Al Hamid v Secretary, Department of Education [2018] NSWCATAD 74

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Al Hamid v Secretary, Department of Education [2018] NSWCATAD 74 Hearing dates: 20 December 2017 and 5 February 2018 Date of orders: 29 March 2018 Decision date: 29 March 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: S Scarlett, Senior Member Decision: (1) The decision of the Secretary, Department of Education made on 21 September 2017 to cancel the service approval granted to the Applicant on 26 August 2015 is confirmed. Legislation Cited: A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) Part 8 Children (Education and Care Services National Law Application) Act 2010 (NSW) s. 8 Children (Education and Care Services) National Law (NSW) ss. 5, 19, 51, 77, 79, 193 Civil and Administrative Tribunal Act 2013 (NSW) s.29 Cases Cited: 3 Angels Family Day Care Pty Ltd v Secretary, Department of Education [2017] NSWCATAD 265 DBU v Secretary, Department of Education [2017] NSWCATAD 257 Transcon Holding Pty Ltd t/as Sydney Multicultural Child Care Services v Secretary, Department of Education [2017] NSWCATAD 333 Category: Principal judgment Parties: Kamil al Hamid t/as Paradise for Children (Applicant) Secretary, Department of Education (Respondent) Representation: Solicitors: Attia Lawyers and Consultants (Applicant) NSW Crown Solicitor's Office (Respondent) File Number(s): 2017/00316379

REASONS FOR DECISION

Introduction 1. This is an Application for review of a decision made by the Respondent on 21 September 2017 to cancel a service approval under s.79 of the Children (Education and Care Services National Law Application) Act 2010 (NSW). The decision took effect from 5 October 2017. 2. The Applicant, Kamil Al Hamid, set up a family day care service called "Paradise for Children" to provide an opportunity for his daughter, Ms Anmar Al Hamid, to manage a child care service. At the time the service approval was granted, on 26 August 2015, Ms Anmar Al Hamid was studying for a degree in Education, which she expected to complete in January 2018. 3. It was a condition of the service approval that the service had to commence operation within six months of the date of the grant. The Applicant claims that the service had been operating for several months before the decision was cancelled on 21 September. 4. The Respondent, however, claims that the service only operated on an ad hoc basis by providing some after hours care between 3 September and 4 October 2017. It is the Respondent's contention that this does not constitute "ongoing operations" as contemplated by the Act and this type of ad hoc care does not meet the definition of a "family day care service". The Respondent also submits that by the time this brief period of care took place, almost 25 months had elapsed since the service approval was granted. 5. There was no significant dispute between the parties on the facts. 6. At the hearing before the Tribunal, both parties filed documentary evidence, including affidavits by the Applicant and his daughter. The Applicant gave oral evidence before the Tribunal on the first day of the hearing. The Applicant's daughter gave oral evidence on the second day of the hearing. 7. For the reasons that follow, the Tribunal has decided that the decision of the Secretary should be affirmed.