Deller and Liston (Child support)

[2021] AATA 4226

Deller and Liston (Child support) [2021] AATA 4226 (23 August 2021)

DIVISION:  Social Services & Child Support Division

REVIEW NUMBER:  2021/BC021457

APPLICANT:  Mr Deller

OTHER PARTIES:  Child Support Registrar

Miss Liston

TRIBUNAL:  Member A Ducrou

DECISION DATE:  23 August 2021

DECISION  

The tribunal sets aside the decision under review and, in substitution, decides that the child support assessment in respect of the child is not to be extended beyond the date of the child’s 18th birthday [in] June 2021.

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 refused – 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. Miss Liston and Mr Deller are the separated parents of a child, who is now aged 18 (the child). This review is about whether an application made by Miss Liston for the administrative assessment of child support for the child to continue until the last day of secondary school in 2021 should be accepted. A case with the Department of Human Services – Child Support, now Services Australia (the Agency), for administrative assessment of child support for the child was registered from 11 June 2003.
2. According to the Agency’s records, Miss Liston contacted the Agency on 18 February 2021 and made an application for the administrative assessment of child support for the child to continue after the child’s 18th birthday until the last day of secondary school in 2021. On 12 March 2021 a delegate of the Child Support Registrar (the Registrar) decided to accept the application. The particulars of the administrative assessment were amended to record the continuation of the administrative assessment until 17 November 2021.
3. On 16 March 2021 Mr Deller lodged an objection to the decision made on 12 March 2021. On 7 May 2021 an objections officer of the Agency decided to disallow the objection. On 10 May 2021 Mr Deller applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) for independent review. The application for review was lodged by telephone.
4. The tribunal conducted a hearing on 9 July 2021. Mr Deller and Miss Liston participated at the hearing by telephone via Microsoft Teams audio. They gave oral evidence at the hearing on affirmation and made oral submissions. The Registrar did not participate in the hearing. The tribunal had before it documents provided by the Registrar (numbered 1 to 79) which were copied to Mr Deller and Miss Liston. After the hearing the tribunal received documents from Mr Deller. The documents were numbered A1 to A2 and numbered copies were provided to the parties.
5. The tribunal deferred making its decision on the review to obtain further relevant information and pursuant to section 95J of the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act) the tribunal requested the Registrar to obtain the information. The Registrar responded to the request and the tribunal received documents from the Registrar on 11 August 2021 which were numbered C1 to C2. On 12 August 2021 the tribunal wrote to Mr Deller and Miss Liston. Copies of documents C1 and C2 were enclosed with the letters, which invited Mr Deller and Miss Liston to respond in writing to the documents by 5:00 PM on 20 August 2021. The tribunal’s letters informed Mr Deller and Miss Liston that the Presiding Member may decide not to take any response or further material received after the due date into account. The tribunal is satisfied that the letters dated 12 August 2021 were properly sent to Mr Deller and Miss Liston in accordance with the applicable legislative provisions.

1. On 23 August 2021 the tribunal received an enquiry from Mr Deller about the progress of the review. The enquiry was made by email. However, Mr Deller did not respond to or provide material in response to the tribunal’s letter of 12 August 2021. The tribunal did not receive a response or material from Miss Liston in response to the tribunal’s letter to her of 12 August 2021. The tribunal made its decision on 23 August 2021.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Registration and Collection Act.

2. The issue which arises in this case is:

• Should the application that Miss Liston made for the administrative assessment of child support for the child to continue after the child’s 18th birthday until the last day of secondary school in which the child turns 18 be accepted?

CONSIDERATION

Issue – Should the application that Miss Liston made for the administrative assessment of child support for the child to continue after the child’s 18th birthday until the last day of secondary school in which the child turns 18 be accepted?

1. The legislation establishes a system for the assessment of the rate of child support payable in a child support case. Usually an assessment applies until a child turns 18 years of age. However, section 151B of the Assessment Act provides that in specified circumstances a carer entitled to child support for a child may apply for the 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.

2. Section 89 of the Registration and Collection Act states that a person may apply to this tribunal for review of a decision, including a decision made under section 151B of the Assessment Act, where it has been reviewed by an objections officer in accordance with section 87 of the Registration and Collection Act.

3. Under subsection 151B(2) of the Assessment Act the application must be made to the Registrar in the manner specified by the Registrar. Subsection 151C(1) of the Assessment Act states that the Registrar must either accept or refuse an application under section 151B. Subsection 151C(2) of the Assessment Act sets out the requirements that must be met for the application to be accepted. In this case the relevant requirements are:

   ·      the child has turned 17;

   ·      an administrative assessment in relation to the child is in force, or is likely to be in force, on the day before the child’s 18th birthday;

   ·      the child is likely to be in full-time secondary education on the child’s 18th birthday;

• the child’s 18th birthday will occur on or before the last day of the secondary school year;

• either the application is made before the child’s 18th birthday, or there are, in the Registrar’s opinion, exceptional circumstances justifying the making of the application after the child’s 18th birthday.

1. Based on the Agency’s records the tribunal finds that Miss Liston submitted an application to the Agency on 18 February 2021 for the administrative assessment of child support for the child to continue in force until the last day of the secondary school year in which the child turns 18. The application was accepted by the Registrar on 12 March 2021.

2. Mr Deller maintained that the application should not have been accepted as the child was working and was no longer attending school. Mr Deller told the tribunal that the child told him about leaving school and starting work. Miss Liston acknowledged that the child did some casual work but she maintained that the child was enrolled in and was attending school as a full-time student. Miss Liston told the tribunal that the child was currently in Year 12 in the VCAL (Victorian Certificate of Applied Learning) stream. The child was required to undertake work placements as part of the VCAL requirements. As a VCAL student the child would not be required to undertake examinations at the end of the school year. Mr Deller and Miss Liston provided documentation from the child’s school in support of their claims. The Agency’s documents show that the objections officer contacted the child’s school on 5 May 2021 and was informed that the child’s last day of classes is 17 November 2021.

3. The definition of “full-time secondary education” is set out in section 5 of the Assessment Act. Section 5 states that 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. The claims that Mr Deller and Miss Liston regarding whether or not the child was in full-time secondary education cannot both be correct. The information before the tribunal at the hearing concerning this was limited and not directly on point and the tribunal did not find it persuasive in determining whether the requirement set out in paragraph 151C(2)(c) of the Assessment Act (being the requirement that the child is likely to be in full-time secondary education on their 18th birthday) is satisfied in this case.

4. The information that the tribunal received in response to the request made pursuant to section 95J of the Registration and Collection Act includes a letter dated 29 July 2021 from the Principal of the child’s secondary college. The letter confirms that the child was enrolled from 25 November 2019 to 10 March 2021 but that the child is not currently enrolled as the secondary college was advised on 10 March 2021 that the child was working full-time and would not be returning to school. The letter states that the child’s last day of attendance at school was 4 February 2021 and that the child was enrolled as a full-time student in Year 12 at the time of exit.

5. Based on the information in the letter dated 29 July 2021 from the child’s secondary college principal, the tribunal finds that the child ceased to be in full-time secondary education on 10 March 2021. The tribunal is not satisfied having regard to this and to the other available evidence that the child is likely to be in full-time secondary education on their 18th birthday as required under paragraph 151C(2)(c) of the Assessment Act in order for Miss Liston’s application to be accepted. Therefore, the tribunal concludes that the decision made on 12 March 2021 to accept Miss Liston’s application is not correct and that in accordance with section 151C of the Assessment Act the application must be refused.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that the child support assessment in respect of the child is not to be extended beyond the date of the child’s 18th birthday [in] June 2021.