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  4. Aufai t/as Little Hearts Family Day Care Service v Queensland Department of Education - [2020] QCAT 387

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Aufai t/as Little Hearts Family Day Care Service v Queensland Department of Education[2020] QCAT 387

Aufai t/as Little Hearts Family Day Care Service v Queensland Department of Education[2020] QCAT 387

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Aufai t/as Little Hearts Family Day Care Service v Queensland Department of Education [2020] QCAT 387

PARTIES:

Sonja Aufai t/a Little Hearts Family Day Care Service

(applicant)

v

QUEENSLAND DEPARTMENT OF EDUCATION

(respondent)

APPLICATION NO/S:

GAR269-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

7 October 2020

HEARING DATE:

6 October 2020

HEARD AT:

Brisbane

DECISION OF:

Member Kent

ORDERS:

  1. The application for a stay is refused.
  2. The decision will apply from the date seven (7) days after the date of the decision.

CATCHWORDS:

EDUCATION – INSTITUTIONS – EARLY CHILDHOOD EDUCATION AND CARE – family day care – provider and service approval under Education and Care Services National Law (Queensland) – where Applicant’s provider and service approval cancelled – where the Applicant filed an application to review – where the Applicant also applied for a stay of the decision – where the Applicant argues that her interests will be seriously and adversely affected if decision not stayed – where decision based on numerous grounds arising under the National Law and National Regulations – where the rights and best interests of the child are paramount under the National Law – whether a stay ought to be granted

Education and Care Services National Law (Queensland) Act 2011(Qld) s 3, s 4, s 15, s 31, s 32, s 33, s 43, s 44, s 48

Education and Care Services National Law (Queensland), s 192, s 193

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 22(3), s 22(4

Bui v Queensland Law Society Incorporated [2017] QCAT 441

Deputy Commissioner Stewart v Kennedy [2011] QCATA 254

King v Queensland Law Society Incorporated [2012] QCAT 489

Oz Family Day Care Pty Ltd v Department of Education and Training [2017] QCAT 220

Techno Protective Security Services Pty Ltd v Brisbane City Council [2012] QCAT 699

Casella v Queensland Police Service, Weapons Licensing Branch [2014] QCAT 255

Kuol t/a Care Family Day Care v Queensland Department of Education [2018] QCAT 337

Oakhaul Pty Ltd v Department of Education [2020] QCAT 27

APPEARANCES &

REPRESENTATION:

Applicant:

Sophie Gibson (in person)  Counsel

Sonaaz Farhadi-Fard, Ramsden Lawyers (via telephone) Solicitor

Sonja Aufai (in person)

Respondent:

Peter Stokes, McCullough Robertson, Solicitor (in person)

Carolyn Hildebrand (in person)

Steven Rogers (in person)

Gabrielle O'Neil (in person)

Jason Davies (via telephone)

Alison Davies (via telephone)

REASONS FOR DECISION

Background

  1. [1]
    These are the reasons for the decision for an order to stay the decision of the Respondent made on 17 July 2020 pursuant to s 33(1) of the Education and Care Services National Law (Queensland) (‘the National Law’) to cancel the ‘provider approval’ of the Applicant issued under that Law. The Applicant held a ‘provider approval’ number PR-40017615 under s 15 of the National Law and a ‘service approval’ Number SE-40012333 under s 48(1) of the National Law.[1]
  1. [2]
    On 27 March 2020, the Respondent issued the Applicant with a show cause notice under s 32(2) of the National Law inviting a response to the proposed cancellation of her provider approval. A response was due by 1 May 2020. In addition to providing a response on this date the Applicant continued to provide material in response after this date (2 May, 3 May, 19 May, 9 June and 17 June 2020). The Respondent advised that despite much of the material being provided post the due date for a response it considered all of the material in coming to a decision to cancel the Applicant’s Provider Approval on 17 July 2020. The decision was made pursuant to s 33(1) of the National Law.
  2. [3]
    A consequence of the 17 July 2020 decision of the Respondent was that the service approval held by the Applicant was also cancelled, as provided for by s 34(1) of the National Law.
  3. [4]
    The Applicant turned to the Tribunal and filed an application to review the decision of the Respondent to cancel the Applicant’s provider approval.[2] At the same time, application was made to stay the decision pending the outcome of the application for review, as allowed by s 22(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’).

The statutory framework

  1. [5]
    In his decision of Kuol t/a Care Family Day Care v Queensland Department of Education[3] Senior Member Aughterson sets out the legislation that is relevant to a decision such as the current case:

Section 3(1) of the National Law states that the objective of the law is ‘to establish a national education and care services quality framework for the delivery of education and care services to children’. Section 3(2) provides six objectives of the quality framework, including:

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

Section 3(3) then sets out six guiding principles of the quality framework, including:

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

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

Section 4 of the National Law requires an entity that has functions under this Law ‘to exercise its functions having regard to the objectives and guiding principles’ set out in s 3. In conducting a review, that obligation extends to the Tribunal.

The grounds for cancellation of provider approval are set out in s 31 of the National Law. In the present case, provider approval was cancelled on grounds (b) and (e) of s 31:

(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

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

By s 22(4) of the QCAT Act, the tribunal may make an order staying the operation of a reviewable decision only if it considers the order is desirable after having regard to:

  1. (a)
    the interests of any person whose interests may be affected by the making of the order or the order not being made;
  2. (b)
    any submission made to the tribunal by the decision-maker for the reviewable decision;
  3. (c)
    the public interest.

The Tribunal must form the positive view that the making of a stay order is desirable.[4]

In Bui v Queensland Law Society Incorporated,[5] after noting that regard must be had to the factors in s 22(4) of the QCAT Act, Daubney J stated that it is also appropriate to consider the conventional curial principles relating to stay applications and adopted the following observations by Wilson J in King v Queensland Law Society Incorporated:[6]

… s 22(4) of the QCAT Act spells out three factors the Tribunal must consider before granting a stay but, in doing so, does not exclude the application of standard principles, procedures and tests to be applied in applications for stays. The matters to be considered under those tests will include the Applicant ’s prospects of success in the review proceedings, the effect of any stay on them, and whether irremediable harm might be suffered by the Applicant if a stay is not granted.”

In Deputy Commissioner Stewart v Kennedy,[7] which involved an application to stay an order of dismissal of a police officer, after noting that the Tribunal at first instance had granted a stay on the basis of the balance of convenience, the Tribunal on appeal stated:

But of far greater significance is the public aspect of staying a dismissal in police disciplinary proceedings. This is not ordinary civil litigation in which the contest is between two parties where a major consideration is whether it is reasonable to hold a successful party out from the benefit of a judgment. In Bryant v Commonwealth Bank of Australia [1996] HCA 3; (1996) 70 ALJR 306, 309 Kirby J observed that stays of the operation of decisions made under laws designed to protect the public "are in a class different from cases involving no more than the suspension of the operation of orders affecting to private litigants only”. The example given by His Honour was of the de-registration of a professional lawyer, but his observation was general in relation to the disciplinary process under laws designed to protect the public.

  1. [6]
    In addition to considering the law set out in the case of Kuol I considered the decision of Oakhaul Pty Ltd v Department of Education.[8] The decision of Kuol, like the current case, considered the licensing of a Family Day Care Provider. The Oakhaul decision considered a family day care centre. I refer to the decision of Senior Member O'Callaghan, as she then was, in the decision of Casella v Queensland Police Service, Weapons Licensing Branch [2014] QCAT 255:

Section 22(4) of the Queensland Civil and Administrative Act 2009 (Qld) (‘QCAT Act’) gives the Tribunal power to stay a decision under review if such an order is desirable having regard to:

  1. the interests of any person whose interest may be affected by the making of the order, or the order not being made;
  2. any submission made to the Tribunal by the decision-maker for the reviewable decision see the public interest.

As the Appeal Tribunal noted in Deputy Commissioner Stewart v Kennedy[9] the determination of whether to grant a stay is a complex discretionary exercise but common sense and authority both indicate that the usual questions to be addressed commence with:

  1. Does the Applicant have an arguable case?
  2. Does the balance of convenience favour granting the stay?

In s 22 applications, additional specific regard be had as necessary to the factors mentioned in subsection (4).

  1. [7]
    Although some of the cases referenced refer to disciplinary proceedings, there is a similarity between that type of case and the current one as the relevant laws in both types of matters are designed to protect the public. In particular, as noted above, s 3(2)(a) of the National Law provides that an objective is to ensure the safety, health and wellbeing of children attending education and care services, while a guiding principle at s 3(3)(a) is that the rights and best interests of the child are paramount.
  2. [8]
    It is noted that other QCAT decisions can be considered persuasive only and are not binding. I accept that these matters turn on their own factual scenarios. Casella, as already stated, deals with a different type of application to the others. What is important in my considerations are the relevant tests in deciding about a stay and the facts of the current case. The factual narratives of others’ decisions and the decisions themselves are not binding upon me as the member making this decision.

Findings and submission by the Respondent (including Responses to the applicant’s material

  1. [9]
    The Respondent found that the Applicant was responsible for many breaches of the National Law and the Education and Care Services National Regulations (‘the National Regulations’). The relevant provisions and findings may be summarised as follows:
    1. (a)
      Regulation 170 of the National Regulations: Policies and procedures to be followed.
    2. (b)
      Regulation 171 of the National Regulations: Policies and procedures to be kept available.
    3. (c)
      Regulation 99 of the National Regulations: Children leaving the Education and Care Services premises. Failure to ensure that children did not leave the family day care service other than as allowed under regulation 99(4).
    4. (d)
      Regulation 100 of the National Regulations: risk assessments as required by regulation 101 were not carried out prior to an excursion. This was the subject of a compliance notice issued 29 November 2019.
    5. (e)
      Regulation 102 of the National Regulations: children were taken on excursions without the required written authorisation. This was the subject of an emergency notice on 12 November 2019 and  15 November 2019 and a compliance notice issued on 29 November 2019.
    6. (f)
      Regulation 116 of the National Regulations: Assessments of family day care residences and approved family day care venues.
    7. (g)
      Regulation 177 of the National Regulations: Prescribed enrolment and other documents to be kept by the Approved Provider.
    8. (h)
      Section 175 of the National Law: Offence relating to requirement to keep enrolment and other documents.
    9. (i)
      Section 167 of the National Law: every reasonable precaution was not taken to protect children being educated and cared for by the family day care service from harm and from hazards likely to cause injury. This was the subject of emergency action notices issued on 12 November 2019 and 15 November 2019 and a compliance notice issued on 29 November 2019.
    10. (j)
      Section 51 of the National Law: Conditions on Service Approval.
    11. (k)
      Regulation 163 of the National Regulations: Residents at a family day care residence and persons who are a family day care educator assistant must be a fit and proper person to be in the company of children.
    12. (l)
      Regulation 144 of the National Regulations: Family day care educator assistant. This was the subject of an emergency action notice issued on 15 November 2019 and a compliance notice issued on 12 November 2019.
    13. (m)
      Section 164A of the National Law: Offence relating to the education and care of children by Family Day Care Service.
    14. (n)
      Regulation 103 of the National Regulations: Premises, furniture and equipment to be safe, clean and in good repair failure.
    15. (o)
      Regulation 104 of the National Regulations: Fencing.
    16. (p)
      Regulation 105 of the National Regulations: Furniture, materials and equipment. This was the subject of a compliance notice issued on 29 November 2019.
    17. (q)
      Regulation 97 of the National Regulations: Emergency and evacuation procedures. This was the subject of a compliance notice issued on 29 November 2019.
    18. (r)
      Regulation 77 of the National Regulations: Health, hygiene and safe food practices. This was the subject of an emergency action notice issued on 15 November 2019.
    19. (s)
      Regulation 89 of the National Regulations: First aid kits. This was the subject of a compliance notice issued on 29 November 2019
    20. (t)
      Section 165 of the National Law: Offence to inadequately supervise children.
    21. (u)
      Regulation 178 of the National Regulations: Prescribed enrolment and other documents to be kept by family day care educator.
    22. (v)
      Regulation 160 of the National Regulations: Child enrolment records to be kept by the Approved Provider and family day care educator. This was the subject of an emergency action notice issued 12 November 2019 and 15 November 2019.
    23. (w)
      Regulation 158 of the National Regulations: Children's attendance record to be kept by the Approved Provider.
    24. (x)
      Regulation 159 of the National Regulations: Children's attendance record to be kept by the family day care educator. This was the subject of a compliance notice issued on 29 November 2019.
    25. (y)
      Regulation 180 of the National Regulations: Evidence of prescribed insurance. This was the subject of a compliance notice issued on 29 November 2019.
    26. (z)
      Regulation 165 of the National Regulations: Record of visitors. This was the subject of an emergency action notice issued on 14 November 2019 and a compliance notice issued on 29 November 2019.
    27. (aa)
      Regulation 185 of the National Regulations: Law and regulations to be available; and
    28. (ab)
      Section 13 of the National Law: Matters to be considered in assessing whether fit and proper person. The Applicant was considered to have breached the obligations under this section and also under section 51 of the National Law in failing to comply with the conditions of the service approval. As listed above there are other sections and regulations that the Applicant was considered to have breached.
  2. [10]
    The Respondent submits that there were a significant number of emergency action notices, compliance notices and breaches over a period of approximately nine months and it was of great concern that there seemed to be repetition of many of these contraventions.
  3. [11]
    It was submitted that the Respondent considered all the material filed with them by the Applicant, even the material that was filed after the due date of the show cause response. The Respondent stated that the actions of the Applicant were fundamentally serious and that they amounted to a gross failure of the Applicant to adhere to required policies and procedures in relation to safety, health and wellbeing of the children, including policies and procedures addressing the management records, risk assessments, excursionsand steps required to ensure safe environments for children. It was also submitted the Applicant had significantly not complied with the National Law and Regulations over a relatively short period of nine months between the commencement of the operation of the service in October 2019 and the issuing of the cancellation order in July 2020.
  4. [12]
    Further the Respondent submitted that the Applicant had not demonstrated by her conduct that she understood her obligations. Even after numerous engagements with the Respondent it was alleged that the Applicant had not remedied all non -compliances. The Respondent’s legal representative submitted that the applicant had been responsible for a consistent failure to comply with the required remedies and that not all non-compliances were not contested. It was noted that there were multiple breaches and these were referred to in paragraph 21 of Ms Hildebrand’s first affidavit, stating that these were repetitive in nature;  paragraph five of the cancellation decision set out the issues with non-compliance and paragraph 24 of Ms Hildebrand’s first affidavit indicated that it was not clear which of the non-compliant issues were the ones that were contested and which ones had been remedied.
  5. [13]
    In the Applicant’s affidavit material of 17 August 2020 in paragraph 1.3 (iii) it was stated that the applicant had not been able to address all the relevant remedies required. The Respondent noted that this statement had been made some six weeks before the stay application was heard on 6 October 2020. It was the Respondent’s submission that there was no evidence before the Tribunal of any attempt to further remedy any of the deficiencies between the period of August and the hearing of the stay application on 6 October 2020. It was submitted that the Applicant's response to the show cause material is that she relied upon the employment of a Ms Karen Cross. Ms Cross no longer works at the service.
  6. [14]
    In paragraphs 14 to 16 of the material filed on 17 August 2020 the applicant said she intended to engage a consultant. It was the Respondent’s submission that intention is not sufficient and that due to the multitude of breaches in a short period of time (nine months) and an inability to demonstrate clearly that all of these breaches have been remedied and that they would not happen again this meant that the applicant has not demonstrated a capability to run a service under the National Law.
  7. [15]
    It was submitted that it was unreasonable to expect the Tribunal to wait for actual harm to occur to a child before they could grant a stay. Similarly, actual harm should not be the prerequisite for the respondent acting for a failure to comply with the National Law.
  8. [16]
    Reference was made to the applicant not having a Blue Card for a period from the end of February to the end of August 2020. At the hearing there was a discussion about the notification process between the Department of Education and the Department of Justice and Attorney-General that administers the Blue Card regime. It appeared from this there may be some gap in the communication process, however it was established that a lack of a Blue Card is something that would trigger an investigation. Then, depending on the facts, the most likely outcome would be the suspension of the service’s licence.
  9. [17]
    In these circumstances the decision was to cancel the applicant’s licence, however cancellation has the same effect as suspension in that the service cannot operate for the period that it is in force. The Respondent submitted that it could not be confident that the Applicant was able to meet her obligations and ensure the safety, health and wellbeing of the children being educated and cared for by her service.
  10. [18]
    It was also submitted that some residents at some of the family day care residences and the family day care educators’ assistants were not fit and proper persons under the Regulations. The Respondent noted that the Applicant had made submissions in her show cause material that she had now doubled her monitoring of educators and home visits; that in the first month of a new educator’s registration home visits are conducted weekly; that additional questions have been added to the monthly home visit and that Red Nose training had been attended by the educators of the service in relation to safe sleep practices. It was the Respondent’s submission that there was incomplete evidence to support the rectification of these issues.
  11. [19]
    It was the respondent’s submission that they had no way of testing the applicant's submission that there had been no further breaches. It was submitted by the Respondent that  the assertion  that the Applicant was willing to  take steps to rectify  any non- compliance was demonstrated to be untrue as few if any steps had been taken to address non-compliance issues in the period of time between the issuing of the cancellation notice and the 6 October 2020 stay application hearing date.
  12. [20]
    The Department had sent their staff to the various day care educators’ residences and had for reasons that could not be determined been unable to enter the premises, so therefore they were unable to verify any changes had taken place. The only information the Applicant could provide was that she considered that she had made changes. In response to questioning from myself about an ongoing investigation the Applicant’s legal representative submitted that arose from  an incident that had occurred in the days prior to the issuing of the cancellation notice so therefore it could be considered as something that happened before the notice was issued. She did not elaborate on the importance of this issue, however agreed that there did appear to be an ongoing investigation.
  13. [21]
    The Respondent’s most recent written submission address the issue of the Applicant’s Blue Card or lack thereof. It was noted in the Applicant’s submissions that the Applicant said that the Blue Card has now been issued (26 August 2020). At the oral hearing submissions were made about the importance or otherwise of a Blue Card about this stay decision. The Respondent suggested during submissions about the Blue Card that the Applicant had not been truthful about the conversations they had with Blue Card Services. These submissions were supported by emails from the Department of Justice and Attorney-General. The Respondent’s submission was that if a person failed to possess a Blue Card for the period (e.g. February until August) then this was something that would certainly trigger an investigation and an assessment by the Education Department. Although it would depend on the individual facts in each case the likely outcome would be there would be a suspension of the service’s licence until the Blue Card was granted. Submissions from the Applicant and the Respondent about the impact of a suspension indicated that a suspension was a step down in seriousness from a cancellation.As referred to in the decision of Oakhaul it would appear that both would have the same outcome in that the Applicant would not be able to carry out their service provision of child care for the period of the suspension.
  14. [22]
    The Applicant stated that they had personally carried out further education since the cancellation notice. This education comprised of a compliance tool by Family Day Care Australia through its professional learning portal Family Day Care Australia; a Small Steps levels 1 and 2 completed on 28 July 2020; a Child Safe Child Friendly professional learning course conducted through the Family Day Care professional learning portal completed on 11 August 2020; and a Perspectives on Quality Professional Learning course through the Family Day Care professional learning portal completed on August 2020.
  15. [23]
    The Respondent submitted that the Applicant had not deposed details of the topics the tool covered, and the steps the Applicant took to complete it. It was submitted that little weight could be given to the Applicant’s evidence in relation to the compliance tool in the absence of further information.
  16. [24]
    The Respondent submitted that the SmallSteps course, the Child Safe Child Friendly course and Perspectives on Quality course did not have enough information attached to them. The materials do not identify whether the In Safe Hands course has been completed or the Family Day Care organisation have reviewed the Applicant’s responses or assessed her comprehension or what was covered in the courses before the certificates of participation were issued. It was further submitted that the Small Steps course was not directly relevant to family day care. It was also noted that although the ultimate hearing of the Tribunal would be hearing de novo the Respondent submitted that the Tribunal should take into account that all of the courses were carried out after the cancellation decision and  the Respondent submits that the applicant’s completion of the courses was purely reactionary to the cancellation decision. The compliance tool, the Child Safe Child Friendly course and the Perspectives on Quality course all were completed in a relatively short time frame by 11 August 2020. It was submitted that the quick completion of these courses makes it difficult to glean how much understanding the Applicant could have gained with respect to assessing risk and key indicators of risk.
  17. [25]
    On the point of prejudice to third parties, such as educators, it was submitted by the Respondent that there were multiple other jobs available to them. Therefore, they would be able to be placed with another service provider in at least the medium term. It was also submitted that the Applicant had given no detailed evidence in relation to her assets.
  18. [26]
    The Applicant submits that she has provided this including what her partner, who is a New Zealand citizen, is entitled to and her financial obligations. These included payment of her rent, her children’s school fees and the fact that she has several children who are her dependents. The Respondent submitted that even if the Tribunal could establish that financial hardship would be suffered it would have difficulty in measuring the extent of that hardship such that it could be properly balanced in assessing whether it was desirable to grant a stay of cancellation decision. It was submitted that as sole proprietor of the service with complete management control it was open to the Applicant to have managed services in a way that could have avoided her being subject to a cancellation notice. Therefore, it was not desirable that the Applicant should be able to rely upon financial impact upon her personally to allow the service to continue.
  19. [27]
    It was submitted that the interests of the families of the children of the Applicant’s service would be affected because of their having to make alternative childcare arrangements. It was noted the educators could possibly move to other service providers and as such perhaps the children could attend those services as the educators provide services within their own homes therefore there would be minimal disruption to these families.

Applicant’s Submissions

  1. [28]
    The Applicant denies that the continuation of the family day care service by her would constitute an unacceptable risk to the safety, health or wellbeing of any child and states that the breaches referred to in paragraph 33(b)(i) of the Respondent’s submission have been rectified within a reasonable time frame. She submits that as such they are unlikely to reoccur.
  2. [29]
    Ms Gibson submitted that the Applicant had reasonable prospects of being successful at the substantive hearing of the application. She said that she had provided a response to the cancellation notice and had fixed or remedied several of the matters. She had established that her client’s situation would have been more appropriately dealt with by a penalty of suspension. She agreed that the suspension would have the same outcome as a cancelation in that at least for a period the Applicant would be unable to run her business. She stated there was enough evidence supplied by the Applicant that she was now compliant and that there was no imminent risk to children. However, there would be adverse financial impacts upon herself, her family and her educators should a stay not be granted. Ms Gibson referred the Tribunal to the decision of Oakhaul.[10] She referred to paragraphs 24 to 28 of that decision which discussed the length of time between a stay application and the hearing of the application. The hearing would be a fresh hearing on the merits. She referred to paragraphs 29 to 30 of the Oakhaul decision – these paragraphs discussed what is an arguable case and the point that cancellation was discretionary.  She submitted it was arguable that her client had a case. She said that she had taken remedial action including the sacking of three educators who did not comply with the National Law. She had now provided training on safe sleep practices to her educators and there had been no further incidents from the date of cancellation. She said that she had hired additional staff; she was not required for cross examination by the respondent at the stay hearing and that the Tribunal would only be able to assess the merits of the case after hearing all of the evidence.
  3. [30]
    She submitted that her client would be financially impacted if the stay was not granted and she would no longer be able to employ the educators. It was submitted that this would in turn have an impact on them.
  4. [31]
    On the topic of public interest counsel referred extensively to the case of Oakhaul, paragraphs 35 to 41. It was submitted that the member in that case stated that the public interest was less clear cut than referred to by the Respondent Department in that case. It was submitted that “the public interest doesn't point all in one direction”. She referred to the definition of desirable which needed to be satisfied to warrant a stay. She submitted that it was arguable that since the time of cancellation there has been remedial action taken and that the applicant is committed to education and ongoing training. The applicant's legal representative agreed that there was ongoing investigation into the Applicant’s service. Further she agreed that from 27 February 2020 to 26 August 2020 the Applicant was without a Blue Card.
  5. [32]
    The Applicant further submitted that because of the limited period of time available for the making of the review application and a stay application she had not yet been able to produce all evidence of the steps taken to rectify any further noncompliance and to prevent future noncompliance and that such evidence will be provided in the review application in due course.
  6. [33]
    The Applicant raised the issue of public interest which needed to be considered in this proceeding. It was the Applicant 's submission that the public interest was with the granting of a stay and not against it because there was no present risk to the safety, health and wellbeing of children in the care of the service. She also submitted that the original non-compliance with the National Law had not historically resulted in any actual harm to the safety, health and wellbeing of the children in the care of the service. Finally, the families who used the service and educators would be inconvenienced if the stay was not granted.
  7. [34]
    As would be expected the Applicant’s view as to the benefit of the courses undertaken by her is different to that of the Respondent. It is suggested by her that these courses teach skills that are very much applicable to family day care settings and that they provide material that allows for the identifying, reporting, correcting and managing of potentially dangerous /hazardous situations. The courses taken through Family Day Care Australia were specific to a family day care setting and therefore the Applicant had demonstrated her commitment to continued professional development and education. It was submitted that this is what should be given weight in considering whether a stay should be granted.

Discussion

  1. [35]
    The Applicant provided a list of changes or remedies undertaken by her; these include professional development training courses; she says she is now locating a consultant to assist her with carrying out risk assessments for the service, however she is unavailable to start due to Covid-19 restrictions. She states that she now has a Blue Card although she had been operating the service without a card until her receipt of her Blue Card on 26 August 2020. In the material attaching to the stay application the Applicant has provided detailed responses to all the allegations. These responses fall into the categories of either stating that the breach did not occur or  if it did occur no actual harm was caused to any children and that she has now put in place methods or procedures that will prevent the re occurrence of any such breach ( if it did occur).
  2. [36]
    These procedures included the employment of an assistant (now resigned) and another person and a consultant to be appointed at some time in the future. These people are said to be skilled in the provision of childcare services and the assessment of associated risk. These measures appear to be, at best, an attempt to delegate her own obligations. Therefore, it is difficult for me to be satisfied that her attempts to outsource her own statutory obligations as the service provider are proof that a stay should be granted.
  3. [37]
    The Applicant states that educators who are considered to have been perhaps perpetrators of previous breaches no longer work for the service. Again, it is not their failings that I must consider but the strength of the Applicant’s case on review.
  4. [38]
    It is submitted that the Applicant herself now has a Blue Card, and that she has taken steps to ensure that all procedures that led to breaches have been improved. The Applicant submits that these alleged breaches took place over a short period of time and that she has taken quick action to remedy them. She emphasises the importance of no harm occurring to children; however she does not address the issue of risk to children as set out in the legislation. Certainly, there is no real indication of the change implemented and the courses she has undertaken having had an immediate impact on the service. I find it very difficult to accept that there is no risk to children in circumstances where the Applicant advises that she has not had enough time to complete all the necessary actions. In the main, changes outlined by the Applicant are expressed in terms of proposals, with limited indication or evidence that they have been successfully implemented other than taking the applicant’s word for this. The measure of ‘no child has been harmed’ is a highly inadequate measure in the circumstances of child safety and not one that I can accept or apply.
  5. [39]
    In relation to interests affected, the Applicant states that her sole income is derived from the Little Hearts Family Day Care Service. She sets out her expenses and says she will not be able to meet them without the service’s income. Her husband and children will be impacted as well as her staff and the families of the children who use the service as they will need to make alternative childcare arrangements. She said that she finds it difficult to find a job in childcare, the only industry she is qualified for.
  6. [40]
    The Respondent opposes the stay application on the basis that a stay would present a risk to, or would not ensure the safety of, the health and wellbeing of children attending the Applicant’s family day care service. It is submitted that failure to comply with the National Law presents an imminent risk to children in the care of her service. Further, the Applicant has provided insufficient indication as to why a stay would be in the public interest. The respondent’s submission can be summarised by the words of Senior Member Aughterson in the case of Kuol.[11]
  7. [41]
    The Respondent submitted, among other things, that the Applicant does not possess the means of addressing the relevant risks put forward by the Respondent. The Respondent refutes that the Applicant’s measures to date are sufficient and/or have even been implemented. It was submitted that the Respondent’s  findings and reasons for the cancellation decision are detailed and well considered and were in accordance with principles of procedural fairness. Further is was submitted that  the Applicant has not provided any supporting evidence with respect to any alleged prejudice to interests. The Respondent also refers to the primacy of the best interests of children in education and care services under the National Law.
  8. [42]
    I refer to the decision of SeniorMember O'Callaghan as she then was in the decision of Casella v Queensland Police Service, Weapons Licensing Branch [2014] QCAT
  9. [43]
    “Section 22(4) of the Queensland Civil and Administrative Act 2009 (Qld) (‘QCAT Act’) gives the Tribunal power to stay a decision under review if such an order is desirable having regard to:

    the interests of any person whose interest may be affected by the making of the order, or the order not being made;

    any submission made to the Tribunal by the decision-maker for the reviewable decision see the public interest.

  10. [44]
    As the Appeal Tribunal noted in Deputy Commissioner Stewart v Kennedy[12] the determination of whether to grant a stay is a complex discretionary exercise but common sense and authority both indicate that the usual questions to be addressed commence with:

    Does the Applicant have an arguable case?

    Does the balance of convenience favour grant the stay?

  11. [45]
    In s 22 applications, additional specific regard be had as necessary to the factors mentioned in subsection (4).
  12. [46]
    As in the case of Casella[13] it is not my role in considering the stay application to undertake a detailed assessment of the Applicant’s prospects of success of overturning the decision on review but it should be possible to discern whether the Applicant has an arguable case.[14]
  13. [47]
    The Applicant has identified what she considers to be the arguments that support her case. She submits, in essence, that she has a reasonable provided explanation a reasonable response to the Respondent’s issues, she has addressed any areas of deficiencies in a number of ways and that she can show she is a fit and proper person and therefore she believes her application will be successful.
  14. [48]
    I would accept that in this matter the Applicant has identified some arguments upon which a case could be put that that she is a fit and proper person to hold a Provider’s Licence. The Applicant submits that the alleged breaches have only occured (if they did occur) over a period that was relatively short and that she has moved quickly to rectify these breaches. Further she is continuing to remedy the breaches, however she did not have enough time prior to making this application to have completed this process. This is disputed by the Respondent. The Applicant emphasises that no actual harm has occurred to a child as opposed to children being exposed to risks. I find that it is difficult to understand why this is considered to be in some way exculpatory or to perhaps lessen the seriousness of any breaches. The law in this area specifically refers to strict requirements that must be satisfied because the stakes are so incredibly high i.e. the safety of children is in the hands of service providers such as the Applicant.
  15. [49]
    However many issues appear to be unanswered by the Applicant including the issue of her not advising the Education Department that her Blue Card had lapsed.
  1. [50]
    My comments on the topic of possible argments raised by the Applicant do not amount to me stating that I would find in her favour should there be a final hearing and this  material is to form part of her submissions at that hearing. However it is enough for me to find that for the purposes of this stay application that the Applicant might have raised an arguable point. Again this is not to say that I would find in her favour for that reason but for the purposes of this stay application it is enough that she has raised an arguable point.
  2. [51]
    The Respondent’s submissions appear to indicate that it is their view that  the prospects of success in the application for review are poor. On the other hand the Applicant submits that they have a good chance of success on review. It is of course impossible to make a detailed assessment of the merits of the application in advance of hearing relevant evidence and submissions. The submissions already received are no substitute for these things, however some of the acknowledged differences are not insignificant and I take this into account.

Balance of Convenience

  1. [52]
    In cases such as this the balance of convenience factor is an important consideration. I must consider the balance between the interests of the parties impacted by this decision and the public interest.
  2. [53]
    The Applicant says it is not in the public interest for the stay not to be granted however she does not fully elaborate on why this is so. In Bryant v Commonwealth Bank of Australia [1996] HCA 3; (1996) 70 ALJR 306, 309 Kirby J observed that stays of the operation of decisions made under laws designed to protect the public “are in a class different from cases involving no more than the suspension of the operation of orders affecting two private litigants only”.
  3. [54]
    Whilst I acknowledge that this case does not involve professional disciplinary proceedings, the comments concerning laws to protect the public are equally applicable in decisions about childcare licensing.
  4. [55]
    The Applicant has made submissions relating to the impact of the loss of income and also her concern that she will be unable to gain employment in the childcare industry. She expresses a similar concern for her educators should the stay not be granted. The Respondent submits that the Applicant is essentially wrong about this and that from their research there are numerous jobs within the childcare industry particularly for educators. It is noted by the Respondent that should the educators gain employment through another service provider the children they currently look after would be able to continue with them as the care is provided at the educators’ homes and not at a different location, thus minimising the impact that this could have on the children and their parents.
  5. [56]
    The Applicant has not mentioned the potential impact of her failure to hold a Blue Card licence for period of time between February and August2020. The Applicant makes submissions that no child was actually harmed. She has given no consideration to the possible impact that the exposure to risk  may have had on the children and all their families or the educators.
  6. [57]
    The power conferred by s 22 of the QCAT Act is a power to make an order staying the operation of a reviewable decision. It is a power that enables the Tribunal to preserve the status quo pending the hearing and determination of the application for review where the Tribunal considers that this is “desirable”. In deciding whether it is desirable the Tribunal must consider the interests of any person who may be affected by the order (which here would include the Applicant, her family, the educators, the children who use the services, and their families), any submission made by the decision- maker for the reviewable decision, and the public interest.
  7. [58]
    Declining to make a stay order would clearly affect the Applicant’s interests. There is the serious immediate impact of not being able to carry on her Family Day Care Service Provider business in all of its aspects. Financially this will have an impact upon the Applicant and others ( her family) and her educators.
  8. [59]
    There is a clear public interest in maintenance of the integrity of the Family Day Care licensing system in Queensland. The licensing regime is designed with the protection of children and the protection of them from exposure to harm playing central roles. This interest in child safety is paramount and this must be considered when balancing the legitimate interests of the Applicant and the public interest. Apart from the individuals who apply to hold provider licences and service licences, the others who have an interest in these matters are the children who use the service, their families, the regulators, the other service providers within the industry and the general public who also have an interest in the integrity of the system. The principles and objects of the National Law provide that the rights and best interests of children are paramount. It is in the public interest to ensure that the health, safety and wellbeing of children in education and care services is protected. It is important also that public confidence is maintained in the maintenance of the health, safety and wellbeing of the children in such services. The public is entitled to take comfort from assurance that strict adherence to these principles by the service providers is occurring.
  9. [60]
    Cogent reasons are needed before staying an order following a decision to protect the safety of children. Merely showing an inability to continue in a professional trade until review is determined has not been held to be sufficient. In the case of Munt v Queensland Law Society Incorporated[15] President Justice Thomas, while acknowledging the Applicant had an arguable case and prospects of success in the review proceedings, refused to grant a stay. There, the Applicant ’s argument that he would no longer be able to derive an income as a lawyer and that his clients would be disadvantaged was held to be outweighed by other factors including:
    1. (a)
      the seriousness of the misconduct;
    2. (b)
      the likely prejudice to public confidence in the integrity of the disciplinary process;
    3. (c)
      the reputation of the profession if the practitioner is granted a stay;
    4. (d)
      the means available to mitigate that prejudice; and
    5. (e)
      the expedition with which the review can be heard.
  10. [61]
    I consider that the same reasoning applies to cases such as the current case. A licence allows the Applicant the right to continue to have children under control and care, even if indirectly. Granting a stay in the current circumstances, the Respondent submits, may put innocent parties such as children in the care of the Applicant’s service. The Applicant has operated for a period of time without an essential requirement, that is a Blue Card, even though it is announced they have one now. Confidence in the integrity of the Family Day Care licensing regime maybe undermined if an person who has behaved as the Applicant has is able to continue to run a service in the current circumstances. The Applicant’s interests in conducting her business and earning her income are subordinate to the need to ensure the safety of children and this safety is provided by the imposing of strict controls on licensing and ensuring that the National Law are met.
  11. [62]
    It is also noted that the Respondent refers to an ongoing investigation regarding the Applicant ’s conduct. As it appears that this investigation is not at the final stage nor do I have full information on this and considering the sufficiency of the other evidence in this matter I do not place a great deal of weight on that in coming to my decision; it is noted as far as per the factual narrative.
  12. [63]
    In assessing the balance of convenience, the Applicant has provided some evidence that their work prospects will be prejudiced by not granting the stay. On the other hand, the protection of the individual safety of children via the strict observation of National Standards and Laws could be prejudiced by granting a stay in these circumstances.
  13. [64]
    In my view, it is not desirable, in these circumstances, to grant a stay of the Education Department decision. In coming to that decision I have taken into account factors including the purpose of the National Law, the role of the regime, the reasons for suspending the Applicant’s licences, the Applicant ’s response, submissions made by the Applicant, the submissions made by the Respondent against granting a stay and the Applicant’s submissions in favour of a stay.

Orders

  1. The application for a stay is refused.
  2. The decision to refuse the stay will apply from the date seven (7) days after the date of the decision.

Footnotes

[1]  Section 4 of the Education and Care Services National Law (Queensland) Act 2011 (Qld) (‘the National Law Act’) adopts the National Law as in force from time to time. For a useful summary of the regulatory framework for education and care service providers, see Oz Family Day Care Pty Ltd v Department of Education and Training [2017] QCAT 220, [5]-[12].

[2]  The jurisdiction of the Tribunal is provided for by s 192 to s 193 of the National Law and s 42 to s 44 of the National Law Act.

[3]  [2018] QCAT 337 [6] to [11].

[4] Techno Protective Security Services Pty Ltd v Brisbane City Council [2012] QCAT 699, [8].

[5]  [2017] QCAT 441, [8].

[6]  [2012] QCAT 489.

[7]  [2011] QCATA 254, [29].

[8]  [2020] QCAT 27.

[9]  [2011] QCATA 254.

[10]  [2020] QCAT 27.

[11] Kuol t/a Care Family Day Care v Queensland Department of Education [2018] QCAT 337.

[12]  [2011] QCATA 254.

[13]  [2014] QCAT 255.

[14]  Ibid, [14].

[15]  [2015] QCAT 451

Close

Editorial Notes

  • Published Case Name:

    Aufai t/as Little Hearts Family Day Care Service v Queensland Department of Education

  • Shortened Case Name:

    Aufai t/as Little Hearts Family Day Care Service v Queensland Department of Education

  • MNC:

    [2020] QCAT 387

  • Court:

    QCAT

  • Judge(s):

    Member Kent

  • Date:

    07 Oct 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306
2 citations
Jump To
Cite 1 - (1996) 70 ALJR 306
Cite 2 - (1996) 70 ALJR 306
Bryant v Commonwealth Bank of Australia [1996] HCA 3
2 citations
Jump To
Cite 1 - [1996] HCA 3
Cite 2 - [1996] HCA 3
Bui v Queensland Law Society Inc [2017] QCAT 441
2 citations
Jump To
Cite 1 - [2017] QCAT 441
Cite 2 - [2017] QCAT 441
Casella v Queensland Police Service, Weapons Licensing Branch [2014] QCAT 255
4 citations
Jump To
Cite 1 - [2014] QCAT 255
Cite 2 - [2014] QCAT 255
Cite 3 - [2014] QCAT 255
Cite 4 - [2014] QCAT 255
Deputy Commissioner Stewart v Kennedy [2011] QCATA 254
4 citations
Jump To
Cite 1 - [2011] QCATA 254
Cite 2 - [2011] QCATA 254
Cite 3 - [2011] QCATA 254
Cite 4 - [2011] QCATA 254
King v Queensland Law Society Incorporated [2012] QCAT 489
2 citations
Jump To
Cite 1 - [2012] QCAT 489
Cite 2 - [2012] QCAT 489
Kuol t/as Care Family Day Care v Queensland Department of Education [2018] QCAT 337
3 citations
Jump To
Cite 1 - [2018] QCAT 337
Cite 2 - [2018] QCAT 337
Cite 3 - [2018] QCAT 337
Munt v Queensland Law Society Inc [2015] QCAT 451
1 citation
Jump To
Cite 1 - [2015] QCAT 451
Oakhaul Pty Ltd v Department of Education [2020] QCAT 27
3 citations
Jump To
Cite 1 - [2020] QCAT 27
Cite 2 - [2020] QCAT 27
Cite 3 - [2020] QCAT 27
Oz Family Day Care Pty Ltd v Department of Education and Training [2017] QCAT 220
2 citations
Jump To
Cite 1 - [2017] QCAT 220
Cite 2 - [2017] QCAT 220
Techno Protective Security Services Pty Ltd v Brisbane City Council [2012] QCAT 699
2 citations
Jump To
Cite 1 - [2012] QCAT 699
Cite 2 - [2012] QCAT 699

Cases Citing

Case NameFull CitationFrequency
Aufai t/as Little Hearts Family Day Care Service v Queensland Department of Education (No. 2) [2022] QCAT 212 citations
Willmott v Carless [2021] QCATA 1321 citation
1

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