Appelton and Di Blasio (Child support)

[2024] AATA 2908

Appelton and Di Blasio (Child support) [2024] AATA 2908 (9 July 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/MC027763

APPLICANT:  Ms Appelton

OTHER PARTIES:  Child Support Registrar

Mr Di Blasio

TRIBUNAL:Member A Ryding

DECISION DATE:  09 July 2024

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the child support assessment for [Child 1] is extended beyond his 18th birthday to 7 December 2023, and ends on 8 December 2023.

CATCHWORDS
CHILD SUPPORT – particulars of the administrative assessment – application to extend the child support assessment beyond the child’s eighteenth birthday – extension application made after the child’s eighteenth birthday – exceptional circumstances – mental health – full-time secondary education – level of attendance or the quality of schoolwork – decision under review set aside and substituted 

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

1. This is an application to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) for review of a decision of Services Australia – Child Support (Child Support) regarding an application to extend a child care assessment beyond the child’s 18th birthday.

2. The applicant, Ms Appelton, and the second party to the application, Mr Di Blasio are the parents of [Child 1] (born [in] September 2005).

3. On 8 July 2024, the Tribunal conducted a hearing in this matter by MS Teams audio. Ms Appelton and Mr Di Blasio participated. Child Support did not participate and instead relied upon its documents. 

4. Before the Tribunal were hearing papers supplied by Child Support, numbered 1 to 122, together with documents provided by Ms Appelton numbered A1 to A6 (together, the hearing papers). Ms Appelton and Mr Di Blasio provided evidence on affirmation at the hearing.

5. The Tribunal has had regard to all of the documents provided to it that appear relevant to the matters in issue, and to the evidence provided by Ms Appelton and Mr Di Blasio. Reference below is made only to the documents and evidence relevant to this decision.

6. Ms Appelton and Mr Di Blasio had a child care assessment in place for [Child 1] from 27 November 2005. That assessment ended on [date] September 2023, the day before [Child 1] turned 18. Ms Appelton had 91% care and Mr Di Blasio, 9% care.

7. On 23 November 2023, Ms Appelton applied for an extension of the child support assessment beyond [Child 1]’s 18th birthday (folio 45).  Ms Appelton told Child Support that [Child 1] was studying year 10 at [College 1], an institution like TAFE. Due to health issues, [Child 1] was only studying two days a week and was expected still to be studying in 2024. Ms Appelton told Child Support that there were exceptional circumstances that prevented her from lodging the application before [Child 1] turned 18 (as required by the relevant legislation). These were her health issues and dealing with [Child 1], which made “making a calls [sic] or applying for things…difficult”.

8. On or about 12 December 2023, Child Support determined to extend the assessment until 8 December 2023. [1]

   [1] Refer to the letters to the parties at folios 51 and 53.

9. On 2 January 2024, Mr Di Blasio lodged an objection to that decision (folio 62). The basis of the objection was that [Child 1] was not in full-time study undertaking year 12 studies and that Ms Appelton had applied late.

10. On 28 March 2024, Child Support provided its decision in respect of Mr Di Blasio’s objection (the Objection Decision) (folio 4). Child Support allowed the objection, deciding that there were not exceptional circumstances and therefore it rejected Ms Appelton’s application.

11. On 9 April 2024 Ms Appelton applied to the Tribunal for review of the Objection Decision. Her grounds for seeking review were as follows:

    The applicant does not agree with the decision that the Agency has made and had the applicant had an updated supportive evidence letter the applicants objection would had [sic] been approved.

ISSUES

1. The assessment by Child Services of the entitlement to child support and the provision of child support by Child Services are governed by the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988.

2. A child support assessment generally continues until there is a “terminating event”[2] which includes a child that is the subject of an assessment turning 18 (unless the Registrar has accepted an application for the assessment to continue beyond a child's 18th birthday).

   [2] Section 74 of the Assessment Act.

3. The child support assessment ends from the date of effect for the terminating event.[3]

   [3] Section 12 of the Assessment Act.

4. Pursuant to section 151B of the Assessment Act, a parent entitled to child support for a child who is turning 18 can apply to extend a child support assessment as long as the child will be in full-time secondary education on their 18th birthday.

5. The issues for consideration in this application are:

   ·     Whether there were exceptional circumstances that prevented Ms Appelton from applying for an extension of the assessment before [Child 1]’ 18th birthday on [date] September 2023 and, if so

   ·     Whether the application for the extension of the child support assessment for [Child 1] to the end of the 2023 school year should be granted.

CONSIDERATION

1. Under section 151B of the Assessment Act, a child support assessment can be extended until the last day of the secondary school year in which a child turns 18, as long as the child’s 18th birthday is during the calendar year in which they will be undertaking full-time secondary education.

2. An application to extend the child support assessment can be made after the child turns 17 and must be made before the child's 18th birthday.[4] However, if in the Child Support Registrar's opinion, there are exceptional circumstances justifying the making of the application after the child's 18th birthday, the Registrar may accept an extension application made after the child’s 18th birthday.[5]

   [4] Section 151C of the Assessment Act.

   [5] Paragraph 151C(2)(e)(ii) of the Assessment Act.

Issue 1: whether there were exceptional circumstances

1. The Assessment Act does not define the term “exceptional circumstances” and it is a matter for the discretion of the Child Support Registrar (and the Tribunal standing in the Registrar’s shoes).

2. The Child Support Guide[6] provides the following guidance:

   The Registrar can accept an application made after the child's 18th birthday if, in the Registrar's opinion, there are exceptional circumstances justifying the making of the application after the child's 18th birthday (CSA Act section 151C(2)(e)(ii)). The following are examples of circumstances that the Registrar may consider 'exceptional' in deciding whether to accept a late application. This is not an exhaustive list and each case must be considered on its own merits.

   ·Serious health problems delayed lodgement (written confirmation from a health practitioner will be required).

   ·An application for an assessment has been made but not accepted before the child turns 18, and it was unclear whether the child would be in secondary full-time education.

   ·The carer was under pressure not to apply (evidence from a person fully aware of the nature and details of the circumstances, for example, a social worker or police officer, will be required).

   ·Severe distress or hardship (for example, caused by a disaster such as fire or flood) delayed lodgement.

   ·Communication difficulties led to an inability to access information (a result of geographical location, cultural issues, literacy, language difficulties, etc.).

   The exceptional circumstances must relate to the reasons that justify the making of the application after the child's 18th birthday and not to the consequences to the individual of making a late application.

Ms Appelton’s evidence

[6] The Child Support Guide is part of the Guides to Social Policy Law, a collection of publications issued by the Australian Government and designed to assist decision makers administering social policy law. It is persuasive but has no legislative force. That is, the Tribunal can consider it but is not required to follow it.

1. On 30 June 2023, Child Support wrote to Ms Appelton, informing her that child support generally ends when a child turns 18 but that she could apply to extend it to the end of the school year (folio 13). The letter stated that, if she wished to apply, she had to do so before [date] September 2023 ([Child 1]’ 18th birthday).

2. Ms Appelton told the Tribunal that, although she received letters from Child Support online (either via her Child Support app or myGov), she did not receive alerts each time she received a letter. She believed that she did not see this letter until September 2023, after [Child 1]’ 18th birthday.

3. Ms Appelton provided Child Support and the Tribunal with the following documentary evidence (some of which has been redacted in part following an application by Child Support for a non-disclosure order pursuant to section 37 of the Administrative Appeals Tribunal Act 1975):

• A letter from [Health Service Provider 1] dated 2 June 2023 regarding [Child 1]’ recent referral to their service made in consultation with the consultant psychiatrist. This letter refers to traumatic events in [Child 1’s] life in the previous 12 to 18 months (folio 117).

• A letter from [Health Service Provider 2] regarding Ms Appelton dated 11 November 2022 (folio 118).

• A medical certificate dated 9 November 2023 stating that Ms Appelton is unfit to work from 19 October 2023 to 17 January 2024 (folio 119).

• A family violence intervention order dated 24 October 2023 (folio 120). The order is made for the protection of Ms Appelton and [Child 1]. The name of the respondent  to the order is redacted.

• A letter from [Ms A], psychologist, of [Health Service Provider 2], dated 7 June 2024 (folio A4) that stated:

  Miss Appelton has C- PTSD from a former long-term abusive relationship that ended in 2020. During the last handful of years Ms Appelton has experienced trauma related symptoms that impact her ability to be on top of chores and other life’s duties.

  Despite these difficulties, Ms Appelton is doing well for herself and is otherwise thriving. As Ms Appelton is currently taking on extra duties to get back on track in life (ie studying), it is expected that she will feel overwhelmed and need extra support and special considerations from time to time.

1. On 4 March 2024, Ms Appelton wrote a letter to Child Support (folio 81) that stated:

   The delay in submitting the request was primarily due to [redacted] health concerns affecting both myself and [Child 1], which necessitated urgent attention and care

   Additionally, I faced significant challenges in managing these issues single-handedly as I did not receive support from [Child 1]’s father during this time.

   [Child 1]'s transition to [College 1] was prompted by a serious [sic] of traumatic events at his previous school, [College 2] located here in [City 1]. He was subject to [redacted] which severely impacted his well-being. Additionally, he experienced the loss of [redacted] witnessed his mum being [redacted] by a former partner and endured a toxic relationship with his former girlfriend. These experiences took a significant toll on [Child 1]’s [redacted] health, necessitating a supportive and flexible educational environment.

2. Ms Appelton told the Tribunal that she in effect had 100% care of [Child 1].[7] Ms Appelton also has 100% care of another son who is 14 years old

   [7] Ms Appelton apparently raised this with Centrelink at some point, but they told her that changing it from 91% to 100% would not affect anything.

3. When asked about what was happening in her life between 30 June and 23 November 2023, Ms Appelton told the Tribunal that she left her full-time job last April due to bullying  Just before she left that role, [Child 1] took an overdose and ended up in a very bad place, which took a toll last year on both of them. Ms Appelton had surgery in May 2023 and was not able to work and was not mentally OK to work. She obtained some casual work when she recovered from surgery, around 15 hours a week for a couple of months, but left in September 2023 as she was not coping. She has not worked since September 2023. The medical certificate at folio 119 was completed by her GP and was on the grounds of her mental health. Ms Appelton told the Tribunal that she has been diagnosed with anxiety and depression and, in 2021, with complex PTSD. 

4. During the above period, Ms Appelton was also dealing with an ongoing case to do with an abusive former partner (not Mr Di Blasio). Ms Appelton was discussing with the detective whether to expand the case to include various sexual offences. The police took out the extension of the family violence intervention order at folio 120 on her behalf. The case is still continuing, and she has to speak about it quite often, reliving traumatic events on a regular basis.

5. As regards [Child 1], Ms Appelton said that 2023 was probably one of her hardest years with him. The consultant psychiatrist he saw at [Health Service Provider 1] was the first time he had been to see someone. They attended at that service because of [Child 1]’ declining mental health and just after his overdose. However, because he was not suicidal on that day they apparently were not able to help him further. [Child 1] is not currently receiving treatment with a GP or with a mental health practitioner as he continues to refuse to attend any treatment.

Mr Di Blasio’s evidence

1. In a call with Child Support on 7 February 2024 (recorded in the file note at folio 67), Mr Di Blasio said:

   [Child 1] does not have any medical condition or special needs he is just lazy and does not want to go to school.
   *[Child 1] is normal child.
   *[Child 1] chooses to be lazy and not attend school, calling in sick and playing video games all day.
   *[Child 1] has not been diagnosed with any medical condition.
   *[Child 1] goes out all night with his friends getting high, returning home at about 4am so therefore he cannot get up in the morning to attend school.

2. Mr Di Blasio told the Tribunal that it was incorrect to say Ms Appelton had 100% care of [Child 1] as he went to [City 1] (where Mr Di Blasio lives) including for school holidays. Mr Di Blasio conceded that things changed around the time of [Child 1]’ attempted suicide and [Child 1] refused to see him. However, the relationship is better now and they send each other messages and videos. Mr Di Blasio agreed that [Child 1] was going through a hard time and appreciated the points Ms Appelton had raised. He said he had an understanding of what Ms Appelton was going through and did not (seek to) undermine any of those issues. However, he told the Tribunal that he considered that they were nothing to do with Ms Appelton’s inability to complete a form that would take five minutes (a reference to applying for an extension of the child care assessment beyond [Child 1]’ 18th birthday).

The Tribunal’s decision

1. The determination whether there are exceptional circumstances sufficient to warrant an extension of the time to apply for the child support assessment to apply beyond the child's 18th birthday is a discretionary matter. The Tribunal can have regard to, but is not bound by, the factors set out in the Child Support Guide.

2. The Tribunal considers Ms Appelton to be a credible witness and notes that her evidence as regards what was happening in her life in the relevant period was supported by the documents and was not disputed by Mr Di Blasio.

3. Having considered carefully all of the available evidence, the Tribunal finds that there are exceptional circumstances justifying the making of the application after the child's 18th birthday. The Tribunal takes into account in particular in this regard Ms Appelton's mental health, the difficult issues she was dealing with as a single parent with [Child 1] and her ongoing court case regarding an abusive former partner. It is understandable that these matters impacted her ability to carry out life tasks such as holding down employment and engaging with Child Support.

4. On the available evidence, the Tribunal finds that it is appropriate to extend the time for applying under section 151 of the Assessment Act to when Ms Appelton in fact applied, 23 November 2023.

Issue 2: should the application for the extension of the child support assessment for [Child 1] to the end of the 2023 school year be granted?

1. As the Tribunal has now extended the time in which Ms Appelton could apply for an extension of the child support assessment, the Tribunal will now consider whether the application should be granted.

Full-time secondary education

1. Section 151B of the Assessment Act provides that the child must be in full-time secondary education in the year in question. Section 5 defines “full time education” as “education that is determined by the secondary school at which the child is receiving the education to be full - time secondary education. “

2. The Child Support Guide states (in topic 2.5.5):

   'Full-time secondary education' means education that is determined by the secondary school at which the child is receiving the education to be full-time secondary education (CSA Act section 5).
   A child will be considered to be in 'full-time secondary education' during any period that is prescribed by the school to be a term, semester or school holiday break.
   'Secondary school' means a school, TAFE college, or any other educational institution, which provides full-time secondary education (section 5). A secondary school also includes a school that caters for the needs of children with learning difficulties and provides a form of education that is not tertiary education.
   A child may receive a full-time secondary education through distance or online learning provided by a secondary school. Also, a child being home schooled may, in certain circumstances and subject to the relevant state legislation, be in 'full-time secondary education'.

3. The legislation and the Child Support Guide do not require consideration of whether the child was a good or a poor student, or had a good or a poor attendance record. What is required is that the child is in full-time secondary education.

4. Ms Appelton provided Child Support with the following documentary evidence:

   ·     A letter from [College 1] dated 23 November 2023 (folio 48). This confirmed [Child 1]’ enrolment in the equivalent of full-time education and stated:

   Our ‘alternative school’ approach provides the equivalent of full-time school coursework registered with the state authorities, matched using independent online pre-training testing to each student's competency levels.

   Students complete their coursework (volume of learning) by formal agreement with the Indie School. These agreements require as a minimum total of 25 hours coursework effort per week whether individually, in groups or classroom situations with homework and study in their own time.

   ·     An undated letter from [Mr B], [office bearer] at [College 1], confirming that [Child 1] would continue his studies from 15 January 2024 (folio 49).

5. Ms Appelton told the Tribunal that [Child 1] was undertaking two days study a week and that was [College 1]’s requirement and its equivalent to full-time study. She said that the school has a different approach to mainstream schools and is for children with different issues, mental health issues, who fall behind in mainstream schools. They are flexible.

6. In his letter to Child Support dated 2 January 2024 (folio 62), Mr Di Blasio said:

   [Child 1] was not enrolled in full-time secondary education during this period, rather he was enrolled in Certificate 1 in General Education for Adults with [College 1], [City 1], which was on a flexible basis, not full time. 

   [Child 1] has only been attending 2-3 morning per week.

   This is not classified as full time as per my discussion with the [College 1].

   Additionally his attendance was below the minimum required to pass. He has been enrolled in this course for over two years now and was still unable to complete last year due to his poor attendance.

1. Mr Di Blasio told the Tribunal that 2021 was the last year that [Child 1] had undertaken full‑time study. He said that [Child 1] undertakes 8 to 10 hours a week or maybe 12 hours on a good week and that the letter says that there is a minimum of 25 hours. He said that he had asked Child Support to obtain attendance sheets.

2. Mr Di Blasio said he had been in contact with [Mr C] of [College 1] to ask about [Child 1]’ progress on a number of occasions in 2022, 2023 and this year. He wanted to know why, when [Child 1] was expected to complete year 10 in 2022, he had not. Mr Di Blasio said he was told that [Child 1] was not going to school and makes excuses, and his attendance has been below that needed to complete the year in both 2022 and 2023. Mr Di Blasio said that [Child 1] lacked motivation and drive to complete the course. He said he was not sure why the school supplied the letter because [Child 1] had never been to school Monday to Friday.

3. In response, Ms Appelton said that [College 1] “is not a mainstream school, with a five day a week situation”. It is intended to help young people complete years 10 to 12. She said [College 1]’s requirement was two days a week and that was what [Child 1] had done. Ms Appelton also said that she and Mr Di Blasio had not spoken for year and a half so he was “out of the loop”.

4. The Tribunal reiterates that it is not required to consider [Child 1]’ level of attendance or the quality of his schoolwork. The Tribunal places little weight on Mr Di Blasio's evidence on these issues in any event, given that it relies on discussions with third parties, the date, content and context of which are unknown to the Tribunal.

5. The letter from [College 1] dated 23 November 2023 at folio 48 makes it clear that, in 2023, [Child 1] was enrolled in full-time secondary education within the meaning of the definition in the Assessment Act and the Tribunal finds accordingly.

6. The Tribunal therefore finds that it is appropriate to extend the child support assessment for [Child 1] beyond his 18th birthday to the end of his school year in 2023. Child Support initially extended the assessment until 8 December 2023 (folio 54).  The letter from [College 1] at folio 49 stated that [Child 1] broke for Christmas holidays from 8 December 2023.

7. The Tribunal therefore finds that 7 December 2023 was the last day of [Child 1]’ school year in 2023 and that the child support assessment for [Child 1] ended on 8 December 2023.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the child support assessment for [Child 1] is extended beyond his 18th birthday to 7 December 2023, and ends on 8 December 2023.