Caton and Osborne (Child support)

[2022] AATA 2114

Caton and Osborne (Child support) [2022] AATA 2114 (17 May 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/MC023430

APPLICANT:  Ms Caton

OTHER PARTIES:  Child Support Registrar

Mr Osborne

TRIBUNAL:Member P Jensen

DECISION DATE:  17 May 2022

DECISION:

The decision under review is set aside and, in substitution, Ms Caton’s application for the administrative assessment in relation to [Child 1] to continue beyond her 18th birthday is accepted.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – application to extend the child support assessment beyond the child’s eighteenth birthday – whether the child was in full-time secondary education on eighteenth birthday – application should be accepted - 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

1. Ms Caton and Mr Osborne are the parents of [Child 1]. In October 2021 the Child Support Agency (“the CSA”) informed Ms Caton and Mr Osborne that child support cases generally end when the child turns 18 but Ms Caton could apply to have the child support case in relation to [Child 1] continue beyond her 18th birthday. [Child 1] turned 18 on [date] January 2022.

2. On 10 November 2021, Ms Caton lodged an application pursuant to section 151B of the Child Support (Assessment) Act 1989 (“the Act”) which relevantly states:

   Application for assessment … to continue beyond child's 18th birthday

   (1)If a child turns 18 during a year in which the child is in full-time secondary education, a carer entitled to child support for the child may apply for an administrative assessment … in relation to the child to continue in force until the last day of the secondary school year in which the child turns 18.

3. Subsection 151C(2) of the Act relevantly provides that an application pursuant to section 151B must be accepted if, and only if:

   (a) the child has turned 17; and

   (b)an administrative assessment in relation to the child either is in force, or is likely to be in force, on the day before the child’s 18th birthday; and

   (c)the child is likely to be in full-time secondary education on the child’s 18th birthday; and

   (d)the child’s 18th birthday will occur on or before the last day of the secondary school year; and

   (e)the application is made before the child’s 18th birthday.

4. Section 5 of the Act includes the following definitions:

   “full-time secondary education”, in relation to a child, means education that is determined by the secondary school at which the child is receiving the education to be full-time secondary education.

   "last day", in relation to a child's secondary school year, means:

   (a)if the child is not required to sit an examination — the day determined by the secondary school to be the last day of classes for the school year; and

(b)if the child is required to sit an examination — the later of:

(i)the day determined by the secondary school to be the last day of the period of examinations for the child's year level; and

(ii)the day determined by the secondary school to be the last day of classes for the school year.

"secondary school” means a school, technical and further education institution or any other educational institution at which full-time secondary education is provided.

1. The CSA decided to refuse Ms Caton’s application. She objected to that decision. Her objection was disallowed. She applied to the Tribunal for further review. The Child Support Registrar provided written submissions in support of the decision under review. I heard the matter on 17 May 2022. Ms Caton and Mr Osborne gave sworn evidence via MS Teams.

2. There is only one factual issue in dispute. [Child 1] was in Year 7 in 2017, she was in Year 8 in 2018, and so on. The CSA refused Ms Caton’s application on the basis that [Child 1] would turn 18 on [date] January 2022 and her secondary school year would start on 28 January 2022. Ms Caton subsequently submitted that [Child 1] started Year 12 during Term 4 of 2021. She provided the CSA with the first page of a two-page academic Statement of Results. The objections officer noted that Ms Caton had not provided the second page. Ms Caton did not subsequently provide the second page. The first page does not mention Year 11 or Year 12. It sheds no light on the issue.

3. Ms Caton also provided a letter dated 17 February 2022 from the acting principal of [Child 1]’s school. The letter relevantly states: “I confirm that [Child 1] was present for the Year 12 step‑up program ... which ran from 26 October – 16 November 2021, and [Child 1] is continuing her Year 12 studies in 2022 …” The phrase “is continuing her Year 12 studies in 2022” is ambiguous. It could mean that [Child 1] started Year 12 in 2021 and she is continuing her Year 12 studies in 2022, or it could mean that she started Year 12 in 2022 and, as at the date of the letter, she is continuing her Year 12 studies. The sole purpose of the letter was to establish when [Child 1] started Year 12. If she started Year 12 on, say, 26 October 2021, that could have been plainly stated. Mr Osborne said that it was his understanding that the step‑up program was intended to prepare students for Year 12 but [Child 1] did not start Year 12 until 2022. I accept his evidence on that issue.

4. The Registrar’s submissions can be summarised as follows. The CSA concluded that the start of the school year for Victorian government schools such as [Child 1]’s was 28 January 2022. Subsection 151B(1) provides for the continuation of an administrative assessment “until the last day of the secondary school year in which the child turns 18.” [Child 1] turned 18 during the summer holidays and prior to the start of the secondary school year. [Child 1] did not turn 18 during a secondary school year. It follows that the administrative assessment could not be continued until the end of the last day of the (non-existent) secondary school year in which [Child 1] turned 18. That conclusion is reinforced by the requirement in paragraph 151C(2)(c) that “the child is likely to be in full-time secondary education on the child’s 18th birthday”.

   It is to be noted that the definition [of “full-time secondary education”] is drafted in the present tense. The significance of that drafting choice is that it requires a child to be receiving education, and for that education to be determined by the secondary school providing that education to be full-time secondary education. As a matter of fact, a child is not receiving education, nor is a secondary school providing education to that child (whether full-time or otherwise) in the holiday period between secondary school years.

5. The Registrar also referred to section 151D of the Act which includes the phrase: “the last day of the secondary school year to which the application relates.” The Registrar referred to the Explanatory Memorandum to the Bill which introduced sections 151B, 151C and 151D. The Explanatory Memorandum repeats the language of those sections. Finally, the Registrar referred to departmental policy which supports the Registrar’s submissions concerning the interpretation of the law. The Tribunal is not bound by departmental policy but will generally follow such policy unless there is a reason to not do so. The prime example of a reason to not follow departmental policy is when it is inconsistent with the law.

6. I have concluded that the term “secondary school year”, when used in the Act, is a broad reference to the year of study being undertaken by a child. In 2022, [Child 1]’s secondary school year is Year 12. She has been in Year 12 since the start of 2022 and she will be in Year 12 until the “last day” of Year 12 as defined in the Act. The term “secondary school year” is not confined to a period that starts on the first day of Term 1, or some similar date. [Child 1] was in Year 12 when she turned 18, even though Term 1 of 2022 had not started. On a similar note, she was in full-time secondary education when she turned 18, even though Term 1 of 2022 had not started. My reasons are as follows.

7. First, it is important to note that the term “secondary school year” is not defined in the Act. Those words only appear in the Act as part of the phrase: “the last day of the secondary school year”. The term “last day” is defined, but only for the purpose of identifying the day to which the administrative assessment might continue. The legislative focus is on the determination of a particular day, and not a period of time. That conclusion is reinforced by the fact that, in addition to there being no definition of “secondary school year”, there is also no definition of “first day” in relation to a child’s secondary school year. One would expect the Act to include such a definition if the first day of the secondary school year had the meaning and importance that the Registrar has submitted.

8. Second, the reason why there is no reference to the “first day” in relation to a child’s secondary school year is apparent from the opening words of subsection 151B(1). An application can be lodged “[i]f a child turns 18 during a year in which the child is in full-time secondary education”. The subsection proceeds on the basis that if that requirement is satisfied, there will be a “last day of the secondary school year in which the child turns 18.” Interpreting “secondary school year” as a broad reference to the year of study being undertaken by the child produces that result. The Registrar’s interpretation does not.

9. It could be submitted that the opening words of subsection 151B(1) gave Ms Caton a right to apply to continue the administrative assessment in respect of [Child 1] but the closing words of the subsection confined any continuation of the administrative assessment to a non‑existent date. It is unlikely that the subsection was intended to operate in such a discordant manner. The better view is that the opening and closing words of subsection 151B(1) were intended to operate harmoniously with each other and with subsection 151C(2). The opening words of subsection 151B(1) state when an application can be made, subsection 151C(2) provides that an application must be accepted if, and only if, paragraphs 151C(2)(a) to (e) are satisfied, and the closing words of subsection 151B(1) state the (meaningful) date to which the administrative assessment can continue.

10. The issue can be approached from a different angle. The legislation does not expressly require a decision-maker to ascertain the “first day” of the secondary school year. The concept of such a day is only alluded to via the phrase: “the last day of the secondary school year in which the child turns 18.” The reason why the concept is only alluded to is that if the child turns 18 during a year in which the child is in full-time secondary education, the child will also turn 18 during the secondary school year.

11. Third, the Registrar submitted that the requirement in paragraph 151C(2)(c) that “the child is likely to be in full-time secondary education on the child’s 18th birthday” cannot be satisfied if the child turns 18 “in the holiday period between secondary school years” because the child is not receiving, and the school is not providing, the education during that holiday period. However, full-time secondary education, as defined, does not include any reference to a secondary school year. At the hearing, Ms Caton and Mr Osborne confirmed that they had not actively enrolled [Child 1] in Year 12; her secondary school education had automatically continued into Year 12. If paragraph 151C(2)(c) is not satisfied if the child turns 18 during the summer holiday because the child is not receiving, and the school is not providing, the education during that holiday period, then, by the same reasoning, paragraph 151C(2)(c) would not be satisfied if the child turns 18 during the autumn, winter or spring holidays. That would clearly produce a nonsensical result. The better view is that [Child 1] commenced her full-time secondary education in 2017 and she has remained in continuous full‑time secondary education to date. Further support for that conclusion is found in the opening words of subsection 151B(1): “If a child turns 18 during a year in which the child is in full‑time secondary education, …” The reference to “a year” rather than “a secondary school year” supports the view that [Child 1] started her full-time secondary education in 2017 and she has been in continuous full-time secondary education for many years.

12. Fourth, paragraph 151C(2)(d) imposes a requirement that the child’s 18th birthday occur on or before the last day of the secondary school year. Again, the legislative focus is on a particular day, and not a period of time. The Registrar has effectively submitted that the “secondary school year” means the period from the first day of Term 1, or some similar date, to the “last day” as defined, and there is an additional requirement that the child turn 18 during that period. If that were the case, one would expect subsection 151C(2) to include such a requirement.

13. In summary, when Ms Caton lodged her application on 10 November 2021, [Child 1] would turn 18 during 2022, [Child 1] would be in full-time secondary education in 2022 and Ms Caton was entitled to child support. Ms Caton had a right to lodge her application and it was validly lodged: subsection 151B(1). The requirements of paragraphs 151C(2)(a) to (e) were satisfied and the CSA was required to accept — it “must” accept — Ms Caton’s application: subsection 151C(2). Returning to subsection 151B(1), the term “secondary school year” is not defined. Interpreting that term to mean a period that starts at the start of Term 1, or some similar date, would produce a nonsensical result because [Child 1] turned 18 prior to the start of Term 1 of 2022; there would be no “last day of the secondary school year in which [[Child 1]] turns 18”. The better view is that the term “secondary school year” refers broadly to the year of study being undertaken by the child during a year (subject to the definition of “last day” in section 5). That interpretation produces a sensible result. [Child 1] turned 18 in 2022. She was in Year 12 from the start of 2022. The secondary school year in which she turned 18 was Year 12. The administrative assessment will continue until [Child 1]’s “last day” of Year 12 (or any other preceding child support terminating event).

DECISION

The decision under review is set aside and, in substitution, Ms Caton’s application for the administrative assessment in relation to [Child 1] to continue beyond her 18th birthday is accepted.