Gabriel's Family Day Care Pty Ltd v Secretary, Department of Education

[2023] NSWCATAD 191

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Gabriel’s Family Day Care Pty Ltd v Secretary, Department of Education [2023] NSWCATAD 191

Hearing dates:

22, 23, 24 and 25 March 2022

Date of orders:

20 July 2023

Decision date:

20 July 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Higgins, Senior Member
S Davison, General Member

Decision:

1) The decision of the Secretary of the Department of Education, made on 19 December 2019 to cancel the provider approval of Gabriel’s Family Day Care Pty Ltd is set aside.

Catchwords:

ADMINISTRATIVE LAW – Children (Education and Care Services) – cancellation of provider approval on grounds the approved provider has breached a condition of the provider approval - (Children (Education and Care Services) National Law 2010 No 104a of (NSW) (National Law) s 31(e)) – multiple alleged breaches identified by officers of the Department of Education authorised under s 195 of the National Law while conducting compliance and monitoring visits to the principal office of the approved provider’s family and day care service and educators registered with the approved provider’s service – whether the alleged breaches are established - if established, whether the alleged breaches constituted an alleged systematic failure to comply with a condition of the provider approval

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Children (Education and Care Services) National Law No 104a of 2010 (NSW)

Children (Education and Care Services National Law Application) Act 2010

Civil and Administrative Tribunal Act 2013 (NSW)

Education and Care Services National Regulations 2011(NSW)

Evidence Act 1995 (NSW)

Cases Cited:

Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41

BSR v Office of the Children’s Guardian [2015] NSWCATAD 264

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

DCB v Secretary of the Department of Education NSW [2017] NSWCATAD 189

Eminem Kids Academy Pty Ltd v Secretary, Department of Education (No 2) [2023] NSWCATAD 49

Gabriel’s Family Day Care Pty Ltd v Secretary Department of Education [2020] NSWCATAD 43

Gabriel’s Family Day Care Pty Ltd v Secretary, Department of Education (No 2) [2020] NSWCATAD 249

Health Care Complaints Commission v Mikhail [2021] NSWCATOD 103

Secretary, NSW Department of Education v Gabriel’s Family Day Care Pty Ltd [2021] NSWCATAP 263

Two Cubed Pty Ltd v Secretary of the Department of Education NSW [2019] NSWCATAD 122

Category:

Principal judgment

Parties:

Gabriel’s Family Day Care Pty Ltd (Applicant)
Secretary, Department of Education (Respondent)

Representation:

Counsel:
Mr J Bennett (Applicant)
Mr D Birch (Respondent)
Solicitors:
Meridian Lawyers (Applicant)
NSW Crown Solicitor (Respondent)

File Number(s):

2020/00015386

Publication restriction:

Pursuant to section 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the publication or broadcast of the name of any child or educator mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited without the consent of the Tribunal.
Note: 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

Reasons for Decision

1. The applicant, Gabriel’s Family Day Care Pty Ltd, is an approved provider under s 15 of the Children (Education and Care Services) National Law (NSW) No 104a of 2010 (National Law) and the operator of an approved education and care service under s 48 of that Law. The service that the applicant operates under these approvals is a family day care service. On average about 17 to 20 family day care educators have been registered with the applicant’s service and there have been around 90 children enrolled with the applicant’s service.

2. On 4 June 2019, pursuant to s 32 of the National Law, a delegate of the Secretary of the Department of Education (respondent), issued a Show Cause Notice to the applicant. In that Notice, the applicant was notified of the respondent’s intention to cancel its provider approval on the grounds set out in s 31(e) of the National Law. Reasons for that decision were also provided.

3. On 19 December 2019, having considered the applicant’s response to the Show Cause Notice, the respondent’s delegate notified the applicant of her decision to cancel its provider approval under s 31(e) of the National Law. The effect of that decision was that the applicant’s service approval was also cancelled which meant that it could no longer operate its approved family day care service: National Law s 34(1).

4. Section 31(e) of the National Law gives a Regulatory Authority the power to cancel a provider approval if the approved provider has breached a condition of the provider approval. The respondent is the prescribed Regulatory Authority for New South Wales: Children (Education and Care Services National Law Application) Act 2010 (Application Act) s 9.

5. The applicant’s application has had a protracted history before the Tribunal, details of which are set out below. The applicant has however, been able to continue to operate its service to a limited extent as stay orders have been made by the Tribunal (differently constituted) on 6 February 2020 (see below at [130]), the Appeal Panel on 10 September 2021 (see below at [145]) and by us on 25 March 2022 (see below at [148]).

6. On 25 March 2022 we also made a non-publication order, under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), prohibiting, without the consent of the Tribunal, the publication or broadcast of the name of any child or educator mentioned in these proceedings or referred to in the documentary material lodged in these proceedings. In accordance with that order a pseudonym has been used for the name of the educators in the published reasons for decision. In accordance with that order, a confidential copy of these reasons for decision, with the names of the educators included, are to be provided to the parties and their legal representatives.

7. In the proceedings before us, the respondent contends that over a period of three years the applicant has breached conditions of its provider approval many times. The conditions that have allegedly been breached include those prescribed in ss 164A, 165, 166, 167 and 175 of the National Law and those prescribed in regs 84, 97, 100, 102, 103, 105, 117, 162, 170 and 171 of the Education and Care Services National Regulations 2011 (NSW) (National Regulations).

8. The alleged breaches were identified by officers of the NSW Department of Education (Department) who were authorised under s 195 of the National Law to conduct compliance and monitoring visits of the applicant’s principal office and the residences of a selection of educators registered with the applicant. These visits were unannounced and were made on 17 April 2019 (Visit 1 – April 2019), 26 September 2019 (Visit 2 – September 2019), 19 February 2020 (Visit 3 – February 2020) and during May and June 2021 (Visit 4 – May-June 2021). Of these four compliance and monitoring visits, two visits were conducted after the applicant lodged this application for administrative review. The latter visits, we note, were also conducted during or around the time of COVID 19 restrictions. However, it is not the applicant’s case that these restrictions prevented it from complying with the National Law or the National Regulations.

9. The visits that occurred after the application for administrative review, the first of these visits (Visit 3) occurred 13 days after the Tribunal (as originally constituted) granted a stay of the respondent’s decision and the second visit (Visit 4) occurred on two separate days, ten days either side of the hearing of the respondent’s appeal. These visits were also conducted during or around the time of the COVID 19 restrictions. It is not the applicant’s case that these restrictions prevented it from complying with the National Law or the National Regulations, it is difficult to see how they would not have impacted adversely on the ability of the applicant to operate during this time.

10. In these proceedings, the respondent contends that the applicant has breached a condition of its approval 194 times. The applicant does not deny 10 of the alleged breaches identified by the authorised officers during Visit 1-April 2019. The applicant otherwise denies the remaining breaches and points to the efforts that have been made to address the concerns raised during the visits and contends that, even if some alleged breaches are established, they do not warrant the cancellation of its provider authority.

11. The respondent contends that, on the material before the Tribunal, the Tribunal should affirm the decision to cancel the applicant’s provider approval as it can be satisfied from the on-going and repetitive nature of the alleged breaches that:

1. the applicant has a pattern and culture of non-compliance with the National Law and the National Regulations;

2. at least some of the breaches are serious and indicative of a substantial, ongoing risk to the health, safety and wellbeing of children in the applicant’s service;

3. a number of similar harms and hazards were identified across multiple educators’ residences which is indicative of a systemic problem for the applicant and not referable to a particular educator;

4. even where individual instances of non-compliance have been rectified, the applicant has failed to implement an effective system to ensure that similar incidents of non-compliance do not occur in the future;

5. the non-compliance extended into the period during which the applicant has been operating its business by virtue of Tribunal stay orders; and

6. the applicant’s pattern and culture of non-compliance with the National Law and the National Regulations demonstrates that the applicant has either an unwillingness or an inability to address its systemic failures to comply with the requirements of the National Law and the National Regulations.

12. The breaches alleged by the respondent range from inadequately supervising children and not protecting them from harms and hazards to pro-forma forms failing to fully reflect all the requirements of the relevant legislative provisions and not entering the date of birth in an enrolment form of a child.

13. In our view the respondent has taken a very punitive approach to the alleged breaches identified by the authorised officers during their compliance and monitoring visits. Why that is so is difficult to understand, as the respondent has an educative role as well as a wide range of enforcement powers, other than cancellation. Instead, the respondent has categorised minor breaches, including those of an administrative nature, as being very serious breaches. The respondent has noted that the National Law and the National Regulations require strict compliance, however this does not mean minor breaches become serious breaches. If they do, then this will generally require further investigation as a notation alone, made by an authorised officer on a Checklist or Visit Summary, will not suffice.

14. The respondent also appears to have dismissed any explanations given by the applicant’s co-ordinators and nominated supervisors who are responsible for the day-to-day operation of the applicant’s service, leaving it to the Tribunal to determine whether and how these explanations assist in understanding the existence and seriousness of any breaches.

15. Given the large number of alleged breaches, we have decided to include the evidence, and our consideration and findings regarding each of these breaches in the Attachment to these reasons for decision. Under the heading ‘Alleged breaches’ is a summary of these considerations and findings. We have found that very few alleged breaches have been established and concluded that the contentions of the respondent that the applicant has a pattern and culture of non-compliance, or an inability or unwillingness to comply with the National Law and National Regulations is not supported by the evidence. On the contrary, on the material before the Tribunal, the applicant has at all times endeavoured to address these concerns and rectify its policies and procedures, including its pro-forma forms.

16. We have decided, having regard to the s 3 objects and guiding principles of the National Law (including the rights and best interests of the child is paramount), the seriousness of the established breaches and the steps taken by the applicant to rectify the issues of concern by amending its forms and introducing additional systems , that the decision to cancel the applicant’s provider approval is not the correct and preferable decision and should be set aside. At the same time, we recommend that the respondent consider amending the conditions it has imposed on the applicant’s service by reducing the maximum number of family day care educators it may employ or engage by its approved service.

Jurisdiction of the Tribunal

17. There is no dispute that a decision to cancel a person’s provider approval is a reviewable decision for external review: National Law s 192(b)(ii).

18. Nor is it disputed the applicant has a right to seek external review by the Tribunal of the respondent’s decision: National Law s 193(1) and Application Act s 8(b). It is well established that the Tribunal’s jurisdiction to review the decision of the respondent falls under s 29 of the Civil and Administrative Tribunal Act 2013 (NSW) and not s 30 of that Act: DBU v Secretary, Department of Education [2017] NSWCATAD 257 at [22].

19. Nevertheless, the role of the Tribunal on external review is to determine the correct and preferable decision having regard to the material before it and the applicable law: Two Cubed Pty Ltd v Secretary of the Department of Education NSW [2019] NSWCATAD 122 at [87].

20. The orders the Tribunal can make on external review are those set out in s 193(3) of the National Law:

193 Application for review of decision of the Regulatory Authority

…

(3) After hearing the matter, the relevant tribunal or court may—

(a) confirm the decision of the Regulatory Authority; or

(b) amend the decision of the Regulatory Authority; or

(c) substitute another decision for the decision of the Regulatory Authority.

21. As we have already noted, in NSW the ‘Regulatory Authority’ is the respondent.

Proceedings before the Tribunal

22. The applicant lodged its application for review on 16 January 2020. The applicant also made an application seeking an order that the decision of the respondent be stayed pending the determination of its administrative review application.

23. On 6 February 2020, the Tribunal (as originally constituted) made an order staying the cancellation decision of the respondent until the resolution by the Tribunal of the applicant’s external review application: Gabriel’s Family Day Care Pty Ltd v Secretary Department of Education [2020] NSWCATAD 43 (Stay Decision). That order was subject to conditions which are set out below in the background at [130].

24. On 14 October 2020, following a three-day hearing in July 2020, the Tribunal (as originally constituted) published its decision and reasons for decision: Gabriel’s Family Day Care Pty Ltd v Secretary Department of Education (No 2) [2020] NSWCATAD 249 (Original Decision). In that decision, the Tribunal decided to set aside the decision of the respondent to cancel the applicant’s provider approval. The Tribunal also decided to impose conditions on the applicant’s provider approval. These conditions are set out below in the background at [134].

25. The respondent appealed this decision to the Appeal Panel. The appeal was heard on 21 May 2021.

26. On 10 September 2021, the Appeal Panel published its decision and reasons for decision: Secretary, NSW Department of Education v Gabriel’s Family Day Care Pty Ltd [2021] NSWCATAP 263 (Appeal Panel Decision). In that decision, the Appeal Panel allowed the respondent’s appeal and set aside the Original Decision of the Tribunal. The Appeal Panel also made orders: (a) remitting the applicant’s application to a differently constituted Tribunal for reconsideration, and (b) granting a stay of the decision of the respondent pending the determination of the applicant’s application on redetermination. The stay application was also made subject to conditions which are set out below in the background at [145].

27. We heard the applicant’s application over four consecutive days from 22 to 25 March 2022. At the conclusion of the hearing, we reserved our decision and made orders set out below in the background at [148].

The material before the Tribunal

28. There is a large volume of material before us. This includes the material that was before the before the Tribunal at the original hearing (see Original Decision at [34]), and includes the following:

1. affidavit, sworn 30 January 2020, by Meskerem Tesifaye, the then nominated supervisor of the applicant’s service;

2. affidavit, sworn 22 April 2020, by Hingano Mataele, the then educational leader of the applicant;

3. affidavit, affirmed 20 March 2020, by Nadal Hammoudi, a Hub Coordinator employed in the Early Childhood Education Directorate of the Department of Education (Department). Exhibited to this affidavit and marked Ex NH-1 are two large bundles of documents that are tabulated from tab 1 to tab 167;

4. a supplementary statement, dated 3 June 2020, of Nadal Hammoudi;

5. a statement, dated 3 June 2020, of Nicole Jodi McGarity, a Senior Field Officer employed in the Early Childhood Education Directorate of the Department, who gives evidence of her visit, on 26 September 2019, to the residence of three educators registered with the applicant’s service;

6. a statement, dated 3 June 2020, of Louise Doolin, a Senior Field Officer employed in the Early Childhood Education Directorate of the Department, who gives evidence of her visit on 19 February 2019 to the residence of an educator registered with the applicant’s service;

7. a copy of the respondent’s ‘Inspect Premises Permission’ form signed by Ms AM when the respondent’s authorised officers visited her residence on 17 April 2019;

8. a copy of the respondent’s ‘Inspect Premises Permission’ form signed by Ms ZA when the respondent’s authorised officers visited her residence on 17 April 2019;

9. Educator Area Report;

10. WhatsApp messages;

11. written submissions of the respondent dated 3 June 2020 that had attached to it Annexure A (Part 1) – a table of 106 ‘identified breaches by inspection’. These are the alleged breaches identified by the authorised officers of the Department prior to the publication of the decision of the Appeal Panel (that is, from the 17 April 2019, September 2019 and 19 February 2020 compliance and monitoring visits). Against each entry in the list is a brief description of the alleged breach, at which tab in Ex NH-1 the supporting evidence can be found, and the comments of the applicant; and

12. an Aide Memoire provided by applicant’s counsel that includes a summary of the applicant’s response to the respondent’s Annexure A.

29. A copy of the transcript of the July 2020 hearing before the originally constituted Tribunal was also tendered into evidence before us.

30. In addition to the material that was before the Tribunal at the original hearing and the transcript of the original hearing the parties relied on the following material:

1. applicant:

1. affidavit of Hingano Mataele sworn on 7 February 2022. Exhibited to the affidavit were three volumes of documents, which consisted of 1150 pages. At the time she gave her evidence, Hingano Mataele was the education leader of the applicant’s service;

2. affidavit of Yodit Gessesse, the sole director of the applicant, sworn on 23 March 2022;

2. respondent:

1. statement of Jennifer Smith dated 25 October 2021. Exhibited to that statement marked Ex CS-1 are seven bundles of documents that are tabulated from tab 1 to tab 251. At the time she gave her evidence, Jennifer Smith was the Hub Co-ordinator of the respondent.

31. In addition to the abovementioned material the respondent filed and served updated written submissions. Attached to the submissions is the following:

1. Annexure A (Part 2) - a table of 88 ‘identified breaches by inspection’ numbered from 107 to 194. These are the alleged breaches identified by the authorised officers of the Department after the publication of the decision of the Appeal Panel (that is, from the 12 May 2021 to 4 June 2021 compliance and monitoring visits). Also, against each entry in the list is a brief description of the alleged breach, and the tab number in Ex CS-1 at which the supporting evidence can be found; and

2. Annexure B – table of identified breaches by provision (that is, relevant section of the National Law and regulation of the National Regulations).

32. Prior to the hearing, the respondent provided to the Tribunal and the applicant two further Schedules that identified the breaches by section and regulation. Schedule 1 related to the contraventions that were identified prior to the publication of the Appeal Panel decision and Schedule 2 related to the contraventions that were identified after the appeal Panel decision.

33. Each Schedule was also colour coded. The breaches considered by the respondent to be the most serious were coloured red. Those that the respondent considered to be serious were coloured orange, and those that were less serious were coloured yellow.

34. The applicant also provided written submissions in reply and an ‘Aide Memoire’ of Annexure A (Part 2) which included the applicant’s response to each of the 88 breaches identified in that table.

35. At the hearing before us, Jennifer Smith gave oral evidence and was cross-examined by counsel for the applicant.

36. Hingano Mataele also gave oral evidence and was extensively cross-examined by counsel for the respondent.

37. In compliance with an order made at the conclusion of the hearing, the applicant provided a table that listed the educators whose residences had been visited by the authorised officers of the respondent during the relevant period. Against each named educator, the applicant has provided the date on which the educator was registered with the applicant’s service, the date on which it ceased being registered by the service and the reason why the educator ceased being registered with the service.

Matters in issue

38. As we have already noted, the role of the Tribunal is to determine the ‘correct and preferable decision’ and in this context the Tribunal ‘stands in the shoes’ of the respondent and decides the matter afresh having regard to the material before it and the applicable law.

39. Neither the applicant nor the respondent bears a legal onus of proof in establishing that the decision of the respondent was, or was not, the correct and preferable decision. The Tribunal is not bound by the rules of evidence and may inquire into, and inform itself on, any matter in such manner as it thinks fit, subject to the rules of natural justice (Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) s 38(2)).

40. In this case, there are three main matters for determination. These are whether:

1. the applicant has breached a condition or conditions of its provider approval as alleged;

2. the alleged breach(es), if established, evidence a systemic failure by the applicant to comply with the conditions of its provider approval; and

3. the alleged breach(es), if established, warrant the cancellation of the applicant’s provider approval.

41. As we have noted, the alleged breaches of conditions in this case arise from the compliance and monitoring visits, by authorised officers of the Department, of residences of educators registered with the applicant’s service and the principal office of the applicant.

42. Many of the alleged breaches of condition also constitute a criminal offence and, if successfully prosecuted by the respondent, carry substantial fines.

43. While these proceedings are not criminal proceedings, in the Original Decision, at [98], the Tribunal said that given the serious nature of the allegations:

98 … [including] the fact that significant financial penalties could result after the successful prosecution of breaches of the National Law or National Regulations, means that the Tribunal should be comfortably satisfied that the evidence establishes the alleged breaches.

44. In its decision, the Appeal Panel, held, at [129] that the Tribunal was correct:

129 … [to treat] the allegations as involving a level of seriousness of conduct and gravity of consequence such as to attract the test that it applied. In this regard, the serious nature of the conduct alleged should be approached by recognising that the essence of the appellant’s case was that the conduct of the respondent involved a systemic failure to carry out its oversight type obligations designed to avoid harm to children. Furthermore, the consequence to the respondent of such a conclusion, namely cancellation of provider approval, was grave.

45. In reaching this finding, the Appeal Panel said that it applied the following remarks of the Court of Appeal in Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [123]:

123 We apply what was said by Leeming JA in Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 (Gleeson JA agreeing at [37]) (Bronze Wing), namely:

126. It is not necessary, in order to resolve this appeal, to examine in any detail the way in which the principle in Briginshaw supplemented by s 140 of the Evidence Act 1995 (NSW) applies to fact finding in a tribunal to which the rules of evidence do not apply. … [in] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171:

“[T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found’. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.” [citations omitted]

127. In those circumstances, his Honour’s reasons at [77] (reproduced above) reflect the strictly correct proposition that neither Briginshaw nor s 140 of the Evidence Act applies directly in decision-making by NCAT where the rules of evidence do not apply. They should not be regarded as standing against the proposition that what was said in Briginshaw and Neat Holdings reflects a more general approach to fact finding, which is applicable by analogy to NCAT.

46. At [124], the Appeal Panel noted the recent approach of the Tribunal in Health Care Complaints Commission v Mikhail [2021] NSWCATOD 103, at [25] and [26]. At [125] the Appeal Panel concluded by saying:

125 What was said by the Tribunal in Mikhail accords with the often cited remarks of Dixon CJ in Briginshaw as follows: 

… But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences…: (1938) 60 CLR at 361 to 362.

47. We have adopted the same approach to making our findings regarding the alleged breaches by the applicant.

48. In our opinion, the wider issue, as to whether the established breaches are indicative of a systemic problem, is a question of degree having regard to the circumstances.

49. Finally, a decision to cancel a provider approval is discretionary: DCB v Secretary of the Department of Education NSW [2017] NSWCATAD 189 at [21]. Some guidance as to how that discretion is to be exercised can be found in Australian Children’s Education and Care Quality Authority’s (ACECQA or National Authority) publication of the ‘Guide to the National Quality Framework’: see Eminem Kids Academy Pty Ltd v Secretary, Department of Education (No 2) [2023] NSWCATAD 49 at [33] to [38].

50. It is not disputed that an alleged non-compliance with a condition of the applicant’s provider approval, if established, is a breach for which the approval may be cancelled. And a single breach, once established, may be sufficient grounds on which to decide to cancel a person’s provider approval.

The relevant legislative scheme

The National Law

51. The National Law implements a comprehensive and uniform national scheme for the regulation of education and care services, including family day care services. That Law has been adopted as a law of New South Wales: Application Act s 4.

52. The objects and principles of the National Law are set out in s 3 of that Act and relevantly provide as follows (bold in (3)(a) added):

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;

…

(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.

53. The term ‘national education and care services quality framework’ (National Quality Framework or NQF) is defined in s 5(1) of the National Law to mean:

(a)  this Law; and

(b)  the national regulations; and

(c)  the National Quality Standard; and

(d)  the prescribed rating system.

54. The National Quality Standard (NQS) is prescribed in Schedule 1 of the National Regulations and Part 5 of the National Law makes provision for the assessment and rating of an approved education and care service against the NQS.

55. The NQS is used by the Regulatory Authority to assess and rate education and care services. There are seven Quality areas namely:

1. Quality area 1 – Educational program and practice

2. Quality area 2 – Children’s Health and safety

3. Quality area 3 – Physical environment

4. Quality area 4 – Staffing arrangements

5. Quality area 5 – Relationships with children

6. Quality area 6 – Collaborative partnerships with families and communities

7. Quality area 7 – Governance and leadership

56. Within each Quality area there are two standards and for each standard there are specified elements.

57. Underlying the provisions of the National Law and the National Regulations are these Quality areas and the standards and elements of each Quality area. This is especially so in Chapter 4 of the National Regulations which contain provisions relevant to each Quality area.

58. In this case the relevant Quality areas are as follows:

Quality area 2—Children’s health and safety

Every child’s health and wellbeing is safeguarded and promoted.

Standard 2.1—Health

Each child’s health and physical activity is supported and promoted.

Element 2.1.1—Wellbeing and comfort

Each child’s wellbeing and comfort is provided for, including appropriate opportunities to meet each child’s need for sleep, rest and relaxation.

Element 2.1.2—Health practices and procedures

Effective illness and injury management and hygiene practices are promoted and implemented.

Element 2.1.3—Healthy lifestyle

Healthy eating and physical activity are promoted and appropriate for each child.

Standard 2.2—Safety

Each child is protected.

Element 2.2.1—Supervision

At all times, reasonable precautions and adequate supervision ensure children are protected from harm and hazard.

Element 2.2.2—Incident and emergency management

Plans to effectively manage incidents and emergencies are developed in consultation with relevant authorities, practised and implemented.

Element 2.2.3—Child protection

Management, educators and staff are aware of their roles and responsibilities to identify and respond to every child at risk of abuse or neglect.

Quality area 3—Physical environment

The physical environment is safe, suitable and provides a rich and diverse range of experiences which promote children’s learning and development.

Standard 3.1—Design

The design and location of the premises is appropriate for the operation of a service.

Element 3.1.1—Fit for purpose

Outdoor and indoor spaces, buildings, fixtures and fittings are suitable for their purpose, including supporting the access of every child.

Element 3.1.2—Upkeep

Premises, furniture and equipment are safe, clean and well maintained.

Standard 3.2—Use

The service environment is inclusive, promotes competence and supports exploration and play-based learning.

Element 3.2.1—Inclusive environment

Outdoor and indoor spaces are organised and adapted to support every child’s participation and to engage every child in quality experiences in both built and natural environments.

Element 3.2.2—Resources support play-based learning

Resources, materials and equipment allow for multiple uses, are sufficient in number, and enable every child to engage in play-based learning.

Element 3.2.3—Environmental

Quality area 7—Governance and leadership

Effective leadership contributes to sustained quality relationships and environments that facilitate children’s learning and development. Well documented policies and practices that are developed and regularly evaluated in partnership with educators, co-ordinators, staff members and families contribute to the ethical management of the service. There is a focus on continuous improvement.

Standard 7.1—Governance

Governance supports the operation of a quality service.

…

Element 7.1.2—Management systems

Systems are in place to manage risk and enable the effective management and operation of a quality service.

Element 7.1.3—Roles and responsibilities

Roles and responsibilities are clearly defined and understood, and support effective decision-making and operation of the service.

Standard 7.2—Leadership

Effective leadership builds and promotes a positive organisational culture and professional learning community.

Element 7.2.1—Continuous improvement

There is an effective self-assessment and quality improvement process in place. …

59. The term ‘education and care services’ is defined in s 5(1) of the National Law to mean: ‘any service providing or intended to provide education and care on a regular basis to children under 13 years of age …’.

60. A family day care service is defined in s 5(1) to mean the following:

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.

61. The word ‘educator’ is defined in s 5(1) of the National Law to mean ‘an individual who provides education and care for children as part of an education and care service’. The term, ‘family day care educator’ is also defined in s 5(1) to mean ‘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’.

62. An education and care service, including a family day care service, can only be operated by a person (individual or corporate body), where that person has been granted, by the Regulatory Authority, a provider approval under s 15 of the National Law and a service approval under s 48 of the National Law.

63. Under the National Law and the National Regulations, it is the approved provider who is responsible for ‘ensuring’ that it, and the operation of its approved service, complies with the provisions of the National Law and the National Regulations. The obligation includes a regulatory function of ‘ensuring’ that its family day care coordinator, nominated supervisor and family day care educators comply with their respective obligations under the National Law and National Regulations. In many cases, the obligations of a family day care educator regarding the operation of the approved service, mirrors that of the approved provider of the service. In fulfilling its obligations, the approved provider is required to create its own forms, policies and procedures for use by its approved service which includes a family day care educator registered or engaged with its service. Such forms, policies and procedures must comply with the relevant provision of the National Law or National Regulation and NQS.

Part 2 and Part 3 - Provider Approval and Service Approval

64. Provisions relating to a provider approval are contained in Part 2 of the National Law.

65. Section 19 in Division 1 of that Part sets out the conditions on a provider approval as follows:

19 Conditions on provider approval

(1) A provider approval may be granted subject to any conditions that are prescribed in the national regulations or that are determined by the Regulatory Authority.

(2) Without limiting subsection (1), a provider approval is subject to the condition that the approved provider must comply with this Law.

(3) A condition of a provider approval applies to the provider as the operator of any education and care service or associated children’s service, unless the condition expressly provides otherwise.

(4) An approved provider must comply with the conditions of the provider approval.

Penalty:

$10 000, in the case of an individual.

$50 000, in any other case.

66. Division 4 of Part 2 makes provision for the suspension or cancellation of a provider approval. In this application the relevant provision is s 31, which relevantly provides as follows:

31 Grounds for cancellation of provider approval

The Regulatory Authority may cancel a provider approval if—

(a) the Regulatory Authority is 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; or

(b) the Regulatory Authority is satisfied that the continued provision of education and care services by the approved provider would constitute an unacceptable risk to the safety, health or wellbeing of any child or class of children being educated and cared for by an education and care service operated by the approved provider; or

(c) the approved provider has been found guilty of an indictable offence or an offence that if committed in this jurisdiction would be an indictable offence; or

(d) the approved provider has been found guilty of an offence under this Law as applying in any participating jurisdiction; or

(e) the approved provider has breached a condition of the provider approval; or

(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).

67. Section 32 in this Division of Part 2 provides that before a decision is made to cancel a person’s provider approval, the Regulatory Authority must first give the approved provider a show cause notice that sets out the reasons for the proposed cancellation and give the approved provider 30 days within which to provide a written response to the proposed cancellation.

68. As we have already noted, s 34 in this Division of Part 2 provides that where a provider approval has been cancelled all service approvals of the provider are also cancelled.

69. Provisions relating to a service approval are contained in Part 3 of the National Law.

70. Section 44 in Division 1 of Part 3 sets out how an application for service approval is made and what information is to be included in that application. That section relevantly provides:

44   Form of application

(1)  An application for a service approval must—

…

(d)  nominate one or more individuals to be nominated supervisors of the service; and

(da)  include from each nominated individual (other than the approved provider) the written consent to the nomination; and …

71. Section 51 in Division 1 sets out the statutory conditions on a service approval, which includes the following:

51 Conditions on service approval

(1) A service approval is granted subject to the condition that the education and care service is operated in a way that—

(a) ensures the safety, health and wellbeing of the children being educated and cared for by the service; and

(b) meets the educational and developmental needs of the children being educated and cared for by the service.

(2) A service approval for a family day care service is granted subject to a condition that the approved provider must ensure that each family day care educator engaged by or registered with the service is adequately monitored and supported by a family day care co-ordinator.

….

(5)  A service approval is granted subject to any other conditions prescribed in the national regulations or imposed by—

(a)  this Law; or

(b)  the Regulatory Authority.

…

(8)  An approved provider must comply with the conditions of a service approval held by the approved provider.

Penalty:

$10 000, in the case of an individual.

$50 000, in any other case.

72. In this case, the respondent has not contended that the applicant breached s 51(2) of the National Law.

73. Division 2 of Part 3 makes provision for the amendment of a service approval. Section 56 in this Division makes provision for notice to be given, by the approved provider to the Regulatory Authority, for the addition of a nominated supervisor. Section 56(2)(c) sets out the time when that notice is to be given as follows:

(2)  The notice must—

…

(c)  be given—

(i)  at least 7 days before the individual is to commence work as a nominated supervisor; or

(ii)  if that period of notice is not possible in the circumstances, as soon as practicable but not more than 14 days after the individual commences work as a nominated supervisor.

Note—

Section 173(2)(b) requires an approved provider to notify the Regulatory Authority of the removal of a nominated supervisor.

74. Division 4 in Part 3 makes provision for the suspension and cancellation of a service approval. In this regard, we note the grounds of suspension include where the service is not being managed in accordance with the National Law (s 70(c)).

Functions of the Regulatory Authority

75. Section 260 in Part 12 of the National Law sets out the functions of the Regulatory Authority (that is, in NSW, the respondent) as follows:

260 Functions of Regulatory Authority

The Regulatory Authority has the following functions under this Law in relation to this jurisdiction—

(a) to administer the National Quality Framework;

(b) to assess approved education and care services against the National Quality Standard and the national regulations and determine the ratings of those services;

(c) to monitor and enforce compliance with this Law;

(d) to receive and investigate complaints arising under this Law;

(e) in conjunction with the National Authority and the relevant Commonwealth Department, to educate and inform education and care services and the community in relation to the National Quality Framework;

(f) to work in collaboration with the National Authority to support and promote continuous quality improvements in education and care services;

(g) to undertake information collection, review and reporting for the purposes of—

(i) the regulation of education and care services; and

(ii) reporting on the administration of the National Quality Framework; and

(iii) the sharing of information under this Law;

(h) any other functions conferred on the Regulatory Authority under this Law.

76. Part 7 of the National Law sets out the actions a Regulatory Authority can take to enforce compliance with the National Law and the National Regulations. This includes, issuing an approved provider with a compliance direction (s 176), a compliance notice (s 177), a notice to suspend education and care by a family day care educator (s 178), an emergency action notice (s 179), a prohibition notice (s 182), or accepting an enforceable undertaking by the approved provider under s 179A of the National Law.

Part 6 - Operating an education and care service offences – Part 6

77. Part 6 of the National Law contain offences relating to the operation of an education and care service. The offences, where the offender is an approved provider, carry maximum penalties that vary from a fine of $3,000 to $10,000 for an individual and $15,000 to $50,000 for a corporation. We note that s 285(1) of the National Law provides that any person with the management or control of a body corporate found to have committed an offence under the National Law, is also liable to a penalty for the offence where the person has failed to exercise due diligence to prevent the contravention.

78. The offences that carry the maximum fine of $10,000 for an individual approved provider and $50,000 for an approved provider that is a corporation are ss 164A, 165, 166, 167, 169 and 171. In this case, the respondent contends that the applicant has breached ss 164A(1), 165(1) 166(1) and 167(1). Each of these sections also create similar offences for an educator, and in some cases a nominated supervisor, where the maximum penalty is lower.

79. We have dealt with these provisions below and included a reference to the regulation(s) specifically related to the offending conduct prescribed in the section.

s 164A(1) Offence relating to the education and care of children by family day care service

80. Section 164A(1) provides that an approved provider must ensure that any child being educated and cared for as part of its service is not educated and cared for by a person other than a family day care educator, except in the circumstances prescribed in the National Regulations. This section relates to Quality area 4 – staffing arrangements.

81. Part 4.4 of Chapter 4 of the National Regulations also contain provisions relating to Quality area 4. Regulation 144 in this Part makes provision for an approved provider to approve a family day care educator assistant and prescribes the circumstances where the approved assistant can assist the educator.

s 165(1) Offence to inadequately supervise children

82. Section 165(1) provides that an approved provider must ensure that all children being educated and cared for by its service are adequately supervised at all times when the children are in the care of the service. This section also relates to Quality area 4 – staffing arrangements.

s 166(1) Offence to use inappropriate discipline

83. Section 166(1) provides that an approved provider must ensure that no child being educated and cared for by its service is subjected to any form of corporal punishment or any discipline that is unreasonable in the circumstances. This section relates to Quality area 5 – relationships with children.

84. Part 4.5 of Chapter 4 of the National Regulations contain two provisions relating to relationships with children. Regulation 155(d) in this Part provides that an approved provider must take reasonable steps to ensure that the education and care services provides education and care to children in a way that – ‘gives each child positive guidance and encouragement toward acceptable behaviour’.

s 167(1) Offence relating to protection of children from harm and hazards

85. Section 167(1) provides that an approved provider must ensure that every reasonable precaution is taken to protect children being educated and cared for by its service from harm and from any hazard likely to cause injury. This section relates to Quality area 2 and 3 – children’s health and safety and physical environment.

86. Parts 4.2 of Chapter 4 of the National Regulations contain provisions in relation to children’s health and safety. Included in this Part are r 84 (awareness of child protection law), reg 89 (first aid kits), reg 97 (emergency and evacuation procedures), reg 100-102 (excursions - risk assessments) and regs 102A -102D (transport other than as part of an excursion).

87. Part 4.3 of Chapter 4 of the National Regulations contain provisions in relation to the physical environment of a family day care service. Included in this Part are reg 103 (premises and all equipment and furniture used in providing the education and care service are safe, clean and in good repair), reg 105 (furniture, materials and equipment to be developmentally appropriate) and reg 117 (glazed areas of a residence accessible to children is glazed with safety glass, treated with a product that prevents shattering if broken or is guarded by barriers that prevent children from striking or falling against the glass).

88. The other offence in Part 6 of the National Law relevant to this application are ss 168(1), 172, 173(2)(b)(ii) and 175. Section 168 relates to the Quality area 1, namely educational program and practice. The remaining sections relate to Quality area 7, namely governance and leadership of a family day service. Related provisions are contained in Part 4.7 of Chapter 4 of the National Regulations.

s 172 Offence to fail to display prescribed information

89. Section 172 provides that an approved provider of a family day care service must ensure that the information prescribed in this section is positioned so that it is clearly visible to anyone from the main entrance to the ‘education and care service premises’.

90. The term ‘education and care service premises’, is defined to include the following in regard to a family day care service:

(i)  an office of the family day care service; or

(ii)  an approved family day care venue; or

(iii)  each part of a residence used to provide education and care to children as part of a family day care service or used to provide access to the part of the residence used to provide that education and care;

91. The information prescribed in s 172 and the penalty prescribed for this offence is as follows:

(a)  the provider approval;

(b)  the service approval;

(c)  each nominated supervisor of the service;

(d)  the rating of the service;

(e)  any service waivers or temporary waivers held by the service;

(f)  any other prescribed matters.

Penalty:

$3000, in the case of an individual.

$15 000, in any other case.

92. Regulation 173(1) in Part 4.7 of Chapter 4 of the Regulations sets out the information that is to be displayed in the matters prescribed in s 172(a) to (e) of the National Law and reg 173(2) sets out the information prescribed for the purpose of s 172(f) of that Law.

s 173 Offence to fail to notify certain circumstances to Regulatory Authority

93. Section 173 creates an offence where an approved provider fails to notify the Regulatory Authority of specified changes, including the following:

173 Offence to fail to notify certain circumstances to Regulatory Authority

(1) …

(2) An approved provider must notify the Regulatory Authority of the following in relation to an approved education and care service operated by the approved provider—

(a) …;

(b) if a nominated supervisor of an approved education and care service—

(i) …

(ii) is removed from the role of nominated supervisor; or

(iii) ..

…

Penalty:

$4000, in the case of an individual.

$20 000, in any other case.

(3)  A notice under subsection (1) or (2) must—

(a) be in writing; and

(b) include any prescribed information.

(4) …

(5) A notice under subsection (2) must be provided within the relevant prescribed time to the Regulatory Authority that granted the service approval for the education and care service to which the notice relates

94. The prescribed time is that set out in reg 174 which relevantly provides as follows:

174 Time to notify certain circumstances to Regulatory Authority

(1)  …

(2)  For the purposes of section 173(5) of the Law, a notice must be provided—

(aa) in the case of a notice under section 173(2)(e), at least 14 days before the change in the location of the principal office takes place; or

(a) in the case of a notice under section 173(2)(f), within the period referred to in section 59 of the Law;

(b) in any other case, within 7 days of the relevant event or within 7 days of the approved provider becoming aware of the relevant event.

s 175(1) Offence relating to requirement to keep enrolment and other documents

95. Section 175(1) provides that an approved provider must keep, to the extent practicable, the prescribed documents available for inspection by an authorised officer in accordance with that section. The offence carries a maximum penalty of $4000 for an individual and $20,000 for a corporation.

96. Section 175(2) describes the documents referred to in s 175(1) as follows:

(2) Documents referred to in subsection (1)—

(a) must, to the extent practicable, be kept at the education and care service premises if they relate to—

(i) the operation of the service; or

(ii) any staff member employed or engaged by the service; or

(iii) any child cared for, or educated at, those premises—

in the previous 12 months; and

(b) in any other case, must be kept at a place, and in a manner, that they are readily accessible by an authorised officer.

97. Section 175(3) creates a similar offence for an educator who educates and cares for a child at a residence.

98. Regulation 177 in Part 4.7 of Chapter 4 of the National Regulations prescribes, for the purpose of s 175(1) of the National Law, the documents that are to be kept by an approved provider. That regulation relevantly provides as follows:

177 Prescribed enrolment and other documents to be kept by approved provider

(1) For the purposes of section 175(1) of the Law, the following documents are prescribed in relation to each education and care service operated by the approved provider—

…

(d) a record of assessments of family day care residences … conducted under regulation 116;

…

(k) a children’s attendance record as set out in regulation 158;

(l) child enrolment records as set out in regulation 160;

…

(2) The approved provider of the education and care service must take reasonable steps to ensure the documents referred to in subregulation (1) are accurate.

Penalty: $2000.

…

(5) An approved provider of a family day care service is not required to keep a document set out in subregulation (1) if an equivalent record is kept by a family day care educator under regulation 178.

Note—

A compliance direction may be issued for failure to comply with subregulation (2) or (3).

99. Regulation 158 relevantly provides:

158 Children’s attendance record to be kept by approved provider

(1) The approved provider of an education and care service must ensure that a record of attendance is kept for the service that—

(a) records the full name of each child attending the service; and

(b) records the date and time each child arrives and departs; and

(c) is signed by one of the following persons at the time that the child arrives and departs—

(i) the person who delivers the child to the education and care service premises or collects the child from the education and care service premises;

(ii) a nominated supervisor or an educator.

100. Regulation 159 imposes the same requirement on a family day educator.

101. Regulation 160 sets out the information that is required to be kept about a child enrolled in an education and care service provides:

160 Child enrolment records to be kept by approved provider and family day care educator

(1) The approved provider of an education and care service must ensure that an enrolment record is kept that includes the information set out in subregulation (3) for each child enrolled at the education and care service.

(2) A family day care educator must keep an enrolment record that includes the information set out in subregulation (3) for each child educated and cared for by the educator.

(3)  An enrolment record must include the following information for each child—

(a) the full name, date of birth and address of the child;

(b) the name, address and contact details of—

(i) each known parent of the child; and

(ii) any person who is to be notified of an emergency involving the child if any parent of the child cannot be immediately contacted; and

(iii) …

(iv) any person who is authorised to consent to medical treatment of, or to authorise administration of medication to, the child; and

(v) any person who is authorised to authorise an educator to take the child outside the education and care service premises; and

(vi) any person who is authorised to authorise the education and care service to transport the child or arrange transportation of the child;

…

(i) the relevant authorisations set out in regulation 161;

(j) the relevant health information set out in regulation 162.

(4) …

102. Regulation 161(1) provides that an education and care service is to keep in the enrolment record of each child enrolled in its service the following:

161 Authorisations to be kept in enrolment record

(1) The authorisations to be kept in the enrolment record for each child enrolled at an education and care service are—

(a) an authorisation, signed by a parent or a person named in the enrolment record as authorised to consent to the medical treatment of the child, for the approved provider, a nominated supervisor or an educator to seek—

(i) medical treatment for the child from a registered medical practitioner, hospital or ambulance service; and

(ii) transportation of the child by an ambulance service; and

(b) if relevant, an authorisation given under regulation 102 for the education and care service to take the child on regular outings; and

(c) if relevant, an authorisation given under regulation 102D(4) for regular transportation of the child.

103. Regulation 161(2) provides that the same authorisations are to be kept by the family day care educator.

104. Regulation 162 sets out the health information that is to be kept in the enrolment record of each child enrolled at the education and care service, which includes the following:

162 Health information to be kept in enrolment record

…

(c) details of any—

(i) specific healthcare needs of the child, including any medical condition; and

(ii) allergies, including whether the child has been diagnosed as at risk of anaphylaxis; and

(d) any medical management plan, anaphylaxis medical management plan or risk minimisation plan to be followed with respect to a specific healthcare need, medical condition or allergy referred to in paragraph (c); and …

National Regulations – Policies and procedures

105. Division 2 of Part 4.7 of Chapter 4 of the Regulations contain provisions relating to policies and procedures.

106. Regulation 168 in this Division relevantly provides as follows:

168 Education and care service must have policies and procedures

(1) The approved provider of an education and care service must ensure that the service has in place policies and procedures in relation to the matters set out in subregulation (2).

Penalty: $1000.

Note—

These may include policies and procedures prepared by the approved provider in accordance with an education law of the participating jurisdiction.

(2) Policies and procedures are required in relation to the following—

(a) health and safety, including matters relating to—

…

(iv) the administration of first aid; and

(v) sleep and rest for children;

…

(e) emergency and evacuation, including the matters set out in regulation 97;

…

(g) excursions, including procedures complying with regulations 100 to 102;

(ga) if the service transports or arranges transportation of children other than as part of excursions, transportation including procedures complying with Division 7 of Part 4.2 of Chapter 4;

(h) providing a child safe environment;

…

Note—

A compliance direction may be issued for failure to comply with subregulation (1).

107. Regulation 169 makes provision for an approved provider of a family day care service to have in place specified additional policies and procedures to those set out in reg 168. These additional policies primarily relate to the assessment of family day care residences, engagement or registration of educators and the monitoring, support and supervision of family day care educators.

108. Regulation 170(2) provides:

170 Policies and procedures to be followed

(1) …

(2) The approved provider of a family day care service must 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 regulations 168 and 169.

Penalty: $1000.

Note—

A compliance direction may be issued for failure to comply with subregulation (1) or (2).

109. Regulation 171 provides:

171 Policies and procedures to be kept available

(1) The approved provider of an education and care service must ensure that copies of the current policies and procedures required under regulation 168 and, in the case of a family day care service, regulation 169 are readily accessible to nominated supervisors and staff members of, volunteers at, and family day care educators engaged by or registered with, the service.

Penalty: $1000.

(2) The approved provider of an education and care service must ensure that copies of the current policies and procedures required under regulation 168 and, in the case of a family day care service, regulation 169 are available for inspection at the education and care service premises at all times that the service is educating and caring for children or otherwise on request.

Penalty: $1000.

Note—

A compliance direction may be issued for failure to comply with subregulation (1) or (2).

110. Before we deal with allegations that have been made, it is convenient to set out the background to this application.

Background

111. The applicant was incorporated in August 2013. The applicant’s sole director is Yodit Wendafrash (now Yodit Gessesse), who does not reside in NSW. She is, nevertheless, the person who is responsible for the management and control of the applicant and the respondent has contended that she is not fit for that role.

112. The applicant was granted provider approval on 12 February 2014 and service approval on 30 September 2014. The service approval was granted subject to the following conditions:

The conditions set out or referred to in Section 51 of the Children (Education and Care Services) National Law (NSW), which include conditions prescribed in the Education and care Services National Regulations.

The approval is also subject to the following conditions imposed by the regulatory authority:

- The approved provider must ensure that the maximum number of family day care educators that may be employed or engaged by the service is 60.

- The approved provider must employ at least one full time family day care co-ordinator for every 15 family day care educators providing education and care to children.

113. The applicant was able to commence operation as a family day care service in September 2014.

2017 Assessment and rating of the applicant’s family day care service

114. On 28 February 2017, the applicant’s family day care service was assessed and rated by two authorised officers of the Department. That assessment involved the authorised officers attending the principal office and the residences of three educators registered with the service. Present at the principal office of the applicant was Yodit Wendafrash and Meskerem (Mary) Tesifaye, the then nominated supervisor of the applicant’s service.

115. On 29 May 2017, the Department rated the applicant’s family day care service, under Part 5 of the National Law as: ‘Working Towards National Quality Standard (W)’.

116. In July 2017, the Department wrote to the applicant to advise that, during the February 2017 visit, its authorised officers had identified breaches of the National Law and National Regulations, details of which were provided.

117. On 2 August 2017, Mary Tesifaye wrote to the respondent thanking it for identifying areas of the service that required improvement. In an attachment to the letter, Mary Tesifaye noted what action had been taken to improve the applicant’s compliance.

2 May 2018 compliance and monitoring visits

118. On 2 May 2018, authorised officers of the Department conducted a further compliance and monitoring visit to the principal office of the applicant and the residences of another two educators registered with the applicant’s service.

119. On 22 May 2018, the Department wrote to the applicant to advise that, during the 2 May 2018 visit its authorised officers had identified breaches of the National Law and the National Regulations, details of which were provided.

120. On 11 June 2018, Mary Tesifaye wrote to the Department thanking it again for identifying areas of the service that required improvement and attaching a note of what action had been taken.

121. No further action has been taken regarding the abovementioned compliance and monitoring visits.

Visit 1 - April 2019

122. On 17 April 2019, the Department conducted an unannounced compliance and monitoring visit to the principal office of the applicant’s service and the residences of six educators registered with the applicant’s service, two of whom had already resigned from the service (Ms AM and Ms LZ) and one who was not providing education and care services that day (Ms ZA). The remaining educators visited that day were:

1. Ms DF

2. Ms LD

3. Ms MH

June 2019 Show Cause Notice

123. On 4 June 2019 Glenda Buckley, as a delegate of the respondent, gave the applicant a show cause notice, under s 32 of the National Law, in which she said she intended to cancel the applicant’s provider approval. The grounds for the proposed cancellation were said to be those set out in s 31(e) of the National Law. In that notice Glenda Buckley said:

Based on the findings of the authorised officers, I am of the opinion that they are serious non- compliance issues in respect to the operation of the Service, and that the nature of the non-compliance, including such matters as:

-   inadequate measures to protect the safety, health and well-being of children; and

-   insufficient understanding of the regulatory requirements by the provider and the educators registered with the Service;

constitutes an unacceptable risk to the safety, health or well-being of children being educated and cared for by the Service.

I am also concerned that the Provider has failed to put in place adequate governance systems in respect to issues such as record keeping practises and the monitoring and support of educators.

…

Given the seriousness of the non-compliance issues identified by the authorised officers on 17 April 2019, I am satisfied that the approved provider of the Service has contravened a condition of the provider approval by not complying with the National Law and Regulations. …

124. Attached to the show cause notice was a table that contained details of the alleged breaches as identified by the authorised officers during their compliance and monitoring visit. We have dealt with these below.

125. The applicant, through its legal representative, provided Glenda Buckley with a detailed written response to the show cause notice. We have also dealt with this response in more detail below.

Visit 2 - September 2019 compliance and monitoring visits

1. Between 26 and 30 September 2019, the Department conducted further unannounced compliance and monitoring visits of the principal office of the applicant and the residences of six educators registered with the applicant’s service, one of whom had been visited during Visit 1 (Ms DF). The remaining educators visited were:

2. Ms SM

3. Ms DO

4. Ms GO

5. Ms BS

6. Ms NR

126. Follow-up visits to the residence of Ms SM were made on 1 and 18 October 2019.

Cancellation Decision

127. On 19 December 2019, Glenda Buckley, as a delegate of the respondent, gave the applicant notice of her decision to cancel the applicant’s provider approval. Glenda Buckley explained that she had decided to cancel the applicant’s provider approval. The grounds for cancellation were the applicant’s alleged breach of a condition of its provider approval by failing to comply with the Law in respect of its service approval. Glenda Buckley went on to say:

In my opinion, the nature of the non- compliance poses a risk to the safety, health and wellbeing of a child or children being educated and cared for by you, as the approved provider for the service, Gabriel’s Family Day Care Pty Ltd (the ‘Service’)’.

128. Glenda Buckley went on to set out the details of where the applicant had not, in her view, satisfactorily addressed each element of the alleged non-compliance as set out in the show cause notice.

Application for external review by the Tribunal

129. On 16 January 2020, the applicant lodged this application for external review by the Tribunal. The applicant also made an application for an order staying the operation of the cancellation decision pending the determination of its external review application.

130. On 6 February 2020, the Tribunal made an order staying the cancellation decision of the respondent pending the resolution of the applicant’s external review application by the Tribunal on the following conditions:

(a) The applicant is prohibited from accepting any new enrolments in its education and care service.

(b) The applicant is prohibited from engaging or registering:

(i) any new educators; or

(ii) previously engaged or registered educators …

(c) The applicant is to suspend the provision of education and care by the following educators: …

(d) The applicant is to provide proof of the suspension is arising by order 1(c) to the Secretary by 5 pm on 6 February 2020.

131. The applicant complied with the condition of the stay.

Visit 3 - 19 February 2020 - compliance and monitoring visits

132. On 19 February 2020, the Department conducted a further unannounced compliance and monitoring visit of the principal office of the applicant and the residences of the following eight educators of the applicant’s service. Of these educators, five were still registered as educators with the applicant’s service as at 31 March 2022 (Ms IA, Ms IF, Ms NM, Ms IR and Ms RN). Ms EA was also registered with the applicant’s service as at 31 March 2022 but was on maternity leave. The remaining two educators visited by the authorised officers on this day resigned from the service prior to 31 March 2022:

1. Ms RU

2. Ms AA

October 2020 – original determination by the Tribunal

133. On 14 October 2020, the Tribunal published its decision and reasons for decision on the applicant’s administrative review application: [2020] NSWCATAD 249 decision.

134. In that decision the Tribunal made an order setting aside the respondent’s cancellation decision and in substitution of that decision made a decision amending the applicant’s provider approval in accordance with the following order:

(2) The Tribunal imposes the following conditions in relation to the provider approval for Gabriel’s Family Day Care Pty Ltd pursuant to section 58 of the Civil and Administrative Tribunal Act:

(a) The applicant is to terminate the provision of education and care by the following educators: …

(b) The applicant is prohibited from engaging or registering the following educators: …

135. The applicant complied with the orders made and, as we have noted above, the respondent appealed this decision of the Tribunal.

Visit 4 - May and June 2021 – further compliance and monitoring visits

136. On 12 May 2021, nine days before the hearing of the respondent’s appeal, the respondent conducted further unannounced compliance and monitoring visits of the principal office of the applicant and the residences of the following educators registered with the applicant’s service:

1. Ms SD

2. Ms BH

3. Ms TL

4. Ms ZT

137. On 17 May 2021, Hingano Mataele was appointed to the role of nominated supervisor of the applicant’s service and Mary Tesifaye was removed from that role.

138. As we have noted, the respondent’s appeal was heard on 21 May 2021.

139. On 1 June 2021, the respondent conducted further unannounced compliance and monitoring visits of the residences of the following educators registered with the applicant’s service:

1. Ms HA

2. Ms IE

3. Ms YN

140. On 2 June 2021, the respondent conducted further unannounced compliance and monitoring visits of the applicant’s principal office and the residences of the following educators registered with the applicant’s service:

1. Ms IA

2. Ms EA

3. Ms WA

4. Ms IF

5. Ms NM

6. Ms RN

7. Ms IR

141. On 2 June 2021, the respondent issued the applicant with an Emergency Action Notice under s 179(2) of the National Law. The Notice related to the compliance and monitoring visit to the residence of Ms IE the previous day where the authorised officer identified that the driver’s licence of Ms IE had expired the previous day. In the Notice, the respondent directed the applicant to provide, by close of business that day, evidence that Ms IE had renewed her licence and evidence that enrolled children had not been transported in a vehicle by Ms IE until her licence had been renewed. The applicant was also directed to conduct an audit of all educators registered with its service to ensure that all educators of its service, who provide vehicle transportation, have the required driver’s licence and to provide a copy of the audit by close of business on 3 June 2021. The applicant responded to the Notice as directed.

142. On 3 June 2021, the respondent conducted further compliance and monitoring visits of the applicant’s principal office. Following that visit, the respondent issued a further Emergency Notice to the applicant in relation to the following matters identified by the authorised officers during their visit to the residences of Ms EA and Ms NM as follows:

1. an expired EpiPen for a child being educated and cared for at the residence of Ms EA – the EpiPen had expired in April that year. The mother was asked to provide a replacement a number of times. A new EpiPen was provided by the mother of the Child on 10 June 2021; and

2. when asked by the authorised officers if any of the children for whom the applicant’s service was providing education and care had any medical conditions such as asthma, Ms NM responded with a ‘no’. A child in the care of Ms NM, however, responded and said that he did have asthma. This had not been disclosed by the parents of the child when he was enrolled.

143. Once again, each Notice set out what steps were to be taken by the applicant regarding each matter and by when they were to be completed by. The applicant responded to the Notice and this response was subsequently followed-up with further visits by the authorised officers as follows:

1. 4 June 2021 – the applicant’s principal office

2. 10 June 2021 – Ms EA and Ms NM

3. 17 June 2021 – Ms NM

10 September 2021 - Internal Appeal

144. On 10 September 2021, the Appeal Panel published its decision and its reasons for decision regarding the respondent’s appeal. The Appeal Panel allowed the appeal and set aside the orders made by the Tribunal on 14 October 2020: [2021] NSWCATAP 263.

145. The Appeal Panel also made the following orders:

(3) The proceedings are remitted to a differently constituted Tribunal for redetermination based upon the evidence already adduced to the Tribunal and such further evidence, if any, as the Tribunal may allow.

(4) The decision made by the delegate of the appellant on 19 December 2019 to cancel the respondent’s provider approval is stayed until the redetermination of the proceedings by the Tribunal or further order on the following conditions:

(a) The respondent is prohibited from accepting any new enrolments in its education and care service.

(b) The respondent is prohibited from engaging or registering:

(i) any new educators; or

(ii) previously engaged or registered educators (including Ms SM, Ms BS, Ms GO and Ms ZA).

(5) Liberty to apply for a variation of the stay order in order 4 within 14 days of the publication of these reasons.

22 October 2021 – Show Cause Notice

146. On 22 October 2021, Kathy Dryden, a delegate of the respondent, issued the applicant with a Show Cause Notice, under s 32 of the National Law stating that she intended to cancel its provider approval following the non-compliance identified during the May and June 2021 monitoring and compliance visits.

147. The applicant responded to the Show Cause Notice on 22 November 2021.

Redetermination of the applicant’s administrative review application

148. We heard the applicant’s administrative review application over four days on 22, 23, 24 and 25 March 2022. At the conclusion of the hearing, we reserved our decision and made the following orders and noted:

(1) Pursuant to section 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the publication or broadcast of the name of any child or educator mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited without the consent of the Tribunal.

Note: 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.

(2)  By 30 March 2022, Gabriel's Family Day Care Pty Ltd (the applicant) is to provide to the Tribunal and the Secretary, Department of Education, a list of educators whose homes were visited by the authorised officers of the Secretary in 2019 and 2021. The list is to contain the date on which each educator was engaged by the applicant, the date on which the educator was terminated by the applicant or the date on which the educator ceased being engaged by the applicant.

(3)  By 04 April 2022, Gabriel's Family Day Care Pty Ltd is to provide to the Tribunal and the Secretary, Department of Education, updated contravention Schedules (i.e. Schedule 1 and Schedule 2 provided by the Secretary on 17 March 2022) containing the applicant's position as to whether the alleged contravention is admitted or denied.

(4)  The decision is reserved.

(5)  The Tribunal Notes:

(a) In the absence of any application by either party, the stay order made by the Appeal Panel on 10 September 2021 remains in force.

(b) …

149. As at April 2022, the following educators whose residence was visited by authorised officers of the Department remained registered with the applicant:

Ms EA (on maternity leave), Ms TL, Ms BH, Ms IR, Ms NM, Ms RN, Ms HA, Ms SH, Ms YN, Ms SD, Ms IF and Ms IA.

150. No further applications have been made to the Tribunal in regard to the operation of the applicant’s service under the terms of the stay order.

The alleged breaches

The evidence

151. As we have noted above, the applicant primarily relies on the affidavit and oral evidence of Mary Tesifaye and Hingano Mataele. We have dealt with their evidence to the extent it is relevant to each alleged breach made against the applicant.

152. The respondent primarily relies on the notations made by the authorised officers on the Department’s proforma Checklist, photographs that were taken and any notations made in a notebook during their compliance and monitoring visit, together with the typed Visit Summary prepared by the authorised officers after the visit. This evidence is contained in tabulated form in the Exhibit to the affidavit of Nadal Hammoudi (Ex NH-1) for Visits 1 – April 2019, Visit 2 – September 2019 and Visit 3- February 2020 and in the Exhibit to the statement of Jennifer Smith (Ex JS-1) for Visit 4 - May and June 2021.

151. The respondent’s pro-forma compliance and monitoring Checklist lists a selection of specific regulations under the National Regulations and in some case sections of the National Law. Examples are:

R127 Educator qualifications

R136 First aid qualifications

R136 Educator WWCC-Sight

s165 Offence to inadequately supervise children

R166 children are not to be left alone with visitors

Child protection training

R89 First aid kits

R117 Glass

168 Policies and procedures are required in relation to the following

R97 emergency evacuation procedures

Regulation 103 Premises and equipment to be safe clean and in good repair both indoors and outdoors

R159 Attendance records.

154. Against each regulatory requirement some further guidance is provided for the authorised officer about the specific requirements of the section or regulation. In some cases, suggested questions to be asked of the educator are included. There is also space, although limited, for the authorised officer to insert any notation of what was said and observed during the compliance and monitoring visit.

155. The proforma Checklists became more comprehensive and detailed over the four-year period. They also became computerised. During the second and third visit, the authorised officers also had a list of ‘Areas of Breach’, which appears to be a computer generated list of specific sections of the National Law and the National Regulations. Each section and regulation listed included a pasted copy of that part of the section or regulation that applied to an approved provider. Where the authorised officers identified a possible breach of one or more of the listed sections and regulations, the officers could insert their notations of what they saw and observed at the end of the relevant section or regulation. A note could also be made if the alleged breach was confirmed or not confirmed. We assume that these assertions were inserted during the visit or at the same time as the Visit Summary was prepared.

156. While the respondent’s Checklists were very useful in identifying possible breaches, in our view they were inadequate where further enquiries or investigation were required to establish an actual breach on which the respondent could rely in deciding to cancel the applicant’s provider approval.

157. Other than the statements of Nicole Jodi McGarity and Louise Doolin, there is no evidence before the Tribunal from any of the other authorised officers who conducted a compliance and monitoring visit of either the principal office of the applicant, or the residences of the educators registered with the applicant.

158. In her statement, Nicole Jodi McGarity gave evidence of her visit, on 26 September 2019, to the residences of three educators, Ms DO, Ms BS and Ms DF.

159. In her statement Louise Doolin gave evidence of her visit, on 19 February 2020, to the residence of Ms NM.

160. In their affidavit and statement, Nicole Jodi McGarity and Louise Doolin only give evidence of specific items of concern. For example, Louise Doolin only gave evidence about the glass top coffee table she saw at the residence of Ms NM.

161. Neither Nadal Hammoudi nor Jennifer Smith conducted a compliance and monitoring visit of the applicant’s principal office, or a residence of an educator registered with the applicant. Instead, in their respective affidavit and statement Nadal Hammoudi and Jennifer Smith gave evidence about the role of authorised officers, and some general background evidence about compliance and monitoring visits. They also explained which authorised officers visited which educator residence or the principal office of the applicant and when they visited.

162. The contentions of the respondent in respect of each alleged breach are contained in a schedule entitled ‘Annexure A’, which, as we have already noted, is made up of two parts. The first part relates to the 106 alleged breaches identified during Visit 1, Visit 2 and Visit 3. The second part relates to the remaining alleged breaches identified during Visit 4.

163. The schedule gives each alleged breach a reference number starting at 1 and ending at 194. Inserted against each alleged breach is the relevant inspection date when the alleged breach was identified, which residence or principal office was inspected on that date, the legislative provision that is alleged to have been breached, a description of the alleged contravening conduct or event and under which tab the evidence can be found in Ex NH-1 or Ex JS-1.

164. As we have already indicated, the numerous allegations made against the applicant and the amount of material relied on in support of these allegations is difficult to navigate. While ‘Annexure A’ is useful in locating relevant documents, the descriptions of the alleged contravening conduct or event is not evidence. We have otherwise been provided with very little assistance in analysing the material, or the legislative provisions to which it is said the material relates. Instead, the respondent’s approach seems to have been that the large number of alleged breaches alone supports the decision it has made.

Consideration and findings

165. As we have already noted, given the large number of individual alleged breaches, the evidence relevant to each alleged breach and our consideration and findings are set out in the Attachment to this decision.

166. We have dealt with the alleged breaches in accordance with the legislative provisions to which they relate. We have first dealt with all the alleged breaches of a section of the National Law. These are dealt with in section order, beginning with s 56. We have then dealt with the alleged breaches of the National Regulations, again in regulation order beginning with reg 84.

167. We have found, on the material before the Tribunal and the applicable law, that we are comfortably satisfied that the applicant was in breach of the following condition(s) of its provider approval as at the date of the inspections of the authorised officers:

1. Contrary to s 167(1) of the National Law the applicant failed to ensure that every reasonable precaution was taken to protect a child being educated and cared for by its service from harm by allowing the child, known to have been diagnosed at risk of anaphylaxis and prescribed EpiPen, to continue to be educated and cared for by its service when the EpiPen had expired and not replaced with a new EpiPen.

2. Contrary to s 167(1) of the National Law the applicant failed to ensure that every reasonable precaution was taken to protect the children enrolled in its service and cared for by educator Ms IE from harm when educator Ms IE continued to transport the children in her car when her driver’s licence had expired.

3. Contrary to s 172 of the National Law the applicant failed to ensure that the prescribed information (including all the prescribed information) about its provider approval and service approval was positioned so that it was clearly visible to anyone from the main entrance of the applicant’s principal office and the residences of educator Ms IE, Ms IF, and Ms BH.

4. Contrary to s 269(1)(a) of the National Law, the applicant failed to keep in its register of family day care educators, co-ordinators and assistants the prescribed information in respect of educator Ms IF, namely details of the educator’s changed address.

5. Contrary to reg 89 and reg 170(2) of the National Regulations the applicant failed (a) to ensure that the first aid kit of educator Ms HA was suitably equipped, and (b) to take reasonable steps to ensure that educator Ms HA followed its first aid policy.

6. Contrary to reg 100(1) of the National Regulations the applicant failed to ensure a risk assessment which included the matters prescribed in regs 101(2)(a)-(c) and (f)-(h) was carried out before an authorisation was sought for an excursion from the parents of the children educated and cared for by the educators named in ref 45, 55, 60, 63, 71, 79, 80, 81 and 82 in Annexure A.

7. Contrary to reg 102(1) of the National Regulations the applicant failed to ensure that children educated and cared for by its service were not outside the residences of the educators, named in ref 46, 72, 84, 85 and 86 in Annexure A, on an excursion because the written authorisation provided to the parent of these children did not include the matters listed in reg 102(4), including reg 102(4)(b), (d) and (g) to (k).

8. Contrary to reg 170(2) of the National Regulations the applicant failed to take reasonable steps to ensure that educator Ms HA followed its ‘Excursion Policy’ in not keeping a copy of her renewed car insurance policy in her car.

168. A breach of s 167(1) of the National Law is serious and carries a substantial maximum fine. In our view the abovementioned breaches are of considerable seriousness. First, in the case of the child, known to have been diagnosed at risk of anaphylaxis and prescribed EpiPen, the EpiPen was a month out of date and the educator had already pressed the parent to provide a new in date EpiPen. The educator did this at the direction of the applicant, notwithstanding its policy that the child should not be permitted to attend the service until a new EpiPen was provided. It was not until the intervention of the authorised officer on 1 June 2021 that the child stopped attending the applicant’s service. The respondent also issued the applicant with an Emergency Action Notice under s 179 of the National Law and appropriately so. The child returned two days later after the parent provided a new EpiPen. No further breaches were found or reported.

169. In the case of educator Ms IE having continued to transport the children in her car when her driver’s licence had expired this is also serious. The applicant was aware that the educator’s licence was due to expire and had sent the educator a reminder before it expired. However, on the day after her licence had expired the authorised officers conducted an unannounced compliance and monitoring visit to the residence of the educator to find that she was unlicensed and had driven the children in her care to school that morning and picked them up that afternoon from school. With the intervention of the authorised officers, the educator renewed her licence the following day. The respondent also issued the applicant with an Emergency Action Notice under s 179 of the National Law and appropriately so. That notice required the applicant to conduct an audit of its educators to ensure that the licences of its other educators had not expired. The applicant did not have any other educators whose license had expired. The applicant also immediately amended its systems to ensure that educators provide it with a copy of their renewed licence well before the expiry date. Failure to provide the copy will result in intervention by the applicant.

170. Regarding the other alleged breaches of sections of the National Law, in summary our findings are:

1. ss 56 and 173 – on the material before the Tribunal this alleged breach appears to have been complied with – more evidence was required to establish this breach;

2. s 164A(1) – a finding that the applicant’s reg 144 pro-forma approval form for an educator assistant did not contain all the matters prescribed in that regulation. However, in the absence of any evidence of a person approved by use of the applicant’s pro-forma form having provided education and care of a child enrolled with the applicant’s service no finding of a breach of s 164A was made. Again, more evidence was needed;

3. s 165(1) – on the evidence, on the day in question, the educator was not providing education and care of children enrolled in the applicant’s service. Even if the educator had been providing education and care, the evidence did not support the allegation of inadequately supervision;

4. s 166(1) – the allegation is not supported on the evidence;

5. s 167(1) – other than the above, the remaining allegations were found not to be supported on the evidence. More information was required to establish a breach of this section. In regard to the breach relating to a failure to record the medical condition of a child with asthma who needs medication, the evidence was that the parent enrolling the child failed to disclose this and it was only disclosed by the child during the compliance and monitoring visit by the authorised officer to the residence of the educator and in response to a remark by the educator that she did not have any children in her care with asthma. The child responded that he did have asthma. In our opinion, this does not give rise to a breach under s 167(1) of the National Law;

6. s 168(1) – not established on the evidence. More evidence was required to establish a breach;

7. s 175(1) – this section provides that an approved provider must keep the prescribed documents available for inspection by an authorised officer. In this case, each of the prescribed documents were kept and made available for inspection by the authorised officers, however they did not contain all the prescribed information. The documents were otherwise compliant. We found that the failure to include all the prescribed information in the prescribed document to be a breach of reg 177(2) of the National Regulations and not s 175(1) of the National Law. The essence of the respondent’s alleged breaches is that:

1. details were missing in the prescribed documents – for example, in enrolment records details such as the age of the child and the details of both known parents of the child was missing; and

2. the applicant’s pro-forma for of the prescribed documents did not include all the information prescribed – for example, the medical records of the enrolment forms did not include the requirement prescribed in reg 161(2)(a).

171. The remaining alleged breaches of the National Regulations have not been found to have been established. In some cases, they were not established because additional information/evidence was required and in some cases there was contrary evidence.

What is the correct and preferable decision?

172. As we have noted above, the respondent’s functions and powers to ensure compliance by an approved provider with the National Law and the National Regulations range from an educative role to an enforcement role. In this case, despite the applicant’s willingness to address the concerns raised by the respondent, it is apparent that the respondent never saw its role as being educative. Nor did it consider taking a less severe form of enforcement action, such as issuing a compliance direction to the applicant regarding the alleged breaches that were of an administrative nature. Instead, the respondent appears to have been focused on cancelling the applicant’s provider approval, which is the most severe and final enforcement action that can be taken.

173. We accept that the respondent’s on-going compliance and monitoring visits continued to identify concerns about the way in which the applicant operated its service. However, the issues of concern to which the respondent’s compliance and monitoring visits were directed also changed over time. Hence, different types of breaches were found. We note that even though, as early as the first visit concerns about the applicant’s pro-forma forms were identified, no further investigations were made regarding the adequacy of the applicant’s pro-forma forms.

174. The breaches, and the alleged breaches are, in our opinion, primarily administrative in nature - for example, the applicant’s pro-forma forms relating to approvals under reg 144 and the risk assessments and authorities for an excursion under reg 100 of the National Law.

175. We did not have the benefit of observing Mary Tesifaye giving her evidence, however we note that the Tribunal as originally constituted accepted her evidence. We did have the benefit of observing Hingano Mataele give her evidence. We found her to be a credible witness with a commitment to the ongoing improvement of the applicant’s service so that it meets each of the Quality area of the NQS. She has worked hard to address the concerns of the authorised officers and at the same time putting systems in place so as to ensure compliance with the National Law and the National Regulations by the applicant’s service and its educators, many of whom are not native English speakers. This does not mean different standards apply- it just means that Yodit Gessesse, Mary Tesifaye, Hingano Mataele must ensure that the educators that are accepted for the applicant’s service also understand and comply with the provisions of the National Law and National Regulations. We note that, in her evidence, Hingano Mataele said the applicant has taken steps to have some of the applicant’s material translated into Arabic to assist the educators in understanding what their obligations and the obligations of the applicant.

176. The legislation is not only comprehensive but also complex and in our view this is now well understood by the applicant.

177. We have not had the benefit of hearing evidence from Yodit Gessesse, the sole director of the applicant. While we have found this surprising, the respondent has not made any comments on this or contended that we should make adverse findings based on the very little evidence she has provided to support the applicant’s case. Hence, we have not done so.

178. After considering all of the material before the Tribunal, we are not persuaded that:

1. the applicant has a pattern and culture of non-compliance and is unwilling or unable to address its non-compliance. We agree that there are instances where the applicant has failed to comply with the National Law and the National Regulations, however its response has always been to address the issues raised;

2. the established breaches are indicative of a substantial ongoing risk to the health, safety and wellbeing of children enrolled in its service. In our view, for the reasons we have already given, the established breaches are largely of an administrative nature and the most serious of the breaches were not ongoing and addressed immediately and did not continue;

3. the established breaches of the applicant are indicative of an overall systemic problem. Again, the evidence does not support this; and

4. the applicant has failed to implement an effective system to ensure compliance. Again, the evidence is to the contrary. Furthermore, the applicant is now well aware of the consequences if it does not have an effective system to ensure compliance.

179. Finally, we note that no further alleged breaches have been drawn to the attention of the Tribunal since submissions closed in this matter.

180. Having regard to the material before us, our findings and the objects and principles set out in s 3 of the National Law (in particular, that the rights and best interest of the child are paramount), we find that the decision to cancel the applicant’s provider approval is not the correct and preferable decision and should be set aside.

181. However, we are also of the view that, given the history of the operation of the applicant’s service where it has always had around 20 educators engaged by its service, it may be appropriate for the respondent to consider amending the conditions imposed on the applicant’s service approval by reducing the maximum number of family day care educators the applicant may employ or engage. This recommendation is not binding on the respondent, who will be in a better position to decide, in consultation with the applicant, what the most appropriate number might be.

Conclusion and orders

182. For the reasons set out above we find that the decision of the respondent is not the correct and preferable decision and we make the following order:

1. The decision of the respondent, made on 19 December 2019, to cancel the provider approval for Gabriel’s Family Day Care Pty Ltd on the ground contained in section 31(e) of the Children (Education and Care Services) National Law (NSW) is set aside.

Attachment A (438465, pdf)

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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: 20 July 2023