In Forever Family Day Care Pty Ltd and Secretary, Department of Education, the Australian Administrative Appeals Tribunal reviewed the decision of the Department to suspend suspend and then cancel the approval of the applicant under A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) in relation to child care benefit. The case involves a complex set of facts. However, in relation to the suspension and cancellation, the Tribunal held (paras. 98-99):
Taking an overall view of the contraventions which I have found to be established, it seems to me that the decision of the respondent to suspend and in due course to cancel the approval of the applicant was correct. In particular, I have in mind the applicant’s repeated failure to keep the respondent advised of the true names of educators engaged to provide care, and to advise that the various necessary checks of their qualifications had taken place as contraventions of great seriousness. Mr Mohamud effectively directed that the false statements be made to the respondent on occasions when relief educators were engaged.
I do not treat statements by the applicant that if re-approved, it will not repeat the practice, as substantially diminishing the seriousness of the past contraventions. A serious breach is not, speaking generally, to be regarded as less serious because it is admitted.
The Tribunal was also required to rule on the issue of whether the applicant could apply for reapproval under the legislation. This required a consideration of whether they were fit and proper persons under the Act. The Tribunal held that they were fit and proper persons (paras. 104-5):
...having heard extensive cross-examination of Mr Mohamud [general manager] and Ms Omar [sole director], and considered their situation, I am satisfied that they are fit and proper persons to obtain renewal of approval to offer child care services. It is true that the contraventions which the applicant has been found to have caused, in some instances at their direction were serious. But the consequence suffered by the applicant is the loss of a large and no doubt valuable business as a result of the cancellation of their approval. I am satisfied that relief educators will be properly notified in the future.
Mr Mohamud and Ms Omar have continued to improve their educational and professional qualifications since the cancellation decision, and I do not doubt that they are enthusiastic about making their future in the child care industry. They grew the business which they have lost because of the same enthusiasm and it seems to me that they will do their best to ensure that they do not again fall below proper standards. Their assurance that they will not again engage in the behaviour I have criticised about the relief educators is in my opinion acceptable in those circumstances.
The Tribunal therefore set aside the decision of the Department and remitted the matter to the respondent with the direction the applicant’s director and manager satisfy the fit and proper person requirements of s.194E, A New Tax System (Family Assistance) (Administration) Act 1999 . The Tribunal also observed that the NSW Regulatory Authority had also cancelled provider approval under the National Law and the applicants had applied to the NSW Civil and Administrative Tribunal for review of that decision.
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