Corbin and Brayton (Child support)

[2022] AATA 955

Corbin and Brayton (Child support) [2022] AATA 955 (8 March 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC023039

APPLICANT:  Mr Corbin

OTHER PARTIES:  Child Support Registrar

Ms Brayton

TRIBUNAL:Member J D’Arcy

DECISION DATE:  8 March 2022

DECISION:

The decision under review is set aside and a new decision is substituted that the child support assessment for [Child 1] is extended past her 18th birthday until 1 December 2021.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – application to extend the child support assessment beyond the child’s eighteenth birthday – application until last day of secondary school 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 omitted 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. Mr Corbin has requested a review of the decision to extend the child support assessment for his daughter, [Child 1], to 18 November 2021.

2. A child support assessment for [Child 1] has been in place since 24 September 2013.

3. [Child 1] turned 18 years old [in] October 2021.

4. On 2 September 2021 Ms Brayton, [Child 1’s] mother, applied to extend the assessment past [Child 1’s] 18th birthday because she would be in full-time secondary education until 1 November 2021.

5. Services Australia - Child Support (the Agency) extended the assessment to 18 November 2021.

6. Mr Corbin objected to the decision stating his daughter had completed her studies on 8 October 2021; she is not completing any HSC exams; and she is working five to six shifts per week in retail and some of these shifts are in school hours.

7. On 15 December 2021 the Agency disallowed Mr Corbin’s objection.

8. On 31 December 2021 Mr Corbin lodged an application for review with the Administrative Appeals Tribunal (the tribunal).

9. A hearing was conducted on 8 March 2022 with Mr Corbin and Ms Brayton by telephone.

10. The Agency supplied the parties and the tribunal with the subsection 37(1) of the Administrative Appeals Tribunal Act 1975 statement and documents (121 pages).

CONSIDERATION

1. Mr Corbin stated that he was more than happy to provide child support for [Child 1] up to her graduation on 25 October 2021. However, he was concerned that he had to continue to pay child support after [Child 1] had left school and finished her studies and was in a position to undertake full-time work. Mr Corbin described the system of extending child support assessment beyond the child’s 18th birthday as “archaic”. In his view, each case should be assessed individually on its particular circumstances.

2. Ms Brayton explained that due to the difficulties created by COVID-19 during 2021, the date for the end of the school year changed on several occasions to allow all of the students to be able to complete and submit their work. At the time that she lodged her application she understood that 1 November 2021 was the last day of the school year. At the time the Agency made its decision the school had changed the date to 18 November 2021. When she sought confirmation from the school, she received a letter dated 22 October 2021 stating that the end of the school year was 1 December 2021. Because this letter contained both [Child 1’s] name and the name of another school student, the letter was reissued on 25 October 2021 confirming the end date of the school year was 1 December 2021.

3. Ms Brayton stated that she was unaware of the date on which [Child 1] submitted her final assignments.

4. The relevant legislation is contained in section 151B of the Child Support (Assessment) Act 1989 which states that if a child turns 18 years 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, to continue in force until the last day of the secondary school year in which the child turns 18 years. The last day is defined in section 5 as follows:

   "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.

1. According to a letter dated 25 October 2021 provided by the Administration Officer, [School 1], [Child 1] completed her studies on 1 December 2021.

2. Under the above definition of last day, the child support assessment can be extended until 1 December 2021. There is no discretion in this part of the Act to take into account the date on which [Child 1] said that she had finished school, nor to consider the individual circumstances of this case. As explained in the hearing, the tribunal must make its decision in accordance with the relevant legislation.

3. When the Agency made its decision, the best information available concerning the last day of classes for the school year was 18 November 2021.

4. The tribunal finds that this date has been updated by the school to 1 December 2021 and therefore the tribunal further finds that this is the last day of classes for the school year for [Child 1], as determined by the school, and the date to which the child support liability payable by Mr Corbin should be extended.

DECISION

The decision under review is set aside and a new decision is substituted that the child support assessment for [Child 1] is extended past her 18th birthday until 1 December 2021.