Stay of Cancellation of Childcare Benefit Approval: Mohamed trading as Billan Family Day Care v Secretary, Department of Education, Skills & Employmen

In this case, before the Federal Court, the applicant family day care provider applied for a stay of the decision of the Department to cancel its provider approval under under section 195H, A New Tax System (Family Assistance) (Administration) Act 1999 (Cth). The applicant as well as applying for internal review by the Department of the decision also applied to the Court for judicial review of the cancellation. The Court rejected the applicant’s interlocutory application in so far as it sought a stay of the cancellation decision for a period of time to enable the internal review by of the decision to be completed by the Department. However, a stay of the cancellation of the decision was granted pending the judicial review (paras. 26-7):

In the present case, the applicant seeks a stay of the respondent’s cancellation decision pending a review of the decision. The effect of the stay is that the applicant will continue to hold an approval from the respondent, under s 195 of the Administration Act, to operate a Child Care Benefit Family Day Care Service. As such, individuals whose children are being provided with care at Billan Family Day Care will continue to be eligible for the applicable child care subsidies which will be paid to the applicant. In my view, it is appropriate to grant a stay of the cancellation decision on the condition that the applicant gives the usual undertaking as to damages. If the applicant is unsuccessful in this proceeding, it will have been paid child care subsidies by the Commonwealth which, but for the stay, it would not have been entitled to receive. While the subsidies are due to the individuals whose children are provided with care at Billan Family Day Care, the subsidies are paid to the applicant and the applicant charges its clients lower hourly rates for its services. In my view it is appropriate, as a condition of the stay, that if the applicant is ultimately unsuccessful on its application for review under the ADJR Act, the applicant undertake to repay to the respondent the child care subsidies received in the period from 28 June 2020.