This case involved an application by the approved provider to the Victorian Civil and Administrative Tribunal to review the decision of epartment of Education and Training (Victorian Regulatory Authority under the National Law) to cancel its provider approval. The circumstances were that the Victorian Department exercised its regulatory powers under section 31, National Law to cancel Little Sweethearts’ FDC Provider approval. The Victorian Department’s decision was triggered by documents Little Sweethearts provided to it which indicated it had not operated since the Commonwealth Department cancelled the CCB approval in June 2018. The Department said it had made the cancellation decision because:
· It considered Little Sweethearts had not operated an FDC Service for more than 12 months.
· It considered Little Sweethearts was not a fit and proper person to operate an FDC Service. That decision was based on Little Sweethearts’ history of compliance with the National Law, the Commonwealth Department’s 19 June 2018 decision and concerns
about its management capability.
· Little Sweethearts had breached a condition on its FDC Provider approval – namely to give the Victorian Department notice that it had ceased operating the FDC Service.
The Tribunal considered all the evidence, and concluded that (paras.211-9):
I understand Little Sweethearts to submit that any non-compliance by it was not serious enough to amount to the presentation of ‘an unacceptable risk’ to children’s safety, health or wellbeing such that cancellation was appropriate. For the reasons given, the failure to ensure Educators have up to date criminal and WWCC approvals and have up to date emergency training go directly to children’s safety. Failing to hold records which detail when the children cared for arrived at and were collected from care, and by whom, indicates a very significant failure to ensure the care provided was safe and that any later concerns about the movements of the children can be addressed quickly and accurately. I reject the proposition that the particular failings are of a kind that ought not to attract cancellation.
As to the standards of an FDC Service, I agree that perfection is not required and that humans make mistakes. As demonstrated by these Reasons though, the so-called ‘mistakes’ are far more serious than suggested in Little Sweethearts’ submission. As set out above, I have not found Little Sweethearts’ explanations to be persuasive or sufficient to allay my concerns.
To avoid any uncertainty as to my reasons for deciding Little Sweethearts’ approval warrants cancellation as at the time of the hearing, I make plain that I have not made my decision only because Little Sweethearts did not operate for more than 12 months after June 2018. I have not relied only on the individual breaches of the National Law and Regulations identified by the Victorian Department in April 2021 or only on the state of Little Sweethearts’ documents. I have not only relied on the matters of concern arising from Mr Mirindi’s evidence before me.
Rather, I have taken all of those together with an overarching consideration of the children’s best interests (which includes their safety, health and wellbeing) as being paramount.
First, because Little Sweethearts did not operate from around June 2018 to at least August 2019, its operations could not be assessed as to quality and compliance. Equally, because it did not inform the Victorian Department it had recommenced operations in August 2019, the usual regulatory checks could not be taken. That means Little Sweethearts operated, at best, spasmodically over the last three or more years without regulatory oversight. While the quality of its FDC Service may have been acceptable in early 2018, it cannot point to any more recent independent assessment of its Service. In my mind, that is the crux of why a lengthy period out of operation is significant to whether an FDC Service ought to retain its approval.
Second, as is apparent from the discussion above, Little Sweethearts’ records cannot fill that gap. Those reviewed by me are seriously deficient in the ways enumerated. For the reasons given, I consider many of them to be unreliable. In this case, the unsatisfactory documentary records heighten concerns about whether the FDC Service has been operated to promote children’s best interests and to ensure those children’s safety, health and wellbeing.
Third, for the reasons given, I have found significant deficiencies in Little Sweethearts’ management capacity. The apparent failure to ensure Educator Matensi’s (and possibly Educator Mesghun’s) WWCC and emergency training were up to date is particularly concerning. Lax attitudes towards those matters has the very real potential to put children at risk.
Finally, for the reasons set out above, I have been unable to find those by and through whom Little Sweethearts acts are fit to run an FDC Service. Given the matters discussed in these reasons, I hold significant reservations about Mr and Mrs Mirindi’s ability to engage in a transparent and open fashion with the regulator where strict compliance with the National Law is essential and where the rights and best interests of are paramount.
I am satisfied that the Victorian Department’s decision to cancel Little Sweethearts’ approval should be confirmed.
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