Byers and Kaldor (Child support)

[2019] AATA 4345

Byers and Kaldor (Child support) [2019] AATA 4345 (9 September 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/AC016922

APPLICANT:  Mr Byers

OTHER PARTIES:  Child Support Registrar

Ms Kaldor

TRIBUNAL:Member M Kennedy

DECISION DATE:  9 September 2019

DECISION:

The decision under review is set aside and the matter is sent back to the Child Support Registrar for reconsideration in accordance with the direction that the Registrar is to await notification of the happening of a child support terminating event.

CATCHWORDS

CHILD SUPPORT –identification of a child support terminating event – previous acceptance of application to extend the assessment past child’s 18th birthday – date of terminating event cannot be determined in advance – decision set aside and sent back for reconsideration

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

1. Mr Byers and Ms Kaldor are the parents of [Child 1], in respect of whom a child support assessment is in place.

2. The Registrar accepted an application from Ms Kaldor to extend the assessment beyond [Child 1’s] 18^th birthday, in accordance with section 151B of the Child Support Assessment Act 1989.  The decision was made on 16 April 2019. [Child 1’s] 18^th birthday is [in] September 2019.

3. The Registrar has further purported to identify when the child support case will end.  The Registrar identified 29 November 2019 as the date the case will end.

4. Mr Byers objected out of time to that aspect of the (purported) decision identifying the end date of the assessment.  There was no objection regarding the decision to accepting the application to extend the assessment, only the purported end date.  An extension of time was granted, and an objection officer purported to substantively disallow Mr Byers’ objection on 2 July 2019.

5. Mr Byers applied to the Tribunal for review on 11 July 2019

CONSIDERATION

1. At law, and relevantly, the ending of a child support case is termed a ‘child support terminating event’. 

2. The child support law contains a range of circumstances that will amount to a child support terminating event: section 12 of the Act.

3. Where, as in this case, the Registrar has accepted an application to extend a child support assessment beyond a child’s 18^th birthday (which would otherwise be a terminating event), the child support law operates to remove the child turning 18 as a terminating event, and substitutes two alternative events:

   ·the day on which the Registrar is satisfied the child ceased to be in full-time secondary education: sub-paragraph 151D(1)(b)(i) of the Act;

   ·the last day of the secondary school year to which the application relates: sub-paragraph 151D(1)(b)(ii) of the Act.

4. The remaining terminating events provided for in section 12 of the Act remain relevant.  Furthermore, the child support terminating events provided for at section 151D of the Act are expressed in such a way that the first of the events to occur will be a child support terminating event.

5. In this matter, there is an underlying assumption that the child support terminating event will be the last day of the secondary school year, and the Registrar and objections officer have examined evidence to identify when that date will be.

6. In my view however, as likely as the scenario is that [Child 1] will complete his secondary school education either on 18 November 2019 or 29 November 2019, it is technically not the only potential child support terminating event provided for by the legislation.

7. To put this another way, in my view it is not open or possible to identify a child support terminating event from a range of possible events in advance.  In order to decide the review, I must make a decision about when a child support terminating event has occurred.  I cannot predict the future in this regard  by excluding all other possible child support terminating events other than the one that has given rise to dispute, even though this would assist the parties resolve the dispute today..

8. In my view, the Registrar’s purported decision identifying a future child support terminating event is a nullity.  The date of a child support terminating event cannot be a particular of the child support assessment if it has not yet happened, and where it remain theoretically possible for another child support terminating event to happen first..

9. In my view, the objection ought to have been disallowed on the basis that no decision had been made of the kind Mr Byers objected to (even though the Registrar has purported to make such a decision).  I will set aside the decision under review and direct the registrar to await notification of a child support terminating event before deciding when the assessment has terminated.

10. I do not intend to be unduly critical of the Registrar’s practice in this regard, as resolving the future of a child support assessment in advance is likely to be a convenient practice for all concerned. However, where in this case there is a dispute about the date of a child support terminating event, it exposes the fact that the legislation does not provide for the early identification of a child support terminating event as a particular of the assessment to the exclusion of other possibilities. 

11. Child support decisions are confidential, but I am aware of the Tribunal (differently constituted) reaching similar conclusions to the conclusions I have reached in previous matters.  I will identify the Tribunal’s previous decision where this issue is considered in separate correspondence to the Registrar.

DECISION

The decision under review is set aside and the matter is sent back to the Child Support Registrar for reconsideration in accordance with the direction that the Registrar is to await notification of the happening of a child support terminating event.