Successful Federal Court Application by Family Day Care Operators

The Department of Education cancelled the approval of two family day care operators pursuant to section 195H (1) (b) of the A New Tax System (Family Assistance) Act 1999 (the Administration Act).

The cancellation decision would have caused the operators to shut down.

Birchgrove Legal successfully applied to the Federal Court of Australia to stop the decisions pending a further review.  This means that the family day care operators are able to continue business as usual in the interim.


The Department relied upon breaches relating to the following grounds:

1.            Child-swapping;

2.            Children overseas;

3.            Educators overseas; and

4.            Late attendance and enrolment records.


Both operators sought advice from Birchgrove Legal on avenues available to them. After taking into account our advice and issues identified with the decisions, both FDC operators commenced urgent proceedings in the Federal Court of Australia for judicial review. 

As part of the Court applications, both operators sought an urgent suspension of the Department’s decisions just before they were expected to come into effect.

The Federal Court in weighing up whether there was a serious question to be tried, and in considering the likely impact of a cancellation decision on the operators, decided to suspend the Decision until a later date.


Until now, family day care and child care operators had been relying on the review mechanism within the Administration Act which requires an operator seeking to challenge the Department’s decision to first proceed through internal review before commencing proceedings in the Tribunal. There is no provision in the legislation for the decision to be suspended pending an internal review.

The outcome of the Federal Court applications paves the way for family day care or child care operators to seek a stay of the decision, whilst the review process is undertaken.

If there are apparent mistakes in the decision making process of the Department, child care and family day care operators should seek urgent advice about the avenues available to them. Waiting until a cancellation decision takes effect could be catastrophic to your business – and if Court proceedings are to be commenced, urgent steps need to be taken.


Have any questions about the new system, then get in touch. Birchgrove Legal has developed an expertise in servicing the education industry and can assist with a broad range of matters.

Hamza Alameddine | Principal Solicitor

Office: + 61 2 9018 1067

M: +61 424 747 799    



← Back to Blog