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

The case of Mother's Choice Family Day Care Pty Ltd v Secretary, Department of Education involved an application for a stay of a decision to cancel the provider approval of Mother's Choice Family Day Care Pty Ltd under the Children (Education and Care Services) National Law (NSW). The Secretary, Department of Education had cancelled the approval on 15 June 2020 due to non-compliance with certain regulatory requirements, which the applicant sought to have stayed pending resolution of the merits of the appeal. The decision was challenged in the Civil and Administrative Tribunal (CAT).

The legal issues before the CAT included whether the applicant had demonstrated that a stay of the decision was necessary to prevent irreparable harm, and whether the applicant had satisfied the criteria for granting a stay of an administrative decision. The CAT considered the relevant principles for granting a stay, including the balance of convenience, the likelihood of success on the merits, and the need to prevent injustice.

The CAT concluded that Mother's Choice Family Day Care Pty Ltd had satisfied the criteria for a stay of the decision. The Tribunal found that the applicant had demonstrated a real and substantial risk of harm to the children in its care if the cancellation was not stayed, and that the balance of convenience favoured granting the stay. The CAT considered that the applicant had a strong likelihood of success on the merits, and that it was necessary to prevent injustice. Accordingly, the CAT granted the stay on the conditions outlined in the orders, including limiting the number of children and educators at the day care centre, and suspending certain educators pending further investigation.

The Tribunal stayed the decision to cancel the provider approval of Mother's Choice Family Day Care Pty Ltd on the conditions outlined in the orders, pending further order of the Tribunal.