Dewdney and Calvert (Child support)

[2022] AATA 1167

Dewdney and Calvert (Child support) [2022] AATA 1167 (17 March 2022)

DIVISION: Social Services & Child Support Division

REVIEW NUMBER:  2021/MC022980

APPLICANT:  Ms Dewdney

OTHER PARTIES:  Mr Calvert

Child Support Registrar

TRIBUNAL:  Mr S Cullimore, Member

DECISION DATE:  17 March 2022

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the child support case in this matter should be extended to the end of Year 12 for the child.

This means that the application for review is successful.

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

BACKGROUND

1. The following information is taken from the records of the Child Support Agency (“the CSA”) and is not in dispute, and the Tribunal finds each matter as fact.

2. Mr Calvert and Ms Dewdney are the parents of one child, DOB  [January] 2004, who turned 18 [in] January 2022.

3. On 1 November 2021 Ms Dewdney applied for the CSA to extend the child support case beyond the child’s 18^th birthday.[1]

   [1] See C58

4. On 15 November 2021 a delegate refused the application.

5. Ms Dewdney lodged an objection to that decision.

6. On 15 December 2021 an objections officer disallowed the objection.

7. On 20 December 2021 Ms Dewdney sought a further review by this Tribunal.

DOCUMENTARY EVIDENCE AND HEARING

1. The Tribunal had before it the documents provided by the CSA which were marked C1 to C111.

2. Both parents attended the hearing by conference telephone and gave evidence and made verbal submissions.

CONSIDERATION

The relevant child support law

1. The Registrar must give immediate effect to a “child support terminating event”. This is usually the 18^th birthday, but a child support case can be extended beyond the 18^th birthday in certain circumstances.

2. Sections 151B, 151C and 151D of the Child Support (Assessment) Act 1989 (the Act) deal with this topic and relevantly state as follows:

   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.

   …

   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)    either:

   (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; or

   … 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; …

   …

   151D Application under subsection 151B(1) for assessment/agreement to continue—consequences of acceptance

   (1)If the Registrar accepts an application under subsection 151B(1) in relation to a child, then, in spite of section 12 (which deals with child support terminating events):

   (a)   a child support terminating event does not happen in relation to the child when the child turns 18; and

   (b)   a child support terminating event happens in relation to the child on whichever of the following days occurs first:

   (i)the day on which the Registrar is satisfied the child ceased to be in full‑time secondary education;

   (ii)the last day of the secondary school year to which the application relates.

3. Section 5 of the Act contains the following relevant 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.

   …

   secondary school means a school, technical and further education institution or any other educational institution at which full‑time secondary education is provided.[2]

   [2] My emphasis

4. The Tribunal also noted the contents of the Child Support Guide at paragraph 2.5.5.

5. The Guide states that where the 18^th birthday “falls in the holiday period between two secondary school years” the carer would be “unable to apply” to have the case extended.

6. The Guide is an internal policy manual. It is not “the law”. It is a useful tool for decision makers in that it promotes consistency of decision making. Generally, the Tribunal will follow the Guide, for that reason, however where the Guide does not reflect the law, as the Tribunal interprets the law, the Guide should not be followed.

DISCUSSION OF EVIDENCE, CONCLUSIONS AND REASONING

1. The key factual issue is that the child’s 18^th birthday was [in] January 2022 and so fell in the long December / January school holidays, after the end of her Year 11, but before the start of her Year 12.

2. There is no dispute that the child was enrolled in and was always going to resume studies in Year 12, which in fact commenced for her on 2 February 2022.

3. Subsection 151B(1) (above) is the key provision.

4. In the view of the Tribunal, the expression “turns 18 during a year in which the child is in full‑time secondary education” (my emphasis) applies in this case, so as to render 2022 (and not 2021) the “operative” or relevant year for her circumstances.

5. The Tribunal’s view is that the child in this matter was “in” (or certainly was enrolled to be in) full time secondary education in 2022, the “year” (which the Tribunal interprets to mean “calendar year”) in which she turned 18.

6. Then, the expression “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” also applies in this case and refers to 2022, and not 2021, because 2022 is a “secondary school year” for the child in this case. It (2022) is her “last year” at secondary school, her Year 12, and her “last day” will be in November or December 2022.

7. Adopting the view of the Guide, a child who turned 18 on day 1 (say a Monday) of term 1 of their Year 12, could have their child support case extended to the end of their Year 12, but a child who turned 18 on the Sunday before day 1 of term 1 of their Year 12, could not. That cannot be correct.[3]

   [3] See the Guide example of “Ariel”.

8. Legislative amendment is needed to clarify this issue either way, but in the view of the Tribunal, the child support case in this matter should be extended to the end of the child’s Year 12 studies.

9. The actual date the case will end will be determined by the CSA and need not be fixed by this Tribunal.

10. The CSA will now advise Mr Calvert of his arrears and his new ongoing child support liability.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the child support case in this matter should be extended to the end of Year 12 for the child.

This means that the application for review is successful.