Application for Cancellation of Prohibition Notice: TJS v Department of Education and Training (Review and Regulation)

In this case a former Family Day Care educator (TJS) applied to the Victorian Civil and Administrative Tribunal for a review of the decision of the Department of Education and Training (the Victorian Regulatory Authority under the National Law) to issue a prohibition notice under section 182. The notice, issued to TJS, prohibited her from providing education and care to children in a family day care education and care service; being engaged as a family day care educator, employee, contractor staff member or volunteer at a family day care education and care service; or carrying out any other activity relating to family day care education and care services. The notice was issued as TJS was regarded as an unacceptable risk of harm to a child or children if she were allowed to provide education and care to children.

This matter originated on 24 July 2017, when the parent of a child being educated and cared for by TJS in her home made a complaint to the Department about the conduct of TJS following an incident where the child had soiled herself. The Department, accordingly, commenced an investigation into the complaint. After interviewing TJS, the Department determined the conduct alleged by the parent was not made out. However, as a result of what TJS said in the course of the interview in respect of what had happened that day, her response to that and her approach with children in her care more generally, the Department identified other concerns about the conduct of the applicant in respect of the soiling incident and more generally, which resulted in the issue of a show cause notice under section 183 and then a prohibition notice under section 182. The Department alleged a number of matters making TJS an unacceptable risk to children (as summarised by the Tribunal):

Allegation 1: that the applicant responded inappropriately to an incident on 24 July 2017 when a child in her care soiled herself. The inappropriate response, it was alleged, constituted unreasonable discipline contrary to s 166 of the National Law or, alternatively, a failure to interact with that child and the other two children in her care at the time in a positive manner, contrary to regulations 155 and 156 of the Education and Care Services National Regulations.
Allegation 6: that the applicant failed to adequately supervise the three children in her care during, and directly following, the incident where the child soiled herself, including by leaving all three children unsupervised in parts of her residence which had not been assessed and approved as family day care premises. This was alleged to be inadequate supervision in contravention of s 165(3) of the National Law and a contravention of regulation 116, by which family day care services can only be provided in approved premises or parts of premises.
Allegation 2: failing to interact with children in a positive manner by adopting methods of encouraging children to demonstrate good behaviour, contrary to expected standards. This was alleged to be in breach of regulations 155 and 156.
Allegations 3, 4 and 5: failing to keep full and up to date records in respect of children to whom the applicant was providing care and education services, altering the policies of the service provider in respect of the terms and conditions by which the applicant would provide care and education services for children without their knowledge or consent, failing to notify the approved provider and parents of injuries or incidents and permitting children in her care to be in unapproved areas of the home.
It was alleged regulations 160 (the requirement to keep an enrolment record for each child containing specified information), 159 (the requirement to keep a record of the attendance of all children at the service), 165 (the requirement to keep a record of all visitors to the service), 86 and 87 (failure to maintain an incident or injury record and to notify the service provider and parents of the child of an injury or incident) and 116 (allowing children into unapproved areas of the home) were breached. This conduct, it was alleged, also breached the policies of the service provider. (paras. 17-21).

The Tribunal assessed the allegations, and available evidence, and concluded that:

I am satisfied that the findings I have made in relation to the applicant's conduct in respect of the manner in which she dealt with the child soiling herself, her conduct in permitting children on that day, and on other days, to be in unauthorised parts of her home and her attitude towards regulatory compliance more generally, point clearly and strongly to the conclusion that there may be an unacceptable risk of harm to a child or children receiving family day care education and care services in the applicant's home.
The decision of the respondent to prohibit the applicant from providing education and care to children in a family day care education and care service, being engaged as a family day care educator, employee, contractor, staff member or volunteer at a family day care education and care service or carrying out any other activity relating to family day care education and care services is confirmed.
The applicant was at her best in her evidence, genuine and compelling, when she spoke of her love of caring for young children and her commitment to providing them with quality education and care. The photographs of the environment she had created in the approved areas of the home, of her interaction with the children, of the workbooks and descriptions of the educational activities that she provided for children, provide powerful support for this. So to do the testimonials she provided from the parents of many of the children she had cared for over the years.
The matters on which I have relied in finding that the applicant may pose an unacceptable risk to children in a family day care setting, are peculiar to the isolated, largely unsupported and self-regulated nature of family day care and education in a home.
These findings should not be viewed by prospective employers in centre-based child care as evidence that the applicant is unsuitable for employment or might pose an unacceptable risk of harm to a child in centre-based child care.
There is nothing in the evidence before me in this proceeding, or as a result of findings I have made, that would suggest that the applicant might pose an unacceptable risk of harm to a child or children were she engaged in providing care and education services to children in a setting where she had better support, supervision and other child care educators working alongside her with whom she could share the load. 
The application for review is dismissed. (paras. 98-104).