Reporting Child Abuse and Neglect Resource Sheet

Child Family Community Australia has updated its resource sheet: Reporting child abuse and neglect - Information for service providers.

Inadequate Supervision (Section 165, National Law): WA Approved Providers

According to information recently published on the West Australian Department of Communities' website, there have been a number of cases before the West Australian State Administrative Tribunal involving children who have left their services unsupervised in contravention of section 165, National Law.

In a case involving approved provider Prendco Pty Ltd, in relation to the Sonas Early Learning and Care Wattle Grove service, a child aged 1 year and 11 months left the service premises unnoticed and unsupervised until he was returned to the service. CCTV footage from various sources showed him wandering alone around various locations at the Wattle Grove Shopping Centre complex. A member of the public alerted the service who then sent a staff member to collect the child. The Tribunal ordered the approved provider pay a penalty of $10,000 for the contravention of section 165(1) and $1,000 towards the Department’s legal costs.

The other case involved Cachet Holdings Pty Ltd, approved providers of the Mulberry Tree Child Care - North Perth service. In this case, a nearly three year old child left the service unsupervised and was found crossing Grosvenor Street by two members of the public in their car. The Tribunal ordered the approved provider pay a penalty of $10,500 for the contravention of section 165 and a contribution of $2000 towards the Department’s legal costs. 

The Guardian Express also covered these two incidents.

Sonas Early Learning and Care Wattle Grove.

 

Sonas Early Learning and Care Wattle Grove.

Sonas Early Learning and Care Wattle Grove.

Sonas Early Learning and Care Wattle Grove.

Sonas Early Learning and Care Wattle Grove.

Sonas Early Learning and Care Wattle Grove.

Sonas Early Learning and Care Wattle Grove.

Contravention of Condition on Service Approval (Section 51(8), National Law): WA Department of Communities and Camp Australia Pty Ltd

According to information recently published on the West Australian Department of Communities' website, Camp Australia (with respect to the Camp Australia - West Leederville Primary School OSHC service) was found to have contravened a condition on its service approval, in that on 14 different days between 6-8 February and 22 May 2018 it cared for more than 30 children at any one time. The matter was heard by the West Australian State and Administrative Tribunal who ordered that Camp Australia, as approved provider, pay $210,000 for the contravention of section 51(8) and to pay a contribution of $2000 towards the Department’s legal costs. There were also a number of media reports on this case including in the the original report and follow up in the  West Australian, and The Sector.

Providing False or Misleading Documents (Section 295, National Law): Prosecution of WA Family Day Care Educator

According to information published on the West Australian Department of Communities' website, Nahid Mosa Hamouda Eltom was was convicted at the WA Magistrates Court on 15 October of contravening section 295(1), National Law by providing attendance records for six children to an authorised officer of the Department, knowing those records were false or misleading in claiming the attendance of the children on days they did not attend. Ms Eltom was ordered to pay a fine of $3,000 and $1,628.10 in legal costs.

Entitlement to Agent Commission on Lease: Awad v Australian Sales & Leasing Pty Ltd (trading as ASL Real Estate)

This is not a case directly relevant to childcare regulation but does involve a person (Magdy Awad) who previously operated an unapproved childcare service from the property the subject of this case, see the Victorian Regulator's website and news report for further information). 

In this case Magdy Awad (also known as Michael Awad) appealed to the Victorian Supreme Court against orders made by the Magistrate's Court in November 2017. The orders required the Appellant (Magdy Awad) to pay Australian Sales & Leasing Pty Ltd, the Respondent, the sum of $47,040, together with interest of $8,058.66, with costs to be agreed between the parties; failing which there was liberty to apply. The Appellants appeal failed as the Court determined that the Respondent had complied with the conditions of its Exclusive Commercial Leasing Authority with the Appellant and therefore was entitled to the commission. The Authority provided that the Appellant agreed to appoint the Respondent on an exclusive basis for a period of 14 days (from 16 to 30 September 2015) to lease the property at 84 Olympic Parade, Kangaroo Flat, and to sell the Appellant’s plant and equipment located at the property.

The appellant has also been involved in other litigation, in relation to the property, in the Supreme Court.

Regulation and Regional Childcare

ABC Online recently published a story on the impact of regulation on the availability of childcare in regional areas.

Stay of Cancellation of Provider Approval: Kuol t/as Care Family Day Care v Queensland Department of Education

This case involves an application to the Queensland Civil and Administrative Tribunal for an order to stay (put on hold) the decision of the Queensland Regulatory Authority to cancel the provider approval of the applicant (Kuol Atem Kuol Kuol) issued under the National Law.

In making the decision to cancel the Applicant’s provider approval, it was found that there were extensive breaches of the National Law and Regulations (outlined in para. 13 of the judgement). 

The Tribunal refused to stay the cancellation, stating that:

The Applicant denies that the continuation of the family day care service by him would constitute an unacceptable risk to the safety, health or wellbeing of any child and “does not agree that all of the alleged non-compliance took place”. Though he does acknowledge that many of the breaches did arise, the Applicant has endeavoured to excuse or downplay the breaches or categorise them as aberrations or as having little or no impact on the safety, health or wellbeing of any child.
The show cause notice was issued to the Applicant on 9 March 2018 and responses were provided on 11 and 12 April 2018. The cancellation decision was made on 19 June 2018. Annexed to that decision were 55 pages of findings. Those findings included a detailed reply to each issue raised in the responses to the show cause notice and listed a number of instances where, in the view of the Respondent, claimed compliance by the Applicant did not meet regulatory requirements, or unsatisfactory responses had been provided, or no evidence had been produced to show that indicated changes had been implemented, or the responses were not consistent with photographic evidence. It was also noted that the indicated updated policies and procedures had not been provided. Further, there was no indication of the processes or procedures that had been set in place to ensure ongoing regulatory compliance.
Other than providing a list of professional development training sessions conducted, the Applicant has not questioned or responded to any of the concerns listed in the Respondent’s findings, save for noting that the family day care service has continued to operate and asserting that there is no current risk to children. That bald assertion, in the context of a failure to answer the many outstanding issues raised by the Respondent, in itself reflects a misunderstanding of the importance of regulatory compliance and a lack of appreciation of the legislative objective of ensuring the safety, health and wellbeing of children and of the guiding principle that best practice is expected in the provision of education and care services.
Certainly, there is no indication as to why it is perceived that there is no risk to children in circumstances where there is neither an itemised challenge to the concerns raised by the Respondent in its findings, nor an explanation as to how regulatory compliance is now satisfied. In the main, changes outlined by the Applicant are expressed in terms of proposals, with little or no indication or evidence that they have been implemented.
In relation to interests affected, the Applicant states that the income from the Care Family Day Care is a ‘substantial’ part of his family’s income and that if the cancellation takes effect he will lose educators and families and that it is unlikely that he will be able to repair the damage to the goodwill of the business. However, no details are provided as to how substantial the loss will be. Nor is there elaboration on the stated damage to the good will of the business said to be a consequence of the cancellation of the provider approval, or any indication of the contribution of the Applicant’s acknowledged breaches of the National Law and National Regulations to any loss of good will.
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 as contemplated by the National Law and, further, because the Applicant has given no indication as to why a stay would be in the public interest. The Respondent submitted, among other things, that the Applicant does not identify in a meaningful way the impact of a stay on those other than himself, that it has not been demonstrated that the means of addressing the relevant risks put forward by the Applicant are sufficient and/or have been implemented, that the findings and reasons of the cancellation decision are detailed and well considered and were in accordance with principles of procedural fairness, and 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.(paras. 14-19).

Breach of Lease: Medi-Aid Centre Foundation Ltd v Joys Child Care Ltd

The New South Wales Supreme Court recently heard a case involving Medi-Aid Centre Foundation (plaintiff) suing Joy's Child Care (defendant) for breach of lease of premises (see also previous post regarding this provider). The case is a complicated one and there are a number of issues involved. However, one issue raised in the case is of particular interest as the Court was required to assess whether Joy's had complied with its obligations under the National Law. The defendant's argument that it had complied was an interesting one. The Court said:

Under the lease, the defendant covenanted to comply with all laws regulating how the premises were to be used, including obtaining the essential licences needed and keeping current any licences or registration required for the use of the premises or for the conduct of the defendant's business there (see cl 6.1.4 of the lease).
Mr Issa gave evidence that the defendant had its provider approval suspended and subsequently cancelled, effective from 12 April 2017. 
Mr Shang conceded that child care services are being carried out of the premises from the end of February 2016 to mid-2017 involving up to 20 children at a time with at least three or four educators. The defendant operated, therefore, the child care centre without provider approval, ultimately resulting in the Department seeking injunctive relief against the defendant to which I have earlier referred in this judgment. 
The defendant contended that it was engaged in trial services but there is no exception in the National Law for such purposes. 
It follows that the carrying on of such services whilst the relevant approvals were suspended or cancelled was a breach of the lease (paras. 144-8).

Reporting Child Abuse in Queensland

Early Childhood and Community Engagement (Department of Education) has published some information for Queensland educators and carers in relation to their obligation to act when they reasonably suspect a child is in need of protection. That information can be accessed from their website.

Stay of Cancellation of Child Care Benefit Approval: Galaxy Day Care Pty Ltd v Secretary, Commonwealth Department of Education and Training

This case concerns a Federal Court of Australia case that heard an application from Galaxy Day Care to stay (i.e. put on hold) the cancellation by the Department of its approval as a provider of child care services under section 195H(1)(b), A New Tax System (Family Assistance)(Administration) Act 1999 (Cth). The Department cancelled the approval on the basis of family day care educators caring for more children than they were permitted to and overpayment of CCB which had not been repaid. The applicant (Galaxy) applied for an internal review under the Act of the cancellation decision on 10 October 2018. However, the cancellation was to come into effect on 15 October, consequently the applicant applied for a stay of the decision on a number of grounds. 

The court agreed to stay the decision until the internal review was conducted because the applicant had an arguable case:

In my view, the appropriate order to make is a stay of the cancellation decision for a period which recognises the fact that internal review is being sought.

It is worth observing that it is in the applicant’s interests to provide any further information sought by the Department in the context of internal review expeditiously. The length of time for which a stay is sought is obviously relevant to whether a further stay should be granted or the present stay extended.

I was informed that the Department has requested submissions from the applicant in respect of the internal review by 19 October 2018. I was told by the solicitor appearing for the respondent that the usual timeframe for internal review to be completed was four to six weeks, although it was possible that expedition could be sought in particular cases, and, as I understood it, expedition would be sought in this case. I was told that often a majority of that period of four to six weeks was taken up, effectively, in waiting for material to be provided by the person seeking internal review.

In light of that information, and on the basis of the undertaking as to damages given by the applicant through its counsel, it is appropriate that the decision of the delegate of the respondent taken on 2 October 2018 to cancel the applicant’s provider approval be stayed until 10.15 am on 22 November 2018.

West Australian Family Day Care Educator Fined for Breaching National Law

According to information recently published on the Department of Communities website, the West Australian State Administrative Tribunal (WASAT), made an order which gave effect to the terms of settlement in relation to a matter brought before the tribunal by the WA Regulator (Department of Communities) for contravention of the National Law. The educator, Afshan Farooq, contravened section 165(3) of the National Law by leaving a two year old locked in the residence while attending a medical appointment, and regulation 178(2) by failing to ensure attendance records were accurate. The Tribunal ordered that the educator pay $3200 for the contraventions and contribute $1000 towards the Department's Legal costs. 

Further information was also published in a news story on the Community News website.

Refusal of Working With Children Check: WAE v Director-General, Department of Justice and Attorney-General

This case was heard by the Queensland Civil and Administrative Tribunal and involved an application by WAE, a former child care worker, to have her Blue Card reinstated so that she can continue her previous employment. WAE was previously a drug user and also lost her children for a time. The Tribunal did not believe that it was in the best interests of children for the Blue Card to be reinstated:

I am satisfied that WAE has not demonstrated a sufficient understanding of the risks associated with someone under the influence of drugs caring for children. I do not have any expert evidence from a counsellor or psychologist as to WAE’s current mental state, or her progress along the rehabilitation process. While WAE does not wish to return to drug use, she has yet to demonstrate a capacity to remain abstinent over the long term.
A Blue Card is issued unconditionally and would allow WAE to work unsupervised with children across a range of circumstances. In this case there are sufficient risks established on the evidence to satisfy the Tribunal that this is an exceptional case in which it would not be in the best interests of children for WAE to receive a positive notice. The decision under review is confirmed. (paras. 33-4)

Changes to West Australian Education and Care Services National Law

On 1 October 2018 changes to the Education and Care Services National Law (WA) Act 2012 and Education and Care Services National Regulations 2012 were made which largely aligns with changes made by other jurisdictions in 2017. The amending Act can be found here and the consolidated Act here. The amending regulations can be accessed here, and the consolidated regulations here.

To coincide with the changes ACECQA have updated their Guide to the National Quality Framework, including highlighting some of the WA specific differences. See their website for details.

I will be publishing an updated edition of my book, Australian Childcare  Regulation, as an electronic edition only in early 2019 to incorporate these and other changes made since the publication of the hard copy edition.