Child Support Registrar v CDJ22
[2023] FCA 1057
•6 September 2023
FEDERAL COURT OF AUSTRALIA
Child Support Registrar v CDJ22 [2023] FCA 1057
Appeal from: Caton and Osborne (Child support) [2022] AATA 2114 File number(s): VID 350 of 2022 Judgment of: ROFE J Date of judgment: 6 September 2023 Catchwords: ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal under s 44 of Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) in relation to assessment of child support under Child Support (Assessment) Act 1989 (Cth) – whether tribunal made an error of law – whether the tribunal failed to take into account a mandatory consideration – whether tribunal’s decision illogical or irrational – appeal dismissed Legislation: Administrative Appeals Tribunal Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Child Support Legislation Amendment Bill 1998
Cases cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Construction Forestry Mining Energy Union v Hadgkiss (2007) 169 FCR 151
Gardner Dairy Industry Authority (NSW) (1977) 52 ALJR 180
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 56 Date of hearing: 21 March 2023, 18 July 2023 Counsel for the Applicant: Ms Z Heger Solicitor for the Applicant: Sparke Helmore Lawyers Counsel for the Respondents: The respondents did not appear ORDERS
VID 350 of 2022 BETWEEN: CHILD SUPPORT REGISTRAR
Applicant
AND: CDJ22
First Respondent
CDK22
Second Respondent
ORDER MADE BY:
ROFE J
DATE OF ORDER:
6 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
2.There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ROFE J:
This is a review on questions of law brought under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). It concerns the proper approach for the determination of child support payments in circumstances where a child turns 18 years old on a date in the January holiday period before Term 1 of their year 12 secondary school year begins.
In orders made by Justice Mortimer (as she then was) on 11 August 2022, the Court noted that the respondents would not be participating in this proceeding. The Child Support Registrar confirmed the respondents were served with the Registrar’s submissions and provided no further indication that they wished to be heard. The respondents did not attend the hearing.
The Registrar alleges that the Administrative Appeals Tribunal made a number of legal errors in its application of the Child Support (Assessment) Act 1989 (Cth). The Registrar effectively seeks clarification of the statutory construction of s 151B and s 151C of the Assessment Act.
For the reasons below, the application is dismissed.
BACKGROUND
The respondents are the mother and father of a child born on 14 January 2004 (the child). The father was required to pay the mother child support up until 13 January 2022, being the eve of the child’s 18th birthday.
On 10 November 2021, the mother applied, under s 151B of the Assessment Act, to extend the child support assessment to the conclusion of child’s year 12 schooling, which she asserted was 10 December 2022. Aside from disputing the final date of the child’s year 12 schooling being in December rather than a date in November, the father did not oppose the mother’s application.
On 16 November 2021 a delegate of the Registrar refused the application under s 151C. The mother objected to this decision.
On 14 February 2022, another delegate of the Registrar disallowed the mother’s objection (the objection decision). The delegate found:
[W]e are satisfied that [the child] turned 18 in the holidays that fall between secondary school year 11 and secondary school year 12 (between 2 secondary school years) for [the child] and that the application to extend the assessment beyond her 18th birthday is refused.
The mother applied to the Tribunal for review of the objection decision. Both parents agreed the child would be in year 12 in 2022.
The child’s parents gave brief oral evidence before the Tribunal at a hearing on 17 May 2022.
Documentary evidence before the Tribunal included:
(a)the first of two pages of the child’s Victorian Certificate of Education (VCE) statement of results issued by the Victorian Curriculum and Assessment Authority on 16 December 2021; and
(b)a letter dated 17 February 2022 from the acting principal of the child’s school, which stated:
Please be advised that (Date of Birth: 14/01/2004) is a current student enrolled at [the Secondary College]. [The child] has been enrolled at [the Secondary College] since 2017 when [the child] commenced in year 7.
I confirm that [the child] was present for the year 12 step-up program at [the Secondary College] which ran from 26 October - 16 November 2021, and [the child] is continuing [the child’s] Year 12 studies in 2022 at [Secondary College].
Should you require any additional information, please contact [the Victorian secondary school] at: [email address]
On 17 May 2022, the Tribunal set aside the objection decision and accepted the administrative assessment to continue child support beyond the child’s 18th birthday.
In doing so, the Tribunal made the following findings:
(a)The “secondary school year” is a broad reference to the year of study undertaken by the child. It is not confined to the period that starts on the first day of Term 1.
(b)The child had been in year 12 since the start of 2022 and would be in year 12 until the “last day” of year 12.
(c)The requirement that “the child is likely to be in full-time secondary education on the child’s 18th birthday” is satisfied by the child starting her full-time secondary education in 2017 and having automatically continued full-time secondary education.
The present review post-dates the child’s completion of year 12. The Registrar seeks clarification of the operation of s 151B and s 151C of the Assessment Act, while noting the outcome may have practical financial consequences as between the respondents.
RELEVANT LEGISLATION
The relevant statutory framework was introduced by Sch 8 of the Child Support Legislation Amendment Bill 1998. According to the explanatory memorandum, the purpose of the reform was to:
enable a carer to apply for a child support assessment to continue to the end of the school year in which a full-time secondary student turns 18.
Subsections 151B(1) and151C(1)–(2) of the Assessment Act provide:
151B Application for assessment/agreement 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, or a child support agreement, in relation to the child to continue in force until the last day of the secondary school year in which the child turns 18.
Note:For full‑time secondary education, last day and secondary school see section 5.
151C Application for assessment/agreement to continue—Registrar’s decision
(1)The Registrar must either accept or refuse to accept an application under section 151B.
(2)The Registrar must accept the application if, and only if, the Registrar is satisfied that:
(a) the child has turned 17; and
(b) any of the following applies:
(i)if the application is made under subsection 151B(1)—an administrative assessment, or a child support agreement, 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;
(ia)a suspension determination under section 150F provides that child support is not payable in respect of the day before the child’s 18th birthday;
(ii)an administrative assessment that takes the child into account 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) either:
(i)the application is made before the child’s 18th birthday; or
(ii)there are, in the Registrar’s opinion, exceptional circumstances justifying the making of the application after the child’s 18th birthday.
Note:For full‑time secondary education, last day and secondary school see section 5.
(Emphasis added.)
Section 5 of the Assessment Act provides the following definitions of terms used in s 151B:
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.
THE APPLICATION FOR REVIEW
The Child Support Registrar relies on the following three grounds of review:
1.The Tribunal made an error of law in its interpretation and application of section 151B of the Assessment Act by deciding that the First Respondent was eligible to apply to extend the administrative assessment past her child’s 18th birthday.
2.In concluding that the child was receiving “full-time secondary education” at the time of her 18th birthday, the Tribunal misconstrued and/or misapplied s 151C(2)(c) of the Assessment Act, and/or failed to take into account a mandatory consideration.
3.The Tribunal’s finding in respect of whether the child was receiving “full-time secondary education” at the time of her 18th birthday was illogical or irrational, in the sense that there was an absence of logical connection between that finding and the evidence before the Tribunal.
Factual findings
The Tribunal made the following factual findings:
(a)at the date they turned 18, the child was currently enrolled at a Victorian secondary school;
(b)the child commenced at that secondary school in year 7 in 2017, and was automatically re-enrolled each year;
(c)the child undertook the school’s “step-up” program in October to November 2021; and
(d)the child commenced year 12 on 28 January 2022.
The Tribunal found that the child’s one page academic statement of results, which was provided by the parents to the Registrar, “does not mention Year 11 or Year 12. It sheds no light on the issue”. I reject this characterisation of the statement of results.
On my request, the Registrar filed further evidence in relation to the Victorian education system from the Victorian Curriculum and Assessment Authority and the child’s school. The effect of this evidence explains how a child may complete units of study for their VCE:
(a)The VCE is compiled of units of study in various subjects. Each subject generally has 4 units. Units 1 and 2 are completed in one calendar year and units 3 and 4 are completed in a subsequent calendar year.
(b)The majority of unit 1 and 2s are completed when a student is in year 11 and the majority of unit 3 and 4s are completed when a student is enrolled in year 12.
(c)Unit 1 and 2 subjects can be taken earlier than year 11. Unit 3 and 4 subjects can be undertaken in year 11 or earlier. Students may begin their VCE studies by completing unit 1 and 2s in year 10, which would enable them to complete the corresponding unit 3 and 4s in year 11.
The school’s administration confirmed the child was “enrolled at [the Secondary College] as a Year 12 VCE Student in 2022”.
The statement of results clearly shows that the child undertook year 11 in 2021, and successfully completed five “unit 1/2” VCE subjects. The statement also shows that the student undertook one “unit 3/4” VCE subject in 2021. Consistent with the mother’s evidence that the second page of the results statement was blank, the statement concludes with “END OF STATEMENT”, strongly suggesting there was no additional information on the second page.
Ground 1
As the Tribunal found that the child turned 18 prior to the start of Term 1 of year 12 (on 28 January 2022), the Registrar submits that the Tribunal should have concluded that the child, who turned 18 on 14 January 2022, did not turn 18 “during a year in which the child is in full-time secondary education”. The child turned 18 before that “year” commenced.
The Registrar submits that the Tribunal misconstrued both the word “year” in the first part of s 151B(1) and the phrase “secondary school year” in the second part of that section. According to the Registrar, the Tribunal misconstrued “year” as a calendar year commencing on 1 January 2022, as opposed to a “secondary school year”, a phrase which the Registrar submits should be understood to mean the ordinary academic year overseen by the school where the child receives secondary education. In other words, on the Registrar’s construction, the “secondary school year” commences on the first day of Term 1 and continues until the “last day” as defined in s 5 of the Act, whether that be the last day of classes or exams.
Section 151B(1) provides:
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, or a child support agreement, in relation to the child to continue in force until the last day of the secondary school year in which the child turns 18.
(Emphasis added.)
Section 151B(1) prescribes the circumstances in which an application may be made to continue an assessment or agreement beyond a child’s 18th birthday:
(a)The child must turn 18 during a year in which the child is in full time secondary education; and
(b)The carer may apply for an assessment or agreement to continue in force until the last day of the secondary school year in which the child turns 18.
The Registrar submits that the words “in which” contemplates the child will turn 18 during the secondary school year that is referred to in the second part of the section. The Registrar submits the word “year” in the first line of s 151B(1) should be construed as referring to a “secondary school year”, not a calendar year.
The phrase “secondary school year” is not defined within the Assessment Act. The Registrar submits that phrase as found in s 151B(1) should be construed in accordance with the definition of “last day” of a secondary school year. The “last day” of a secondary school year is defined in s 5 by reference to the “day determined by the secondary school to be the last day of classes for the school year” or the “day determined by the school to be the last day of the period of examinations for the child’s year level”.
There is no definition of “first day” of the secondary school year in the Assessment Act. Nevertheless, the Registrar says the date on which the secondary school year commences is clear: the first day of classes in Term 1. The “secondary school year” should then be understood to mean the ordinary academic year commencing on the ordinary first day of classes and ending on the “last day” as defined.
In oral submissions, counsel for the Registrar referred to the use of “child’s year level” in paragraph (b)(i) of the definition of “last day” as being a different concept to “school year”. Ms Heger submitted that “year level” refers to the grade of study and if the drafter intended elsewhere to also refer to the child’s grade of study, they could have referred to “year level”.
The meaning of the words used in a provision is, of course, to be read in light of the context and purpose of the legislation: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 570-576, 579 (Mason CJ, Dawson, Toohey and Gaudron JJ); Gardner Dairy Industry Authority (NSW) (1977) 52 ALJR 180 at 188 (Aickin J). The Registrar contends that the purpose of s 151B is not to ensure that a child is supported throughout the entirety of their secondary education, but rather to ensure that child support payments do not cease part way through the school year in which the child turns 18. The Registrar submits that the Registrar’s propounded construction is consistent with the context and purpose of the legislation.
For the reasons which follow, I agree with the Tribunal’s construction of “secondary school year” as a broad reference to the year of study being undertaken by the child during that calendar year.
I also consider that the word “year” as used in the first line of s 151B(1) should be given its plain and ordinary meaning, which is a calendar year, a period of 12 months commencing on 1 January, rather than as a shorthand reference to the phrase “secondary school year” used later in that section. Where the legislature could have used the same word or phrase and chose to use a different one, it is assumed that the intention was that the words have a different meaning: Construction Forestry Mining Energy Union v Hadgkiss (2007) 169 FCR 151 at [53] (Buchanan J). If the legislature had intended “year” to have the same meaning as “secondary school year” it would be expected that it would have used that phrase at the first opportunity. Instead it deliberately chose to use the word “year” not “secondary school year” in s 151B(1) and by that I assume it intended “year” to mean something different to “secondary school year”.
If “year” is given its plain and ordinary meaning, then “secondary school year” cannot be confined to the academic year commencing on the first day of Term 1. As the Registrar observes, to give “year” its plain and ordinary meaning is inconsistent with the Registrar’s construction of “secondary school year”.
The school year in Australia runs alongside the calendar year. It is reasonable to expect that a child, who is enrolled in year 12 on a weekday in early January, to say they are in year 12 this year despite the academic term not having yet commenced. The commencement of “secondary school year” should not be confined by reference to the gazetted school terms.
I consider this construction is consistent with the purpose of the Act propounded by the Registrar: to ensure that child support payments do not cease part way through the school year in which the child turns 18.
Such a construction will be unfair to those students who turn 18 in year 11 or in December, after they finish year 11, but before the year in which they will be undertaking year 12. But, as the Registrar observed, the line must be drawn somewhere and on my construction that line is the start of the calendar year in which the student is enrolled in year 12.
The Registrar submits that the construction that “secondary school year” means the grade in which the child is enrolled, by reference to the calendar year, produces unreasonable results. It would mean that a child who did not complete year 12 for whatever reason, and continued to be enrolled in year 12 beyond the last day for the year, in order to repeat some or all of year 12, could be supported well beyond their 18th birthday and even beyond their 19th birthday.
This submission is misconstrued. Contrary to the Registrar’s submissions, such a construction would not lead to child support payments being paid to students well beyond their 19th birthday. The particular “secondary school year” for the purposes of the s 151B is limited to that year in which the child turns 18.
Although not determinative, I note that the Registrar’s submissions appear contrary to the construction adopted in the 29 October 2021 Services Australia letter sent to both parents stating the mother could apply to extend child support:
Our records show [the child] will turn 18 years of age on 14 January 2022. Generally, child support ends when a child turns 18. However, if [the child] will still be in full-time secondary education on or after their 18th birthday, [the carer] can apply to extend their child support to the end of the school year.
….
A child is considered to be in full-time secondary education if they turn 18 during a school holiday break and they intend to return to school at the end of the holiday.
(Emphasis added.)
I find that the Tribunal did not err in its interpretation and application of s 151B of the Assessment Act by deciding that the first respondent was eligible to apply to extend the administrative assessment past her child’s 18th birthday.
Grounds 2 and 3
The Registrar submits that, in finding that “[t]he requirements of paragraphs 151C(2)(a) to (e) were satisfied and the [Child Support Agency] was required to accept – it ‘must’ accept – [the mother’s] application”, the Tribunal failed to consider a mandatory consideration.
The Registrar submits that s 151C(2)(c) requires that a determination be made by the relevant school at which the child was receiving full-time secondary education. According to the Registrar, the Tribunal found that the test in s 151(2)(c) was met without considering whether there had been a determination by the school that the child was receiving full time secondary education.
The Registrar also submits that the Tribunal’s finding that the test in s 151C(2)(c) was met was illogical as it was not supported by the evidence before the Tribunal, as there was no evidence that the child’s school had made the required determination.
The phrase “full-time secondary education” is defined in s 5:
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.
Section 151C(2)(c) does not require that the child be in full-time secondary education, only that the child is “likely” to be in full-time secondary education on the child’s 18th birthday.
The evidence before the Tribunal consisted of a file note of a call between the child’s mother and a child support case officer in January 2022, and a letter from the child’s school dated February 2022. In the file note, the support officer noted:
[The mother] confirmed that [the child] completed year 11 VCE Term 3 2021 and began Year 12 full time in Term 4 as per Victorian high school process and will continue Year 12 in 2022 full time.
(Emphasis added.)
Relevant sections of the letter dated 17 February 2022 from the acting principal of the child’s high school are reproduced below:
Please be advised that [the child] is a current student enrolled at [a Victorian secondary school]. [The child] has been enrolled at [that Victorian secondary school] since 2017 when they commenced in year 7.
I confirm that [the child] was present for the year 12 step-up program at [that Victorian secondary school] which ran from 26 October - 16 November 2021, and [the child] is continuing their Year 12 studies in 2022 at [that Victorian secondary school].
The Registrar submits that the evidence does not provide a basis for the Tribunal to conclude that the child was enrolled for what the school considered or determined “full-time” secondary education. There was no evidence as to the subject load that the child was to study in year 12, and whether that constituted full-time study. The letter from Services Australia to the first respondent dated 29 October 2021 refers to the child “still be[ing] in full-time secondary education”.
The Registrar accepts that she did not submit in the proceedings before the Tribunal that there was an inadequate evidentiary basis to satisfy s 151C(2)(c). However, this was because she took a “neutral stance … in relation to the disputed factual matters that the Tribunal was required to determine. Notwithstanding, the Registrar now submits that the terms of the Assessment Act required the Tribunal to satisfy itself that there was sufficient evidence to ground a finding that the child’s school had “determined” that her education was “full-time secondary education” before it could exercise the power to accept the mother’s application. The evidence in the proceedings provided no basis for the conclusion reached and therefore the Tribunal erred.
I accept that there was no formal determination by the child’s school that the child would be in full-time secondary education in 2022. The 17 February 2022 letter from the school advised that the child had been enrolled at the school since 2007 when the child commenced year 7. The statement of the child’s year 11 results shows the child studied six year 11 subjects (including one unit 3/4 subject). There was no evidence to suggest that the child had not been undertaking full-time study since year 7, that their enrolment status had changed, or that they would not be undertaking year 12 on a full-time basis. Rather, it was the mother’s evidence that the child would “continue Year 12 in 2022 full time”.
The evidence that the child was to start year 12 in 2022 was accepted by the Tribunal. This finding was not agitated on review to this Court. Given the absence of any evidence or submission to the contrary, the Tribunal was entitled to consider on the available evidence that the child was likely to be in full‑time secondary education on the child’s 18th birthday. The Registrar’s requirement that the child’s school must make a determination of the child’s education status would give the word “likely” in s 151C(2)(c) no work to do.
I consider that the Tribunal’s finding was available on the evidence, and reasonable. At the time the mother’s application was lodged, the letter from the acting principal of the school confirming that the child was continuing her year 12 studies at the school, together with the VCE statement of results and the parents’ assertions that the child was enrolled in year 12, demonstrate a real likelihood that the child was undertaking full-time secondary education in 2022.
Grounds 2 and 3 therefore must fail.
CONCLUSION
For the reasons set out above, I find each ground of review fails. The decision of the Tribunal should not be set aside.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rofe. Associate:
Dated: 6 September 2023
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