the regulatory authority may give a prohibition notice to a person who is in any way involved in the provision of an approved education and care service if it considers that there may be an unacceptable risk of harm to a child or children if the person were allowed -

1. By s 182(2)(c), a family day care educator is a person involved in the provision of approved education and care service.
2. By the prohibition notice, the applicant was prohibited from:

1. providing education and care to children in family day care education and care service; 2. being engaged as a family day care educator, employee, contractor staff member or volunteer at a family day care education and care service; or

1. carrying out any other activity relating to family day care education and care services.
2. A decision to issue a prohibition notice is a reviewable decision. By the operation of s 193 (1) of the National Law and s 7 of the Act, an application for review of the prohibition notice is heard by this Tribunal.
3. By s 193(3), the Tribunal on review may confirm the decision of the regulatory authority, amend it or substitute another decision for it.
4. Section 3 of the National Law sets out the objectives and guiding principles of the National Law. Relevantly for this proceeding, s 3 includes the following:
   • (1) The objective of this Law is to establish a national education and care services quality framework for the delivery of education and care services to children.
   • (2) The objectives of the national education and care services quality framework are -
     1. to ensure the safety, health and well-being of children attending education and care services;
     2. to improve the educational and developmental outcomes for children attending education and care services;

(3) The guiding principles of the national education and care services quality framework correspondence:

1. that the rights and best interests of the child are paramount;

1. that best practice is expected in the provision of education and care services.

1. This then sets out the framework in which I must assess this application for review. I must be guided by the objectives and guiding principles in s 3 in determining whether I should confirm the decision of the regulatory authority, amend it or substitute another decision for it. The question for me to determine is whether, on the evidence before me, I consider that there may be an unacceptable risk of harm to a child or children if the applicant were allowed to provide education and care to children in any capacity in a family day care, education and care service.

1. The allegations identified in the prohibition notice replicated some, but not all, of those contained in the show cause notice. It was difficult to follow, from the manner in which the prohibition notice was drafted, which of the matters raised by the applicant in her response to the show cause notice had been accepted by the respondent and what matters, as a result, were still relied on to support the finding of the respondent that the applicant may pose an unacceptable risk of harm to children if she were allowed to provide education and care to them. As a result, I asked counsel for the respondent to provide a document based on the prohibition notice which identified more precisely what was relied on by the respondent as a basis for its finding that there was an unacceptable risk of harm to a child if the applicant were allowed to provide education and care to children as a family day care educator.
2. The respondent filed a document described as "summary of conduct comprising allegations". In substance, the allegations are:
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.

1. The applicant and respondent each provided large volumes of evidence. The section 49 material contained, as would be expected:

1. the witness statements and business records of the applicant and the service provider, which were obtained by the respondent in the course of the investigation following the original complaint in respect of the incident of 24 July 2017; 2. the transcript of a lengthy interview conducted with the applicant by the respondent in the course of the investigation;

1. the show cause notice and the applicant's response;

1. the prohibition notice; and 2. the application for review.
2. Following the filing of the application for review, the applicant's Tribunal Book included, in addition to these materials, the witness statement of Ms Karen Cullen, the Regional Manager of the Quality Assessment and Regulation Division of the respondent. In addition to some of the section 49 material already provided, Ms Cullen exhibited to her witness statement the guides prepared by the respondent for family daycare educators, setting out the responsibilities under the national quality framework and in respect of delivering children's programs in a family day care service.
3. The applicant provided three volumes of material and a smaller bundle of supplementary materials. The applicant's materials included:

1. a considerable body of materials relating to the conduct of her business as a family day care educator with her current and past service providers; 2. photographs and other records documenting: 1. the care and education programs provided by her as a family day care educator; and 2. the physical layout and fit out of the premises from which she had provided family day care and education services; and

1. glowing testimonials from parents to whose children she had provided education and care.
2. In addition, the applicant produced various government and academic publications relating to various aspects of childhood development and education including managing behaviours and use of restraint.
3. The applicant also provided:

1. medical and psychological reports in respect of her personal circumstances before the incident of 24 July 2017, which ultimately resulted in the prohibition notice; 2. considerable evidence of the hardship she had suffered since the commencement of the investigation; and

1. details of the representations and complaints she had made in respect of the conduct of the respondent to, amongst others, the respondent, members of Parliament and the ombudsman.
2. At the hearing, the only witnesses were Ms Cullen on behalf of the respondent and the applicant herself.
3. Despite the large volume of material filed, ultimately there was little issue in respect of the fundamental facts giving rise to the allegations. Much of it in fact was based on what the applicant said in her lengthy interview with the respondent in August 2017. Issue was drawn in respect of detail and degree and the inferences or conclusions properly able to be drawn from the conduct.

1. So far as allegations 1 and 6 were concerned, it was common ground that the child had soiled herself, but the detail, duration and severity or intensity of the applicant's response was contested. So too was what the applicant had meant when giving her account of the incident in the interview, whether her account, both in the interview and at the hearing, was consistent, and the proper interpretation of what had occurred that day. That is, whether there was unreasonable discipline, a failure to interact with the children in a positive manner or inadequate supervision.
2. So far as allegation 2 was concerned, this arose out of answers volunteered by the applicant in the course of the interview with the respondent in August 2017 and is not related to the incident of 24 July 2017. The applicant does not dispute what she said to the respondent in her interview. The contest is more in the realm of what the applicant meant and whether her conduct and approach amounts to a failure to deal with children in a positive manner.
3. So far as allegations 3, 4, and 5 were concerned, again the major area of dispute is whether what the applicant did or did not do amounted to breaches of the regulations or service provider policies.
4. Part 6 of the National Law creates a series of offences punishable by fine. The show cause notice and prohibition notice alleged that the applicant had breached various provisions of the National Law. As the applicant herself noted, she has not been charged with breaching any provision of the National Law or its regulations. This is not a criminal proceeding. It is not part of this proceeding to determine whether the applicant has committed any offence under the National Law. The respondent could have elected to charge the applicant with criminal offences. It did not. It is not part of this case to make a finding as to whether an offence has or has not been made out.
5. As Mr Stoller for the respondent correctly submitted, the real issue for the Tribunal is not whether breaches of the National Law, regulations or service provider policies occurred, but whether the evidence presented in this hearing supports a finding or justifies a conclusion that there may be an unacceptable risk of harm to children if the applicant were allowed to provide education and care to children as a family day care educator.

1. It is common ground that on 24 July 2017, the applicant had three children under three years of age in her care. All were in the applicant's care for a full day. The applicant had been providing care and education to two of the children for some time. The third child was new. It was only her fourth day and her first full day in the applicant's care.
2. It was common ground that in the afternoon this third child soiled herself, became distressed and spread faeces from her nappy onto her hands, hair, clothing, the floor and some toys. The applicant in her interview volunteered that she first realised the child had soiled herself when she saw faeces on the floor and on toys. She said that, as she asked the child if she had "done poos", the child pulled one hand out from down the back of her pants and nappy and started screaming "poos poos" and became upset.
3. In fairness to both the applicant and the respondent, I set out in full below the applicant's account when interviewed of what happened next, as it is that which is relied upon by the respondent as constituting the conduct constituting allegations 1 and 6:

"So, I've - I - I shouted "No, no" and I grabbed her wrists because I couldn't grab her hand because it had poo on it. I said "Look, look, look [child's name]. Quick, quick, quick, hurry, hurry, hurry" so she's sort of like trying to run behind me and I've stepped over the poo and she's - I saw she's walking, screaming, mind you, all this time, she wasn't silent, she was screaming "mummy, mummy, poo, poo" waving her hands so I've pulled her."

"I've tried to get her to step over the poo, she's fallen, she's fallen down, she's come down, she's hit me, fallen on the floor, I've sort of tripped over the vacuum cleaner a bit so I grabbed her other hand - not her hand, I beg your pardon, her wrist, because her hand had poo on it, so I picked her up, so she is facing me, so I've picked her up by her wrist and I've ran just straight to the toilet. So I've got to the toilet, I've put her down. I had to let go of her wrist because I had to open the toilet door because I have to keep that closed for health and hygiene so I've opened it and mind you she screaming all this time, "poos mummy, poos mummy". She is diving her hand trying to get her hand back in the nappy "[child's name], no." I've grabbed her here on the upper arm and I pulled into the toilet which is quite small so that's the toilet area."

"And I've knelt down on the floor because I've got her arm like that and I got her other arm like that and I let go of her hand and I'm like "[child's name] no, stop, no touching poos, no touching poos, no erkies, no, stop" and she's screaming "Mummy poos mummy poosso [other two children] are screaming, they are terrified [one other child] is running around in circles, [2nd other child] just standing, they are screaming because [child's name] just gone nuts. But there was - I - there was nothing I could do. I couldn't leave [child's name]"

"And I turned to the children and I've just leant out the doorway and it was just a natural reaction. I've turned and said "It's all right, [other children], it's all right, it's all clear, it's all right, [child's name] all right" and I've turned back and she's jerking around and she's hitting, and she's pulling her hair and she screaming. So I grabbed her wrists and I've just screamed at her, "No, [child's name] no, no hurties, [child's name] no touching poo, you can hurt [me] you can hurt [child's name], no touching poos" and then it dawned on me that she just wasn't comprehending what I was saying so I said to her "No touching bums, no touching bums, no touching bums [child's name]". So she calmed down enough that she stopped and she started just standing there and she just stopped and she's criss-crossing her fingers. So I couldn't leave [other children] any longer, the room had poo in it, they were screaming. So I ran and I grabbed [1st other child] and I grabbed [2nd other child] and I ran both of them into the loungeroom and put them on the couch. I understand that the room was not safety approved but I had to make a decision on the welfare of [the other children]. [1st other child] puts his thumb in his mouth. I didn't know the extent of the poo so I put them on the couch, I then ran back, told them "Everything was going to be all right, it's okay, it's okay, just watch ABC for Kids. I ran back to [child's name]. She'd calmed down, she was crying, just sobbing."

"Still in the toilet. I washed her hands. I took her jumper off, the poo was all up her back. I went to pull down the track pants and the poo was everywhere and I mean everywhere, everywhere and I did, I said "[child's name] there's no way we are going to be able to clean that lovey, not with wipes, I'm going to have to give you a bath". So she just stood there so I turned her towards me and I picked her up but still by the wrists to carry because I didn't want her walking, because I didn't want anything dropping out of the track pants I wanted to get her in as quick as I could but also with her hands, you know when you do "one, two, three" and the kids sort of hold your hand ----"

"...your hand as well, like that. So I got her into the bathroom, turned the tap on, warming it up. In the meantime, I'm running into [the other two children]"

(Question): "So where did you take the nappy off?"

"I hadn't taken it off at that point. So we were in the bathroom, she had the track pants on and the nappy on, still one. So I'm running in between the two rooms. I only fill the bath to no more than two inches. Then I took her shoes and socks off, I took her track pants off. I dropped the nappy on the floor and I picked her up under the arms to help her get in - not up and over, she could climb in---"

"No I washed her in the bath. I washed her body and I washed her face and I washed her hair, she had poo in her hair, washed her face. I got her out, put the towel around her and took her in - carried - because at this stage I could carry her now because she wasn't covered in poo. Before she was covered in poo so I couldn't carry her. Carried her into the lounge room, ran - got her bag, brought it in, got her spare clothes, changed her into the spare clothes, put her on the couch with [other two children]. She still hadn't spoken a single solitary word, she just kept crossing her fingers, that's all she'd done, that's all she'd done. So I asked if they are all okay, I asked if she was all right and then I saw down to compose myself and also just to make sure that all the children were okay and composed myself. So I sat there about two or three minutes and then I realised, you know, I've got to clean the areas."

1. The applicant was cross-examined at length in the hearing about what she said in the interview and the incident itself. The applicant was a difficult witness. It is clear that she believes that she has been unfairly treated by the respondent and that her professionalism, reputation and livelihood have been adversely affected as a result. At times the applicant seemed to either exaggerate or minimise the severity of the incident, or parts of her conduct, or the child's level of distress. When she gave her account, consistently with the way she expressed herself in the recorded interview, she at times seemed to be acting out what had occurred. It was difficult to determine whether she was accurately recounting what had occurred or whether she was reconstructing and, in the course of doing so, seeking to rebut what she considered to be unfair and unfounded allegations made against her. This is not to suggest that she was deliberately seeking to distort matters. The applicant is understandably emotionally invested in the proceeding and was self-represented. She did not have the benefit of an independent legal advisor to assist her.
2. I am not prepared to make a finding that the applicant was evasive, as submitted by the respondent. She did at times give accounts in evidence which were inconsistent with what she had said in her interview. It is not clear to me whether that was because her memory has faded simply because of the passage of time, she has spent so much time going over the events in her mind because of her sense of injustice that she has now reconstructed events in a more favourable light, or she has deliberately given a different account in evidence, believing it put her actions in a more favourable light.
3. Having read the transcript of interview and the transcript of her evidence a number of times, it is clear the applicant tends, in her general style and manner of expression, even when giving an account of an uncontroversial matter, to present things in extremes, exaggerating or minimising to emphasise the point she is trying to make.
4. I accept the respondent's submission that the applicant was less than frank about the amount of babysitting work she had done since the original complaint which led to the termination of her right to work as a family day care educator. I cannot determine whether that was a product of her tendency to exaggerate or minimise or a more deliberate decision to conceal the amount of work she had done as a babysitter and the period of time over which she did it. However, the inconsistencies between her evidence and what she said in the interview and the acknowledged inconsistency in her evidence before me as to the amount of babysitting she had done, leads me to conclude that, even if TJS was at all times doing her best to be honest, her reliability is called into question.
5. In those circumstances, I consider the account given by the applicant in the interview to be a more reliable and accurate account of the events because the interview was conducted at a time very close to the events of 24 July 2017, when they were fresh in her memory and when the distress and sense of injustice about what she believes to be the respondent's unfair treatment of her following the interview that she displayed when giving evidence had not yet been experienced by her.
6. I accept therefore, based on what the applicant said when interviewed, that she shouted at the child when she first realised the child was smearing faeces around, when she grabbed her and carried her to the toilet and when the child was in the toilet.
7. Whether you describe the applicant's response as shouting or screaming, it is clear from her account in interview that her voice was loud and got louder as she tried to shout or scream over the increasingly high volume of the child's cries.
8. The child was distressed and I accept the respondent's submission that her distress was exacerbated by the applicant's response. I accept the evidence also from the applicant's interview that the escalating distress manifested by the child, as the applicant's voice rose, distressed the other two children, who also started to cry.
9. I accept that the applicant grabbed the child by the wrist and arm and carried her to the toilet and then to the bathroom. The child had faeces on her hands and had already smeared faeces on herself and some toys. In my view, it was not unreasonable to hold her by her wrists or arms as she was taken to the toilet and from the toilet to the bathroom, to stop her further soiling herself or anything or anyone else. I do not consider, in the circumstances, that this constituted unwarranted or unnecessary restraint.
10. I do not accept that shouting or screaming at the child, holding her by the wrists and arm and carrying her to the toilet and then to the bathroom, amounts to unreasonable discipline. The applicant's conduct, whilst clearly escalating the distress felt by the child and the other two children, was clearly directed to removing the child from the playroom to the toilet then the bathroom to clean her up and contain the spread of faeces. It was not punitive or disciplinary.
11. I do not accept the applicant's assertion that the child would have appreciated that she was screaming or shouting with concern rather than malice. The child was only two and unfamiliar with the applicant. She was shouting or screaming at the child, increasing her volume to out-scream the child, whilst holding her by the arm and wrist and in the confined space of the toilet. It is a nonsense to suggest a distressed two year old child unfamiliar with the applicant would have been able to discern anything other than loud, panicked shouting or screaming.
12. Although not being satisfied that the applicant's conduct constituted unreasonable discipline, I accept the respondent's contention that the manner in which the applicant responded to the situation did constitute a failure to interact with all three children in her care in a positive manner. The applicant did not react calmly and patiently, but rather in an alarmist way, grabbing the child, running her to the toilet and bathroom and shouting and screaming at a screaming child the whole time. I accept the respondent's contention that the applicant's conduct in shouting and screaming at the child, shouting or screaming over her cries and saying things such as "no no no", "quick quick quick" and "hurry hurry hurry" created and then compounded a sense of panic and distress. I also accept that the applicant's conduct in running back and forth between the children and of her calling out to them between rooms added to the sense of panic and distress. That conduct too properly warrants the characterisation of alarmist, not calm or patient.
13. I accept Ms Cullen's evidence that it is reasonable to expect, when caring for children under three, that there will be instances where they will soil themselves, vomit, find themselves in a situation where they are distressed, where they and the area around them will be to be cleaned and where they will need to be kept clear of biological hazards caused by other children.
14. Therefore, although the applicant described this as an unusual situation, almost an emergency, that overstates it. It is better characterised, in my view, as a hazard or risk which should reasonably be anticipated and which a family day care educator should be able to deal with in a calm manner. That is, in a manner which defuses distress rather than exacerbates it.
15. It follows that the applicant's response fell well short of what could reasonably be expected in response to an event which should reasonably have been anticipated.
16. It also gives rise to a concern as to the applicant's ability to cope with the problems likely to occur when caring for young children and with stress more generally so as to keep children safe and calm in such circumstances.
17. I accept the respondent's submission that this conduct exposed, or may have exposed, each of the children to risk of emotional harm. As the applicant herself describes, the children were distressed, the child the subject of the incident was screaming and sobbing and the other two children were crying and terrified.
18. The applicant said in her evidence that her conduct was appropriate and that she would respond in the same way in the future in a similar situation. I am of the view that there is a real risk that the applicant will be confronted with a similar situation, and respond in a similar manner, in the future. Unfortunately, in my view, the applicant, aggrieved by the position of the respondent, has locked herself into justifying her conduct. She has not taken the opportunity to reflect on whether she overreacted or reacted in the wrong way and has shown no preparedness to consider alternative responses in the future. In those circumstances, I am satisfied that the risk that such conduct would occur in the future and might cause emotional harm to the children involved is unacceptably high.
19. Dealing then with the allegation of inadequate supervision, it is clear from her account in the interview that the applicant left the other two children in the playroom whilst she took the soiled, distressed child to the toilet and then into the bathroom. She then left that child in the bathroom with the bath running and went back to the two children in the playroom. Whilst it may have been reasonable to check on the two children in the playroom to ensure they were not touching the faeces and to comfort them, there is no good reason why the applicant could not have waited to start running the bath until she returned to the child she had left in the bathroom.
20. I accept Ms Cullen's evidence that a two year old should not be left unsupervised in a bathroom when there is water in the bath or when the taps are on. The risks include slipping and striking injuries if the child tries to climb into the bath, falling into the bath or onto the floor, slipping under water and being scalded if the water in the bath or running from the tap is too hot or if the child turns the tap to hot.
21. I accept the applicant may have felt it necessary to go to check on the other two children to make sure they were not coming into contact with the faeces and because they were distressed. However, had she reacted calmly, instead of shouting and grabbing the first child and rushing her away, her response would not have distressed the other children and she would have been better able to think of directing them to a safe, clean area in an approved part of the house and having them stay there until she returned.
22. I accept that it was reasonable to remove the two children from the playroom, given the presence of faeces and the need to attend to the other child before cleaning up the playroom. However, I do not accept it was appropriate or reasonable to take them to the lounge room, a part of her house which was not approved, and leave them there. The applicant openly acknowledged she knew her lounge room was not approved and that it would have needed to have been modified in order to be made child safe.
23. The applicant had other options once removal of the other children from the play room was necessary. She could have put the children in the children's sleeping room, an approved part of the house. They would not have been in her direct line of vision whilst she was in the bathroom with the other child but they would have been in an approved, child safe area. I accept Ms Cullen's evidence, and that of the applicant, that adequate supervision does not mean the family day care educator must have each child in their direct line of sight at all times. The children's sleeping room was a safe and viable option.
24. Having checked on the other two children, and moved them to the lounge, the applicant then returned to the bathroom, washed the first child and took her to the unapproved lounge room to join the other children. She left all three children there while she cleaned the bathroom and toilet, the playroom and then took the soiled toys outside. She called out to them and visually checked on them during this process. Although I have accepted the evidence that it is not necessary to have the children in the family day care educator's sight the whole time in an approved area of the house, the combination of putting the children in a non-authorised area the applicant knew was not child safe and had acknowledged hazards, and not having the children in her direct line of sight at all times whilst in that non-child safe place amounts, again, to inadequate supervision.
25. I do not accept the applicant's evidence that the children were unsupervised in the lounge room for only "a few minutes". Even accepting that she may have used measure of time as a figure of speech rather than an accurate time estimate, it is clear that the children must have been in the lounge room unsupervised for more than a few minutes. The applicant's own account of the sequence of events, and of what she did during each stage, makes that clear.
26. The allegation of inadequate supervision is made out. The applicant's conduct in leaving the first child unattended in the bathroom with the bath running, then placing all three children in the lounge room, a known non-child safe room, and not having them in view the whole time, fell well short of what could reasonably be expected of a family day care educator. I accept the respondent's submission that there was an unacceptable risk of harm to the first child by leaving her unsupervised in the bathroom with the bath running. I accept also there was an unacceptable risk of harm to the other two children left in the lounge room unsupervised while the applicant bathed the first child. And I accept there was an unacceptable risk of harm to all three children by leaving them in the lounge room unsupervised whilst the applicant cleaned up.
27. In her evidence, the applicant maintained her position that the lounge room, although not approved and containing hazards, was the preferable option for leaving the other children while she bathed the first child. She maintains that the lounge room was the preferable option for leaving all of the children while she cleaned the soiled areas, and that she would do the same again. I accept he respondent's submissions that there is an unacceptable risk that the applicant would again expose children to risk of harm or injury by leaving them unsupervised in such places in such circumstances.

1. In the course of the interview, the applicant described a practice of offering jelly beans to a child who is upset as a means to encourage them to behave better.
2. Ms Cullen's evidence was that offering jelly beans as a method of encouraging children to demonstrate good behaviour was contrary to the standards established by the respondent's guidance material, prepared to assist family day care educators. Ms Cullen said this was contrary to best practice because the applicant did not adapt her interactions with children based on their individual needs and did not teach children to interact with other children. She observed that a child should not be humiliated, embarrassed or isolated from other children if they were upset.
3. The respondent identified a particular passage in the interview with the applicant, where she said:

"If they keep screaming and crying I leave them, I just leave them. And I say,"all right everybody who wants treaties?" So, all the other children because they know what treaties is I go in, I get my big jar of jelly beans, I shake it, I open the lid, I smell it, "Mmm jelly beans. Everybody sitting down, come on" so everybody goes in. The child is crying, looks and thinks "what's going on? Hang on a minute. What's this? Everybody shouting treaties. Wash their hands, sit down if they don't come to me, I'll stick my head around the door, shaking the jelly bean jar. "Who wants jelly beans everyone is having jelly beans" and I just keep saying it until eventually - and stepping out and then going back in and then stepping out, until they calm down, they can hear the kiddies laughing and playing and - and it spikes their curiosity and they end up sticking their little heads around the door ...".

1. This passage must be seen in context. Immediately before that, the applicant had been asked about her strategies for calming children down and dealing with challenging children. She said that initially she used to tell children to stop shouting, keep their voices down and talk to her. She said that, although it worked, it was a difficult process, and added, "I found it easier and I'll be honest with you: to use bribery".
2. When asked to explain what she meant by that, she gave an example of teaching children who didn't want to share toys to share by giving each child in turn the same amount of time with the toy, making a game of sharing and high-fiving the children as they handed the toy to the next child. She said it taught them to negotiate. It was in that context that she detailed the approach if a child was still upset and angry, wouldn't listen and was trying to grab a toy from another child. She said she would remonstrate with a child saying things like "No, stop. We don't pull the toys from our friends. Look at your friend's face". She said, if they kept screaming and crying, she would leave them and it was in that context that the passage quoted above appeared when she talked about bringing out the jellybeans. She described encouraging the upset child to join the group and encouraging the other children to welcome and applaud the child when they did join the group.
3. She believed it was good to show children that their bad behaviour was ignored and their good behaviour rewarded.
4. The applicant gave evidence, consistent with this fuller context, in cross examination. When the applicant's answers are considered in context, I do not consider that it supports a conclusion that, in offering the jellybeans, the applicant was describing an invariable practice which failed to consider or adapt to the individual needs of the child. Nor do I consider, in the way the applicant described what she was doing, that she was embarrassing, humiliating or isolating a child or rewarding bad behaviour. I do not consider the jelly bean treat strategy described by the applicant to constitute a failure to deal with children in a positive manner.

Allegations 3, 4, and 5 - failing to keep full and up to date records

1. In the course of the investigation, the respondent obtained the enrolment form for the child who was the subject of the original complaint.
2. The respondent initially alleged that the enrolment form was incomplete. In final submissions, Mr Stoller, on behalf of the respondent, conceded it was open to find the form was complete. In light of that concession I do not consider the allegation that the enrolment form was incomplete any further.
3. The applicant, in her interview, acknowledged that she had, on other occasions, commenced to provide care and education services to a child before a form had been completed. There was no detail provided as to the frequency of that occurring or of the nature of the missing information. That means I am unable to make any findings as to the seriousness or potential seriousness of starting to care for a child without a completed form and make no findings adverse to the applicant in relation to that.

Failure to notify the service provider before accepting new children into her care

1. The applicant did not advise the service provider that she had accepted the child involved in the original complaint into her care, in advance of that child's commencement. She had not advised the service provider, at any stage before the soiling incident, that the child had been in her care.
2. The applicant did not provide the enrolment form for the child to the service provider in advance of her enrolment in accordance with the service provider's policies. This meant the service provider did not know that a child, for whom it was responsible as a service provider, had been accepted into family day care with a family day care educator retained by it.
3. The enrolment form was not provided by the applicant to the service provider until Wednesday, 26 July 2017. In the covering email, the applicant advised the service provider that the enrolment had been intended to be sent "on Friday". The 24 July, the date of the soiling incident, was a Monday and the child's fourth attendance for family day care with the applicant.
4. The applicant conceded that the service provider did not know that the child the subject of the soiling incident was enrolled and receiving care from the applicant. It follows that the applicant had failed to provide the information required in order for the service provider to comply with its obligations under the National Law and the regulations.
5. When confronted with the requirement to provide the enrolment form in advance of the child's attendance, the applicant acknowledged she was aware of that requirement and said she must have forgotten or been waiting for further information so it could be completed and provided.
6. Neither explanation is satisfactory.
7. In her interview, the applicant acknowledged that this was not the only occasion when she had commenced providing care and education services to children without having notified the service provider or having provided it with a completed enrolment form before the child started receiving care services from her.
8. The failure to keep full and up to date records and provide the notification to the service provider in advance of a child's commencement, as the respondent correctly submitted, meant the service provider could not comply with its obligations under the National Law and the regulations to have and maintain complete and up-to-date enrolment records and to ensure the health, welfare, safety and well-being of all children in its care. It could not discharge the obligation to ensure a family day care educator providing care and education services in their own home did not exceed the cap on the number of children they were permitted to have in their care at any one time.

1. It is a requirement of regulation 159 that the applicant keep a record of the attendance of each child on each day they attend at her premises for family day care. The record must include the full name of the child, the date and time the child arrives and departs and be signed either by the person who delivers the child and collects the child or, if their signature cannot reasonably be obtained, the family day care educator.
2. An examination of the applicant's attendance register also revealed that the attendance register, in respect of the child who was the subject of the incident of 24 July, was incomplete for each of the days she attended. On no occasion was the register signed by the parent delivering or collecting the child or the applicant. However, the applicant had recorded on the register the difference between the booked hours and the actual hours the child was with her on each of those days.
3. It is a requirement of regulation 165 that a family day care educator keep a record of all visitors to the family day care service while providing education and care. The applicant acknowledged that the child's parent had visited the service to inspect it, before proceeding to enrol the child. The applicant conceded that she had not recorded the parent's attendance for that purpose. This does not appear to be an isolated instance. The applicant gave evidence that she did not always ask parents to sign the visitor log. The applicant was aware that she should have done so. I accept the respondent's submission that the applicant knew about the requirement that all visitors signed the log and chose not to comply with it.

1. Examination of the enrolment form in respect of the child the subject of the soiling incident also revealed that the applicant had extended the minimum hours of care she would provide per day and the notice period required for terminating the provision of education and care services by her beyond those specified in the service provider's terms and conditions.
2. The applicant asserted that the service provider knew she had changed these terms and conditions. She relied on the fact that the applicant had paid her for her services on the basis of timesheets which showed that the hours per day she provided services to each enrolled child at times exceeded the service provider's advertised hours.
3. This does not satisfy me the service provider knew of the applicant's unilateral decision to change the terms and conditions. Payment against the time sheets is, at best, constructive knowledge of a change in hours. There is no evidence the service provider knew the applicant had changed the notice period. There is no evidence that the applicant and respondent discussed these changes or that the service provider agreed to the changes.

Failure to notify the service provider and parents of incidents as required

1. On 26 July 2017, the applicant provided the service provider with an incident report in respect of the child the subject of the soiling incident. In her covering email, she noted it had not been signed by the parent on the day of the incident and said she had held off sending it as she had intended to include with it a strategy plan that she had promised the child's parent she would prepare and have ready for the child's next attendance, which was scheduled for three days after the soiling incident.
2. As is now clear, as a result of the complaint made by the child's parent and the subsequent investigation, the child did not return to the applicant's care.
3. Again, this is an instance of the applicant making a decision as to what she thought was the best way to proceed without regard to the obligation to make a notification on the day of the incident, as was required by the regulations.
4. The respondent also relied on an incident in which it was said the applicant had failed to provide an incident report in a timely manner some years ago when engaged by another service provider. The applicant gave direct evidence of this incident, including her dealings with the child's parents and the service provider, some of which was supported by contemporaneous and independent evidence. The applicant's account of events was, on its face, plausible and reasonable and refuted the allegation. The evidence relied on by the respondent to support this allegation was first and second hand hearsay. It could not be tested. No complaint was made at the time to the regulator or an investigation conducted. In those circumstances, I do not consider it fair or appropriate to make any findings adverse to the applicant in respect of this past incident.

Permitting children to be in an unauthorised part of the premises

1. The applicant, in her interview and evidence, referred to occasions other than 24 July 2017, when she had permitted children in her care to be in the lounge room, that is, in a room which was not approved for family day care and which contained known hazards. The applicant's evidence varied about this. At times, she said she would only do it when sitting with a child when the parent was late for pickup. On other occasions, she said she did it more frequently, even, at times, to give a child 'time out' if they were distressed. Consistently with my earlier findings, I am satisfied this poses a risk of physical harm to children in the applicant's care and, consistently with my earlier findings, I am satisfied there is an unacceptable risk that the applicant would again expose children to risk of harm or injury by permitting them in future to be in an unapproved part of the premises.
2. This is, as the applicant herself acknowledged, a breach of her obligations. In fact, it is a breach of regulation 116 to allow a child to be in unapproved area of the home.
3. The respondent submitted that these regulatory breaches, and breaches of the service provider's policies, showed that the applicant demonstrated a lack of insight or appreciation of the importance of the regulatory requirements and an inability or unwillingness to comply with them.
4. In my view, the applicant's evidence revealed that she had a cavalier attitude to compliance with these regulatory requirements. Although she was aware of the regulatory requirements, she demonstrated that she would make conscious choices as to whether to comply with them or not. On the answers that she gave in her evidence, I have no confidence that the applicant would not continue to dispense with compliance with these regulations.
5. The respondent submitted that this likelihood of further ignoring or deliberate non-compliance with regulations posed an unacceptable future risk because of the largely unsupervised or self-regulated nature of the family day care system established under the National Law.
6. On the one hand, it can be said that the regulatory breaches that I have found have been made out in respect of allegations 3, 4 and 5 appear relatively minor or trifling. On the other hand, the applicant's attitude as displayed in her evidence, indicates that she will make her own decisions as to which regulations she wishes to comply with and which regulations she is prepared to ignore or subvert.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. The application for review is dismissed.