Zahra Family Day Care Pty Ltd v Secretary, Department of Education [2022] NSWCATAD 298

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Zahra Family Day Care Pty Ltd v Secretary, Department of Education [2022] NSWCATAD 298 Hearing dates: 12 May 2022 Date of orders: 12 May 2022 Decision date: 08 September 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: C Mulvey, Senior Member Decision: (1) Leave is granted to the applicant to amend the application filed on 5 May 2022 to include administrative review of the decision of the respondent on 4 May 2022 as set out in order 2(b) below. (2) The decisions of the Respondent made on: (a) 28 April 2022 to cancel the applicant's provider approval under s. 33(1)(a)(i) of the Children (Education and Care Services) National Law (NSW) (National Law) (Cancellation Decision); and (b) 4 May 2022 under s. 191(7) of the National Law to confirm the decision made on 31 March 2022 to issue a notice under s. 28 of the National Law suspending the applicant's provider approval, are stayed pending further order of the Tribunal on the following conditions: (c) the applicant is prohibited from providing care to any child under the age of three; (d) the number of family day care educators engaged by or registered with the applicant must not exceed 20; (e) within five business days of the date of these orders, the applicant is to provide to the respondent a copy of its educator register with no more than 20 educators; (f) the applicant is not to enrol more than 140 children; (g) the applicant is to employ at least one full-time qualified family day care co-ordinator for every 10 family day care educators providing education and care to children; (h) the applicant is not to reinstate any educators whose engagement or registration was previously suspended or terminated; (i) within 12 business days of the date of these orders, the applicant is to conduct an audit of each registered educator's sleep and rest practices for compliance with the National Law, including by conducting visits during sleep and rest periods, and provide to the respondent a report setting out the findings of the audit, including any instances of non-compliance; (j) the applicant is to provide to the respondent a sleep and rest plan for all children to whom it provides education and care within five business days of commencing providing education and care; (k) within 12 business days of the date of these orders, the applicant is to provide to the respondent copies of transport authorisations for all children identified in Attachment A to the Cancellation Decision, and who remain in care with the Applicant, as having been transported without written authorisation in accordance with the Education and Care Services National Regulations (National Regulations); (l) within 12 business days of the date of these orders, the applicant is to provide to the respondent copies of risk assessments for all children identified in Attachment A to the Cancellation Decision, and who remain in care with the Applicant, as having been transported without a risk assessment carried out in accordance with the National Regulations; and (m) the applicant is not to transport any children until conditions (k) and (l) have been complied with. Catchwords: ADMINISTRATIVE LAW- Education and Care Services National Law – Operator approval – Breach of condition of approval – Objects and Principles of National Law – Children – Childcare Services –whether stay is desirable - interim stay Legislation Cited: Children (Education and Care Services) National Law (the National Law) Children (Education and Care Services National Law Application) Act 2010 Civil and Administrative Tribunal Act 2013 Cases Cited: 3 Angels Family Day Care Pty Ltd v Secretary, Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 DBU v Secretary, Department of Education [2017] NSWCATAD 257 Department of Education [2017] NSWCATAD 265 DPW v Secretary, Department of Education [2018] NSWCATAD 257 Early Childhood Education Australia Pty Ltd v Secretary, Department of Education (NSW) [2020] NSWCATAD 118 Faaea v Secretary, Department of Education [2018] NSWCATAD 85 Liu v Chinese Medicine Council of NSW [2019] NSWCATOD 13 New South Wales Bar Association v Stevens [2003] NSWCA 95 Category: Principal judgment Parties: Zahra Family Day Care Pty Ltd (Applicant) Secretary, Department of Education (Respondent) Representation: Solicitors: Mr N Li (Applicant) Crown Solicitor (Respondent) File Number(s): 2022/00129739 Publication restriction: None