided any care between 20 December 2019 and 3 February 2021. One of the authorised officers read out the contents of her notebook regarding the events that transpired on 3 February 2021. She was handed the notebook which was clipped on the left-hand page. Her evidence at [32] is to the following effect:

When I was handed the notebook, I recall feeling under pressure to sign it. I recall that both AOs (authorised officers) were watching me and I felt like there was an expectation that I sign it. I was stressed by the whole situation having earlier just rushed back from my son’s school so that I could be present for the Department’s inspection, and I felt that if I did not sign the notebook I would be viewed negatively by the AOs.

36. Ms Omar says she signed the notebook without reading it carefully: Affidavit sworn 21 February 2022 [35].

37. Maryan Omar swore a short affidavit dated 24 December 2021. Maryan Omar gives evidence that she was available to provide care “at any time” between 20 December 2019 and 3 February 2021: Affidavit sworn 24 December 2021 [8]. She has provided care services for YA on a casual basis since around 2018. YA is her nephew. YA’s care fees were not subsidised. On 26 July 2020 YA’s mother contacted her and requested that she provide care services for him on that day – Maryan agreed: Affidavit sworn 21 February 2022 [13]. YA was dropped to her. YA’s mother signed a sheet confirming that care was provided for 3 hours. Maryan Omar was paid $13 per hour for the care. Care was provided to YA on 3 occasions in 2021, commencing on 14 February 2021 (after the Relevant Period).

38. Shukri Omar also swore a short affidavit on 24 December 2021. Shukri Omar is Ms Omar’s sister. She has provided care to HA – usually on a Wednesday – since 2018. She was contacted by Naima Ibrahim on 12 August 2020 and requested to provide care for HA on that day. HA was dropped to Shukri Omar’s home and she provided care for 2 hours and was paid $12 per hour: Affidavit sworn 21 February 2022 [12] – [13]. Shukri Omar participated in a Compliance Check conducted by Ms Omar on 17 June 2020.

39. We note that there was no objection to the affidavits of Maryan Omar and Shukri Omar and they were not required for cross examination.

The Secretary’s Evidence

40. The Secretary tendered two bundles of documents and read the affidavit of Louise Doolin sworn 9 February 2022. Ms Doolin’s affidavit evidence was to the following effect:

1. She is an Authorised Officer pursuant to s 195 of the National Law and worked as a Senior Field Officer with the Secretary. She has prior experiencing lecturing in early childhood education at TAFE and was the director of a pre-school service in Ashfield.

2. Ms Doolin conducted a number of monitoring and compliance visits in 2020 and 2021. The events that occurred during the 4 November 2020 visit were set out in a contemporaneous record and referred to above. Ms Doolin noted that during the interview that all attempts to conduct compliance checks with FFDC educators were unsuccessful. Concerns were raised between staff at the Department that s 31(f) of the National Law might be enlivened.

3. Ms Doolin conducted a further monitoring and compliance check on 3 February 2021. She and her colleague, Joanne Hayes, made contemporaneous notes in their notebooks. When they first attended the home of Shukri Omar she was not home so they went to the Principal Office of FFDC: Affidavit sworn 9 February 2022 [15]. Ms Omar returned to the Principal Office and there were discussions. Ms Doolin annexes the note she made during that meeting. We set it out in full:

3.2.2001: Scheme Forever FDC. Educator: Shukri Omar. Address: [address given]. Purpose of visit to complete monitoring & compliance checklist. Lead AO L Doolin. Second AO J Hayes. Time Arrival: 9.58am. AO LD rang house door bell, no answer; AO LD attempted to ring the bell again. No answer, no cars in driveway, no sounds. AO officers departed at 10.04am.

3.2.2001: Scheme: Forever FDC PO Visit. Address: [address given]. AP Fatuma Omar. Purpose of revisit is to completed (sic) monitoring and compliance checklist. AO Doolin and AO Hayes. Arrival: 10.10am. AO LD rang door bell, no answer, AO LD attempted the door bell again. No answer No cars in driveway, no sounds. AO’s returned to vehicle. AO LD contacted AP stated she was currently at her child’s school as he just started kindergarten this week. AO LD asked what time will you return to the office for the purpose of monitoring and compliance revisit. AP stated 11am would work for her. AO LD asked; Have you got your educator Shukri Omar working with children in care today”? AP stated; No, no child in care this week. AO LD thanked AP and agreed to meet AP back at 11am Wednesday 3rd Feb. AO L Doolin and AO J Hayes return to Forever FDC PO. Time arrived 11.10am; AO’s meet with AP Fatuma Omar. A male person was also present during the visit. AO LD started FDC PO compliance and monitoring section B checklist. AO LD asked AP: Fatuma Omar the question: Can you confirm the registered educators to Forever FDC. Who delivered and provided education and care to registered children? AP stated: I have two educators: Shukri Omar (Wednesday casual care) & Maryan Omar (Sunday casual care). AO LD asked AP Fatima Omar the question; Can you confirm if education and care has been provided to any children between dates of: December 2oth 2019 to today Wednesday 3^rd February 2021. AP stated: No, no care provided for children [YA] or [HA].

Sign:   [F Omar signature inserted]

Name:   Fatuma Omar

Sign: [L Doolin signature inserted]

AO L Doolin

“I acknowledge that the above entry in this yearbook from pages 74 – 77 is true and accurate”

AO LD continue to ask questions from Section B compliance and monitoring checklist. AO J Hayes provided AP with some new resources for the sector.AO LD asked if there were any further questions? AP stated: No. Departed.

The Applicant’s Submissions

41. FFDC submits that the ground to cancel under s 31(f) of the National Law is only enlivened if FFDC “has not operated any education and care service for a period of 12 months”. Education and care service is defined broadly in s 5 of the National Law which is defined to mean “providing or intending to provide education and care”. FFDC then relies on the timesheets evidencing care provided by Maryan Omar and Shukri Omar. The ultimate submission is that unless the timesheets can be impugned then the Tribunal should find that two educators provided care to two children in the Relevant Period. That care was not provided on days that authorised officers attended does not affect the former submission. Secondly, FFDC also operated education and care services by reason of the various compliance activities it undertook including educator compliance inspections and preparing related documentation. Thirdly, FFDC took extensive steps to seek approval to administer the Childcare Subsidy and to maintain/update FFDC’s governance documentation. Those are steps taken to maintain operations and evidence an intention to provide education and care.

42. If the question as to whether the discretion to cancel is enlivened, a sanction less than cancellation is appropriate. FFDC points to the consequences of the loss of the Childcare Subsidy in 2017 to explain why it now operates on a much smaller scale. It is submitted that cancellation would ignore FFDC’s history of proven service and engagement with the community. Finally, weight should be given to Ms Omar’s own qualifications as a dedicated provider of education and care services.

43. FFDC served more detailed submissions in reply. The Tribunal has considered those.

Respondent’s Submissions

44. The Secretary submits that there are only two alleged instances when care was provided being Maryan Omar on 26 July 2020 (for 3 hours) and Shukri Omar on 12 August 2020 (for one hour and 55 minutes). Both children are from the same family and related to the carers and Ms Omar. When the timesheets allegedly evidencing those events of care are weighed against the signed evidence of Ms Omar that no care was provided between 20 December 2021 and 3 February 2021 we should prefer the evidence of Ms Omar and find that no care was provided. Secondly, even if the Tribunal accepts that care was provided on the two occasions it does not satisfy the requirement of s 31(f) of the National Law in that it did not provide education and care on a regular basis and the education and care that was provided is in the nature of a “personal arrangement”.

Determination

Whether Maryan Omar and Shukri Omar provided care services at the times alleged by FFDC

45. FFDC read the affidavits of Shukri Omar and Maryan Omar. There was no objection to the contents of those affidavits and neither Maryan nor Shukri were required for cross examination. We accept the evidence of Maryan and Shukri that they cared for children in the following circumstances:

1. Maryan Omar provided care for her nephew YA, at the request of her sister-in-law, from 4.30pm to 7.30pm on Sunday 26 July 2020.

2. Shukri Omar provided care to HA, also at the request of her sister-in-law Naima Ibrahim, on Wednesday 12 August 2020 between 5pm and 6.55pm.

46. The statement that care was provided was not challenged by the Respondent and it was supported by contemporaneous documents including timesheets and tax invoices.

47. The Respondent submits that care was not provided at all and relies on the affidavit of Ms Doolin and her contemporaneous record of her discussions with Ms Omar as to whether care had been provided to YA and HA and the statement of a person present at Shukri Omar’s residence was unaware that care services were provided there. Little weight should be given to the latter evidence. It is not clear who the resident was, what relationship he had to Shukri Omar and whether he would be expected to have any knowledge of whether care services would be provided at her home. To rely on that evidence, in preference to the written documents, would be to impugn the Briginshaw v Briginshaw (1938) 60 CLR 336 standard described by Dixon J as: in such matters reasonable satisfaction should not be produced by inexact proof, indefinite testimony or indirect inference. The Briginshaw standard is moderated by the fact that NCAT is not a court of law and bound by the rules of evidence and relevant to the matters in issue.

48. The signed contemporaneous note of Ms Doolin is more problematic. We reject Ms Omar’s evidence that the question as to whether care was provided to children in the Relevant Period was never put to her by Ms Doolin. We do accept, however, that Ms Omar’s may have misconstrued the questions and felt pressured to sign the contemporaneous note in the circumstances of how the interview occurred. That is, two inspectors attending her home where she had returned at short notice and put to her serious allegations about the operation of FFDC.

49. We reject the Respondent’s submission that the two issues raised by it are sufficient to “impugn the timesheets” or “raise doubts” as to their accuracy. There was no direct evidence, and no submission, that the timesheets were fictitious or fabricated. We accept that they are contemporaneous documents and attached to affidavits where the deponents were not cross examined.

Whether FFDC provided an education and care service for the purposes of s 31(f) of the National Law

50. The National Law regulates a range of “education and care services” including “any service providing or intending to provide education on a regular basis to children under 13 years of age” but does not include, relevantly, a “personal arrangement”: National Law s 5.

51. Counsel was unable to point to any decisions regarding s 31(f) of the National Law in the Tribunal or the equivalent Tribunals in other jurisdictions.

52. Section 31(f) of the National law provides that the Regulatory Authority may cancel an approval if the approved provider has not operated any education and care service for a period of more than 12 months. Education and care service means any service providing or intending to provide education and care on a regular basis to children under 13 years of age other than for a number of exceptions including a personal arrangement.

53. In our view, the concept of “providing or intending to provide” allows a service provider flexibility so that if there are periods where services are not provided, for instance where there is a voluntary suspension or if a provider approval has been granted but the care and education service has not commenced, it provides an explanation and context to the absence of the education and care service. So for example where an applicant had not commenced operations as it was waiting for the approval of the Childcare Subsidy that did not satisfy the criteria of intention to provide services. In DBU v Secretary, Department of Education [2017] NSWCATAD 257, Ransome SM, said at [38]:

The phrase “intended to provide” is included in the definition of an “education and care service” because the nature of the scheme is that initial approval must be obtained before operations can in fact commence. I have no doubt that the applicant has always intended to provide a family daycare service, but that subjective intention is not sufficient and not what is meant by the inclusion of the phrase in the definition.

54. Once a family daycare service has commenced ongoing operations it must have commenced in the way contemplated by the National Law. Senior Member Ransome held that the family daycare service must be operating in practice. It is not sufficient for a family daycare service to be merely operating as a business: DBU v Secretary, Department of Education [2017] NSWCATAD 257 at [37]; 3 Angels Family Day Care Pty Ltd v Secretary, Department of Education [2017] NSWCATAD 265 at [16]; Al Hamid (t/as Paradise for Children) v Secretary Department of Education [2018] NSWCATAD 74 at [92]. In that regard, we did not give significant weight to the steps taken by FFDC in updating its governance documents as they did not involve the provision of care to children.

55. A subjective intention to operate in the future is not sufficient to satisfy the definition in section 5 of the National Law: DBU at [37]. We respectfully agree with that conclusion.

56. FFDC submits that its intention to provide education and care services on an ongoing basis is evidenced by taking steps to seek approval to administer the Childcare Subsidy and to update governance documents. We do not consider they advance the matter greatly. The Childcare Subsidy was suspended and cancelled in 2017. Nearly five years have passed with no right to access the Childcare Subsidy. That is an administrative matter but cannot, in our view, be relied upon to show that there is an intention to provide education and care services on a regular basis in the absence of there being regular care and education services actually provided to eligible children.

Meaning of Regular

57. The Macquarie Dictionary (2022 Online Ed) defines regular to mean “observing fixed times and habits” and “recurring at fixed times, periodic”.

58. In Re Zarb and Comcare (1997) 48 ALD 718 consideration was given to the meaning of the word regular in the context of the phrase “required to work overtime on a regular basis”. Deputy President Burns held that regular should be given its ordinary everyday meaning and included a “symmetrical pattern over time which can be described as usual or customary”. Deputy President Burns then stated (at [42]):

To establish whether overtime of an employee occurs on a “regular” basis, one would look to the overtime worked during the relevant period to determine whether the pattern is “uniform or symmetrical”.

59. “Regular and scheduled sight-seeing tours” in the context of operation of sightseeing boat tours contemplated there would be a timetable for daily operation of the service and the times of departure of the craft are fixed: Davids v Federal Commissioner of Taxation (2000) 171 ALR 654 at [65] citing Mr Boat Pty Ltd v Federal Commissioner of Taxation (1986) 86 ATC 4689.

60. In Yaraka Holdings Pty Ltd v Gilijevic [2006] ACTCA 6 the majority (Crispin P and Gray J) held that the term “regular” in the context of the working on a regular and systematic basis should be construed liberally and that it is intended to imply some repetitive pattern rather than being a synonym for “frequent” or “often” but, equally, it is not a synonym for “uniform” or “constant”: at [68]. In our view, that is the understanding of the word “regular” that should be adopted here. It does not require an ability to foreshadow when the care and education services will be provided in the sense of occurring on a regular day of the week or regular weeks of the month. It does require, however, an ongoing use of the care and education service of FFDC through two or more educators and from two or more residences.

61. In our view education and care services were not provided on a regular basis for the relevant period for the following reasons:

1. Maryan Omar provided care to YA once for 3 hours on 26 July 2020;

2. Shukri Omar provided care to HA once for less than two hours on 12 August 2020;

3. The services were provided on an ad hoc and irregular basis, having been requested on the same day they were provided;

4. The annual compliance inspections undertaken by Ms Omar at the homes of Shukri Omar and Maryan Omar together represent two further single events; and

5. There was no identifiable pattern of the provision of education and care services. They were not provided on a repetitive basis.

62. The Respondent submits, and we accept, that no reliance should be placed on the attempted visits by officers of the Secretary to the educators and where the educators were not present to support the contention that FFDC was not providing regular care.

63. We are satisfied that FFDC was not operating (or intending to operate) an education and care service and the decision to cancel the provider approval under s 31(f) of the National Law was therefore open to the Secretary in the exercise of its discretion. It is unnecessary to determine whether the service provided was in the nature of a personal arrangement.

Should the Approval be Cancelled?

64. Under s 193(3) of the National Law the Tribunal can confirm or amend the decision of the Regulatory Authority or it can substitute another decision for the decision of the Regulatory Authority.

65. The Tribunal is not confined in its consideration of this matter to the reasons identified in the reasons for the original decision: Frugtniet v Administrative Decisions Tribunal (Appeal Panel) [2005] NSWCA 257 at [45].

66. FFDC submits that the Tribunal should impose no sanction or a more lenient sanction than cancellation. In support of that submission FFDC relies on:

1. There is no prior sanction for non-compliance in the past;

2. It has been forced to operate on a small scale after it lost the approval to administer the Childcare Subsidy in 2017 (noting that it has challenged that decision in the AAT);

3. The ability to provide education and care services was constrained during COVID-19;

4. FFDC has a track record of providing a quality and popular service that was actively involved in the community. It also employed female educators from diverse cultural backgrounds;

5. Ms Omar is dedicated to her profession and has continually improved her education qualifications; and

6. Has continued to undertake regulatory compliance requirements.

67. The Respondent points to the reduced scale of the operation between 2016 and 2021, the periods of voluntary suspension and absence of continuity in care services provided by FFDC in support of the existing sanction remaining in place. It also submits that if a period of suspension is ordered it will weaken the Respondent’s regulatory powers to deal with inactive daycare services and will require additional resources to be dedicated to monitoring FFDC after any suspension is lifted.

67. The objectives and guiding principles of the National Law as set out in s 3 make clear the law is directed towards facilitating the implementation of a quality framework for the delivery of care and education services for children on a national basis which has at the forefront the rights and best interests of children: see Long Life Family Daycare v Director-General, Education Directorate [2016] ACAT 69 at [12]; CGT v NSW Department of Education, Early Childhood and care Directorate [2017] NSWCATAD 60 at [59].

68. We agree that the currency of credentials, approvals and training are important matters of public interest: CGT v NSW Department of Education, Early Childhood and care Directorate [2017] NSWCATAD 60 at [59], but they are of less significance than the provision of care and education to children by the approved provider. In this matter FFDC accepts that the size and scope of its operation has declined very substantially since 2016. There have been periods of voluntary suspension, approved by the Respondent, and requested periods that were not approved. FFDC has dedicated significant time and energy to the AAT proceedings. The trajectory of FFDC’s services has been of continual decline from around 2016 when it had 187 educators providing care to 1471 children to 2020 where two educators provided care to two children on two occasions.

69. It has declined to a point where its fundamental purpose for existing, the provision of care and education services, became so irregular that we are satisfied that it did not comply with the requirements of the National Law to provide an education and care service. The provision of quality care is fundamental to being an approved provider. In the past 5 years the evidence shows that education and care services were a relatively small component of FFDC’s activities. If FFDC is successful in the AAT in seeking approval of the Childcare Subsidy then there would be no impediment to reapplying for a service approval.

70. We considered whether it would be appropriate to set aside the Respondent’s decision and substitute a period of suspension. In our view that is not the preferable course to follow. Not because, as was submitted by the Respondent, it would add to the administrative burden of regulation in future – that is the statutory obligation for the Respondent that exists in respect of any education and care service. In our view, the consequences for cancellation do not affect parents or children. No alternative arrangements need be found. A suspension for a limited period – such as six months would in all likelihood not resolve the issues that FFDC faces. There is no indication if or when it will recover its access to the Childcare Subsidy. If the suspension was lifted there is a real likelihood that it will continue to operate in the limited fashion that occurred in 2020 being to a couple of children on a couple of occasions over the course of a year. That method of existence would not be sufficient to satisfy the fundamental requirements (and high standards imposed) by the National Law.

71. Having considered the submissions of both parties and having regard to the objects and principles of the National Law, we consider the correct and preferred decision is to cancel FFDC’s provider approval.

Order

1. The decision of the respondent on 15 October 2021 to cancel FFDC’s provider approval pursuant to s 31(f) of the National Law is confirmed.

2. The application for review filed 21 October 2021 is dismissed.

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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: 07 June 2022